Legal Issues In A Defence Subcontracting Business Essay.

Background

Provide researched and appropriately referenced responses in the approved IRAC format to the below Case Study.

This Case Study follows Assessment 1 and relates to the same business and key staff. Rattle Engineering has won a contract with a Prime Contractor to the Department of Defence. As a subcontractor to an existing prime contractor to defence, Rattle Engineering receives job taskings from both the prime contractor and directly from the Department of Defence. The business extended on the scope of engineering works they previously undertook, and now undertake Non-Destructive Testing (NDT), import components, manufacture components as well as test and repair components.

Currently the business employs 40 staff and are in the process of recruiting an additional 10 more. They have not as yet engaged any specialist contractors to support this defence related work which now takes up 80% of their business. While the Department of Defence have offered some “on base” facilities for the company to use, which is known as government furnished premises, at this time they only undertake work in their existing engineering facility at Banyo, Brisbane, Queensland and transport components between the Department of Defence Base and their factory. Refer to Attachment 1 for key company roles.

Last Monday, Mr Bill Bolt, the factory foremen was in the process of advertising for the employment two additional staff and preparing the job lists for the current weeks work, as well as planning the following weeks work. On the Friday prior, the Chief Engineer advised him that it appeared that they were not going to meet their first deadline which was due in two weeks. Furthermore, that he wasn’t looking forward to advising the Managing Director of this fact, however, they were both meeting next Tuesday at the Defence Force Base with the Prime Contractor and were hoping they would be able to secure an extension without any penalty. He tasked Bill to finalise the process of recruiting two more staff as soon as possible.

As Bill Bolt was preparing the work plan, he reflected how all the new safety systems were costing him time on his production line. In particular, this related to one of the new machines that now required two staff to manually feed material in, due to the nature of the safety guard. Previously, it had been a one person job task because the old machine did not have the hindrance of this type of improved safety guard.

At that point, he decided he would remove the safety guard, and that this would allow the machine operator to manage the processing of the material and the welder he had re-tasked to assist the machine operator, could return to the welding line. Taking this option just maybe, they could meet their production target and not incur a penalty. It would only be for two weeks since one of the positions he was recruiting was for the worker that assisted the Machine Operator. Achieving the production outcome would impress the Chief Engineer and the Managing Director.

Case Study Element 1: Machine Guarding

The Machine Operator, Dave Dingle, didn’t mind this change to his machine. Being a long- term employee, he had always preferred the old machine anyway, and he too was frustrated with these new safety procedures. The Welder didn’t mind, because he didn’t like being a labourer and preferred to just undertake welding tasks. Bill Bolt also knew the new safety manager was away on a course this week.

On Tuesday morning, Dave Dingle, the Machine Operator, arrived at work after a big night of activities. On Monday nights he played touch football and last night he also stayed on after the game for some alcoholic drinks. As a result he had far too many alcoholic beverages.

As he placed the material into the machine on his own, he reflected just how loud the machine was on his large headache. Feeding the material into the machine, with his left hand he rubbed his sore head and his right hand was then suddenly pinched in the machine, crushing two fingers and amputating another two. He appreciated that the emergency stop bump button was right beside his knee as he stopped the machine and screamed out for help.

Advise the Managing Director, using IRAC, on the legality of removing the guard on the machine.

When Bill Bolt heard the incident, he directed that no-body stop work and no-one was to call an ambulance until he checked out the situation (he wanted to put the machine guard back on before the authorities saw it had been removed). When he arrived at the machine the First Aid Officer was attending to Dave Dingle. He ignored Bill’s direction and phoned the Ambulance.

As Bill Bolt was still putting the guard back on, the Ambulance Paramedics arrived at the factory. Bill directed them not to enter the premises until he sorted a couple of things out. The First Aid Officer saw this and screamed out to them advising what the injuries were and the declining health state of the injured Dave Dingle. As Bill Bolt was the person in control of the workplace at that time, he had refused permission for the Ambulance Paramedics (Authorised persons) to enter the premises.

Advise the Managing Director, using IRAC, on the authority of Ambulance Paramedics in this situation.

Because the First Aid Officer had called the Ambulance using the emergency number triple zero (000), Workplace Health and Safety Queensland (WHSQ) were automatically notified.

