April 2016 – Newsletter

Facts for you to discuss with your teams.

We have split this newsletter into 2 for you. First one is with an OHS focus and the second is more HR designed discussing what makes up a contractor versus a worker!

OHS:

We thought that it was time to revisit some safety “facts” and outcomes from incidents and court findings to make sure everyone remains focused on the health and wellbeing of our workers, and of course our businesses that employ.

We had 2 notices of fatalities come through this week and this made me realize that sometimes the message is not getting through to the guys and girls that we have working for us, how quick things go terribly wrong, or what the consequences are to us as business owners when tragedy happens.

So have a read through some of these points raised and share them with your team, maybe it will become a good “PROMPT” to revisit what you have in place to ensure your compliance is maintained, and the competency of the people around you.

What were the fatalities?

First: A construction worker in Cairns died on April 1st. The worker died in hospital from head injuries he sustained after falling three (3) metres through a second floor void. Could this happen to your workers at work they are undertaking? What are your controls and safety management system like?

Second: A 13 year old from a Goondiwindi farm again on April 1st, received serious head injuries when he was run over by a vehicle, later dying in hospital. Could this happen anywhere that your workers are undertaking work?

Re Visit Due Diligence and Reasonably Practicable:

To understand your liability and responsibility I thought we should revisit this topic first.

Directors and officers have a personal duty to exercise “due diligence” to ensure their company is complying with its obligations under the Harmonized Work Health and Safety Laws.

A recent case gives an insight into what’s required to meet that threshold.

A director and employer were charged under the (now repealed) OHS Act after an employee, Mr. Lama, caused an extensive fire while decanting liquid for manufacturing paint thinner. Mr Lama was qualified, experienced and trained in the task. But on that occasion, he neglected to adequately check the equipment. The employer, Omega International Coatings, pleaded guilty and copped a $40,000 fine.

The director, Mr Shetty, was personally charged for failing to “use all due diligence to prevent the contravention“. He defended the charge, and it paid off!!

Mr Shetty successfully avoided a conviction on account of having:

  • engaged an industry consultant to prepare hazard analyses, safety documentation and procedures for decanting liquids;
  • commissioned an accredited dangerous goods consultant to produce a Dangerous Goods Handling Manual;
  • employed a qualified chemist who developed risk assessment procedures including a decanting work procedure; and
  • implemented safety documentation by ensuring that employees, including Mr Lama, were trained on the relevant procedures.

(Question: How would your due diligence stand up if tested?)

Another case:

A crane operating business and one of its employees have been ordered to pay a total of $9,877 over an incident in 2013 where an employee received an electric shock. Cranes R Us Pty Ltd pleaded guilty to directing a worker to complete high risk work when they were not licensed to do so and was fined $5,000 plus ordered to pay costs of $688.50.

Simon Peter Pratt pleaded guilty to failing to take reasonable care to avoid adversely affecting the safety of others, and carrying out high risk work without the required High Risk Work License.  Mr Pratt was fined $3,500 plus ordered to pay costs of $688.50.

On September 10, 2013 Mr Pratt was employed by Cranes R Us, who had been contracted to lift steel lintels to the window and door frames at a construction site for a new residential dwelling in White Gum Valley. Mr. Pratt and the dog man on the site conducted a visual site assessment and saw the overhead high voltage power lines at the front of the site. The crane’s boom commenced rising upward until the end of the boom came in line with the overhead power lines and at a distance of approximately two metres from the lines. The boom then slewed away from the site, toward the power lines. The dog man, who had been holding onto the crane’s hook, started to let go, however, the crane made contact with the power lines and an arc flashover occurred. The dog man received an electric shock and burns to the palm of his right hand and both feet. Mr. Pratt had been granted a Certificate of Competency for slewing mobile cranes up to 20 tons in 2003, however this certificate expired in 2012.  Mr. Pratt did not submit an application to convert his Certificate to a High Risk Work License and was hence unlicensed at the time of the incident. (Question: Are all of your licenses up to date and on file??)

Commissioner Lex McCulloch said today the case should serve as a reminder that it is the responsibility of everyone in the workplace to ensure that the workplace is safe. “This case illustrates that it is not just the employer’s responsibility to keep the workplace safe. Employees and contractors also have a responsibility to take reasonable care to ensure the safety and health of others in the workplace,” Mr McCulloch said. “Both the employer and the employee are responsible for ensuring the relevant licenses are current before undertaking high risk work. “Fortunately, no one was fatally injured in the incident, however it could have been a very different story. It is crucial that crane drivers are aware of the position of overhead power lines and maintain the relevant exclusion zones.”

Final Court outcome for discussion:

Company director given home detention after worker buried in trench collapse

22 March 2016

The director of company Steelcon Construction Limited, Rodney Bishop, has been sentenced to four months home detention over the death of a worker who died after he was buried when a trench he was working in collapsed. Steelcon Construction was also fined $56,000 and ordered to pay reparation of $121,320.

Michael Haines, who was 34, died in May 2014. He was helping to install a concrete effluent transfer tank and pipes at a farm at the time of the incident.

