Occupational Health & Safety 01 September 2008

Insight - Occupational Health & Safety

01 September 2008

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Occupational Health & Safety Insight

September 2008

 

Know your workplace health & safetyobligations to workers that you sourceunder labour hire arrangements

On 24 June 2008, the NSW Court of Appeal in the case of J Blackwood & Son v Skilled Engineering [2008] NSWCA 142 confirmed that an entity that hires workers from a labour-hire company owes the same duty of care to those workers in relation to occupational health and safety matters as the duty owed by the workers’ employer.

The facts of the case were as follows:

  • Skilled Engineering (Skilled) was a labour-hire company. It supplied J Blackwood & Son (Blackwood) with a large number of workers, however those workers remained employees of Skilled.
  • One of these workers was injured, and Skilled had made the requisite compensation payments to that worker.
  • Pursuant to section 151Z of the Workers Compensation Act 1987 (NSW), Skilled sought an indemnity from Blackwood in relation to the compensation payments that it made to the injured worker (section 151Z governs contribution between employer and non-employer tortfeasors).

At first instance, the trial judge found that both skilled and Blackwood were equally at fault in there being no safe system of work, but regarded the culpability of Blackwood’s breaches as being significantly greater than Skilled and therefore apportioned responsibility at 70% Blackwood, 30% Skilled.

Blackwood appealed against the decision of the trial judge. The thrust of Blackwood’s submission was that any duty it owed to the hired workers was not the same as the comparatively stringent non-delegable duty that an employer owes to an employee, and that that difference should be reflected in apportionment. Blackwood sought to distinguish prior case authority to the contrary, claiming that those cases involved situations where the hirer had comprehensive control, whereas in the present instance, the workers were not fully integrated into Blackwood’s organisation.

The leading judgment of the Court was delivered by Campbell JA, with whom Beazley and Giles JJA generally agreed.

His Honour rejected Blackwood’s argument, stating that: ‘...Those factual distinctions… do not suffice to show that in the present case [Blackwood] owed a duty [different]… from that owed by an employer to an employee.’ ([2008] NSWCA 142 [98]). In conclusion, Campbell JA suggested that the obligation is analogous to that owed by a company coordinating work in a common enterprise (Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16), or an occupier with control over premises (Maricic v Dalma Formwork [2006] NSWCA 174). His Honour found that the trial judges’ apportionment of responsibility was acceptable.  

 

State of mind of employers not a defence to OH&S breaches

The new President of the Industrial Court of NSW recently delivered a judgment that comprehensively rejects the view that the state of mind of an employer is relevant to breaches of the general duties under the Occupational Health and Safety Act 2000 (NSW) (Act). In Cahill v State of New South Wales (Department of Community Services) (No. 3) [2008] NSWIRComm 123, the Public Service Union commenced a prosecution on behalf of its members against the Department of Community Services (DOCS) in relation to injuries suffered by its members arising from a stabbing incident at the DOCS office in Balina in May 2004. The Court categorically rejected the argument that an employer has available to it a defence of “honest and reasonable mistake of fact” and found DOCS guilty of the offence charged.

Facts

The prosecution centred on an incident on 24 May 2004 when a client of DOCS, Ms Cheryl Cooper attacked a child protection case worker with a knife. A week before that date, Ms Cooper’s three children had been placed in temporary custody by DOCS as a result of it finding Ms Cooper had been living in her car with her three children for the past few months. In the week leading up to the incident, Ms Cooper had made a death threat against a child protection team case worker and had previously been observed on a number of occasions near the DOCS office spitting and thumping her chest and speaking in gibberish. At one point, the Balina police accompanied Ms Cooper to the Balina Hospital where she was assessed by the mental health assessment team but was found not to have been suffering from a mental illness.

On 24 May 2004, Ms Cheryl Cooper attended the DOCS office for a meeting regarding obtaining access to her children. The two DOCS case workers that interviewed Ms Cooper that day had not checked the DOCS internal information system regarding the nature of her case and were unaware of her recent behaviour. There were no security guards or police present at the Balina DOCS office and although one of the case workers took a duress alarm into the interview room there was no evidence that the duress alarm was operational. There was no evidence that on the day of the incident DOCS had actual knowledge that there was a risk of a violent attack with a weapon by Ms Cooper.

Absolute versus Strict liability

DOCS argued that offences under the Act, in particular section 8, did not impose an absolute liability on DOCS and that a defence of “honest and reasonable mistake of fact” was available to it. DOCS argued that actual knowledge by DOCS of the risk of a violent attack with a weapon by Ms Cooper was required and that there was an obligation on the prosecution to prove that knowledge beyond reasonable doubt. Alternatively, DOCS argued that the Act presumed that knowledge to be present unless there was evidence of the existence of an honest and reasonable belief that there was no such risk, in which case the prosecution was obliged to undertake the burden of negativing such belief beyond reasonable doubt.

