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RURAL PRACTITIONERS, RURAL CLIENTS AND RURAL OH&S ISSUES - 1 ...
SYNERGY IN THE BUSH: RURAL PRACTITIONERS, RURAL CLIENTS AND RURAL OH&S ISSUES by Peter Long Solicitor Stacks Goudkamp Gunnedah Personal injury practitioners are well placed to deliver occupational health and safety advice in a time when the business community is in great need of such services. This is especially so in rural Australia where other OH&S agencies are somewhat thin on the ground. Experience gained from analysing work place accidents over the years and proffering advice in pleadings and expert reports on how the same could have been avoided ought not be allowed to wither and die on the vine of declining personal injury regimes throughout this nation. The various States have expressed a person's obligations in relation to workplace safety in a variety of ways, most of which reflect the sort of concepts that practitioners became so familiar with when assessing the viability of a common law industrial damages claim. Under the Northern Territory Work Health Act (s.29) and the Western Australia Occupational Safety And Health Act (s.19), persons in control of work places, plant and equipment have to, so far as is practicable, provide and maintain a working environment in which others are not exposed to hazards. The Queensland Workplace Health and Safety Act (s.28) requires persons to ensure those in the workplace are not exposed to risks to their health and safety but looks at whether the person took reasonable precautions and exercised proper diligence in considering defences to allegations of breach. Under the South Australian Occupational Health, Safety and Welfare Act (s.19), the obligation is to ensure, so far as is reasonably practicable, that health and safety and clearly aimed at persons whose acts or omissions were either intentional or reckless or where there is no reasonable excuse for that act or omission. The Victorian Occupational 1 Health and Safety Act (s.21), the ACT Occupational Health And Safety Act (s.37) and the Tasmanian Workplace Health and Safety Act (s.9) apply a test of what is reasonably practicable. Assisting rural employers, distributors and manufacturers to focus on their OH&S obligations in such legislative environments ought provide synergy with existing personal injury practices and help to reduce work place injuries in the long term. Practitioners in New South Wales face a less rewarding task than those in other States. It is not that the rural business community in that State is not screaming out for assistance but rather that the legislative regime and its interpretation by the Courts are such that there is effectively a strict liability for breaches on the Occupational Health and Safety Act 2000 (the "OH&S Act"). Those seeking to add OH&S consultancy to their stable of practice areas in New South Wales may need to adopt a different approach to practitioners in other States and focus on mitigation of penalty rather than the absolving of guilt. The OH&S Act (s.8) states that an employer must ensure the health, safety and welfare at work of all the employees of the employer. This obligation extends to any premises controlled by the employer, including access and exits; any plant or substance used at work; systems of work; the work environment; all necessary information, instruction, training and supervision; adequate facilities for the welfare of employees; and extends to any non-employees at the place of work. A person who has control of any premises used by people as a place of work or any plant used by people at work must ensure it is safe and without risks to health. Further, self-employed persons must ensure that other people are not exposed to risks to their health or safety arising from the conduct of the person’s undertaking while they are at that person’s place of work. Also, a person who designs, manufactures or supplies any plant for use by people at work must ensure that the plant is safe and without risks to health when properly used, and provide, or arrange for the 2 provision of, adequate information about the plant to the persons to whom it is supplied to ensure its safe use. “Ensure” has been interpreted as "guarantee, secure, make certain". A visit to the NSW Industrial Relations Commissions published judgments for just the month of August 2005 will convince any rural practitioner of the opportunity that exists in this area to assist clients, with the majority of prosecutions dealt with that month being for rural based breaches. Examples of those decisions are: Inspector Ruth Buggy v Lyco Industries Pty Limited  NSWIRComm 298 [25 August 2005] where Schmidt J dealt with a situation where Lyco was the manufacturer of a hydraulically powered post driving machine. Munton purchased one of its machines from a supplier of agricultural equipment, Kentan. In May 2001, Hayward, one of Munton's employees, was killed while operating the machine whilst erecting a fence. Lyco pleaded not guilty to two charges of supplying to for use by persons at work plant being a hydraulically powered post driving machine which it failed to ensure was safe and without risks to health when properly used and failing to provide, or arrange for the provision of, adequate information about the plant to the person to