Workers also have duties under the WHSA

In a recent tragic incident a worker was fatally injured when a co-worker drove with his raised forklift into the other worker.

The company had a system in place to ensure that workers were competent to operate and not just holding a ‘ticket’. Training included ensuring traveling with the forklift raised no higher than 30cm. The worker had completed a Competency to Operate (CTO) training and was warned on previous occasions as to this dangerous act.

Companies need to ensure that workers are competent to operate plant and need to set and uphold standards of operation. Even to the point of enforcement and where required as a last option dismissal. Workers need to be told that they have this duty and that the Company is not always in the wrong.

Drug & Alcohol monitoring in the workplace

If you are considering implementing a Drug & Alcohol policy in your workplace, there are some considerations that should be worked through prior to the introduction of the policy. Though there is case law available that has supported employer’s decision to terminate a worker, there are as many cases where the worker has overturned this decision due to poor design and implementation of the policy.
However, before getting to a court of law to determine if a termination was just, employers should ensure that their company’s drug and alcohol policies are developed through a consultative approach to assist in defining all the issues and how the process will evolve should a breach be identified.
The Policy should
– clearly define in simple terms what is unacceptable behaviour, including any forms of disciplinary behaviour such as dismissal.
– be part of a structured communication process that ensures a consistent message is given to all workers including new workers, contractors and visitors to site.
– consider precautions to be implemented that consider False Positives and even the possibility of faulty measuring equipment used as part of the initial testing. These units are becoming more precise however they are only indicators of a Non Negative and that a Positive result is only provided from the NATA testing agency. Management reacting too early; victimising or even seen to be punishing a worker at this early stage should be cautioned.
In short when implementing any workplace policy, employers need to ensure the policy is clear, widely and consistently disseminated in an easily to understand format to assist in avoiding any confusion or a HR issue.

Safe Work Australia – National Safe Work Month

Safe Work Australia have launched this year’s National Safe Work month that aims to improve awareness of work health and safety, encourage discussion about safety at work and share positive workplace stories from across Australia.

Safe Work Australia are continuing to support the National Safe Work Month with a range of resources for businesses, by hosting workplace participation reward programs and sharing stories and statistics about work health and safety.

You can be involved in this special initiative by

– Attending events in your workplace or in your local area.

– Downloading the resource kit to help promote the month in your workplace.

– Sharing the National Safe Work Month messages through your online channels.

– Entering the Workplace Participation Reward and showcase your workplace.

– Watching the Safe Work Month video messages.

– Watching free online seminars showcasing the latest thinking, research, developments and best practice in work health and safety, available from October at seminars.swa.gov.au

– Connecting on Facebook, LinkedIn and Twitter to find out about local events and to share your safe work month workplace stories. Use the hashtag #safeworkmonth to join the conversation.

Be Part of Safe Work Month and assist in raising awareness about work health and safety within your organisation.

Consultation, Cooperation and Coordination

Changes to the WHS Legislation with the Harmonised law appears to be lending more weight to the need for the PCBU to consult, cooperate and coordinate their activities with other PCBUs who have a WHS duty in relation to the same matter, following a recent conviction over a failure to apply WHS Act s46. Consider Boland v Trainee and Apprentice Placement Service Inc [2016] SAIRC 14 where the South Australian Industrial Relations Court have fined a not-for-profit organisation $12,000 for failing to comply with this duty.

There are statements from this case that both parties should not assume that there is a clear understanding of the hazards and who is responsible, if there is no consultation, cooperation and coordination.

Have you identified where more than 1 person has a duty in relation to the same matter and has each person with the duty, so far as is reasonably practicable, consulted, cooperated and coordinated activities with all other persons who have a duty in relation to the same matter? Do you have other PCBU’s interacting in your workplace with your workers? Have you met with this PCBU to discuss the work on site other than receipting the contract, insurances and the obligatory site induction with sign off of the SWMS/JSA?

Contractors and their employees are now defined as workers and you may have responsibilities!

This is not a new requirement of Health and Safety but a more detailed outline of the shared duties of persons in a workplace. As these persons begin work in your organisation you could ask yourself “Have you done all that is reasonably practical in relation to ensuring the health and safety of these persons?”

Was your workplace built before 2004? Do you have an Asbestos Management Register Plan?

If the workplace is a building that was constructed after 31 December 2003; and no asbestos has been identified at the workplace; and no asbestos is likely to be present at the workplace from time to time, there is no need to have a register. Buildings that fall outside this requirement must still either state the location, type, condition of the asbestos or state that no asbestos or ACM is identified at the workplace.

Do you realise that if you pour a chemical into a container and then head off to lunch, you may have broken the law?

Decanted Hazardous Chemicals must be labelled unless the chemical is used immediately after it is put in the container. In addition, the container must be thoroughly cleaned immediately after the hazardous chemical is used, handled or stored so that the container is in the condition it would be in if it had never contained the hazardous chemical.

Do you know your duty of disclosure if you are selling second-hand plant?

As a seller of second hand plant you must ensure that, so far as is reasonably practicable, that any faults in the plant have been identified. The seller must then ensure that the person to whom the plant is supplied is given written notice:

(a) of the condition of the plant; and
(b) of any faults identified under subsection (1); and
(c) if appropriate, that the plant should not be used until the faults are rectified.

This requirement does not apply to plant to be used for scrap or spare parts. In this instance the supplier of plant to be used for scrap or spare parts must, before the plant is supplied, inform the person to whom the plant is supplied, either in writing or by marking the plant, that the plant is being supplied for scrap or spare parts and that the plant in its current form is not to be used as plant.

You can no longer rely on the competency of equipment hire companies… you share the responsibility of failure!

The supplier of the plant has a duty to ensure the plant is maintained to the manufacturer’s specification, and provide adequate information about the plants operation i.e. the manufacturer’s handbook.

Hiring plant transfers the duty for the plant to the hirer. The need, suitability and performance requirements of the plant are to be assessed prior to the plant being provided for the workers to use. Workers must also be trained or assessed as competent to operate the plant by the employer before being allowed to operate it. At this time any hazard identified must be reduced to a reasonably practical level.

What constitutes ‘High Risk Work’?

A number of activities that generally relate to construction work have been listed as being high risk work. They are deemed high risk as the risk associated with the safe use and handling operation of the equipment that they relate to, impacts on many workers in workplaces. The high Risk activities include:

  • the erection of scaffolding,
  • dogging and rigging work,
  • crane and hoist operation,
  • reach stackers,
  • forklift operation, and
  • pressure equipment operation .

A person or persons carrying out this work must be appropriately assessed and licensed by the Regulator. The specific list can be found in the WHS Regulation Schedule 3 with the regulations Part 4.5 offering the specific application of the licences.