Occupational Health and Safety Law and Policy

Case Study Element 1

Issue:

Bill Bolt the Factory Foreman at Randall Engineering was tasked with appointing staff for the timely completion of the project. He figured ways to improve work efficiency by reducing its safety. By removing the safety guard Bill freed up personnel and increased his chances of impressing his boss and securing a bonus, but all at the expense of reduced safety and hazardous environment that ensued from his actions. By removing the safety guard Bill exposed the dangerous moving parts of the machine directly with the workers which caused the incident in which the Machine Operator Dave Dingle was badly injured. The question in the instant case is whether Bill right in enhancing efficiency by compromising the security? Or did Dave being delirious caused the incident? How safe was the overall workplace environment at Randall Engineering?

Rule

• Workcover Authority of NSW v Walsh (2004)
• Dixon CJ and Kitto J in Hamilton v Nuroof (WA) Pty Ltd (1956)
• Osbourne v Downer EDI Mining Pty Ltd v Newcrest Mining Ltd (2010)
• Section 18 and 19 of the WHS Act

Application:

The purpose of WHS legislation is to provide fair, safe and harmonious workplace by providing procedures for compliance, reporting and issue resolution related to WHS and by promotion employers and workers’ unions to play a constructive role in elimination of any sorts of hazardous or dangerous risks related to the occupation and workplace. (WHS Act 2011, Section 3).

The idea behind protection at workplace as developed in the common law is that a worker / employee should be safe in performing his duties ‘during the course of the employment’.[1] Hence injury arisen should relate to the particular circumstances of the employment, and not merely with the event of the injury.[2] For an injury to be attributable to the employment, it should not arise out of events occurring outside the employment although somehow related to it.[3]

In case of Workcover Authority of NSW v Walsh (2004), the court attributed long drives and little sleep immediately before the death of the person, to the conduct of his employment.[4] Whereas, in case of Scharrer v The Redrock (2010) injuring while travelling from a third place was not attributed to the course of employment. Therefore, being delirious from alcoholic drinks Dave had last night could be said to be from events occurring outside the course of his employment, but it so appears that the fact that machine was intentionally rid of safety measures is more contributing to his injury than his mental state of mind.

A reasonably prudent and careful employer would take preventative measures to avoid exposing the workers to unnecessarily high risk of injuries. The degree of care would vary from case to case.[5] In the instant scenario having worked with heavy machinery, Bill should have exercised more care and preventative measures than removing the ones already in place.

Applying the test in Osbourne v Downer EDI Mining Pty Ltd v Newcrest Mining Ltd (2010), we may say that:

• the job of Dave involved high risk,
• there was reasonably foreseeable risk of injury if not mediated / reduced,
• the loss of fingers is the class of injury to which risk exposed Dave to, and
• the employer failed to eliminate (in fact increased the risk of injury).[6]

In view of the above, it so appears that the Factory Foreman along with other responsible personnel have failed to take reasonably practicable measures in accordance with section 18 of the WHS Act 2011 to ensure health and safety of the workers which has increased the risk of harm from exposed moving machinery.[7]

Conclusion:

The employer has failed to fulfil the primary duty of care[8] by removing the safety guards from machinery. Moreover, there is no evidence of further protective measures such as heavy industrial gloves worn by Dave which could have protected him from injury. There are also further evidences available to conclude that the workplace environment at Rattle Engineering was not safe enough, evidenced by loud sounds from machinery not cancelled by protective gears. The legality of removing the security guard to enhance productivity is not fair and justifiable by any means under the WHS laws.

Case Study Element 2

Issue:

Soon after the Machine Operator, Dave Dingle, has made contact with the heavy machinery, he is badly hurt and losing some quick blood. However, the Factory Foreman, Bill Bolt, who is the person in charge in the absence of Chief Engineer, has directed the workers in the factory to continue working ignoring the emergency of the situation at hand, and in doing so has also directed them not to call the ambulance until he is satisfied of the gravity of the situation. His intention behind such directions appear to be reinstalling the safety measures in the machine before the regulators / authorities saw it. The First Aid Officer attending to Dave was aware of the seriousness of the injuries suffered by Dave and his declining state of health. He, therefore, called the ambulance ignoring what seemed to be highly ignorant and unnecessary directions from Bill. When ambulance arrived, Bill once again became hinderance in administrating the emergency procedures by stopping the paramedics from entering into the factory premises unless he so allows.