About an hour after injured Dave Dingle was transported to hospital by the Ambulance Paramedics, two WHSQ Inspectors arrived at the Rattle Engineering front office. Bill Bolt met the Inspectors in the front office and advised that the Safety Manager was away on a course and both the Managing Director and the Chief Engineer were off site at a meeting. He further advised that it wasn’t convenient just now for them to be at the workshop and directed them to return the following week when the Safety Manager could take them through the factory. They insisted on entering and Bill Bolt directed them not to enter the factory.

Advise the Managing Director, using IRAC, on the authority of WHSQ Inspectors in this situation.

Randall Rattle, the Managing Director, notified the Prime Contractor and The Department of Defence of the Incident. He noted it was a requirement of the contract.

About a week later, Randall Rattle, as Managing Director, received a formal letter from the Department of Defence advising that they intended on undertaking a WHS Verification Activity on Rattle Engineering with particular regard to machine guarding, hazardous manual handling and emergency procedures.

Case Study Element 2: Authority of Ambulance Paramedics

Randall Rattle asked both the Safety Manager and his Lawyer to explain to him why and on what basis the Department of Defence was coming to his factory for this WHS Verification Activity, why were they interested? He did recall the term WHS Verification Activity in the contract.

Advise the Managing Director, using IRAC, on the legal principles under the WHS Act 2011 for this WHS Verification Activity.

Mrs Ruby Rattle, the Chief Operating Officer, undertook a review of the incident and the rehabilitation process of Dave Dingle. In addition to providing a sustainable supply of materials to the Department of Defence, managing notifiable incidents and injury management was a performance measure under the contract. With the next contract performance review due soon, being only three months after the incident, she was not satisfied with Dave Dingle’s progress regarding his to return to work. Ruby Rattle formed the opinion that Dave Dingle was not actively participating in his return to work plan. She formed the opinion that the best course of action was to terminate Dave Dingle’s employment. This decision is primarily based on his inability to undertake his normal duties because of his injury and his less than positive attitude towards his rehabilitation.

Terminating Dave Dingle would allow the business to recruit a new machine operator to his position and improve the business performance required to meet contract key performance indicators (KPI’s). She prepared the termination notice to be served on Dave Dingle, giving him one month’s notice that he would no longer be employed at Rattle Engineering.

Advise the Managing Director, using IRAC, on the legality of the decision of the Chief Operating Officer in this situation.

The Senior Inspector of WHSQ investigating the Dave Dingle incident requested Mr Randall Rattle to produce a copy of the safe work procedure for the machine involved in the incident, a copy of the emergency procedures and the results of Rattle Engineering’s incident investigation. The incident investigation results are notes prepared by Mark Rattle, who is both Randall’s brother and the company’s in-house lawyer, which was discussed and provided to and at the request of Rattle Engineering’s external lawyer – 2 in1 Lawyers. The Chief Engineer advised him not to provide any of that documented material to the Senior Inspector of WHSQ, as he believed it was privileged business records.

Advise the Managing Director, using IRAC, on the release of all these documents, in this situation.

Issue

The issue in this case is whether Bill Bolt decision to remove the safety guard in the machine amounts to a contravention of the occupational health and safety law in Victoria Australia. The aim of Bill Bolt was to ensure that he meets the production target. In addition it is evident that the machine operator David Dingle is not mindful of his own safety as an employee. This is evidenced by the fact that he was not able to observe the safety conditions leading to his fingers getting crushed in the machine to be amputated. The issue is whether David Dingle also breached his obligation under section 205 of the Work Health Safety Regulations 2011(Qld), to apply safety standards.  

Relevant Law

It is a well settled principle pursuant to the occupational health and safety law in Australia that an employer bears an imperative to ensure that he provides a safe working environment (Owen, et al, 2016). The employer should ensure that the work place is free from any hazards that are likely to pose a risk of harm or danger to any person working around the plant. In addition it is the obligation of the employer to ensure that he removes any risks that are likely to harm workers (Winter & Moffitt, 2017).  According to section 205 of the Work Health Safety Regulations 2011(Qld) the person that is in charge of running the operations of the company takes reasonable practicable measures to ensure that the plant is not interfered with or altered without  authorization.