whom it was supplied to ensure its safe use. Whilst the cause of death was not precisely known, the opinion of those investigating the accident was that Hayward must have operated the hammer on the machine in order to attempt to straighten a post. While doing so, he put his head on the post, reached around the machine's guard and accidentally engaged the lever which released the hammer, resulting in a fatal injury, when the 600lb hammer came into contact with his head. His Honour found that, on the evidence, there could be no doubt that the machine was unsafe and the offence charged was made out to the necessary standard. Lyco had adopted a system to ensure that the machine left its factory with all necessary parts 3 operational, including the guard. The hinged guard was shipped so as to ensure that it would not be damaged in transit. The instruction manual showed users how the guard was to be extended for operation. Munton's evidence was that he never read the instruction manual. The machine could be operated with the guard wedged. Munton found this safe because, as he explained, it provided two layers of mesh to protect the operator from splinters flying from a post being hammered. His Honour found that it was unnecessary to determine how or when the guard came to be wedged. The evidence showed that even as extended in the proper operating position, the machine was unsafe. While in that position, it would protect the machine operator from placing any part of the body under the hammer - deliberately or accidentally. It would not, however, prevent anyone else from doing so. The instruction manual provided by the defendant contained various information and warnings. So far as the guard was concerned, his Honour found the information was confusing. At one point, under a prominent "Warning" heading, it warned amongst other things that "Do NOT operate this machine before reading the INSTRUCTION MANUAL"; "NO part of the human body should be placed inside the safety cage, near the auger or under the 'hammer' during operation"; "Do NOT operate machine unless all safety systems and guards are operational"; "Failure to comply with these instructions may result in death or serious injury"; and "The guard must be positioned correctly before the post driver is operated." His Honour was of the view that he safety manual, read as a whole, failed to provide adequate information about the machine to the persons to whom it was supplied to ensure its safe use and that, since undoubtedly, the manual had to be written so that it could be easily understood by users, the instructions and warning given in the manual clearly failed in that respect. In addition, there were no warnings on the machine itself, alerting users to the safety risks posed by the falling hammer. 4 Lyco argued it was not reasonably practicable for it to comply with the provision of this Act or the regulations the breach of which constituted the offence relying upon the evidence that showed that the machine was a new model, which introduced a new system of guarding. The previous system involved the machine's hydraulic hammer being completely encaged, thereby ensuring that neither the operator, or anyone else, could place a body part under the hammer while it was being operated. The defendant had conducted a survey which showed that the vast majority of those who purchased the machine removed the guard, finding it inconvenient. The view taken was that the guard should be altered, so that users would refrain from its removal, thereby improving the safety of its operation. The process leading to the development of the new guard was described. While there must undoubtedly be sympathy for what motivated the defendant to alter the design of the guard, particularly given that other such machines on the market appear to be entirely unguarded, the fact remains that the new design failed to ensure safety. His Honour stated that: "Given the earlier design of the guard, it cannot be concluded that it was not 'reasonably practicable' for the defendant to have complied with the requirements of s 18. That the WorkCover Authority has not taken steps to issue improvement or prohibition notices in relation to the machine, cannot take away from this conclusion." Penalty is yet to be determined in that matter, but in another matter dealt with that same month, Inspector Stephen Campbell v James Gordon Hitchcock  NSWIRComm 281 [12 August 2005], a director of a private company was found to have breached the OH&S Act Ltd where employees were taking drugs to counter fatigue in the course of long haul truck driving and was sentenced to pay fines of $42,000.00. In addition, Walton J Acting President ordered Hitchcock to pay the prosecution's costs in the sum of $290,500.00. This was in addition to his own legal costs of $644,363.36. 