Rules and Relevant Law:

Section 38 and 46 of the Ambulance Service Act 1991

Application:

Since the instant case involves rendering emergency treatment and patient care to Dave Dingle, the Machine Operator, who has badly injured himself after making contact with the heavy machinery parts, resulting in crushing of two fingers and amputation of the other two fingers of his right hand, the case is covered within the ambit of Ambulance Services Act 1991. Under section 38 of the Act authorized officers administering the emergency services are granted certain powers which can be exercised in an emergency situation. Such powers include:

1. Taking any reasonable measures to protect the injured persons from any danger or potential dangers associated with an emergency situation;
2. To protect any person or another officer of the ambulance service from any danger, potential danger or assault from other persons.

In administrating the above powers, such authorized officer may perform any of the tasks specified in sub-section (2) of section 38 which are stated below:

• (i) Enter any premises (without requiring permission)
• (ii) Bring any apparatus or other equipment to the premises necessary to administer the emergency procedures
• (iii) Remove any obstruction or destroy (wholly or partly) any premises or receptable otherwise causing the obstruction in administrating the above procedures
• (iv) Request any person at the premises to offer / provide reasonable measures to support the ambulance officers
• (v) Cause electricity or other power to the premises shut off
• (vi) Administer basic and advanced life support systems on the injured persons [9]

Under section 39 of the Act, in performing the above acts, the authorized officer would be indemnified by the State against all the actions performed in good faith and against all proceedings and claims brought against him.

 

 

Such an authorized person can be a service officer (including ambulance officers, medical officers, or other staff members as per section 13 of the Act) who is authorized by the Commissioner to exercise such powers.

Conclusion:

In view of the above, Ambulance paramedics being authorized persons may, therefore, perform any of the tasks mentioned above. The paramedic may even request the Factory Foremen, Bill Bolt to stop hindering the efforts to administer emergency procedure and provide all reasonable support in effectuating medical care to the injured Machine Operator.

If Bill does not agree to provide necessary support / assistance to the paramedics he may be charged with a blameworthy act as defined under section 36I of the Act, by willfully obstructing or hindering the authorized persons from performing their duties under the Ambulance Service Act 1991, and may eb subject to maximum 16 penalty units as per section 46 of the Act.[10]

Case Study Element 3

Issue:

The WHSQ inspectors have arrived at the Rattle Engineering front office where the Factory Foreman – Bill Bolt, receives them. Bill insisted that since Safety Manager was not available, and both Managing Director and the Chief Engineer were attending a meeting off-site, the inspectors should come back sometime next week to inquire about the incident and make necessary investigations and noting. Realizing the fact that the information is best acquired when it is obtained closest to when the incident happened, the officers of WHSQ insisted on investigating the incident by entering the premises right at that time. Bill is resisting them for the obvious reason as the safety protection on the machinery has been uninstalled on his direction. Bill might be covering up for his mistake, and the officers are looking for any shortcomings in quality and safety procedures as per their legal powers.

Rules and Relevant Law:

• Section 163 and 117 of the WHS Act 2011
• Section 144 and 119 of the WHS Act 2011

Application:

Inspectors are appointed by WHSQ to investigate contraventions of the occupational health and safety laws as applicable in the State of Queensland, to issue notices into suspected contraventions, to ensure compliance with safety laws and to assist the workers in developing a system of work to prevent injuries and manage safety of all stakeholders involved. In addition, such inspectors may also make regular or occasional visits to the workplace premises to use their independent observation, discuss with management and review the documents in order to evaluate the extent of risk / danger and monitor compliance with WHS laws.

Under section 163 of the WHS Act 2011, such inspectors of WHSQ have the powers to enter any premises that the inspector suspects are used as a workplace, at any time, without giving any prior notice. As such, these provisions give the power to the inspectors to enter the work premises without informing or without the consent of the owner, management or control of the workplace. Section 117 also empowers the WHS entry permit holder to enter any premises for inquiring into suspected contravention. Since in the instant case the incident has been reported automatically to WHSQ through a reporting mechanism, the WHSQ inspectors can enter the premise on their own or any authorized officer after obtaining permit on the basis of suspected contravention can enter the front office of Rattle Engineering without the consent of the person-in-charge or Factory Foreman.[11]

Section 144 of the Act specifically mentions that:

“(1)  A person must not, without reasonable excuse, refuse or unduly delay entry into a workplace by a WHS entry permit holder who is entitled to enter the workplace under this Part.”[12]

Therefore, Bill is clearly not legally correct in stopping the inspectors from entering the workplace or asking them to revisit at the workers’ convenience.

Conclusion:

WHSQ officers have the power to enter premises without any notice or consent (except in extraordinary circumstances where entrance without notice would serve no purpose). Bill Bolt by resisting the officers is doing nothing but further raising red flags by his behavior. Further, stopping the WHSQ inspectors without any lawful excuse could result in a civil penalty of $10,000 for Bill as per Section 144(2) of the Act.[13] Bill can request them to revisit when the Safety Manager, COO and MD arrives, however, he cannot deny them their lawful right to enter the premises with or without seeking permission.