It is widely recognised that employers have an absolute duty to ensure the health, welfare and safety of all persons at their workplaces. This includes a duty to monitor and supervise workplace participants to ensure they perform and carry out their work in a safe manner. Employers must ensure the persons conducting the supervision have adequate skills, qualifications and experience to ensure workplace participants perform their work in a safe manner.
In determining the level and type of supervision that is required, an employer must have regard to and consider the competence, experience and the age of the person requiring supervision. The case law demonstrates that employers must be especially vigilant when supervising young employees.
While employees also have a duty to take reasonable care for the health and safety of people who are at the employee’s place of work and cooperate with their employer to enable compliance with OHS legislation, this obligation does not absolve an employer from their absolute duty to safeguard the health, welfare and safety of workplace participants.
As frustrating as it may seem, the courts have indicated that employers owe this duty: “not only to the careful and observant employee but also to the hasty, careless, inadvertent, inattentive, unreasonable or disobedient employee in respect of conduct that is reasonably foreseeable”: WorkCover Authority of New South Wales v Arbor Products International (Australia) Pty Ltd (2001) 105 IR 81.
The extent of this supervisory duty was recently examined in the case of WorkCover v GPCC Pty Ltd and JML Group Pty Ltd. In this case, GPCC was engaged by JML Group to install pre-cast concrete panels. Anthony Roth, commenced employment with GPCC the day before the incident. During a WorkCover site inspection on 19 April 2004, the WorkCover inspector observed Roth working without his safety harness. The inspector advised Roth and JML site staff that fall protection was to be maintained at all times, including the wearing of safety harnesses and barricading was to be put in place. This barricading was installed and the JML site supervisor directed Roth to wear his safety harness at all times while working at heights. Roth objected to wearing the harness but acknowledged he understood the instructions he had been given.
The next day, JML’s site supervisor supervised and monitored compliance by Roth and his coworkers with the instruction to wear a safety harness when working at heights. Roth wore his safety harness while under supervision, but removed the harness when the site supervisor left the area to attend to the loading of the last concrete panel, at which point another WorkCover inspector observed Roth working at a height of 20 metres without his safety harness. As a result, WorkCover prosecuted both GPCC and JML for breaching their respective duties under the NSW Occupational Health and Safety Act. GPCC entered a plea of guilty early in the proceedings and JML entered a plea of guilty just prior to the time which was fixed for hearing. When interviewed by WorkCover, Roth said he had removed the safety harness because he felt safer working without it. Roth admitted that he did not express these concerns to JML’s site supervisor.
Justice Marks in hearing the plea, said that the cause of the risk was “the blatant failure of Mr Roth to comply with instructions” and his “aberrant, deliberate and irresponsible conduct in removing his harness.” His Honour said that given the resistance expressed by Roth to the JML site supervisor to wear the safety harness on the day before the incident, the level of supervision which was provided to him was inadequate.
His Honour said: “The only means of preventing that breach would have been constant supervision” and in failing to provide that level of supervision both JML and GPCC seriously breached their respective duties under the OHS Act. However, in determining the objective seriousness of the offence, His Honour indicated that he took into account the culpability of Roth who had not been prosecuted by WorkCover.
Justice Marks fined JML $45,000 in relation to the breach and fined GPCC $50,000, taking into account the company’s early plea of guilty, a prior conviction, its dire financial circumstances and the likelihood it would be placed into administration.
HR tips: This case shows the extensive lengths a business may be required to go to, in order to fulfil its duties under OHS laws. It is imperative that all workplace participants (whether employed by the employer or not), are provided with adequate instructions, information and training to perform their work in a safe manner. In addition, businesses must ensure that all workplace participants are appropriately supervised to ensure they comply with those instructions. If a workplace participant has indicated or shown by their past conduct that they may not comply, further supervision and monitoring of that person will be required to ensure compliance. In this way, it is hoped future compliance by the employee can be secured and an employer’s OHS duties met.
By Kelly Godfrey, senior associate, Australian Business Lawyers. firstname.lastname@example.org