Occupational Health and Safety Act is a very crucial aspect that needs to be put into much consideration in a lot of organizations. Safety has been defined in a way as a form of common sense. Most injuries in workplace happen mostly due to recklessness and carelessness of an individual. Any system must, therefore, set up certain precautions in ensuring that injuries can be minimized and prevented by a large margin even though work injury is difficult to avoid in any workplace (Commission, 2000). According to District Court A.J. Adeana Crean vs. Port of Napier LTD (1994) “Any system of work in which workers are subject to no precautions but those arising from the worker’s common sense, is liable, if not certain, to be condemned as unsafe by any measure’’. A lot of entities, therefore, have come up in ensuring occupational safety and health is maintained, and every employee is protected from any harm (Willis, 2012).
The OHS laws are passed and implemented by the state parliament and governed by the State Government of Victoria. The State Government Authority has set up a minimum performance requirement and a maximum penalty of $ 3.1 million for breach of safety law by any organization. Each organization should, therefore, maintain the highest levels of safety practices. They must also ensure that practical safety solutions are put in place and ensuring that every employee and employer becomes responsible for every negligence act that may lead to the harm of one another (Dollard, 2014).
Every individual in an organization has a role to play in ensuring the safety of the organization and also for individual safety. These are directly from the top management that is the employer to senior officer liability to employee liability to manufacturers of products to project designers to suppliers to also installers. All these entities have a bigger role in ensuring the safety of commodities that they manufacture and commodities that they also transport. An employer is responsible for ensuring a safe working environment for all staff. Also ensuring close supervision of their staff by a well-planned, coordinated work that is conducted in the most professional manner. Section 21 of the Victorian Occupation, Health, and Safety Act, states that “An employer must, so far as is reasonably practicable, provide and maintain for employees of the employer, a working environment that is safe and without risks to health” (Collins, 1994) (Friend & Koln, 2007). Section 21(3) also states the regulations governing contractors that are hired to provide their duties and skills in completing projects or in doing repairs. All employers have control over these contractors and have the ability to select the most qualified of this contractors. According to the case of Stevens Verses Brodribb Forestry, it states clearly that an employer should take reasonable care in ensuring that the contractors that they give work to operate their system of work are competent (Friend & Koln, 2007). The employer must also retain control over supervision of the project being undertaken and assign each contractor their side of work that they ought to perform.
In a familiar case where an employer was fined $1million after been convicted for WHS offense where he knowingly allowed a subcontractor to go ahead with work that was close to a high voltage power lines to speed up a construction project. These was a breach of section 19(1) and 32 of the contractors Act and was found guilty of the offense (Asfahi, 2010).
On the other hand, once an employer passes responsibility to qualified contractors to perform a particular duty then they have no liability in the event of the injury of their worker or subcontractor. According to Leighton Contractors P/L VS Brian Allen Fox 2009. “Once an activity has been organized and its operation is in the hands of independent specialist contractors, liability by them within their area of responsibility is not borne vicariously by the employer.”
On this particular case study where Whelan and Twonney have injured the result was due to the negligence of numerous parties who participated in the project. However, if the case was to be charged in the court of law three entities will be held responsible. Consolidated Construction Company would have been held responsible for the act as per the time of the contract it had offered supervision work to Taylor a 24-year Engineering graduate who had no experience in the excavation work and at the same time during the collapse of the constructed wall (Maycork, 2008). Excavation work was supervised by the Consolidated Construction manager who authorized the excavation of the area around the footing of the reinforced masonry retaining wall in the vicinity of the brick wall. The manager had the responsibility of making sure that the vicinity of the wall is free from all kind of risk to any individual (Payant, 2016).
The Excavator operator also had the responsibility of warning Whelan and Twonney to move away from the wall as he was the one doing the excavation with the excavator and this was at the foot of the wall. He ought to have evaluated the risk that was in relation the excavation work that was conducted at the base of the wall. On the other hand, the negligence of Whelan and Twonney of conducting their activities just on the base of the wall while they were seeing the excavator digging deep down leaving the wall exposed was a kind of negligence on their part as they were qualified and experienced individuals (Towey, 2013).
