Liabilities and Offences in Workers Health and Safety Act 2011 - Essay Example

NAME TUTOR SUBJECT DATE LIABILITIES AND OFFENCES IN WORKERS HEALTH AND SAFETY ACT 2011 The Workers Health and Safety Act 2011 (WHS) provides for a basis of the provision of a healthy and safety working environment for workers. Liability arises on the basis of either being an employer or a body corporate as well as is vested on an individual vested with the task of ensuring that the workplace adheres to the safe and healthy standards. Even though the Act out rightly gives an employer the task of ensuring that the workplace is safe , a worker ought only to expose themselves to a reasonable task, ensure that they are not exposed to risks as well as well as Act by due authorization. The WHS Act also provides that any person who is guilty in failing to provide the necessary workplace standards is liable to pay a certain amount in respect of their offences whether as an individual or as a body corporate. The case presented highlights the potential actions, offences and risks that are associated with workplace health and safety (Hughes, Hughes 34) during the carrying on of the tasks related to the business. Jason Roseton (referred to as Jason) is an apprentice to Newcastle Training enterprises Pty Ltd (NTE) placed to work at Wollongong Mobile Engineers Pty Ltd (WME), being under the supervisions of Barry Pendragon (referred to as Barry). This creates a sub contract of workers, and they are further subcontracted to work for Primrose Pine Products Pty Ltd (PPP). During their work at PPP a fire breaks out, with injuries suffered by Barry and Mr. Crumbee in relation to the incident at the premises as well as whether it was reasonably foreseeable. It is also crucial to consider the pale of employer in the view of an individual or as an employee in regards of WME and PPP. Section 7 of the WHS, 2011 provides that a person is considered a worker if he carries out work in any capacity for a person conducting a business as an employee, contractor or subcontractor, an employee of a contractor or subcontractor, an apprentice. Therefore the role of Jason in working for PPP satisfies being called a worker, because he is employed by NTE who undertake to pay him, with him working for WME under Barry’s supervision. The subcontracting agreements by the three companies only show the Barry works as a contractor, or subcontractor of all the companies that are listed. Mr Crumbee in relation to PPP is considered an employee based on the fact that he is a foreman for the company therefore PPP ought to have a liability on the injuries suffered by him. Section 17 of the WHS, 2011 provides for the management of risks to ensure the health and safety requirements are met as stated in Walters and James (pp. 34). This involves the elimination of risks as far as is reasonably practicable or if it is not easy to eliminate the risk, then it is to be minimized so far as is reasonably practicable. Mr. Mick Koosh is the managing director of PPP and he does not work at the mill on daily basis and regularly visits. This essentially means he is not there to supervise and assess the risks that are associated with the workplace on daily basis. Mr. Whiteburn on the other hand is the occupational health and safety consultant, who on the material day of the accident had conducted a surprise visit and had told Barry to carry a fire extinguisher with him but no any other safety precautions, was provided. Therefore in relation to the company premises, it can be questionable whether Mr. Whiteburn had taken all the necessary steps of ensuring that the risks are eliminated. If the ‘hot system’ had been adopted then the accident ought not to have happened, therefore PPP ought to have taken the necessary steps in ensuring that it was adopted even though it was not foreseeable that it would have occurred on that particular day. This therefore creates the questions on whether the WME consultant had undertaken the appropriate steps to minimize the risks within the plant to prevent the occurrence of the accident. The “hot work permit” system had it been adopted by WME then a supervisor ought to have been given to Barry and Jason, while carrying out the wielding work, then saw dust flow would have been cut. This therefore provides the creation of a workplace risk contrary to the provisions of section 17 of the WHS Act, 2011. Therefore PPP, Mr. Koosh and WME ought to have had the responsibility of ensuring that the system was in place to prevent the occurrence of the accident. Risk assessment is usually necessary in any workplace environment to ensure that health and safety requirements are met as highlighted in Ball, Laurence and Balking (pp.112). This means that the fire sprinkler system ought to have been in place as well as both Barry and Jason ought to have carried out a formal risk assessment. The WHS Act 2011 contemplates that management of risks and carrying out of risk assessment