OH&S: IT’S YOUR SITE, YOU LOOK AFTER IT
Employer responsibilities under Section 21 of the Occupational Health and Safety Act 1985
Excluding commuting claims, deaths investigated by the Victorian Work Cover Authority (VWA) totalled 34 people in Victoria alone last year.
According to the VWA in the 2001/02 financial year $966.6 million worth of compensation claims were made in Victoria, not including claims relating to deaths. In a culture that applies an ever increasing value on safety and environment, now is the time to comply before an accident occurs that causes one of your employees to become ‘just another statistic’.
How many employers have read the Act? You may be unsure of your responsibilities under the Act to “provide and maintain so far as is practicable for employees a working environment that is safe and without risks to health” (Section 21.1, OH&S Act 1985).
Who’s who? You are an employer according to the act if you “employ one or more persons under contracts of employment or under contracts of training.” You are an employee if you are “employed under a contract of employment or under a contract of training” in addition to this “employee” includes “an independent contractor engaged by an employer and any employees of the independent contractor.”
In conjunction with these two points section 21.3.b of the Act also implies responsibility for safety remains with the employer even if efforts are made by the employer to pass the responsibility back to an independent contractor. In other words making a contractor sign a document stating that he/she will be responsible for safety while they work on your site holds no stead in court!
Still not sure of who is responsible for whom? Read these two case studies. On July 30, 2001 a principal contractor was convicted, fined and ordered to pay court costs following the injury of a sub-contractor’s employee on a construction site. The injured employee fell from a height of 3.3m and sustained several injuries. The company convicted pleaded guilty to two breaches of the OH&S Act; “failing to provide safe plant and systems of work and failing to provide employees with adequate information, instruction, training and supervision” (sections 21.2.a & e). The total of charges included a $6500 fine and court costs of $2,531.07.
In another case an employee of a recycling company sustained an amputation of the right arm below the elbow after the arm was caught and dragged into an unguarded conveyor belt. The company was fined for the same breaches as in the first case above. The magistrate noted that a guard over the rollers of the conveyor belt would have prevented this incident and the absence of an emergency stop along the length of the conveyor belt was a serious concern. The company was convicted and fined an aggregate amount of $30,000 plus $1500 costs.
How does this affect your business? Look at it this way, if your profit margin is 25 per cent, in case one above your company must now win a $38,000 contract just to pay the fines. In the second case the next $126,000 contract would go toward paying the fines. If the material is being sold at $6.00 a tonne this equates to 26,000 tonnes of material. For smaller companies this could equate to annual production. The fine is not the only penalty a potential criminal record can be just as devastating, as can any damages payable to the person who is injured.
Section 21 of the OH&S Act is important in that it outlines the responsibilities of the employer in the work place. In summary the general duties of an employer under the act are:
(a) Provide and maintain safe plant, machinery and systems of work;
(b) Make arrangements to ensure safety and absence of risks associated to health regarding the use, handling, transport and storage of plant, machinery, substances and materials;
(c) Ensure that any workplace under the control or management of the employer is maintained to a standard that is safe and without risks to health;
(d) Provide adequate facilities for the welfare of the employees eg. toilets, first aid room, fresh water, fire extinguishers etc, and,
(e) Provide such information, instruction, training and supervision to employees as are necessary to enable the employees to perform their work in a manner that is safe and without risks to health.
In addition to this, the employer is required, so far as is practicable, to:
(a) Monitor the health of their employees e.g. annual hearing tests, medical test before and after employment;
(b) Keep information and records relating to the health and safety of their employees e.g. injury registers, medical test results;
(c) Employ or engage suitably qualified persons to provide advice to them in relation to the health and safety of their employees, this may involve engaging an outside occupational health specialist as required
(d) Nominate a person with an appropriate level of seniority to be the employer’s representative when health and safety issues arise or when health and safety representatives complete the requirements of their position under the Act (sections 26 and 31);
(e) Monitor conditions at any workplace under their control and management eg. by testing noise levels, testing exposure to harmful substances such as silica; and
(f) Provide information to their employees, in such languages as are appropriate, with respect to health and safety at the workplace, including the names of persons to whom an employee may make an inquiry or complaint in relation to health and safety.
Complying with the Act is not just about avoiding litigation. It is about ensuring that the people who work for you who work to earn your income, go home at the end of the day as healthy as when they arrived.
You may have a perfect safety record with no serious injuries or near misses on your site for the past 20 years, but the fact still remains, accidents do happen. Hopefully you have understood your obligations under the Act and have provided your employees with a safe place to work. If and when an accident does occur, you want to be sure that you have taken every possible step and documented every measure to ensure the safety of your employees and others who work on your site.
You must be logged in to post a comment Login