Consolidated Construction Company LTD would be highly liable to this offense of occupational health and safety of their employees where the two employees were injured in the event of excavation and also through the negligence of giving supervision work to unqualified employees like Taylor to conduct supervision on a much important project. At the same time of the incidence, the manager of the Consolidated Construction Company was at the time Supervision the excavation works that led to the falling of the wall. These are according to the OHS Act,2004. Where the principal contractors have the duty of supervising subcontractors to ensure safety performance of all employees (Mckenzie, 2009). They must make sure that they adhere to the legislations, Risk Assessment requirements and ensure health and safety plans are implemented in the right way (Woodson, 2012).
The second entity to prosecute would be the Excavator operator as he was the only one who knew of the two injured employees to be at the base of the constructed wall where he did the excavation that would probably result in the exposure of the wall digging at the footing of the wall. Therefore, he had a bigger chance of warning the injured employees of the risk that they were exposed (Act, 2007). The excavator acted with much negligence hence was liable to the safety of his workmates according to section 25 of the OHS,2004 Act.
The third entity that would also be liable would be the two employees, Whelan and Twonney who are having had the relevant experience to be able to realize the risk that they were exposed to had nothing much to do but acted negligently to the process hence being injured in the process (commission, 1991). They should have given room to the excavator to finish their work before embarking on their duties. They needed not to be notified of the operations of the excavator as it is something that is heard once it has started running.
I would most probably prosecute the Consolidated Construction Company LTD under “Section 32 of the OHS Act ‘Duty not to Recklessly Endanger Persons at Workplaces’, which states that. A person who, without lawful excuse, recklessly engages in conduct that places or may place another person who is at a workplace in danger of serious injury is guilty of an indictable offense and liable to a five years sentence for a natural person or imprisonment or a fine, not less than $ 280,00. For a corporate body, they have to be fined something not less than $3.1 million”. These are, therefore, a clear indication of how reckless individuals can be fined for their reckless acts against the OHS policy (Howells, 2003).
Secondly under Section 23 and 24 of the OHS Act “Duties of Employers and Self-Employed Persons to Others.” I would secondly prosecute the excavator operator for not ensuring the safety of his fellow employee. Section 23 & 24 sets out the duties on employers and the self-employed to ensure that the health and safety of members of the public are not affected. “Employees must take reasonable care in ensuring that he follows his own OHS and that of everyone that could be affected by his acts (Hughes, 2016). The Excavator should have corporate with his employer in ensuring that the safety of Whelan and Twonney is protected. An employee must also not interfere recklessly with the OHS items intended for the safety of all individuals. According to section 25 of OHS,2004. The employee “Must use the level of sound judgment, prudent decision making and taking of action that a reasonable person would use to prevent and reduce hazards and risks to health and safety.”
Thirdly will be to prosecute the two injured employees for acting recklessly and not preventing themselves with exposure to risk. These are according to section 25 of the OHS law just in the case of the excavator operator for acting negligently.
Role of principal contractors in ensuring safety at workplace
The principal contractors have a major role in ensuring the safety at the workplace. They are the ones that have the responsibility of formulating safety rules that ought to be followed by all including the sub-contractors. They should always display their sign and contract details available to all to be able to see. They should also ensure that they provide appropriate training to all new starters before getting into the site and educating them on the safety procedures (Jonestone, 2004).
All contractors should also conduct safety coordination. Coordination’s plan includes a lot of aspects that needs to be taken into consideration. For example, is the stating of the OHS roles of each and also arranging for everyone’s health and safety and ways of managing these incidences. Principle supervisors also have to state the OHS responsibilities for all site supervisors, OHS managers, first Aid managers, fire managers and the project managers. Section 26 of the OHS Act Duties of Persons Who Manage or Control Workplaces. “A person (employer/contractor) who has, to any extent, the management or control of a workplace must ensure that the workplace and the means of entering and leaving it are safe.”
