OCCUPATIONAL HEALTH AND SAFETY IN AUSTRALIA

QUESTION

Assignment 2 – Case Study Report

Jessie works as a carpenter.  She is engaged by Lee to do work at a building site in Rockingham (Lot 12).  Jessie lives in Perth; and travels daily to Rockingham to do her job.  To help her, Lee provides Jessie with all the tools on-site that Jessie needs.    Jessie is paid on an hourly basis, she does not work regular hours, there is no tax taken from her payments, and she sometimes works weekends.  Lee agrees to all these arrangements; in fact, they sign a short Agreement.  Clause 3 of the Agreement reads:

“For the purpose of the Rockingham building site job on Lot 12, Jessie shall be engaged by Lee as an independent contractor”.

Jessie is a good worker.  She gets on with the job and Lee is happy with the progress.  So happy is Lee, he also asks Clint to work with Jessie.  Clint is an apprentice carpenter and he has worked for Lee before.  Clint is also the son of Lee’s good friend, so they know each other well and often enjoy a joke together.  Lee tells Jessie that Clint will work on Lot 12 as Jessie’s helper to keep the work schedule on track.

Jessie and Clint, however, don’t get on.  On the first day, Jessie finds Clint getting all the materials out of order, making it difficult to easily identify what planks go where.  Initially, the wood had been placed in piles with accompanying tags – but Clint mixed the piles up and failed to keep the identifying tags attached to the wood.  Clint thinks this is funny and doesn’t seem at all bothered about the mess-up.  Later in the week, Clint forgets to securely bolt together the ‘A’ Frame scaffold.  As a result, planks of wood, nails and equipment fall off the scaffold, making more work for Jessie.  Jessie reports these matters to Lee.  However, Lee does nothing, except to say to Jessie:

“Well I think Clint is your responsibility and anyway, he’s not supposed to be bolting the scaffolding together at this stage of his apprenticeship without direct supervision from you.”

Clint is also supposed to be using a harness when up on the scaffold.  He doesn’t take that part of the safety procedure very seriously either.  Once Jessie caught him on a scaffold without a harness and gave him a good telling off.  Two days later Clint is up on the scaffolding again, this time with the harness – but the harness tied to the scaffolding.

Section 3 of the Builders Safety Act (A fictitious Act) provides:

“Any worker engaged in building activity on a scaffold must be wearing a protective harness.  The harness shall be attached to the most secure part of the building structure”.

One afternoon after a week of working together Jessie and Clint are packing up the tools to go home.  Clint is gathering up some materials when he gashes his left hand badly tearing away his little finger.  Jessie goes to his aid and whilst climbing down a ladder falls and injures her back.  The ladder had been “adjusted” by Clint that morning in such a way that it would collapse when weight was put on it.

Jessie and Clint manage to get into Jessie’s car to drive to the hospital.  Jessie is driving.  On the way to hospital they have a traffic accident.  Jessie failed to “give way” to a truck coming on her right side.  Jessie and Clint both suffer neck injuries from the traffic accident.

You are a private evaluator of these incidents.  Write a report in relation to Lee, Jessie and Clint covering their liability and/or claims at common law, workers compensation and any breaches of the Occupational Health and Safety Act.  Are any or all of the parties able to claim for stress-related conditions?  Your report should also include a discussion of the employer/employee relationship, but you should be careful not to be repetitive in this discussion where it relates to the various statutes.

Style Form:                              A4 paper; staple in top left-hand corner; cover sheet – but no binding covers or folders (these obstruct reading when marking assignments).

Word limit:                               3,000 words with a 10% margin.

Format:                                     Document should be Times Roman font with double spacing.

Referencing:                             Particular attention will be paid to referencing (in the approved and recommended style).  Please provide a List of References at the end of the assignment.  AGLC is to be used. Australian Guide to Legal Citation.

