Is an Airbnb a workplace?

QLD September 2018 

A Young boy has died tragically after he fell from a swing set at a property in the Sunshine Coast Hinterland.

It is understood the four-year-old boy, who is reportedly from Brisbane, was playing on a homemade wooden swing set at an Airbnb property near Maleny with several other children when it toppled over on Saturday afternoon. 

The young boy suffered serious head injuries and later died. 

The incident was witnessed by the young boy’s father, according to Ten News. 

A seven-year-old also suffered minor injuries and was taken to Sunshine Coast University Hospital in a stable condition, a Queensland Ambulance Service spokesman said. 

The swing set has been seized by authorities and Workplace Health and Safety is investigating the tragic incident. 

A report will be prepared for the coroner. 

https://www.couriermail.com.au/news/queensland/boy-4-killed-in-swing-set-tragedy/news-story/ba0d6b7b76b280dd0802dea849bcaacc

 

Abattoir charged after forklift collision

VIC September 2018 

A Warrnambool abattoir has been charged by WorkSafe following an incident in which a forklift ran into two people in October last year.

Midfield Meat International Pty Ltd has been charged with contravening sections 21 and 23 of the OHS Act for failing to eliminate or reduce, as far as reasonably practicable, the risks of forklifts colliding with pedestrians.

It is alleged an employee driving the forklift had his view obscured by the bin he was transporting when the vehicle struck another employee and a company director.

WorkSafe will allege the company did not have adequate measures in place to separate forklifts from pedestrians, such as barricades, bollards or gates, pedestrian exclusion zones or travel paths.

The charges have been filed in Warrnambool Magistrates’ Court. 

http://www.worksafenews.com.au/component/k2/item/694-abattoir-charged-after-forklift-collision.html

 

Charges filed over occupational violence in residential care facility

VIC September 2018 

The Department of Health and Human Services, three companies and an individual have been charged by WorkSafe following a series of incidents against a number of employees by a client at a residential care facility in Victoria’s east.

DHHS is charged with two contraventions of section 23 of the Occupational Health and Safety Act for allegedly failing to ensure, so far as reasonably practicable, that persons other than their employees were not exposed to risks to their health and safety.

Three companies have been charged under section 21 of the OHS Act for allegedly failing to provide a safe working environment by failing to maintain systems of work that were, so far as reasonably practicable, safe and without risk to health. They are:

• Essential Recruitment and Personnel Solutions Pty Ltd (two charges)
• Victorian Person Centred Services Limited (three charges)
• Transitions Community Care Solutions Pty Ltd (one charge)

An employee of one of the companies has also been charged under section 25 of the OHS Act for allegedly failing to take reasonable care for the health and safety of persons who may be affected by their acts and omissions at a workplace.

The incidents, which relate to occupational violence, took place between January and August 2016.

http://www.worksafenews.com.au/component/k2/item/677-charges-filed-over-occupational-violence-in-residential-care-facility.html  

  

 

Company fined $375,000 after worker's death

    

A company has been fined $375,000 in the NSW District Court after a 19-year-old worker died when run over by a harvester.

Turfco Australia Pty Ltd conducts a business growing, harvesting and selling turf.

Their turf harvester is operated by a driver and a turf stacker who stacks slabs of turf while standing on a side platform located at the rear of the harvester.

On the day of the incident, the harvester was reversing when the stacker fell from the platform and unbeknown to the driver, was run over.   The driver immediately stopped and shut down the harvester, and alighted onto the field. He saw the deceased’s arm coming out from underneath the harvester, where he had become trapped. Emergency services personnel pronounced the worker deceased at the scene. The cause of death was traumatic asphyxia resulting from external pressure on the chest or abdomen that was exerted by the tractor component of the turf harvester, which weighed almost 4 tonnes.   

Judge Scotting said the risk of injury was obvious and there were simple steps which the company should have implemented at no cost to eliminate the risk, such as directing the turf stacker to alight from the harvester when it’s reversing.

 

The company now uses an automatic harvester that requires only one operator.

 

“The appropriate fine is one of $500,000 that will be discounted by 25% to take into account the plea of guilty.”

 

https://www.caselaw.nsw.gov.au/decision/5b4c0402e4b09e9963070ec2   

 

Worker injured and pre existing conditions

An employer was found liable for the injuries sustained to a worker when he exited the employer's delivery truck. 

The employee was employed by as a battery delivery driver.  He had a history of back conditions dating back a number of years, including 3 incidents in 2011, the year he commenced with the employer. 

It was accepted that no information relating to training or manual handling techniques were provided to Mr Kelleher during an interview and pre employment tour of the employer’s premises. 

Ultimately the employee was offered a job by the employer, once he obtained the relevant truck license. In order to do so, the plaintiff undertook one truck driving lesson in a Nissan vehicle considerably larger than the vehicle he would drive for the employer, and passed. This lesson included instructions on the 3 contact point method for exiting trucks. 