DOCS argued that the prosecution could not prove beyond reasonable doubt that DOCS, through any of its employees or agents, knew of the risk that Ms Cooper would violently attack the two caseworkers with a weapon and nor could the prosecution negative beyond reasonable doubt that there was an honest and reasonable belief of DOCS that there was no such risk posed by Ms Cooper. Accordingly, it was submitted that DOCS should be acquitted.

The Court undertook a comprehensive review of the legislation and case law relating to the distinction between strict liability and absolute liability offences. The Court took into account the objects of the Act, the meaning of “ensure”, the remedial nature of the Act, history of the legislation, the legislative intention, the purpose served by an absolute rather than strict offence, penalties and the difficulty of proof that would be required if the prosecutor was required to prove the state of mind of a corporate defendant.

The Court found that actual knowledge was not an element of offences under the Act and there was no scope to enable the defence of honest and reasonable mistake of the fact to be raised. Even had that defence been available, the Court found that on the facts of this case, no such defence could be established.

Finding of guilt

The Court considered that DOCS had failed to ensure the health and safety of its employees from the risk of “exposure to a violent physical attack by a client or other person visiting the premises”. The Court found that the evidence demonstrated overwhelmingly that Ms Cooper constituted a significant risk to the safety of DOCS employees and that DOCS was aware of this risk. The Court also rejected the statutory defences under section 28 of the Act on the basis that there were reasonably practicable steps that DOCS could have undertaken to reduce or eliminate the risk and the risk did not arise out of circumstances beyond the control of DOCS.

Lessons for Employers

This case clearly expresses the views of the new President of the NSW Industrial Court that there are no defences available to an employer under the Act other than the limited defences provided for in section

28. The state of mind of the employer is not relevant. As such, employers operating in NSW need to ensure that they are taking all reasonably practicable steps to guarantee the safety of employees and others at their workplaces. The case is also an example of a successful prosecution being commenced by a union on behalf of its members which may be an indication of a future trend in enforcing OH&S in the workplace.

 

Occupational Health & Safety Harmonisation

The Federal Government is one step closer to developing model legislation to harmonise OH&S laws throughout Australia after 242 public submissions were received in response to the National OH&S Review Panel’s issues paper. The Review Panel will now consider these submissions and prepare an exposure draft of a Model Act and regulatory impact statement to be released for public consideration in March 2009. The aim is for uniform OH&S legislation based on the Model Act to be implemented by 2011.

Although there was a large diversion of opinion on key elements of the Model Act, a number of common themes developed from the submissions. In particular, there was consensus that the current framework of a Principal OH&S Act containing general duties with subordinate specific Regulations should be maintained. Similarly, there was consensus that all the various enforcement measures available in the jurisdictions, for example enforceable undertakings, should be included in the Model Act.

A summary of the other key issues addressed in the submissions were as follows:

  • Whether the Model Act should include an absolute duty to ensure safety, as is currently in place in New South Wales, or whether the concept of “so far as is reasonably practicable” should limit the general duties as in the Victorian legislation.
  • Whether the general duties should be imposed on a specific list of duty holders, such as in the Queensland legislation, or whether more general duties on employers and controllers of premises should apply. In that case, a further concern was whether “control” should be defined in the Model Act.
  • Whether, and in what circumstances, officers of a Company should be liable

for an offence committed by a Company. In particular, whether the Model Act should require the regulator to prove that there was a lack of reasonable care on behalf of the officer.

  • Whether prosecutions should be criminal or civil, what level of penalties should apply and whether a Union or other non-government body should be entitled to commence prosecutions under the Model Act.
  • There was also a range of novel submissions which the Review Panel may consider incorporating into the Model Act including:
  • Transparency regarding, and a right of appeal against, the regulator’s decision to commence a prosecution as well as provision for making formal complaints against an inspector.
  • Empowering ASIC to investigate corporations or directors who try to evade payment of fines through deregistration of companies.

One of the challenges for the Review Panel will be to balance the views of all stakeholders in drafting legislation that has historically imposed rigorous duties on Companies and their officers, while at the same time considering what aspects of a Model Act will best deliver good safety outcomes for workplaces. At this stage, there has not been any empirical evidence submitted to the Review Panel to suggest that any particular model of legislation delivers better safety outcomes than another. It is likely that the exposure draft Model Act will be subject to submissions on that particular issue. In the meantime, Companies need to continue to comply with the varying, and sometimes overlapping, duties in the various jurisdictions in which their businesses operate.