ASSIGNMENT QUESTIONS

ANSWER 1:-

In Australia, Occupational Health and safety applies to all industries or any other place where people are employed to work which is referred to as a workplace.[1] This means that all the workplaces are covered under OHS which includes both the employer and the worker. OHS has been prevalent in Australia since 1956 when the Magistrate stated that it is the duty of the employer to provide a safe workplace to his employees/workers. Occupational Health and Safety is important as it sets certain standards in order to safely protect the workers at their workplace. OHS lays down guidelines for working with hazardous chemicals etc. and institutes regulations with regard to protective equipment. OHS also limits the working hours of the workers at their workplace.[2] Occupational Health and safety is an important workplace behavior in order to prevent illness, fatigue, injury and death at the workplace. Australian Occupational Health and safety laws seek to compensate workers who suffer work related injury at the workplace or the dependents of the workers in case of death of the worker at the workplace.[3] The focal point of OHS is to provide a safe and healthy work environment along with safe working systems to the workers. An express legislative power with reference to OHS or worker’s compensation is not included in the Constitution of Australia.[4] OHS is important for moral, legal and financial reasons. In Australia, all jurisdictions have legislation that transmutes the purview of application of common law for actions of damages in relation to injuries suffered and for negligence at workplace. The laws vary between the states and territories regarding the injuries suffered at workplace. A number of principles of negligence found under the common law such as causation are codified, while other provisions seem to amend a few aspects of the common law in some of the statutory instruments. The commonwealth has enacted some legislation by depending upon a range of heads of power, a few of which are: the Occupational Health and Safety (Commonwealth Employment) Act, 1991 and the National Occupational Health and Safety Commissions Act, 1985. In Australia, the states and the territories have the supreme power of making and enforcing laws related to safety and health at workplace. Every state and territory has their own Occupational Health and Safety legislations that outline the standards and requirements in order to ensure health and safety at the workplace.[5]

COMMON LAW DUTIES OF THE EMPLOYER:

It is the duty of employer to ensure as far as is reasonably practicable that every worker/employee is safe from any kind of injury and risks of health while working at the workplace.[6] In order to determine what is reasonably practicable, the following should be considered:-

a) Awareness or knowledge of any danger, risk, peril or menace and methods and techniques to remove or reduce it;[7]

b) Severity of danger, risk etc.;[8]

c) Accessibility and suitability of ways to remove or reduce any risk, danger etc.; and

d) Cost of taking action.[9]

It is the duty of the employer to assure as far as is reasonably practicable that he provides a safe and secures workplace to his workers.[10] The entrance and exit of the workplace and anything arising from the workplace shall be free from any kind of risk to the health and safety of the employees/workers. It is the duty of the employer to ensure that the fixture, fittings, machinery etc. in the workplace shall be safe while using it and should not cause any harm or damage to the employees/workers. The workplace, its design, substance and structure shall be designed in such a manner that it should not be harmful to the health and safety of the worker. In the given scenario:-

1) It was the duty of Jack (the employer) to inform John (the worker) not to use the ladder.

2) It was the duty of the employer to not keep ladders at the workplace when the workers did not require it as their job did not require the use of ladder.

3) It was the duty of the employer to ensure that the fixture, fittings, doors were in good working conditions.

It was John’s duty:-

1) John used the ladder but he should have at least been careful in using it by opening it properly and not put it against the wall in closed position.

2) It was the duty of John to inform the employer that he had been using the ladder because the chain of the roller door used to get stuck so in order to lift and lower the roller door he had to use the ladder.

The worker can file a case against the employer for negligence by proving the following:-

a) That the employer owed a duty of care to the worker;

b) That the conduct, act or omission of the employer breached the standard of care which was required in order to discharge that duty which he owed to the worker;

c) That the worker suffered injury due to the carelessness on part of the employer;

d) That the injury was reasonably foreseeable by the employer

If the worker is able to prove the above mentioned elements then the worker shall be given a monetary award by the court for both economic and non-economic loss by which the worker shall be placed in the same position as he would have been if the injury was not caused to him.[11]

If the worker files the case then the difficulties he might come across is to prove that he was not informed by the employer to not use the ladder because the employer in his statement in the given scenario states that he had informed the workers not to use the ladder.[12] Though more than the difficulties the worker has benefits in filing the case because he can prove that if they were not required to use the ladder then why were the ladders even available at the workplace and there was a problem with the roller door. Thus the worker has more benefits than difficulties in filing the case and if the worker wins the case then he shall benefit in terms of money as well.

