A young Queensland worker who suffered back injuries in a dump truck incident, and then aggravated those injuries in another truck incident during her second day in alternative duties, has been awarded $1.4 million in damages. The Supreme Court ordered Golding Contractors Pty Ltd to pay damages to the truck driver – who was 23 at the time of the incident – after it admitted liability. In March 2009, the worker was reversing a large dump truck at Ensham Mine near Emerald when she felt a “huge impact” to the rear of the truck, which caused her to be “slammed” back into her seat and then thrown forwards. She suffered a cervical spine disc prolapse and soft tissue injuries to her thoracic and lumbo sacral spine, and was diagnosed with a whole person impairment of 13 per cent. The worker returned to work about three months later on a return-to-work program on suitable duties, and was directed to operate a truck the next day. While the worker was in the truck, a digger operator “rough loaded” her vehicle, which caused her to be shaken around, and increased her pain. She continued to operate trucks for limited hours over the next few days but her pain became “progressively worse” and she stopped working. She sued her employer for damages. The employer admitted liability for the March incident, but disputed the amount of damages the worker was entitled to receive. It claimed it was common for workers not to be transferred to other projects within the company when their contracts finished, and that it was possible the worker wouldn’t have continued working in the mining industry after her contract with it ended in early 2010. It also urged that as the worker planned to retrain as a teacher, her damages should be reduced based on her future earnings in that profession. A number of employers from different companies told the Court, however, that they would have offered the worker a job in the mining industry had she been fit to work when her contract ended. Judge John North said he had a “high degree of satisfaction that in early 2010 the [worker] had excellent prospects of obtaining highly remunerative employment in the mining industry if she had been fit to work as a truck driver or plant operator”. He also found her prognosis was poor, and that it was unlikely she would return to manual work in mining. He awarded her $1,415,094, minus $50,984 for WorkCover payments already received. Martin v Golding Contractors Pty Ltd [2014] QSC 53 (27 March 2014)  This article originally appeared in OHS Alert and is reproduced with permission of the author

As part of my role, working within the safety health & wellbeing industry, I am lucky enough to be invited to get out on site in the organisation I recruit for. This allows me to establish a strong understanding of the culture, workforce and site operations within each transport, logistics and supply chain business. I recently recruited numerous Safety Health & Wellbeing positions for Australia Post and one of these positions was to be based at the busy Australia Post facilities in Sydney.This is one of the largest parcel centres in Australia, where Aus Post are frequently implementing new technology. It was an exciting opportunity to get a little insight into the life cycle of all these parcels, how automation is being introduced to the supply chain industry and importantly, the operating environment where prospective candidates will be working.

Victorian builder has been convicted and fined $300,000 in the County Court over an incident in which a carpenter died after being crushed by a brick wall. Bilic Homes Pty Ltd pleaded guilty to one count of breaching the 2004 OHS Act by failing to maintain a safe workplace.

An employee who waited nearly a month to report a work injury to his employer has been denied compensation. He had been required to provide notice as soon as practicable after the injury occurred. [ Full text of this case: Kelp Industries Pty Ltd v K [2016] TASWRCT 2 (6 January 2016) ] Kelp Industries Pty Ltd disputed liability to compensate Mr K, an operator at its kelp factory, on the basis that he failed to provide formal notice of his lower back injury as soon as practicable after it occurred. Relevantly, the company made an application under s81A of the Workers Rehabilitation and Compensation Act 1988 (Tas) for a ‘reasonably arguable case determination’ by the Workers Rehabilitation and Compensation Tribunal of Tasmania. The application was handled by Commissioner Chandler.  It was the company’s evidence that:

New Bills in the Queensland and South Australian Parliament are proposing important changes to the states’ work health and safety (WHS) laws

Mandatory alcohol and drug testing is now part of the CFMEU’s proposed impairment policy for the construction industry. The impairment policy being proposed by the construction division of the CFMEU addresses impairment risks associated with the use of drugs and alcohol, as well as other factors such as fatigue, physical and mental health, job insecurity, and injury and illness.  The union has traditionally opposed mandatory alcohol and drug testing policies. However, CFMEU National Construction Secretary Dave Noonan explained that its new position reflected member concerns about the safety risks a worker may be exposed to when working with someone who is impaired by drug or substance abuse.