is not only vested in the occupational health consultant but also on the workers in consideration on the kinds of business they do undertake within the workplace environment. In this regard PPP had failed to conduct a risk assessment as well as mitigating the risks associated with any kinds of work within the mill as stated in Smith v Stages & Darlington Insulation Co. Ltd1 and failing to comply with the system adopted. Reasonably practicable essentially involves the likelihood of the hazard or risk concerned occurring, the degree or harm that might result from the hazard or the risk and what the person concerned knows, or ought reasonably to know about the hazard or the risk or ways of eliminating the risk. Mr. Whiteburn, when he left the premises, he did not foresee the occurrence of the fire but only advised on the carrying of a fire extinguisher with them during the wielding process. The degree of harm that might have resulted required that both Barry and Jason knowing how to have eliminated the risk are, essentially from being taught by Mr. Whiteburn. It is therefore crucial to ensure that Whiteburn eliminate all the risks, even though one can say that at times it was not foreseeable. Additionally reasonable practicable implies the availability and suitability of ways to eliminate or minimize the risk as well as the costs associated with minimizing the risk including whether the costs would disproportionate to the risk. Reasonable steps taken by a prudent employer cannot give rise to liability as provided in Latimer v AEC Ltd2 because all the appropriate steps have been taken to minimize the risks. In this regard Mr. Whiteburn has only recommended the use of a fire extinguisher during the wielding process, but does not provide any form of dealing with a fire, moreover he does not advice on any other means of safety in case risks arises. The reasonable steps taken by Mr. Kooch were to seek for a health and safety occupational officer to check whether the mill was fit to be called a workplace. This can be stated to be a practicable step in dealing with the issues of risk as well as it was undertaken to benefit the company, PPP. WME also on its part hard undertaken as reasonable practicable to train their employees on work and safety thus it can be considered as a means of reducing the risks that can affect a worker within the premise. In this regard the PPP, WME and Mr. Whiteburn had undertaken the necessary steps in ensuring that the premises were risk free. In this connection, it is provided for in Bux v Slough Metals Ltd3 that there needs to be a safe system of work. This involves assessing the health and safety hazards of a particular job or task including the layout, method of work, and general working conditions, with a view of providing the necessary instructions, training, and warnings to minimize the risk considered in Bernad (pp.104). The two corporates WME and PPP did not undertake the safe system of work through their consultant Mr. Whiteburn and neither did Mr. Kooch address the issues of a real possibility of risks attaching as a result of them working within the premises. This therefore gives PPP and Mr. Kooch liability as identified in Carson (pp. 20) on their failure of implementing the system as Mr. Kooch was acting on the interest of the companies. Risks that do attach can either be obvious or insidious and hidden as per Wilson v Tyneside Window Cleaning Co.4 but regardless, there must be appropriate steps of ensuring that the proper and safe wok system is provided. The fire incident that occurred can be considered as insidious or hidden, therefore it was not reasonably foreseeable for Mr. Whiteburn to contemplate the risk, even though he had advised Barry to carry a fire extinguisher. This means that since Barry was a professional it would have been crucial for PPP to provide an additional person who knew the operations of the mill to help them with the wielding work as well as on the mills safety policies. Division 2 of section 19 (1) (a) and (b) provides that the primary duty of care of a person conducting a business or undertaking must ensure, so far as is practicable, the health safety of workers engaged, or caused to be engaged by the person and workers whose activities in carrying out work are influenced or directed to be influenced or directed by the person while the workers are at work in the business or undertaking. A safe place to work covers not only the structures and substances of the premises but also any workplace in or on which an employee may be expected to work as stated in Bradford v Robinson Rentals Ltd5 dependent on the nature of the place. This therefore means that even though Jason was employed by NTE , worked for WME and was subcontracted to work with PPP he is still considered an employee for WME as he was working in a third party premises. A safe workplace also means the installation of a sprinkler system to guard against any kinds of fires that might