ANSWER 2:-

Work Health and Safety Queensland (WHSQ) are proceeding with a prosecution.

The laws are actively enforced by WHSQ.[13] It lays down the manner of prosecuting the alleged offender under the prosecution framework and it helps in spreading awareness to the general public regarding the organizations and individuals who breach the provisions stated in the legislation. Prosecuting the alleged offenders sets a strict deterrent for others. It shows the consequences of violation of workplace health and safety and also shows the significant and crucial need to have and maintain healthy and safe workplace. [14]

PROSECUTION UNDER THE QUEENSLAND WORK HEALTH AND SAFETY ACT 2011:-

Workplace Health and Safety Queensland have the power to take legal actions for any offences. In the given scenario, WHSQ can proceed with a prosecution on the following grounds:-

1. Negligence on part of the employer for not getting the chain of the door repaired for which John (the worker) had to use a ladder.

2. The employer failed to comply with health and safety duty which exposed the worker to a risk of injury.

3. The employer failed to comply with health and safety duty.

Proceedings for ground no.2 and ground no.3 shall be taken summarily in the Court of a Magistrate. The employer shall be liable to pay a penalty of $ 3 million for ground no.1, a penalty of $ 1.5 million for ground no.2 and a penalty of $ 500,000 for ground no.3. Along with the monetary fines, the court can pass orders for imprisonment, a good behavior bond, probation and restitution as the court may deem fit. [15]

PROSECUTION UNDER THE QUEENSLAND WORK HEALTH AND SAFETY REGULATION 2011:-

Under the Queensland Work Health and Safety Regulation, 2011, prosecution can be made on the following grounds:-

1. That the employer had a duty of care of health and safety of the worker which he failed to comply with.[16]

2. That the conduct of the employer was reckless because the employer without any reasonable excuse exposed the worker to a risk of serious injury.[17]

DIFFICULTIES FOR PROSECUTION:-

The courts which hear the prosecution for work health and safety laws are as follows:-

1. District Court (generally for ground no.1 as mentioned above)

2. Magistrates Court of Queensland (for ground no. 2 and ground no.3)

The Deputy Director-General who is also known as the Regulator delegates his power to make decisions in order to commence prosecutions to the Executive Director and the Director.

The difficulties which the prosecution might have to face are as follows[18]:-

1. The onus to prove that the employer engaged in a conduct without any reasonable excuse.

2. The prosecution will have to prove that the worker was not informed about not using the ladder.

3. The prosecution will have to prove that the employer owed a duty of care to provide healthy and safe workplace but the employer breached his duty of care.

4. The prosecution will have to prove that the employer even after having the knowledge of the chain of the door not working did not get it repaired and thus the worker had to use the ladder to roll up the door.

5. The prosecution will have to prove that the workplace did consist of ladders.

6. The prosecution will have to prove that the employer breached the standard of care which caused injury to the worker.

7. The prosecution will have to prove that the injury was foreseeable.

If the prosecution is able to prove all the above mentioned points then there shall be no difficulty left and WHSQ will succeed in the case.

STEPS TO OBTAIN INFORMATION:

The information about the status of court proceedings shall be provided to the family members or the caretaker of the injured worker through the investigations Liaison and support officer within WHSQ.[19] Sometimes information shall only be available by following a legal process under Right to Information Act 2009 and Information Privacy Act 2009. The principle to Right of Information is that Government is the custodian of the information which belongs to the community and shall thus ensure that information is made available to all the sectors of that community. If some data is required which is not already provided by the department, courts of Australian Bureau of Statistics then a request to get access to the information can be made by completing the data request form.