5 For practitioners seeking to market their services to small business operators in their district, quoting these sort of penalties is likely to ram home to such prospective clients the need for professional advice. There are few in rural communities who could afford to pay out over a million dollars for one prosecution. This case also helps explain why so many of those charged with an offence under the Act simply plead guilty. The likelihood of a successful defence is slim and the fine and costs ramifications are enormous. Added to this is the fact that one cannot get insurance against such a situation. In another of Schmidt J's decisions in August 2005, Inspector Brett Martin v Encore Tissue Pty Limited  NSWIRComm 271[2 August 2005], Jones was seriously injured while working to clear a paper blockage from on an electric conveyor system at the defendant's Albury paper recycling plant in southern NSW and sustained severe injuries to his right arm and hand, when they were caught in a nip point on the machine. His arm was later amputated. The defendant pleaded guilty to the charge brought against it under s8 of the Occupational Health and Safety Act 2000 ('the Act'). The defendant is ordered to pay a penalty of $123,750 with a moiety to the prosecutor; and the prosecutor's costs. The rule of thumb is that the prosecutor receives half of each fine imposed. Prosecutions can be brought by Workcover or a union. In an era of self-funded government authorities and falling union membership, the fiscal pressure to run prosecutions in an environment where few are unsuccessful could be overwhelming. Schmidt J had a busy month in August 2005 as he was also the presiding judge in Inspector Mason v Telecommunications Infrastructure Pty Ltd  NSWIRComm 282 [11 August 2005]. In May 2003, Keepa-Hunuhunu was seriously injured while working with two other employees of the defendant, demolishing a telecommunications mast at Moree in north-west NSW. Keepa-Hunuhunu was working on the mast, 12 metres above 6 ground level during the demolition. The mast was then attached to three guy wires. Keepa-Hunuhunu fell with the mast, after his supervisor detached one of the guy wires. The defendant entered a plea of guilty to the charge consequently brought against it under s 8(1) of the Occupational Health and Safety Act 2000 ('the Act'). The defendant was ordered to pay a fine of $71,250.00 with a moiety to the prosecutor and the prosecutor's costs. In Inspector Templeton v Haddon Rig Pty Ltd  NSWIRComm 284 [12 August 2005] Staff J dealt with a situation where Vial was employed as a Jackeroo at Haddon Rig Pty Ltd, a rural farming and livestock property located 30 km west of Warren in western NSW and on 6 November 2002,was assigned to feed sheep with grain. This required Vial to obtain grain by the use of an auger from a silo into a Mitsubishi feeder truck for the purpose of distribution to sheep. At about 1.00 pm Vial sustained fatal injuries when he was crushed between an auger and the doorframe of silo. There were no witnesses to the incident as Mr Vial was working alone at the time the accident actually occurred. The defendants pleaded guilty and the corporate defendant and a director were fined the sum of $78,000.00 and $6,000.00 respectively with a moiety of each fine to the prosecutor and ordered to pay the prosecutor's costs. The Act does provide two defences in s. 28, namely that it was “not reasonably practicable to comply with the provision” of the Act”, or that the commission of the offence was due to causes over which the person had no control and against the happening of which it was impracticable for the person to make provision. The likelihood of succeeding in proving these defences is virtually zero. An examination of the reported decisions of the NSW Industrial Relations Commission reveals a disturbing paucity of successfully defended cases. One example of a case where the Court was swayed by the defence was in Inspector Paul Wade -v- Yore Contractors Pty Ltd [20 October 2003] where the Chief Industrial Magistrate of NSW handed down a decision dismissing a charge brought against an employer by WorkCover for a breach of the Act where Yore Contractors Pty Ltd (“Yore”) was alleged to have failed to ensure that persons not in its employment, and 7 in particular, Danny Buckley, were not exposed to risk to their health or safety arising from conduct of Yore’s undertaking while they were at the Windale Sewerage Treatment Works, Belmont North on the Central Coast district of NSW. On 24 August 2000, James Cobcroft, an employee of Yore, and Mr Buckley, a subcontractor contracting with Yore, were in the process of laying a part of a pipeline. Buckley on the morning in question was in a trench excavated for the purpose of the pipeline and Cobcroft was operating the excavator with a digging bucket attached, but without the locking pin inserted. The inevitable happened and the bucket fell, falling on to Mr Buckley in the trench and injuring him. WorkCover alleged that Yore failed to provide such information, instruction, training and supervision to its employee, Cobcroft, excavator machine operator, as was necessary to ensure that the quick hitch-locking pin on the excavator was correctly installed and in a proper place at all times whilst the machine was being operated. The locking pin is a fail safe device to guard against either the inadvertent disengaging of the quick hitch mechanism or a hydraulic failure in the event of a pipe burst or a part of the machinery failing. The locking pin, once the jaws clamp around the locking mechanism on the bucket, the locking pin ensures that the quick hitch, the jaws of the quick hitch remain closed and cannot be opened unless the pin is removed. If the locking pin is in place then it does not matter what the operator in respect of the quick