Penalty imposed for breach of Section 13: Duty of employer to consult. Tweed Byron Scaffolding Services Pty Ltd: [NSW IRC #59, March 2007].
Byron Scaffolding Services Pty Ltd was fined $12,000 for failure to
consult with employees. It is worth noting the Commissioner's
deliberations in this case.
OH&S - failure to consult - obligation under s 13 requires seeking
information, advice and feedback from employees - requires more than
dissemination of information.
S 15 deals with the time at which consultation is required. There are six
occasions set out in the section. I shall deal with each of them
(a) The first is when any risk to health and
safety is assessed. In some cases this will arise on each occasion that a new
task is undertaken, in other cases it should occur when something in and about
the work to be performed, or the circumstances affecting the performance of the
work, changes. There is reference to reviews also.
(b) The next step appears to envisage circumstances where
an employer determines to deal with a risk identified in an assessment or review
of assessment process. Once a decision has been made about what measures are to
be taken, there is a further requirement to consult with employees. Obviously
this is to occur before the implementation of the measures that have been
determined to be taken.
(c) This step
concerns the introduction or alteration of procedures for the monitoring of
risks that is presumably intended to reinforce the need for the continual
monitoring of those risks.
Presumably, as with (c) above, there is an intention that employers will
undertake a continual process of assessment of adequacy of facilities for
employees welfare. “Welfare” arguably extends beyond matters affecting health
(e) This incorporates any
change that may have the requisite effect which is proposed to be made to
premises, systems or methods of work or plant or substances used for work.
Again, the emphasis is on consultation at a stage when changes are proposed,
prior to implementation.
there is a requirement to consult at a stage when an employer makes a decision
about consultation and procedures that are required to be
Tumut Shire Council, October 2003: [NSW IRC #5485, January 2007]
I observe that these are
comprehensive in nature and would appear to compel a consultation process on
each occasion when the employer’s operations impact upon or create any change in
occupational health and safety matters that is a failure at any one or more
stages will involve a breach. This observation is intended to be made in a
general sense rather than involving any specific analysis of each of the six
circumstances set out in the section.
On 31 October 2003, an employee of Tumut Council was engaged in turning a
number of traffic signs on the Road so that the signs faced away from oncoming
traffic, and covering other signs so that they could not be observed by oncoming
traffic. He stepped out onto the road in
order to cross to the right hand side when a car travelling on the road struck him. He died as a result of the
In circumstances where the risk was obvious and the
defendant was aware of the fact that the risk of injury or death from being
struck by a motor vehicle whilst turning or changing the signs on the road was
one of the highest safety risks: the failure of the defendant's system of work
to specifically address the risk; the inadequate information, instruction,
training and supervision; and, the failure to adequately warn motorists of the
presence of the workers on the roadway, increases significantly the seriousness
with which the Court should view the offence.
U.S. Department of Labor's OSHA Fines Thomas Industrial Coatings Following Two
Worker Fatalities in Kansas City [October 30th 2006]
$2.3 Million Penalty Proposed
"Not only did two workers suffer fatal falls while working in Kansas City, but
another employee of this company suffered a fatal fall in a similar accident
earlier in the year in the St. Louis area," said Edwin G. Foulke Jr., assistant
secretary of labor for occupational safety and health. "Three fatalities in five
months show gross plain indifference to employee safety. Employers must ensure
that their workers are protected from unsafe working conditions."
Willful violations are those committed with an intentional disregard of the
requirements of the OSH Act or plain indifference to employee safety. OSHA can
issue instance-by-instance citations for each violation of a standard; for
example, as in this case, issuing a citation for each platform hole through
which an employee could have fallen. Serious violations are those that could
result in death or serious physical harm about which the employer knew or should
Clarence Valley Council, November 2003: [NSW IRC #340, October 2006]
On 17 November 2003, a person employed by the Council as a Plant
Operator and Labourer as part of a maintenance road near Grafton was seriously injured. The work involved
the resurfacing of a road. The injured had been undertaking the role of
sweeper, when a tip-up truck, driven by another employee reversed over him.
