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Lack of control no barrier to safe access
obligation
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Michael Tooma,
Associate, Andersen Legal
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The Full Bench of the NSW Industrial Relations Commission has reinforced
the broad nature of the general duty of care under the Occupational
Health and Safety Act 1983 (the Act).
The Commission dismissed an appeal by an employer against a conviction
for failure to ensure the safe access and egress of its employees
on a trafficable ceiling at a construction site. The ceiling collapsed
injuring three of the employer's employees when construction workers
at the site demolished a supporting wall.
The Appellant in that case, Kennedy-Taylor, had argued that the
general duty of care imposed on employers by section 15(1) of the
Act should be read down, as it relates to access and egress from
the workplace, in light of the specific obligation found in section
15(2)(d)(ii), requiring employers to ensure that the means of access
and egress to any place of work under the employer's control be
safe and without risks to safety. Since Kennedy-Taylor had no control
over the ceiling, its lawyers argued, it could not be expected to
ensure safe access and egress from it.
In a unanimous joint judgement, the Full Bench of the Commission
emphatically rejected that argument. Referring to the objectives
of the Act, the need to interpret the Act in a way which gives effect
to its purpose and referring to the specific language of the Act
which states that the specific duty is "without prejudice to
the generality" of the general duty, the Commission held that
the specific duty did not limit the general duty.
The Court heard that the company, had been subcontracted to disconnect
thermostats from a wall at a construction site as part of the preparation
for demolishing and re-constructing that wall. The work of disconnecting
the thermostats required the company's employees to enter the ceiling
space though the trafficable ceiling. No inspection of the trafficable
ceiling was undertaken by the appellant to ensure that it was safe.
The Court also heard that the company's foreman went to the top
of a ladder to look into the ceiling at the commencement of the
job, but he did not carry out any inspection of the ceiling in a
manner that would have enabled him to determine whether it was safe
for the company's employees. Furthermore, he did not make any inquiry
about the potential effects on the ceiling of any construction work
that was being, or was intended to be, undertaken.
Similarly, the company's service manager participated in a "walk-through"
of the premises at the commencement of the construction project
but did not make any inquiries about the potential effects on the
ceiling of any construction work that was being, or was intended
to be, undertaken.
The company only conducted a formal safety induction program for
its employees on the site if the value of the job exceeded $1 million.
However, the work level in the contract at this site did not meet
that criteria and therefore there was no induction provided to the
employees working on the site.
The Commission held that in failing to conduct a risk assessment
of the ceiling and make enquiries about construction work planned
for the surrounding area, the company failed to ensure the health
and safety of its employees at work, in breach of the Act.
Lessons for employers
The case is a salient reminder of the scope of the general duty
provisions in OHS legislation. The Courts have consistently said
that the fact that the employer does not have control over the place
of work where their employees work does not diminish the employer's
obligation to ensure the health and safety of their employees. To
the contrary, the Courts expect employers to be even more vigilant
in their safety efforts precisely because of their lack of control.
Where employees are required to work in premises over which the
employer has no control, the employer should at least:
- conduct a risk assessment of the premises and the work to be
performed and control any risks prior to the commencement of the
work;
- provide the employees with appropriate safety induction and
training in safe systems of work;
- require the person in control of the premises to maintain the
premises in a safe condition and notify the employer of any material
changes to the premises which occur after the initial risk assessment
by the employer;
- instruct the employees not to work if their working conditions
and environment is materially altered after the initial risks
assessment; and,
- provide adequate supervision of the work to ensure that it is
undertaken safely.
Michael Tooma is an Associate with Andersen Legal specialising
in OHS law. He can be contacted on (02) 9993 6619 or by email to
michael.tooma@au.andersenlegal.com.
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