hitch mechanism does. If the operator inadvertently touched the quick hitch disengagement button, the bucket would not disengage. If the operator had a mind to, he could intentionally activate the quick hitch disengagement, but the bucket still would have remained attached with the locking pin in place. Providing the locking pin is in place the bucket would maintain its attachment to the boom or the quick hitch mechanism. The Magistrate found that: 8 (a) Buckley and Cobcroft initially lied to those investigating the accident about the manner in which the accident occurred. The evidence further disclosed that at the relevant time the quick hitch mechanism attached to the boom complied with all relevant standards. It is a well-known practice in the excavating industry that a locking pin is an indispensable fail-safe device, an essential element to the use of digging equipment. (b) Cobcroft had not put the locking pin in place as he was going to use a different bucket later that day from the one on the machine, which he had used the day before. (c) Cobcroft was aware he had contravened Yore’s safety policy. (d) Yore ensured that all its men were inducted onto the site and the topic of the use of the locking pin was included in the induction course. (e) Whilst Cobcroft was not given any specific site training because of the fact that he had undertaken induction training and his extensive experience in the excavation industry. (f) The site manager spent two thirds of his day supervising on site and did a weekly audit of the site in accordance with Yore’s site safety inspection sheets. (g) The Department of Public Works conducted a monthly audit of all plant and equipment, which included the use of locking pins, and the Department had a full time supervisor on site whose duty was to ensure the safety of the work being performed. (h) In May 2000, an issue regarding the non-use of safety pins on excavators had arisen. A memo was issued by Yore and read by the site manager to 9 all operators on the importance of the use of the locking pin and that non- use of the locking pin would not be tolerated by Yore. (i) As part of the safety audits conducted by Yore and the Department of Public Works, the use of locking pins was regularly checked. (j) Throughout the contract, employees are always made aware to put safety pins into the quick hitch mechanism. (k) It was a simple procedure to put the locking pin in place. It was a matter of sticking a steel rod into a hole in the quick hitch mechanism. On the basis of those facts, the Magistrate found that there was a safe and proper system implemented regarding the safe use of locking pins by Yore. It provided such information, instruction and training to Cobcroft as was necessary to ensure that the quick hitch-locking pin on the excavator was correctly installed and in its proper place at all times whilst the machine was being operated. It was evident that Cobcroft was well aware of the need to ensure that the locking pin was in place and he conceded that his employer repetitiously discussed this issue with its operators and himself. The Magistrate held that it could not be argued that despite the provision of information, instruction and training, Yore failed to supervise its employee Cobcroft, in that he did not follow his employer’s system of work. This was because there was a deliberate flouting of a well-known policy by Cobcroft, who was clearly aware of Yore’s policy and immediately after the accident covered up the true situation. He further held that the only way in which Yore could have prevented the incident was to provide a level of supervision whereby a person was employed in the cabin with Cobcroft at all times checking his actions and movements. This was not a reasonably practicable solution available to Yore. 10 To rub salt into the wounds of Workcover, on 15 June 2004, an order for costs was made in favour of Yore. One suspects that the result in Yore may be more a reflection of the brilliance of the defence team led by Daniel Morgan, a solicitor in the small NSW country town of Scone, than some significant change in attitude of those charged with applying the law. The situation facing business operators in NSW could have got substantially worse this year if the government had proceeded with the introduction of its draft Occupational Health and Safety Amendment (Workplace Deaths) Bill under which, if a breach of the Act substantially contributed to the death of a person, the offender could be found guilty of industrial manslaughter. This took the penalty for breach of workplace safety obligations well past Section 18 of the Crimes Act 1900 (N.S.W.) which required a malicious act to found manslaughter and stipulated that no punishment or forfeiture would be incurred by any person who kills another by misfortune only. Section 5 of the Act defines "maliciously" as every act done of malice, whether against an individual or any corporate body or number of individuals, or done without malice but with indifference to human life or suffering, or with intent to injure some person or persons, or corporate body, in property or otherwise, and in any such case without lawful cause or excuse, or done recklessly or wantonly, shall be taken to have been done maliciously, within the meaning of this Act, and of every indictment