The defendant had a documented Safe Work Method Statement in use. The Safe Work
Method Statement did not adequately detail steps to be taken. The Safe Work
Method Statement did not specify the positions workers and plant should be in at
crucial, dangerous times of the works. There was no documented system for the
number of personnel required to do the task or where they should be when trucks
were reversing or moving about the workplace.
The Safe Work Method Statement did not consider the use of "spotters" to ensure
machine operators were aware of the location and position of pedestrian workers.
It follows that there was no adequate system in place to ensure that pedestrian
workers and machinery did not come into contact.
There was no documented traffic control system, or persons controlling traffic
for the immediate work area to prevent workers from being exposed to risks from
moving plant. There was a documented Worksite Traffic Control Plan excluding the
general public from the site.
Council fined $130,000 plus costs.
workplace fatalities in five months and the US Department of Labour's
OSHA proposes a fine far in excess of anything seen in Australia. The
key here is the statement: serious violations are those that could
result in death or serious physical harm about which the employer knew or should
The risks to safety in the Clarence Valley Council instance were described by the Commissioner as:
"obvious and foreseeable in circumstances where employees
are working with and amongst moving vehicles, particularly reversing vehicles".
legislation in Australia requires hazards to be identified and eliminated or
their risks controlled. The NSW IRC found that the employer had not
paid sufficient attention to the hazards of moving plant to its
employees and contractors. The evidence cited for this was the
Council's own work method statements.
that all risk documentation is thorough, and, preferably reviewed by a
subject matter expert (to assess the adequacy of risk controls) or an
experienced OHS professional. Ensure that there are regular third party
audits to assess whether systems are being complied with. No manager
can be an expert in all hazards and risks so relying on external expert
reviews is essential.
Wakool Shire Council, October 2003: [CIMC #63, May 2006]
A casual employee’s leg was lacerated by the chain of an excavator when it struck a tree root.
The commissioner stated: “I therefore conclude that the injuries sustained were relatively minor”. Yet, despite finding that the “Conduct of the two employees was disobedient and constituted a
breach by them of the instructions given to them by their employer",
Council was fined $20,700 plus costs because of: "failure
of the defendant to introduce a safe system of work and the failure to ensure
that appropriate supervision was available".
Shoalhaven City Council, (NSW), October 2002: [CIMC #107, August 2005]
Employees attended a Waste Water Treatment Plant to repair
a leaking waste water pipe. The main pipeline was turned off and then a
trench was excavated revealing the leaking pipe. Subsequently, part
of the excavated trench, a section of earth from under the concrete
kerb and guttering, collapsed injuring an employee.
“ None of the employees involved were unskilled
labourers. They were competent trained employees."
The charge was dismissed.
Shoalhaven City Council, July 2003: [NSW IRC #421, November 2005]
Two employees were working in an excavation that was approximately six
metres wide, 14 metres long and between 1.8 and 2.1 metres deep when,
between a half and two tonnes of dirt dislodged from the eastern side
of the excavation, pushing an employee over to the western side of the
excavation and into another employee. Neither employee suffered any
"The defendant's system did not refer to relevant
risks that are discussed in the (NSW) Code of Practice-Excavation Work ".
Council was fined $90,000 plus costs.
To comply with this legislation you must be able to demonstrate that you have taken reasonable care to identify any foreseeable hazard
that may arise from the work premises, plant and equipment, work
practices (including hazardous processes, psychological hazards and
fatigue), hazardous substances, manual handling, and the physical
working environment. You must also be able to demonstrate that you have assessed the risks to harm
from those hazards and that you have eliminated those hazards, or, if
elimination is not possible, that you have controlled their risks.
Included in this is an absolute requirement that you provide such
instruction, training, information and supervision as necessary for employees to carry out their tasks.