ANSWER 3:-

The action taken by the employer in relation to the worker’s request to return to work was not lawful because Workers Compensation and Rehabilitation Act and Regulations provide the workers a right of rehabilitation which is a process to ensure the worker’s earliest possible return to work and also to maximize his functioning which shall be independent.[20] It is the duty of the employer to provide the workers with a healthy and safe workplace. It is the duty of the employer to assess risks to the health and safety of the worker and implement and review control measures to minimize or prevent exposure to the risks as mentioned in the Work Health and Safety Act 2011. It is mandatory for all the employers to have worker’s compensation insurance. If a worker suffers injury while working at the workplace then the worker’s compensation will cover the worker’s medical costs and lost wages. If the worker suffers work related injury then he shall be entitled to benefits. A worker has a right to claim for a workplace injury. The benefits to which the workers are entitled to are as follows: –

a) Medical expenses;[21]

b) Lost wages;[22] and

c) Compensation[23]

Since John (the worker) had suffered an injury in the form of a fracture which took place due to negligence of the employer as he did not provide Jack with a safe and healthy workplace, he has the right to sue the employer through the common law system for damages. Damages may include compensation for suffering and pain as well as for economic loss.

It is the duty of the employer to assess the situation in order to make sure that the worker is safe. Workers compensation laws clearly states that employers are required to participate in rehabilitation and return to work programs for injured worker.[24] Every worker has a right to get back to work once recovered as it is an important step to get back to a normal life and recover from work related injury. This often reduces the financial as well as the emotional impact on the worker and their family. The main purpose of rehabilitation is:-

1) That the worker should be asked to return to his pre-injury duties;

2) In case it is not possible and feasible to return the worker to his pre-injury duties then he shall be temporarily or permanently be returned to any other suitable duty;

An insurer must also take steps which it considers practicable in order to secure the rehabilitation and worker’s early return to suitable duties who have the right to compensation. In the case where the worker is not being returned to his existing duties then again it is the duty of the employer to get him back to a job by providing him suitable duties to perform. Suitable duties are duties which the employee is seen as possessing certain matters such as: the nature of the worker’s pre-injury employment; relevant medical information; rehabilitation and return to work plan; provisions of the employers workplace rehabilitation policy and procedures; the worker’ age, level of education, employability and work environment. A return to work program is a summary of an agreed system which the employer must have in place for the management of workers who suffer any work related injury. It is a system agreed upon by employer and work representative. In order to perform the functions of rehabilitation and return to work, a coordinator under the workers compensation and rehabilitation act is appointed who is qualified to carry on the said functions. An employer is legally liable for compensation if the worker employed by the employer suffers work related injury at the workplace. There is Commonwealth and State Legislation that prohibits the dismissal of the worker by an employer when the worker is absent due to injury.[25] The employer under the Anti-Discrimination Act, 1991 cannot dismiss a worker from the workplace and cannot deny or limit the access to the opportunities which can be favorable for the worker. Thus the action taken by the employer in the given scenario is not at all lawful as he did not let John (the worker) get back to work even when he had a right to get back to work. By doing so the employer had violated the provisions of Workers compensation and Rehabilitation Act and Regulations, 2003 as well as provisions of Anti-Discrimination Act 1991 and Anti-Discrimination Regulations, 2005.

REFERENCES:-

1. Workers Compensation and Rehabilitation Act 2003 (Qld)

2. Workers Compensation and Rehabilitation Regulation 2003 (Qld)

3. Work Health and Safety Act 2011 (Qld)

4. Work Health and Safety Regulation 2011 (Qld)

5. Anti-Discrimination Act 1991 (Qld)

6. Anti-Discrimination Regulation 2005 (Qld)

7. Occupational Health and Safety: Australian Law Reform Commission < http://www.alrc.gov.au/publications/32-occupational-health-and-safety/regulatory-framework-occupational-health-and-safety>

8. Occupational Health and Safety Law: Australian Law Reform Commission < https://www.alrc.gov.au/sites/default/files/pdfs/publications/18._occupational_health_and_safety_law.pdf>

9. Safety Concepts Occupational Health and Safety in the Workplace (June 18, 2012) safety concepts < http://safetyconcepts.com.au/occupational-health-and-safety-ohs-in-the-workplace/>

10. Guidelines for Prosecution (January 11, 2013) Work Health and Safety Queensland < http://www.deir.qld.gov.au/workplace/law/prosecutions/guidelines/index.htm#.U2M-AvQW1SQ>

11. What to do in the event of an injury (March 13, 2014) Queensland Government < http://www.business.qld.gov.au/business/employing/employee-rights-awards-entitlements/workers-compensation/injury>