break out in the cause of work, something PPP had failed to do. Section 19(1) provides that a person should not put the health and safety of other persons at risk from work carried out as part of the business undertaking. This means that PPP had put the PPP employees at risk as soon as they sought to repair the premises. The provisions on the primary duty of care are not limited6 and training, instructions the conditions of the workplace, adequate facilities, and the use of safe structures as well as the working systems ought to be maintained. Duty of care is placed on the person handling the business as provided to ensure that no accidents occur due to negligence. Jason and Barry ought to have been trained, even though Barry was an expert on how the mill works and how they would minimize the risks within the company. Section (19) 5 provides that a worker who is elf employed must ensure so far as is reasonably practicable his or her own health, but it is not applicable based on the fact that he is not conducting business for the purpose of this section. This does not apply to the case scenario, but it is crucial that companies should ensure safety of their workers regarding them being a separate legal entity and providing a safe place for their workers. Section 20 of WHS 2011, provides for the duties of persons who are vested with the task of managing and controlling the workplace and at section 20 (2)7 that any person with this position must ensure that as far as is reasonably practicable that the means of entry and exit and anything that arises at the workplace are without risks to the health and safety of any person. An offence that arises out of a duty of care must qualify it meeting the “reasonably” practicable criteria and this has been breached by WME, PPP, Mr. Koosh and White burn. This is on the basis of installing sprinklers, proper authorization, and failure of providing the appropriate standards of care. Section 28 provides that the duty of a worker who is at work is that they must take reasonable care for his or her own health and safety8, that their acts or omissions does not affect their health and safety adversely and those of other persons9, complying with any instructions given as reasonably given in complying with the Act10 as well as to cooperate with reasonable policy or procedure of the person conducting business or undertaking as notified to the worker11. In this consideration, to determine individual liability as per Foster (pp. 58) and corporate liability, it is crucial to consider whether Jason and Barry took the necessary reasonable care in ensuring that their acts or omissions did not adversely affect their health. This aspect can reduce the liability of PPP and WME in instances where Barry and Jason had exposed themselves to risks without taking any kind or form of reasonable care. An employer’s liability is considered a personal duty, and in this case PPP and WME take a personal responsibility in ensuring that reasonable care is provided to ensure their employees are acting within the course of an employment. A duty of care is provided due to the employee-employer relationship as provided for in the case Wilsons and Clyde Coal Co. Ltd v English12 that the duty to provide a safe system of work is a personal one and ultimately it remains with the employer even when it would have been delegated to an agent lawfully. Therefore the PPP and WME cannot purport that the managers ought to have the primary duty of care, as they ought to see their employee not suffering due to negligence. It can be personal on the basis that Mr. Whiteburn was vested with the task of ensuring the workplace was safe as far as is reasonably practicable in Gunningham, Johnstone and Bluff ( 224). Section 36 defines that a notifiable incident means the death of a person, a serious injury or illness of a person or a dangerous incident in Tooma (pp. 102). A serious injury or illness means an injury that requires a person to have immediate treatment as an in-patient in a hospital, or immediate treatment for amputation, serious head injury, serious burn, and serious lacerations13. In this instance, medical treatment should be accessed within 48 hours of exposure to a substance. The injuries suffered by Barry and Mr. Crumbee can be considered as serious therefore it is proper for WME and PPP to assume liability, as this was in relation to them carrying out work, ordinarily and fitting their job description. Section 3114 provides that reckless conduct in the workplace constitutes an offence if the person does have a health and safety duty, the person does engage in conduct that exposes an individual to whom that duty is owed to a risk of death or injury. Further section 31 (c) the person is reckless as to the risk to an individual of death or serious injury or illness. In this regard, reckless conduct can be imposed on Mr. Kooch on the basis that he fails to regularly check the mill for any failure or potential