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Toolbox Tips #1 (Part 4) - Australian WHS Legislation

Kevin Stretton - Monday, February 15, 2016

Distinct evolution compared with the UK

 

·         1865 – Victoria: an employee was injured when, due to corrosion, a restraining chain broke. The truck moved and the employer was found negligent because they had not checked the condition of their plant (safe method or system of work, safe plant).

  

Note: Historical connections

 

·         Workplace auditing & inspections.

·         Development of employer & employee consultation or participation.

·         Employees have a responsibility to identify & report hazards.

 

·         Therefore, an employer may still be negligent where they cannot demonstrate they had trained employees to formally make note of and report workplace hazards (hazard identification).

 

Employee negligence

 

·         From these ideas arose the question of negligence where employees did not report known hazards.

·         An employee failing to notify their employer of hazards and their associated risks was said to have accepted the legal risk and liability.

·         This is often modified by the issue of employees involuntarily accepting the legal risk.

·         However, there is little evidence of injuries reported as a result of another employee’s negligence.

·         And current legislation does provide for this foreseeable scenario.

·         In extreme cases of serious negligence by an employee an employer is allowed the option of investigation & discipline which may lead to dismissal, provided the correct (federal &/or state) procedures are used.

 

Summary

 

Where an employer has neglected their duty to provide:

1.    Effective supervision

2.    Safe equipment, materials & systems of work

3.    Training

 

And knowing that injuries may result from foreseeable incidents, a case of liability will be established.

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