Mr Haines was clearing dirt in the area where the tank pit joined to the four-metre-deep pipe trench when the face of the trench collapsed and approximately five cubic metres of soil with an estimated weight of eight tonnes fell and buried him. Despite immediate efforts to rescue him he died.

Investigation found that the trench had not been shored up (by the installation of appropriate panels to prevent collapse). It had been cut with vertical sides and not “battered” (in other words it had not had its sides cut back at a safe slope to ensure the face remains stable).

There had also not been any geotechnical assessment of the site to check the stability of the soil before work began.

Question: What evidence could you produce for your “governance / due diligence” that controls are in place?)

There are identified risks with rider restraint systems on some amusement rides. This alert outlines information on engineering controls to assist in ensuring the safety of patrons. Date issued: 01 May 2015 |  Read more

For those interested in the HR section, please continue on reading.

For those that are only OHS focused I hope that the above facts and cases can start a proactive discussion in your workplace.

HR:

The old debate is still out there as to the definition of a contractor versus a worker.

So I thought it may be worthwhile to share some points raised by CCIQ to assist in sorting through the confusion.

When is a contractor really an employee?

You’ll be hard-pressed to find an employer who enjoys paying leave loading, workers’ comp, super or tax. But the law takes a dim view of bosses who try to pass employees off as contractors to avoid these costs.

JUST BECAUSE YOU CALL A WORKER AN INDEPENDENT CONTRACTOR DOES NOT MEAN THEY ARE, AND YOU CAN STILL BE FINED!!

In today’s world there is strong demand on flexible workplace resourcing models like contractors and casuals.

To protect the rights of workers, there’s a well-defined line between how an independent contractor should work and when they deserve the extra entitlements that legally belong to an employee. The Fair Work Act 2009 calls crossing that line “sham contracting” – when an employer attempts to disguise an employment relationship as an independent contracting arrangement to avoid these entitlements. If you run a workforce that ramps up or down with demand, then this aspect of the law is well worth mastering. Getting caught sham contracting can attract a penalty as high as $54,000, and ignorance of the law is not accepted as an excuse.

Employee and contractor: What’s the difference?

The courts assess nine key indicators to define whether a person is a contractor or an employee. While every workplace is different, these indicators give a pretty good working definition of how to employ someone:

  • Employees generally work under the direction and control of their employer, while independent contractors exercise more personal control.
  • Employees carry no financial risk, while contractors bear the risk of making a profit or a loss from the job.
  • Employers are paid superannuation and leave; contractors generally aren’t.
  • Employees get tax deducted by their employers but independent contractors pay their own PAYG and GST.

Remember, just because the workers you engage bring their own tools to work and have their own ABN, it doesn’t mean a court will rule they are a contractor. Even if a worker is happy to call themselves a contractor, ignorance of the law is no excuse and it’s the employer who will be penalized. Trade-based businesses are notorious for passing off labourers as sub-contractors and the newspapers are filled with stories of small firms being caught

Rules to live by

Keep in mind that the Fair Work system was designed to protect the rights of workers, not bosses. The Fair Work Act defines three clear actions which are bound to get employers in hot water. Break these rules and you’re looking for trouble.

  • Don’t tell an employee that he or she is an independent contractor.
  • Don’t dismiss or threaten to sack an employee so that you can hire them again as an independent contractor, especially if it’s to do similar work.
  • Don’t lie to an employee – or a former employee – to persuade them to do much the same work on a contractual basis.

Like many other aspects of employment law, sham contracting is something you need to know more about than the people who work for you.

What might seem like a tax-effective decision today could spell the end of your business down the track.”

Well I sincerely hope these points help clarify some “grey” areas for you.

Work cover Queensland also has a very good tool on their web site that you can go in and do a questionnaire to see if the agreement you have some of your workers under is as “independent contractors” in the real sense or a “worker” which means also workover premiums and all the other red tape that goes with this.

If there is anything mentioned through this newsletter you want further information on, or another topic requiring clarification, don not hesitate to contact us.

Until next newsletter.

Stay safe and well

 

Leave a Reply

Your email address will not be published. Required fields are marked *

     

 

Workplace Health & Safety Consultants

PO Box 678
Bribie Island QLD 4507
Tel: 07 3410 8482

Worplace Health & Safety Training and Audits

WH&S Services:

  • Safety Officers
  • Fire Safety Advisors
  • Risk Assessments
  • Seminars
  • Hazardous Material Management
  • Harmonisation Laws
  • Farming / Rural WH&S

 

HR Services:

  • HR Management
  • HR Audits
  • Staff/Team Assessments
  • Staff Surveys
  • Software Systems
  • Coaching Programs

 

Workplace Auditing Services:

  • Safety Management Systems (OHSMS AS4801)
  • Construction Audits
  • High risk safety work (SWMS) Audits
  • Traffic Management
  • Environmental Audits
  • Ergonomic Audits
  • HR Audits
  • QMS Audits

 

PBC&S Accept Credit Cards