SOLUTION

We see the incident has occurred in the city of Rockingham which falls in the state of Western Australia so we have analyze the compensation laws of the same to figure out the Rights and Remedies of the parties.

We have to see three aspects of the valid legislations which comprises of liabilities of the employer, rights of workers and situations in the legislations which discusses about independent contractors. Thus analyzing these aspects we can adjudge the rights and remedies under the law.

Compensation Law in Western Australia:

As we see in the instant case the incident has occurred at the workplace thus we have to see the provisions relating to accidents at the workplace and then analyze the rights and remedies of the parties.

Now we see the workplace safety in Western Australia is regulated by the Occupational Safety and Health Act 1984 which is aimed at securing the safety of the workers at the workplace and reducing the risk of work related hazards. As the act is aimed at fulfilling the protection of workers and provisions related to penalties for violation under the act.

The Act specifically explains the duties of employers and responsibilities of the employees. It has provisions dedicated for the same so that there should be rights and remedies for all the parties approaching under the act. It has always been the intention of the legislature to make a fair law thus right justice could be delivered and legislation could not be seen as an arbitrary legislation.

Now we see Division 2 of the act states about the general workplace duties which should mandatorily be followed to avoid penalties under the act. As we see that the division broadly discusses about the duties of employers and employees and the penalties for the breach of any of provisions under the division.  The act broadly states that an employer should:

• Maintain a workplace not exposed to hazards and it should be free from hazards as far as possible which the employer has to do by maintaining a safety standard, by properly training and instructing the employees about the proper use of equipments, giving the employees proper protection gears to use those equipments[1].
• The duty to notify about the accident to the commissioner which has resulted in time off or the death of any of the employee.

If there is a breach of any of provisions under the act the act prescribes penalties with regard to breach by the employer. As we see penalties under the act include:

• Failing to protect the employee attracts a fine upto $100,000
• If accident occurs causing serious harm or death of an employee then penalties may be attracted upto $200,000.

Moreover employees are also given responsibility under the act which they need to follow as their negligent attitude towards the employers is also not entertained under the act. The duties of an employee include:

• Employee has a general duty of care to take proper precautions and ensure his own safety and safety of the fellow employees.
• They have the duty to cooperate with the employers and use all the protective equipments carefully so that hazards could be avoided.[2]
• Not to misuse any equipments at the workplace.
• Inform the employer about any of situation that is likely to cause hazards at the workplace.

If any the duties is not carried out by the employees then it results in breach of the act thus attracting penalties for the employees which is prescribed as $10,000 for a general breach and $20,000 for any breach which has caused death or injury under the act[3].

The law is specifically clear and it provides for a duty of care of the employers towards the employees. There is a level playing field provided for all the parties approaching under the act so that nobody goes unheard and there is a specific remedy for everybody. The act is specifically aimed at imposing a general duty of care on the employers and employees so that a safe and protected environment is made and it leads to prevention of hazards and accidents. Thus by imposing heavy penalties under the legislation the legislatures have ensured that a proper working place environment is created thus improving the business outlook of the companies and interests of employees are also taken care of.

Now after explaining the law now in the instant matter we have to analyze the breaches and remedies of the different parties under the law so that every party gets his adequate remedy and no party’s interest is jeopardized.

Lee: 

He is the employer in the instant matter. Thus we have to see whether he has breached any obligations with regard to the legislation. As we see he has provided tools and equipments to Jessie which he is supposed to instruct Jessie on how it is to be used. But as we see Jessie was already a skilled worker and was working with care and caution thus this cannot be considered as a breach.

As the statute suggests every employer shall have a general duty of care which he should tke regarding his employees. It is done to protect the employees for workplace related hazards. Now we see in the instant case Lee has very followed the principles for which the act is made. As we see Section 19 of the act imposes a duty upon the employer to take care of their employees but in the text of the act it is clearly stated the standard of care should be ‘so far as is practicable’. Thus by the language of the act the element of practicability is enshrined under the act. So when the general duty of care is analyzed with relation to an employer as per the act it is to be seen that whether the employer has done what would have been practical to do in that particular situation.