and charge where malice is by law an ingredient in the crime. For manslaughter, what the Courts require is a very high degree of negligence and “reckless” has been adopted as the most suitable adjective but the proposed Bill sought to impose a substantially lower threshold. Fortunately, the government bowed to intense political pressure and brought the legislation back in line with reality and according to its "Long Title", the Occupational Health and Safety Amendment (Workplace Deaths) Act 2005 amended the OH&S Act to now make it an offence for a person who owes a duty under Part 2 of that Act to engage in reckless conduct that causes death at a workplace; 11 and to amend the Criminal Appeal Act 1912 to provide for appeals in connection with a conviction for such an offence to the Court of Criminal Appeal rather than to the Industrial Courts. Practitioners may well ask: what can I tell a small business operator in such a legislative environment? There is no single all-encompassing solution and the guidance from Workcover is pathetic to say the least. For example, there is no course that a farmer can send his employed farm hand to in order to learn to drive a tractor, yet if someone is to drive a forklift, Workcover provides extensive education direction. However, some useful advice to clients could include: (a) Each operator must ensure that persons are inducted into the operator's OH&S policy for the task, the project and the work place. The prospects of most rural-based having such a policy are slim and that is where the practitioner can play a role. If the client does not have such a policy, draft one up. They are not difficult or complex. Defending a prosecution or seeking to mitigate a penalty will be greatly enhanced if the client has such a policy in writing. (b) If the work place is on premises under the control of a third party, the operator must ensure that the third party performs a similar induction with the operator. (c) Each operator must do a risk assessment in relation to the task and identify the hazards, the controls which need to be adopted to prevent harm and seriousness of the risk. This is a task personal injury solicitors can do in their sleep. The exercise needs to be recorded on paper and retained. It ought be reviewed at least every six months. (d) Each operator ought give the third party a Safe Work Method Statement for the task setting out the job to be done, the identified hazards, the controls which will be in place to prevent harm and the person responsible. 12 This is normally a generic document that can be used as a precedent for every such job, with minor modifications where necessary. Again, a role the practitioner can assist with. (e) Each operator must consult with the third party as to how the task will be conducted, including all of the preparation work and who will be responsible for each task. (e) Each operator must ensure that he or she then consults with each employee who will be involved in the task about health and safety matters and allow those employees to make recommendations for improvements in these areas. Not only does this assist the operator in relation to the task being conducted at the time, but it provides a forum where health and safety problems can be identified and resolved using a systematic approach to OHS and where safe systems and procedures can be developed and monitored and continually improved. (f) Each employee must be appraised of the risks involved and the control measures that will be put in place to prevent harm. The input of each employee should be sought as to any other risks or control measures that ought be catered for. This is something that business operators do with their employed staff anyway so it will not be a huge impost. (g) Each operator must ensure that all attendees onto workplaces under his or her control are inducted into the workplace and the task OH&S policy and Safe Work Method Statement. (h) Each operator must ensure that the said OH&S policy and Safe Work Method Statement are followed throughout the conduct of the task. The operator needs to be able to say that he or she conducted a regular audit of compliance throughout the operation. 13 (i) There should be a meeting after the task is completed between the principals and the employees involved to discuss how it went and whether any improvements could be made. Following these steps ought give the rural based small business operator the best chance of avoiding an OH&S prosecution or at least mitigating the penalty, if not being able to successfully defend a charge of breaching the Act. Finances are tight in the bush so it is a matter of convincing a client who is often overwhelmed by the prospect of drafting policy, doing risk assessments and drawing up safe work method statements that the task is akin to a pygmy eating an elephant: just do it one bite at a time; and that with experienced professional assistance, the time honoured bush adage of 'Why have a dog and bark yourself?' applies. For those wanting to look at available software that may assist clients with this task, the only program the writer is aware of that provides a reasonably holistic approach is the BOS program produced by Peppin Planners at Deniliquin in south-west NSW: www.peppin.com.au. 14
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