Pursuant to section 38 of the Work Health Safety Act 2011(Qld) an employee has an obligation to ensure that he gives notice of any incident that is likely to disrupt the safety environment or condition of a factory. If the incident is urgent the employee may opt to give the notice to the employee through making a telephone call so that any faulty part of a machine is repaired immediately (Mardell, 2017).  By dint of section 28 of the Work Health Safety Act 2011 (Qld) an employer has a duty to ensure that he takes reasonable care of his own safety and health during work. In addition section 28 provides that a worker has an obligation to ensure that his act or omissions at the work place do not pose a threat to other people who may be working in the same environment. Further, the worker must comply with the guidelines and safety instructions that have been placed to ensure personal safety and health.

Case Study Element 1: Machine Guarding

Application

It is apparent that Bill Bolt as a person that is in charge of the operations of the has breached his obligation to ensure that he provides a safe working environment and remove any risk that is likely to harm or cause injury to the employees. This stems from the fact that he removed the safety guard in a bid to meet the production target but exposed the employees working on the plant to danger. On the other hand it can be argued that, Bill Bolt breached section 205 of the Work Health Safety Regulations 2011 (Qld) by failing to take any reasonable practicable measures to ensure that the plant is not interfered with or altered without authorization.

On the other hand, David Dingle has breached his obligation as a worker under the occupation health and safety law in Victoria. This stems from the fact that, he failed to adhere to section 38 by giving notification of the incident where the guard in the plant had been removed. In addition, he has breached his obligation under section 28 of the Work Health Safety Act 2011(Qld) by failing to take care of his own safety and health while operating the machine. This is evidenced by the fact that, he came to work while injured and therefore he was not mindful of his health and safety. He is further in breach of section 28 since his action of coming to work while injured and electing to operate the machine put the life safety and health of other workers at risk. It is David’s breach of section 28 of the Act that led him to be injured by machine and have his hands amputated.

Conclusion

It can be concluded that the action of Mr. Bolt amounts to a breach of section 205 of the Work Health Safety Regulations 2011 (Qld). He will be held liable for failing to ensure that he created risk free environment for the workers. He had a selfish goal of only wanting to reach the production target at the expense of the safety and health of the persons that working at the plant. Conversely, it can be conceded that David Dangle injury is largely attributed to his breach of his duty under section 28 of the Work Health Safety Act 2011 (Qld) to ensure that he takes reasonable case of his own safety. If he had not come to work while injured he may have not sustained more injuries. Suffice, to say the injury would have been avoided if David Dangle gave notification through a phone call or in writing that in compliance with section 38 of the Work Health Safety Act 2011 (Qld) informing the supervisor or his boss that the guard had been removed on the plant and the plant might not be in good working condition.

Case Study Element 2: Authority of Ambulance Paramedics

Issue  

The issue in this case whether according to the occupation and health and safety David Dangle has a right to be treated by the ambulance paramedics and whether Bill Bolt has an obligation to ensure that David Dangle received medication from the ambulance paramedics.  The issues in this case arise from the fact that Bill Bolt does not want David Dangle to be attended to by the paramedics for the fear that the relevant authority will be aware that he had removed the safety guard in the machine. Therefore Bill Bolt wants to fix it before the authorities become aware if his mistake.

Relevant Law

Section 43 of the Work Health Safety Regulations 2011 (Qld) provides that any person that is managing a workplace must ensure that he has an emergency plan that is put in place at the work place to ensure a quick response to any emergency issue that occurs at the work place and to provide any emergency medical treatment that may be needed by an employee that is injured. In addition the person in charge of the work place must ensure that he communicates to an emergency service in case someone at the work place is in need of emergency medical attention (Nandoskar & Srivastava, 2015). According to section 43(3) of the Work Health Safety Regulations 2011(Qld) the person conducting the business must take the following when considering securing emergency medical services; the nature of the hazard that has occurred or is likely to occur and the nature of the work that was being carried out. On the other hand section 16(2A) 5 of the Occupational Health and Safety Act 1991 (cth) provides that an employer has an obligation to ensure that he takes all reasonable and practicable measures to provides emergency medical treatment or first aid services to an employee who is injured. It is instructive to note that breach of section 16(2A) 5 of the Occupational Health and Safety Act 1991 (cth) amounts to an offense.