Now as we see in the case of Hamersley Iron Pty Ltd v Robertson[4] the issue of reasonable practicability was discussed where duties under the act were alleged to breach causing the death of the employee. As the section is aimed at providing the conducive working environment for the employees free from hazards the inspectors tend to inspect upon the section very carefully in adjudging the liability of any of the employers[5]. Moreover they judge the practicality of any situation by taking into account the work practice as followed in that specific area of work, conditions of the machinery, steps taken by employer to reduce damage risks etc[6].

As we have also seen in the case of Tuckley v The Crown In Right of the State of New South Wales (Department of Community Services)[7] in this case the employer was held guilty of violation of provisions similar to Section 19 of the current legislation in the state of New South Wales as the employees suffered developmental injuries.

In the case of Stokes v Guest, Keen and Nettlefold (Bolts and Nuts) Ltd[8] where the position of the employer was vividly discussed. It was held that:

“The overall test is the conduct of a reasonable and prudent employer taking positive thought for the safety of his workers in light of what he knows or ought to know;

• where there is a recognized and general practice which has been followed for a substantial period in similar circumstances without mishap, he is entitled to

follow it unless in the light of common sense or newer knowledge it is clearly bad;

• where there is developing knowledge, he must reasonably keep abreast of it and not be too slow to apply it;

• where he has in fact greater than average knowledge of the risks, he may therefore be obliged to take more than the average or standard precautions.”

Moreover we have also seen in the many reported cases regarding workplace injuries have happened in the jurisdiction of United Kingdom from where the principles of the legislation were adopted.

Thus in the instant matter we see that Lee is very careful in performing his duty of care as an employer as he has exercised all precautionary measures which is also evident from the fact that Jessie was working with him without any complaints and she was very skilled worker and the employer was also happy with her thus he has provided all the conducive working environment which in all reasonable practicality is free from all hazards thus in these circumstance he cannot be blamed for the mishap on the worksite.

As the worksite mishap is not the fault of Lee thus in the road accident also he will not have any liability as Jessie and Clint are not the employees while they were travelling in the car to the hospital. Moreover it was negligent attitude of Jessie by failing to give the pass to the truck which has caused the accident thus it not be considered under Lee’s liability.

But if we see the general principles of the law of torts then we can come to the conclusion that Lee would be liable for the act of Clint who is an employee of Lee under the doctrine of ‘ Vicarious Liability’ which specifies that the master is responsible for the acts of his servants. Thus as we see in the present matter Lee would have to face prosecution for the negligent act of Clint as he is also an employee of Lee thus making him liable for the mishap caused in the workplace.

Moreover he would not be liable for any compensation for the road accident as it is already proven by the situation that the accident did not occur in the course of the employment.

Moreover Lee would also be laible under Section 19 of the act for the breach in relation to Clint as there is a provision of training for the employees given by the employer. In the instant matter facts clearly states that Clint was not a skilled worker and it is seen by his acts which are not acts of an experienced person. Thus it was the responsibility of Lee to train him rather giving the same responsibility upon Jessie.

Thus he would be liable for the breach under the act and would pay compensation for both the accidents including the road accident as it has occurred during the course of Clint’s employment.

Jessie:    

Now under the laws of Western Australia although Jessie is an independent contractor she will be treated at par with the employee as the statute places both of them in the same front. Now as Jessie would be placed as an employee she will have both the rights and liabilities under the act and allowed to be treated under the act.

The act also imposes responsibility on the employees which should be fulfilled by them under the act. As the employees are also responsible to the employer so that the workplace can properly function. As per the act the under section 20 the employee must take proper care and precaution while working in the premises of the employer. It is applicable to all the persons present on the worksite.

