A recent judgement serves to remind employers of the breadth of the Occupational Health and Safety Act 2000 (NSW) and the lengths to which they must go to identify and minimise risks to employees and other people at the workplace.
The charge arose from an incident resulting in the death of an employee of a subcontractor working on a construction site administered by Thiess. The Worker parked a back hoe near two sediment ponds at the construction site. His body was found in the western pond the next day. A post-mortem revealed that he had died of a heart attack. Proceedings were commenced by WorkCover at the Industrial Court of NSW alleging that Thiess had breached s8(2) of the OHS Act by failing to ensure that the worker was not exposed to the risks of working near the sediment ponds.
NSW Industrial Court
The NSW Industrial Court found that Thiess had breached s8(2) of the OHS Act, in spite of the evidence that there was a chain at the entrance to the sediment ponds, life buoys around the ponds, signs near the ponds (“Strictly No Admittance” and “Danger Deep Water”), and no reason for the worker to park the back hoe at the ponds, in a no parking area. There was no evidence as to precisely what the worker was doing at the time of the incident, the distance he was from the water or whether he slipped, tripped or fell.
Thiess appealed to the Full Bench of the NSW Industrial Court, which found that the safety measures and the Safety Guideline on Working Near Water indicated that Thiess had recognised the risk of falling into the sediment ponds. However, Thiess had not gone far enough to mitigate or eliminate this risk; it should have erected physical barriers around the entrance to the ponds, erected proper signage indicating that the ponds were dangerous and undertaken a more rigorous induction about the danger of the working at or near the ponds.
NSW Court of Appeal
Thiess then appealed to the NSW Court of Appeal, and claimed that the Industrial Court had erred in finding that any person present at a work site was necessarily exposed to an existing risk, because he or she could potentially gain access to location of the risk. However, the majority of the Court of Appeal rejected Thiess’ argument and affirmed that a person is ‘exposed to risk’ within s8(2) of the OHS Act by reason of “proximity” to a risk. In this way the words ‘exposed to risk’ were extended to apply to the worker, who at the time of the incident was sufficiently proximate to the source of the risk for the risk to eventuate, regardless of the manner in which it happened.
In order to satisfy the requirements of the OHS Act, employers must not only identify and mitigate those risks to which employees or other people are actually exposed, they must also consider those risks that employees or other people could potentially be exposed to in the course of their work, whether or not they relate directly to their role or responsibilities.