Application

It is obvious that David Dangle has been injured and he requires emergency medical treatment. However, it can be argued that Bill Bolt has acted in breach of section 43 of the Work Health Safety Regulations 2011 by failing to ensure that David Dangle receives emergency medical treatment from the Ambulance Paramedics. In addition, Bill Bolt has breached his obligation under section 43 by failing to ensure that the work place has an emergency medical treatment plan. Bill Bolt act of refusing to allow David Dangle to receive medical treatment amount to a contravention of section 43(3) of the Work Health Safety Regulations 2011. This is because Bill Bolt is under an obligation to take into account the serious nature of David Dangle’s injuries and allow the ambulance paramedics to attend to him. It can also be argued that Bill Bolt has acted in breach of section 16(2A) 5 of the Occupational Health and Safety Act 1991 (cth) by failing to take reasonable and practicable measures to ensure that David Dangle receives emergency medical treatment.

Case Study Element 3: Authority of WHSQ Inspectors

Conclusion

It can be concluded that Bill Bolt will be liable for an offense pursuant to section 16 (2A) 5 of the Occupational Health and Safety Act 1991 (cth) for failing to allow the ambulance paramedics to attend to David Dangle. In addition Bill Bolt will be liable for contravention of section 43 of the Work Health Safety Regulations 2011 for not having an emergency medical treatment plan at the work place. Bill Bolts liability for the aforementioned offense is compounded by the fact that he intentionally declined to allow the ambulance paramedics to treat David Dangle.

Issue  

The issue in this case is to determine the role and responsibility of the Workplace Health and Safety Queensland (WHSQ).

Relevant Law

Section 117 of the Work Health Safety Act 2011 (Qld)  provides that a person who has an entry permit from the Workplace Health and Safety Queensland (WHSQ) has a right to enter a working premises where there is a reasonable belief that there is a breach of the any laws and regulations that have been set by the Act. Further section 118 provides that the officer who has the entry permit has the power to inspect the working premises the structure or plant that is being suspected to be the subject of the contravention.  In addition, section 118 the officer that has been granted the permit has the powers to consult any worker within the working premises to find out more details about the contravention. According to section 18 the officer also has a right to consult any other relevant person who may provide information concerning the contravention. It is imperative to note that section 118(1d) provides that the officer that has been granted the permit has the right to ask the person that is in charge of the business to allow him to inspect and make copies of any document that may have information about the suspected contravention of the Act. The officer that has been granted the permit has a right to give a warning to any person within the workplace premises if he reasonably believes that he may be exposes to a serious risk of harm or danger in the work place (Vivoda & Fulcher, 2017). According to section 118 (3) a person that is in charge of or conducting a business is prohibited disallowing an officer that has been granted an entry permit from entering the premises, inspecting the plant or consulting any relevant person where there is a reasonable suspicion of contravention of the Act.

Case Study Element 4: WHS Verification Activity

Application

It is thus submitted to Bill Bolt that he ought to have allowed the officer that has been granted permit from the Workplace Health and Safety Queensland (WHSQ) to enter the premises and inspect the plant or consult any person that may have crucial information about contravention of the Act. This stems from the fact that since David Dangle has been injured seriously it is obvious that there is a reasonable suspicion that there is a contravention of the occupational health and safety law. It should be borne in the mind of Bill Bolton that section 118 (3) of the Work Health Safety Act 2011(Qld)  prohibits him from disallowing an officer that has been granted an entry permit from entering the premises, inspecting the plant or consulting any relevant person where there is a reasonable suspicion of contravention of the Act.

Conclusion

It can be concluded that Bill Bolt has breached section 118 (3) of the Work Health Safety Act 2011(Qld) and may be liable for a maximum civil penalty of 100 penalty units.

Issue

The issue in this case is a determination of the legal implications of WHS Verification Activity under the Work Health Safety Act 2011 (Qld). This stems from the fact that Randle Rattle the managing director of the factory is against the entry of the department of defense to his factory for the WHS Verification Activity.