risks. Mr. Whiteburn can also be considered to exhibit reckless conduct on the basis of being an occupational and health safety officer he ought to be present to cater for any risks or incidences that arise. The maximum penalties imposed on an individual is $300,00 or 5 years imprisonment or both and when committed by an individual as a person conducting business or undertaking or as an officer conducting a business or undertaking $600,000 or 5years imprisonment or both. Where the offence is committed by a body corporate, then $3,000,000 penalty15. However, the burden lays on the prosecution to prove that the conduct relied upon as basis of prosecution was engaged in without reasonable excuse16. It can be positively said that Mr. Whiteburn and WME were reckless in their conduct as to the risks to an individual of death or serious injury or illness. In this case they ought to have provided means of reducing the risks of a fire occurring while they did the work. This means that WME as a corporate is liable for reckless conduct within the workplace with a penalty of $3,000,000 being imposed on it. Mr., Whiteburn is liable for $300,000 or a 5 years’ imprisonment in relation to conducting business or undertaking or as an officer undertaking the same. Section 37 provides that a dangerous incident is one that exposes a worker or any other person to a serious risk to health or safety emanating from an immediate exposure to an uncontrolled escape, an uncontrolled escape of a pressures substance, a fall or risk from the height of a plant. There is a general duty to notify immediately after becoming aware of a notifaible incident a maximum penalty of an individual $10,000 and a body corporate $50,000. The duty to notify was placed on Barry, however he took all reasonable steps to control the fire, however due to inadequate information he did not know opening the mill doors would increase the fire. In Square D Ltd v Cook17 it was held that an employer’s duty of care extends or applies where the premises where premises in which an employee is directed to work are occupied by the employer or a third party. WME cannot state that they are not liable on the basis that Jason and Barry were working on premises not owned by WME or NTE depending on reasonable circumstances. Farquharson LJ, in Square D Ltd v Cook18 stated that in determining liability then one needs to look at the nature of the building site, the place where the work ought to be done, the experience of the employee who is dispatched to work there, the nature of the work to be carried out, the degree or control that the employer can reasonably exercise in the circumstances and the employers own knowledge of the defectiveness of the defective state of the premises. The duty is placed on an employer to ensure that all reasonable care and duty is taken in in all circumstances presented for the worker within the business or organization19. Part 4 of the WHS Act, provides that an authorization requires a license, permit, registration or other authority as required by the regulation. Section 41 sets out the requirements for workplace authorizations that a person must not carry out work at a workplace if; the regulations require the workplace to be authorized and the workplace is not authorized the penalties being $50,000 for an individual or in case of a body corporate $250,000. Section 43 further provides for authorization of work, that no person should not carry out work at a workplace if, if it requires authorizations or when a person authorized to carry out the business has not been given. Non-compliance with the conditions of authorizations attracts penalties at section 45 of WHS, Act, 2011. PPP authorizes the work to be carried out by Jason and Barry but Stan Crumbee is not informed by PPP management on the kind of repairs that are to be carried out. Stan Crumbee failure of knowing the nature of their operations however did not consider any form of authorization as this had been done by PPP management. Therefore PPP is liable as a corporate body based on due authorization and penalty of $250,000 to be imposed on them. The failure of complying with a health and safety duty is an offence under the Act20 category 2. The ingredient of this offence is that the person had a health and safety duty, the person failed in complying with the duty and the failure resulted to exposing an individual to a risk of death or serious injury or illness. The offence attract a penalty of $150,000, if a person was conducting business or as an officer of the business $300,000 and a body corporate $1,500,000. Mr. Whiteburn is vested with the task of complying with the health and safety duty at WME as provided and contemplated by Mr. Koosh the company manager. This means that his failure in complying with that duty resulted in the injuries suffered by Barry as well as Jason and being an individual it is to be imposed on him a penalty of $150,000. WME being a body corporate, and