Regularly in OHS submissions to the government and on OHS discussion forums, safety professionals state that industrial relations should be kept separate from workplace safety issues. In a perfect world ? Possibly, but there was a court decision on 13 November 2009 in Australia that shows that this separation is not possible in the modern world.
According to a media statement from WorkSafe Victoria:
Concrete panel supplier, The Precast Company, pleaded guilty in the Dandenong Magistrates Court on Friday 13 November to failing to provide an injured worker with suitable employment as required under Victoria’s workers compensation legislation.
The Court heard that the injured worker was employed as a crane operator when he suffered a crush injury to his finger. He attended Dandenong hospital and 5 days later was certified as being fit for alternative duties.
Two weeks later, he left work early on a Friday to attend his doctor. When he returned to work the following Monday he was informed that he had abandoned his employment and had no right to be there.
At the time, the company defended its action stating the worker had not been dismissed, but instead had walked out of the workplace half way through the day without reason.
As the injured worker had an accepted workers compensation claim, The Precast Company, in dismissing the injured worker, had failed to provide suitable employment despite the worker being certified as fit for alternative duties. Under the State’s workers compensation laws, an employer is required to provide employment to an injured worker who has a capacity for work.
The company pleaded guilty to one charge of failing to provide suitable employment and was fined $2,500 without conviction and agreed to pay costs of $1,500.
WorkSafe’s own summary of court action provides more details:
The defendant company operates in the building and construction industry. It has declared annual remuneration of about $2 million and has 45 full-time employees. An employee working as a crane operator suffered a crush injury to his finger on 1 April 2008 and was issued with a certificate of capacity certifying him ‘unfit for all duties’ from 2-4 April and fit for alternative duties from 5-16 April. The worker returned to work on 7 April on light duties. He left work early to attend a doctor’s appointment and returned to work on 14 April and continued light duties. He saw his doctor on 17 April and was issued a further alternative duties certificate from 17 April -1 May.
On 18 April the worker left work around midday to attend his doctor’s later that afternoon when he was issued with another certificate. At this stage he had still not submitted a claim form. When he arrived for work on 21 April he was told that he had abandoned his employment and had no right to be there. He went home and soon after sought legal advice. He lodged a claim for compensation that day which CGU accepted.
The defendant company’s director wrote to WorkSafe stating that the worker was not dismissed but had abandoned his employment on 18 April 2008. The director was overseas on that date and his explanation is based on what other staff have told him. The foreman provided a statement to a circumstance investigator that on 18 April the worker “just walked out of the workplace half way through the day. He would not provide a reason. As far as I was concerned he was abandoning his employment at this time.”
On 23 June 2008, the date that the worker’s claim was accepted, he was issued with a certificate of capacity certifying him fit for alternative duties until 21 July. By dismissing the worker the defendant company failed to meet its obligation to provide him with suitable employment once his claim had been accepted.
These are the only public details available at the moment but clearly effective communication was not occurring between the employee and the company. Sometimes circumstances that involve safety become a more complex industrial relations issue which may lead to Court, no matter how hard you try to compartmentalise them.
The first award was for the Health & Safety Representative of the Year, won by Phyl Hilton. Hilton was clearly honoured by the award and in his acceptance speech acknowledged that good OHS laws are “socially progressive” – a position that is rarely heard outside of the union movement or from non-blue-collar workers. It is an element missing from many of the submission currently being received by Australian Government in its OHS law review.
The Best Solution to a Health and Safety Risk was given to Bendigo TAFE for a machine guarding solution. Guards have become an unfashionable hazard control solution and often now seem to rely on new technology. The chuck key guard was as hi-tech as an interlock device but one that the users of the lathes, almost all young workers, would not need any involvement with. If chuck key remains in the place, the guard is out of position and the machine cannot start. Simple is always the best.
and it would have been great to have a single device but the stacking option was particularly interesting. Many pub cellars are cramped and being able to stack beer kegs in a stable fashion is attractive, and sensible. The cross-support that is placed on top of each keg was, perhaps, the standout feature. One can almost see the staring at the top of the keg by the designers and the creative cogs turning. The best solutions always seem to be those where one asks “why didn’t I think of that?”
The attraction of this winner of Best Design for Workplace Safety is that the inventor has looked beyond PPE for jockeys to what a jockey is likely to hit when falling of a racehorse at speed.