A perennially common question to WorkplaceOHS relates to the taking and accruing of various forms of paid leave while an employee is absent on workers compensation. Often, the employer would like to take the opportunity to send the employee on paid leave during this time, so as to lower his/her accrued annual leave and long service leave balances.  However, this approach may not be possible in every state and territory depending on the relevant workers compensation legislation and, in the case of long service leave, the relevant long service leave legislation. The Fair Work Act 2009 also restricts the taking and accruing of paid leave during an employee’s absence on workers compensation. This article explains the legality of taking and accruing paid and unpaid leave during this time. Taking and/or accruing paid and unpaid leave — Fair Work Act The Fair Work Act (s130) states that an employee is not entitled to take any paid or unpaid leave (except unpaid parental leave) or accrue any paid or unpaid leave provided under the National Employment Standards (NES) during a period when the employee is absent from work because of personal illness or injury, for which the employee is receiving workers compensation, unless provided otherwise by the relevant Commonwealth, state or territory workers compensation law. The absence does not break an employee’s service with the employer, meaning service prior to and subsequent to the absence on workers compensation is taken into account when calculating an employee’s accrual of leave. The following paid and unpaid leave entitlements under the NES are affected by s130 of the Act: – annual leave – paid personal/carer’s leave – unpaid carer’s leave – paid and unpaid compassionate leave – public holidays – award-derived long service leave terms (derived from pre-reform federal awards) – unpaid community service leave – jury service make-up pay As mentioned previously, the Fair Work Act (s130(3)) provides that an employee is entitled to take a period of unpaid parental leave during an absence on workers compensation. Annual leave Some workers compensation laws refer to the interaction of certain paid leave (eg annual leave, public holidays and long service leave) with payments of workers compensation. The majority of state and territory workers compensation laws do not make any specific provision regarding the accrual or taking of annual leave during an employee’s absence on workers compensation. Currently, workers compensation legislation in Queensland allows for the accrual AND taking of annual leave during an employee’s absence on workers compensation. See Workers’ Compensation and Rehabilitation Act 2003 (Qld) (s119A). In Victoria, the relevant workers compensation legislation allows an employee to take annual leave (but not to accrue annual leave) during an absence on workers compensation, operative from 1 January 2010. See the Accident Compensation Act 1985 (Vic) (s97). Other workers compensation laws — judicial review The wording of some state workers compensation legislation has created conjecture on this issue. Example The Workers’ Compensation Act 1987 (NSW) (s49) provides that a workers compensation benefit continues unaffected if the worker receives any payment, allowance or benefit for holidays, annual or long service leave under any Act, agreement or award (or under the worker’s contract of employment). This has previously been interpreted by government authorities in that state to mean the NSW workers compensation legislation overrides the Fair Work Act, meaning an employee can take annual leave during an absence on workers compensation. It has been the view of employers, however, that the NSW workers compensation legislation ‘accommodates’ an entitlement to take paid annual leave, but does not ‘permit’ the taking of annual leave. This means that because the Fair Work Act does not bestow an entitlement to take or accrue annual leave during an absence on workers compensation, the wording of the NSW workers compensation legislation is irrelevant. The relationship between s130 of the Fair Work Act and s49 of the NSW Workers’ Compensation Act has not been determined by the courts, although it should be noted that a matter on this particular issue has been listed to be heard in February 2014 before the Federal Circuit Court. Similar wording to the NSW legislation exists in the WA workers compensation legislation. Public holidays An employer may be unsure regarding payment for any public holiday if they refer to the public holidays provisions in the relevant workers compensation legislation (eg NSW workers compensation legislation). Because of the provisions of the Fair Work Act (s130), an employee who is absent from work and receiving workers compensation is NOT entitled to receive payment for the public holiday, unless otherwise provided by the relevant workers compensation law. At this stage, no state or territory workers compensation law bestows an entitlement to payment for a public holiday that would override the provisions of the Fair Work Act. Long service leave Accrual of leave State and territory long service leave legislation is excluded from the operation of the Fair Work Act (s27). This means the accrual of long service leave during an employee’s absence on workers compensation is dependent on the relevant state or territory legislation. Consequently, the accrual of long service leave during workers compensation may vary depending on the jurisdiction. Example Under NSW and Qld legislation, an employee continues to accrue long service leave during an absence on workers compensation; whereas, under Vic legislation, an employee ceases to accrue long service leave when an absence from work exceeds 48 weeks in any year on account of illness or injury. Therefore, you should refer to your state or territory long service leave legislation to establish an employee’s accrual of long service leave during his/her absence on workers compensation. Taking leave Most state and territory long service leave statutes do not make specific reference with respect to sending, or the employee requesting, a period of long service leave when an employee is absent on workers compensation. Under the Long Service Leave Act 1976 (Tas) (s12(2)), an employee is not required to take long service leave during a period of workers compensation. National Employment Standard The NES preserves award-derived long service leave terms. These are long service leave terms previously provided under a pre-reform federal award. Such terms were common to federal awards operating in the metal industry, printing industry, food preserving industry, vehicle industry and the meat industry. Because the Fair Work Act (s130) prevents the accruing or taking of any paid (including long service leave under the NES) or unpaid leave (other than unpaid parental leave) that is provided under the NES during an employee’s absence on workers compensation, an employee could not take or accrue long service leave that is an award-derived long service leave term. This article was originally posted on Workplace OHS a part of NSW Business Chamber – Australian Business Consulting and Solutions has a dedicated team of WHS/OHS experts who can assist you with your specific WHS/OHS issues and problems.

GWe would like to have a fire warden on site to ensure we meet WHS obligations, however none of our employees have agreed to take on the role. Can we force someone to be a fire warden? This question was sent to the Ask an Expert service at Australian Business Consulting and Solutions