being vested with the duty of ensuring workplace safety, then it would be imposed on it a penalty of $1,500,000. Section 46 provides for the offence of failing to consult with other duty holders. This arises on the basis that each person with that duty must as far as is reasonably practicable to consult, co-operate and co-ordinate activities with all other persons who have duty in relation to the same matter. The penalty for these offences is of an individual a $20,000 and a corporate $ 100,000. The failure of Mr. Koosh to consult with his company foreman on the nature of repairs to be carried out by Jason and Barry, raises the offence of failing to consult attracting a penalty of $20,000 on him. PPP is also liable as body corporate as the activities to be carried out in form of the repairs was in relation to their business and hence a penalty of $100, 000 ought to be meted out against them. Section 47 provides for the duty of consultation of workers in relation to the businesses far as is reasonably practicable on persons who are likely to be directed or affected directly by the matter. The nature of consultation21requires that the relevant information is shared by the workers, as well as giving workers the reasonable opportunity to express their views , contribute in the decision making process. Consultation is necessary when identifying hazards and assessing risks to health and safety of workers arising from the work carried out by the business or undertaking22. Duty of consultation is to be imposed on WME, PPP, Mr, Koosh and Mr. Whiteburn especially regarding the provision of a health and safe workplace. They are all vested with ensuring that all their workers; Barry, Jason and Crumbee are afforded a risk free environment, as well as being adequately trained on the risks that might arise during the regular carrying out of their duties in relation to their employment. As stated in Hudson v Ridge Manufacturing Co.Ltd23 the duty of care comprises a general duty of provision of supervisions and training where necessary within a workplace environment. The employer in this case was aware of the incompetency presented by Jason and that is why WME assigned Barry as his supervisor. In this regard, Jason was under the direction of Barry and ought to have responded according to the instructions of Barry. The reasonable standards of care that is imposed on an employer is that of a reasonably prudent employer in James v Hepworth & Grandage Ltd24, with a standard of care increasing with disability, inexperience or disadvantage with the employer being aware of the particular disability. The liability imposed arises out of the course of employment as stated in Smith v Stages & Darlington Insulation Co. Ltd25 and Jason, Barry and Crumbee were in the business of conducting their duties as normal. In this view therefore it can be considered the WME, PPP, Mr. Kooch and Mr. Whiteburn is all liable based on their inability to provide a safe work environmental for their employees. The offences based on the failure of the individual and the company as their responsibility is determined by their respective duties in relations to provisions concerning the workers’ health and safety within the workplace. The penalties that are provided range from fines and teems of imprisonment based on the breaches that occur in the cause of their employer’s cause of work. REFERENCES 1. Ball, David and Laurence, Ballking. Public Safety and Risk Assessment: Improving Decision Making. London: Routledge, 2011. 2. Benard, C, The working Time Regulations. International Law Journal. 2000. 3. Carson, WG, Some Sociological Aspects of Strict Liability and the Enforcement of Factory Legisltaion. Modern Law Review. 1970;33. 4. Cormack, E, Dunn, A, Chennell, Sue. Australian Fair Work Act 2009 with Regulations and Rules. 4th edn. Sydney: Kulwer Law International. 5. Foster, Neil J. Individual liability of company officers: European Developments in Corporate Criminal Liability. Abingdon: Routledge, 2011. 6. Gunningham, N., Johnstone R., Bluff, E. OHS Regulation for a Changing World of Work. Sydney : Federation Press, 2004. 7. Honeyball, S. Honeyball & Bowers: Textbook on Employment Law. 11th edn. Oxford : Oxford University Press, 2010. 8. James, P and WalterS, D. Regulating Health and Safety at Work : The Way Forward. The London : Institute of Employment Rights, 1999. 9. Foster Neil J. “Case note: Civil liability arising from the Bunsfield explosion”. Environmental Law Review, 2010. 10. Hughes, Phil and Hughes Liz. Easy Guide to Health and Safety. London: Routledge, 2008. 11. Johnstone, R., Bluff, E, Clayton, A. Work Health and Safety Law and Policy. Sydney : Thomson Reuters, 2012. 12. The Workers Safety Act, 2011 (NSW) 13. Tooma, Michael. Due Diligence: Dealing with Regulators. Sydney : Kulwer Law International, 2011. 14. Tooma, Michael. Due Diligence: Incident Notification, Management and Investigation. Sydney: Kulwer Law International, 2012. Read More