Upon commencing his employment, the employee shadowed another employee, for approximately 3 days before working independently. Shortly after, he began to develop back pain again and informed the employer. 

It was accepted that the employer had awareness of the employees’ vulnerability and was  alleged that he was not provided with any manual handling training, or training on how to exit a truck during that time. He alleged he was not instructed to exit the truck by reversing out, and was not instructed to not exit the truck by facing outwards, which was his routine way of exiting. 

On exiting the truck in his routine way (facing outward and dropping down), he sustained further injury to his spine at the L4/5 level (the incident), resulting in left sciatic pain requiring a discectomy. In the weeks following the discectomy, The worker developed painful right sided symptoms for which his treating doctor recommended a further revision discectomy. WorkCover rejected the request for revision surgery on the basis that the right sided symptoms were a product of Mr Kelleher’s pre-existing condition and not his work related condition. 

The court found that the employee had received no manual handling training or assistance in relation to the lifting and carrying of batteries. He had  also received no instruction or training about appropriate methods of entering or exiting the delivery truck by the employer. 

It was the court’s view that a reasonable employer would have known that getting in and out of the truck’s cabin carried a not insignificant risk of injury, and knowing this, the employer breached its duty to Mr Kelleher by not having in place sufficient training and instruction to ensure a safe system of work. 

Although the employer was found to have breached its duty of care, causation was only established on the point of exiting the truck. The court found that had the employee used the three-points-of-contact-reversing method of exiting the truck, he would not have dropped to the ground and not been exposed to large compression forces upon his spine. 

The court also found that the plaintiff had not established causation in relation to manual handling and the right sided back symptoms. The plaintiff did not establish that had the employer taken a certain manual handling precaution, the injury would not have occurred. The court also found that it was more probable than not that while the right sided symptoms were a result of the employees first discectomy, his pre-existing degenerative condition contributed, in a significant way, to his ongoing symptoms. 

Judgement was awarded for the plaintiff in the amount of $320,865.79 clear of the $93,498.20 refund to WorkCover Queensland. The court applied a substantial discount (40%) to the claim for past economic loss on the basis that his pre-existing condition made him unsuitable for the job which was noted to have been obtained through a family connection. 

These factors led the court to conclude that it was unlikely the plaintiff would have been in continuous employment since the date of the incident. Future economic loss damages were reduced even further, by 60%, to take into account the significant pre- existing condition and its contingencies, as well as the unfavourable labour market. 

 

Kelleher v J & A Accessories Pty Ltd [2018] QSC 227 

 

$10 million undertaking issued against Education Directorate in ACT under the WHS act ACT 2011  

In a recent case, WorkSafe ACT WorkSafe alleged that the Education Directorate had not done all that was reasonably practicable to ensure the health and safety of staff because it had:

·         applied inconsistent or inadequate controls to workplace hazards associated with student behaviour

·         failed to adequately adjust controls following incidents or changes in circumstances

failed to provide adequate training to staff in the application of identified controls

Work Safety commissioner Greg Jones has said that an enforceable undertaking on the ACT education directorate, alleging the government had breached its legislated responsibilities by not doing all that was "reasonably practical" to ensure the safety of its staff.

The investigation focussed on three schools deemed to the most at risk between 2016 and 2018, Mr Jones said the problem was systemic in a directorate where existing workplace violence policies were neither flexible nor fully implemented.

The number of Canberra public school students involved in physical assaults also surged from 233 in 2012 to more than 2000 in 2017.

At school 1, a staff member working in the kindergarten suffered multiple injuries from students identified as having disabilities, complex needs and challenging behaviours. There were a number of injuries on multiple occasions

At school 2, a kindergarten teacher was hospitalised after they were kicked by a student who had been involved in multiple violent incidents throughout the year.  Staff were bitten, scratched, punched and kicked. One of the staff members was pregnant at the time and was struck on her abdomen.

At school 3, the incidents involved a high school student who was identified as having challenging behaviours that presented an extreme risk staff and to others.

A working group was formed among stakeholders (including school staff, Education Directorate staff and the union) and new policies dealing with occupational violence were developed.

The Education Directorate also signed an undertaking that included the committing:

·         approximately $7.67 million to developing the Occupational Violence Safety Management System program, a significant proportion related to the development of sensory spaces in schools for staff to support students with complex needs, and professional learning to support schools in creating sensory spaces

·         a further $2.225 million to training and communications initiatives

·         another $100,000 to strategies to deliver community benefits by working with parent associations to raise awareness about occupational violence in the education sector.

 

https://www.canberratimes.com.au/national/act/worksafe-launches-action-against-act-government-over-school-assaults-20181015-p509rk.html  

https://www.abc.net.au/news/2018-10-15/act-directorate-inadequately-handled-violence-against-teachers/10378280  

http://www.mondaq.com/australia/x/760396/Education/A+recent+10+million+

undertaking+puts+the+spotlight+back+on+violence+in+schools