According to section 22 of the OHS,2004 Act duties of the employer/ principle contractor includes: Monitoring the health of their employees, monitoring conditions that are current in their workplace e.g. heat, dust, and noise that could be hazardous in causing a risk. They should also employ and engage with qualified individuals about work and also OHS. Contractors, therefore, ought to be careful on their responsibilities as they are qualified to conduct their duties much more than the employer due to their work specialization (Transco, 2000). According to the case of Leighton Contractors P/L vs. Brian Allen Fox 2009. “Once an activity have been organized and its operation is in the hands of independent specialist contractors, liability by them within their area of responsibility is not borne vicariously by the employer.”
Prevention actions entail doing a lot of things right from management to the lowest laborer or staff. Everybody have the sole responsibility of ensuring that they contribute towards the reduction of work-related risks. One prevention way is by providing training. It should be provided to all staffs, contractors and all management staff on their risk mitigation roles. Safety rules should be communicated to all, and they must be simple and very easy to understand (Walters, 2002). The OHS managers should, therefore, consult with their fellow employees in discussing what they feel is best in ensuring their safety at the workplace.
Emergency procedures should also be set up. These includes setting up emergency evacuation for injured employees by either having contact with evacuation services such as ambulances. Medical advice should also be provided to the injured in the incidence. Emergency site safety sides should also be set up in ensuring that when an emergency incident arises, they can be assembled in that particular place. Emergency notifications of regulators like fire extinguisher services should also be put in place. This will ensure fire mitigation in case of any incidence they might be easily notified (Cine-med, 2015).
First aid locations should also be set up, and everyone should be provided with first aid training so that he/she might be able to help one another in the case of an emergency incident. Firefighting equipment should also be set up at every point in all the accessible sites of a building. Everyone should also be provided with emergency contacts so that they can call for an emergency in situations where help is needed (Rostein, 2017).
At every building, risk prevention measures should be put in place. These includes setting up safety rules, setting up alarms in places that will enable notification of incidence like fire. Emergency showers should also be set up in case someone is exposed to dangerous chemicals that could affect the entire body.
Management, implementation, and control of Risk
The OHS management system entails a lot of things. To be able to ensure that OHS is effective in every workplace then a lot of things must be put into consideration. Measurement and evaluation of risk should be conducted in realizing the specific kind of risk that the individual can face in the workplace. Review and improvement mechanisms should, therefore, be put in place in ensuring the best is delivered. On top of that, policies should put in place that will ensure the commitment of every individual. Then planning on the implementation of this policy should be put in place (Smith, 2014).
Measurement and evaluation of the occupational health and safety can be conducted through record management means by keeping an audit trail and conducting a regular inspection. Specific goals and objectives should be set up in ensuring the achievement of OHS issues and controls. These could be through regular observation of incident reports from your committee’s meetings. You could also measure risk by reviewing incidences and looking at the outcomes of this incidences. Surveys should also be conducted to analyze the risks that one could be exposed to (Denvor, 2014).
OHS can, therefore, be improved through ensuring that employers take into consideration the OHS recommendations. Appropriate corrective measures should also be put in place in ensuring that action is put in place to prevent future occurrence of such activities. The management should, therefore, be always committed to ensuring regular improvements of this policies. A positive workplace culture can, therefore, be created through commitment at all levels of the workplace. There should be an investment on this particular safety acts and a continuous improvement by providing appropriate safety means (Stranks, 2016).
We can, therefore, manage risk by first identifying the various hazards that we can be exposed to. Appropriate safety systems and practices should also put in place in ensuring the safety of each. The OHS managers also should provide training to all team players and everybody should be responsible for his duties and responsibilities. Employees should also be involved in all these activities to enhance their awareness. Safety measures should as well be reviewed regularly in the improvement of performance and to be able to manage forthcoming incidences. Finally, for the success of the Occupation Health and Safety Act then there should be a commitment from the top management to the lowest level.
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