Moreover there are also specific duties enshrined under Section 20 of the act which the employee needs to follow such as using protective equipments, use the goods and equipments as per the instructions, using protective gear if it is required. Now as in the present case we see that it was not any fault of Jessie that has accused the mishap. It was due to negligent act of Clint that has caused the accident thus it is considered as a breach under the act as we see that the act stipulates that every employee also must ensure that the other employees are also protected under the act thus if it is not done then it would be considered as a breach under the law and the employer would not be liable.

As we see in the instant case it was faulty and negligent attitude of Clint which has caused injury to both the persons including Clint himself thus it was a breach of duty on the part of the employee which has caused the specific breach under the act thus in no way Jessie has any remedy under the act.

But as it seen Jessie would have remedies for compensation under the law of torts applying the doctrine of vicarious liability which enables that Lee would be liable as Clint was his employee for the negligent act which has caused injury to Jessie. As it is a prevalent principle in the law of torts and followed by the courts everywhere.

As we see the objective of the principle is very plain and simple which is reciprocatory in nature as the master has the control over the servant and similarly it is assumed that the servants are doing the acts on the command of the master thus it is the master who is exercising the work but only the medium is the servant thus by this principle it is always validated that nobody can escape their own liability.

Thus as far as this case is concern Jessie will only have the remedy of this doctrine that too would only be for the accident that is caused at the worksite by negligent attitude of Clint and she cannot have any compensation for the road accident which has occurred as there would be no remedy for Jessie in that case.

Clint:    

As we see Clint is also the employee of Lee and he will also have rights and remedies under the act. We have to analyze the liability of the employee in relation to the act.

As we see the act prescribes specific duties for the employees which are to be fulfilled mandatorily and are compulsory under the act. Section 20 of the act prescribes specific duties for the employees to be fulfilled which include the use of equipments very properly. As the employer has provided equipments to the workers it is their duty and responsibility to use the equipment very properly so that any hazard could be avoided.

In the instant case we see that the equipment were being used by the workers as Jessi was skilled worker and she was instructing Clint but he was constantly not following the procedures thus it proves that he was not been a trained worker thus we see that it was even been notice of Lee also so he has a duty to train Clint with respect to using of the equipments which is validated by Section 19 of the act and comes under the general duty of care for the employer.

Training would have avoided the mishap and it was totally wrong on the part of Lee to give the responsibility in the hands of Jessie as she was specifically not engaged in the work of training Clint and has to fulfill commitment under the contract and moreover there was no responsibility of Jessie to train Clint. She has fulfilled the duty that is as per the act to take reasonable precautions and care and also took reasonable precautions that the other employee is not even injured.

As we see now Clint has the remedy to sue Lee for the accident as he was not properly trained and it was the duty of Lee to train Clint properly before entrusting any work upon him. Thus by the concept of the act it is clearly seen that the duty of care has been breached by Lee. Clint would also be liable to claim compensation for the road accident as it is during the course of his employment as he was going to trat a work related injury which has occurred in the workplace thus it comes under the course of his employment.

Therefore as per the laws and legislations available these would be the rights and remedies of the parties that would be available to them in relation to the present matter.

References:   

1. Occupational Safety and Health Act 1984, viewed on April 15, 2012,  <http://www.austlii.edu.au/au/legis/wa/consol_act/osaha1984273/>.
2. Workplace Health and Safety Explained, viewed on April 15, 2012  <http://toolboxes.flexiblelearning.net.au/demosites/series3/315/resources/ohs/hazards/03workplacesafety.htm>.
3. Kevin G Brown, Occupational Safety and Health Legislation: What Allied Health Professionals in Western Australia Need to Know, viewed on April 15, 2012, <http://www.austlii.edu.au/au/journals/LegIssBus/2003/4.pdf>.
4. General Duty of Care in Western Australian Workplaces, viewed on April 15, 2012,  <http://www.commerce.wa.gov.au/worksafe/PDF/Guidance_notes/general_duty_of_care.pdf>