Newsletter

Q2 - 2018

April - June

*  New South Wales is the first Australian state to test drivers for cocaine use

*  Can a director be the victim of bullying?

*   Horseplay at work leads to serious injury and $800k fine. 

 * Company cops a $1,000,000 Fine

New South Wales is the first Australian state to test drivers for cocaine use. 

All Australian states now have random driver drug testing, similar to random breath testing for alcohol. But the existing kits in all states test only THC (Cannabis), methamphetamine (speed and ice) and MDMA (ecstasy). Cocaine, a drug widely associated with more affluent users, has not previously been tested.

This has led to accusations that drug testing unfairly targeted lower socio-economic groups. But the technology for effectively testing for cocaine has only recently become available. NSW Police conducted a major in what the Daily Telegraph referred to as ‘Sydney’s coked up Eastern Suburbs’ in September last year. Now cocaine testing will be formally introduced across the state.

Random drug testing is the latest tool in the continuing fight to reduce the road toll. In 2017, 392 people were killed on NSW roads. The Christmas period was extremely bad, with a number of high-profile fatalities. The toll has risen annually since the lowest ever year, 2014, when 307 people died. But it is still much lower than the peak year of 1978, when 1384 people lost their lives.

Road deaths in NSW and across Australia have declined sharply in the last 40 years, because of a range of factors including compulsory seatbelts, better roads, safer cars, random breath testing for alcohol, and stronger enforcement mechanisms such as speed cameras.

Currently, drivers caught driving under the influence of drugs are subject to lower maximum penalties than the highest range drink drivers. The NSW Government will be changing this so that the maximum penalties for driving under the influence of drugs are consistent with the highest range drink driving offences.

https://www.governmentnews.com.au/2018/01/nsw-adds-cocaine-driver-drug-testing/

Can a director be the victim of bullying?

Commissioner Hampton in the FWC decided that a director, who was not otherwise an employee of the corporation of which he was the director, was able to complain in the FWC about alleged bullying.

Mr Adamson was the Chairperson of a South Australian statutory corporation, Anangu Pitjantjatjara Yankunytjatjara Inc. As the elected Chairperson of the Executive Board of APY Inc, Mr Adamson alleged that the Deputy Chairperson and the General Manager bullied him by undermining his authority and preventing him exercising his powers as Chairperson.

Two preliminary questions arose:

1. Was Mr Adamson at risk of further bullying, given that he had not been re-elected as Chairperson while the case was continuing in the FWC? 
2. Was he a "worker" within the scope of the anti-bullying jurisdiction, which depends on the definition of "worker" in the uniform Work Health and Safety Acts? 

The Commissioner decided that there was no ongoing risk of bullying because Mr Adamson no longer occupied the role of Chairperson and dismissed the application. However, the Commissioner also dealt with the scope of "worker."

The definition of "worker" in the WHS legislation is very broad. It relates to a person who"carries out work in any capacity for a person conducting a business or undertaking," including employees, contractors, subcontractors, labour hire employees and various other classes of workers – it says nothing explicit about directors. Of course, a director who is also an employee or contractor would be within the definition for that reason but what about a director who has no other role with the organisation?

    http://www.mondaq.com/article.asp?articleid=604260&email_access=on&chk=1134544&q=530284

   Horseplay at work leads to serious injury. 

In March 2014, suffered a fall from a pallet jack at the Defendant’s depot at Darra, Queensland. The Plaintiff was employed by the Defendant as a truck driver. As a result of the accident, he suffered compression fractures to his spine. The incident, which was captured on CCTV shows the plaintiff riding the pallet jack like a scooter, using one leg to push it several times and then placing a leg on each tyne as the pallet jack moved forward towards his truck.  Another employee approached the plaintiff from behind, ran towards him, and pushed one of the tynes of the pallet jack with his foot. The Plaintiff fell backwards and hit his head and back on the concrete floor. 

The Plaintiff was provided with training, including a Code of Conduct which specified that there was to be no horseplay or skylarking in the workplace. The Court accepted that workers did, on occasion, ride the pallet jack like a scooter. 

In relation to liability, the issues in dispute included: 

·          whether the Plaintiff’s injuries arose from the Defendant’s breach of duty of care or breach of contract; 

·          whether the Defendant was vicariously liable for the acts of Starling, who pushed the tyne with his foot; 

·          whether the Plaintiff was contributorily negligent. 

The plaintiff denied that he was ever instructed, trained or authorised as to the use of the pallet jacks. Further, the plaintiff was not ever trained or instructed not to ride a pallet jack and never informed he was not authorised to ride a pallet jack. The plaintiff also denies he was engaging in horseplay in riding the pallet jack, that he failed to have regard for his own safety or that the activity involved obvious risk in the absence of a deliberate action on the part of the third person.

There was no finding of contributory negligence 

The Plaintiff succeeded on liability and was awarded damages of $874,669.   

https://archive.sclqld.org.au/qjudgment/2017/QSC17-320.pdf 

Company cops a $1,000,000 Fine

In June 2014, a contractor of WGA Pty Ltd sustained an electric shock while working on a window ledge at a  residential apartment construction site in South Hurstville. The 49-year-old man was installing a piece of aluminium to the outside of a window when the power jumped to the metal from nearby 33,000-volt power lines feeding the Illawarra train line. The worker suffered burns to 30 per cent of his body. 

Following an investigation by SafeWork NSW, WGA Pty Ltd was charged with a breach of the Work Health and Safety Act, and convicted and sentenced.  

Prior to the incident, a SafeWork NSW inspector and Sydney Trains had provided advice to WGA Pty Ltd about working safely around these power lines. However, WGA Pty Ltd did not heed this advice and the court found the company failed to take the necessary steps to protect the worker – such as having electricity to the power lines isolated before undertaking external work to the building.  

His Honour Judge Scotting imposed a fine of $1 million on WGA Pty Ltd. This is the highest fine imposed ever in NSW under the Work Health and Safety Act.

As well as the fine, the defendant was also ordered to paythe prosecutors costs of  $50,460.90. 

http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/nsw/NSWDC/2017/92.html?stem=0&synonyms=0&query=work%20health%20and%20safety%20act