Relevant law

According to section 162 the Work Health Safety Act 2011 (Qld) the Workplace Health and Safety Queensland (WHSQ) has the power to appoint an inspector who bears the responsibility of conducting audits to ensure that safety management systems of a workplace are effective, to determine areas in the workplace that may need improvement and to ensure compliance with the health and safety regulations. In addition section 162 also provides that the inspector has the power to investigate any contraventions that have been perpetrated by the person conducting business and assist in their prosecution. The law also provides that the inspector has powers to review any notices that had previously required that the person undertaking business improves certain health and safety conditions in the workplace (Blewett and O ’Keeffe, 2011).  

Application

It is therefore submitted to Randle the managing the director that there can be no contract that will be enforced to breach a requirement that has been set by law. In this sense, pursuant to the Work Health Safety Act 2011 (Qld) the managing director is obligated to allow the WHS Verification Activity to continue. He should allow the inspectors to conduct an audit of the factory to ensure that safety management systems of a workplace are effective, to determine areas in the workplace that may need improvement and to ensure compliance with the health and safety regulations. In addition, the managing director should also allow the department of defense to investigate any contraventions that are likely to have been perpetrated in the factory.

Case Study Element 5: Employment Termination

Conclusion

It can be concluded that the managing director does not have powers to stop the WHS Verification Activity and should therefore allow the department of defense to carry out their mandate as has been provided by the law.

Issue

The issue in this case is to determine if the chief operating officer Ms Ruby Rattle’s decision to terminate David Dangle’s employment on the account that he is unable to perform his duties normally following the injuries he sustained at work and lacks a positive attitude towards rehabilitation is legally valid.

Relevant Law

Section 104 of the Work Health Safety Act 2011 (Qld) prohibits any person that is undertaking a business from engaging in any form of discriminatory conduct. According to section 105 a person is deemed to have engaged in a discriminatory conduct if he or she decides to dismiss a worker or terminates a contract of service with the worker. Section 104 (1) stipulates that a person who engages in any discriminatory conduct is liable for a maximum civil penalty of 1000 penalty units. According to section 24 of the Work Health Safety Regulation 2011 (Qld) an employer must serve a worker without a notice of termination after assessing his eligibility to meet the work healthy safety standards.

Application

It can be argued that the chief operating officer Ms Ruby Rattle is prohibited from engaging in any discriminatory conduct at the work place. By applying section 105 of the Act it can be contended that he is not entitled to dismiss David Dangle from employment or terminate any contract of service that he may have had with him. Following the provisions of section 24 of the Act it was the obligation of the chief operating officer Ms Ruby Rattle to assess the eligibility of David Dangle to work as a machine operator and issue a notice of termination. It is evident that the chief operating officer has conducted a fair assessment of David Dangle eligibility to work as a machine operator and found that he would not be capable of meeting the health and safety requirements of the work. Suffice to say, she encourage him to undertake the rehabilitation but David lacks a positive attitude.  Ms Ruby Rattle has also complied by the law by issuing David a termination notice.

Conclusion

It can therefore be concluded that the chief operating officer Ms Ruby Rattle’s decision to terminate David Dangle’s employment on the account that he is unable to perform his duties normally following the injuries he sustained at work and lacks a positive attitude towards rehabilitation is legally valid.

Case Study Element 6: Subcontracting Agreements

Issue

The issue in this case is to determine if Mr. Randal Rattle is obligated by any law to submit any documents to the senior inspector of the Workplace Health and Safety Queensland (WHSQ).

Relevant Law

Section 162 of the Work Health Safety Act 2011 (Qld) provides that the inspector has the power to investigate any contraventions that have been perpetrated by the person conducting business and assist in their prosecution. It is instructive to note that section 118(1d) of the Work Health Safety Act 2011 (Qld) provides that the officer that has been granted the permit has the right to ask the person that is in charge of the business to allow him to inspect and make copies of any document that may have information about the suspected contravention of the Act.

Application

By applying section 118 (1d) it can be argued that Mr. Randle Rattle has an obligation to submit any documentation to the inspector of the Workplace Health and Safety Queensland (WHSQ) and allow him to make copies of the same. This stems from the fact that there is a reasonable suspicion of contravention of the Workplace Health and Safety laws. In addition, by applying section 162 Mr. Randle Rattle should be aware that the senior inspector has powers to investigate any contraventions that have been perpetrated by the person conducting business and assist in their prosecution.

Conclusion

It can be concluded that Mr. Randle Rattle must allow the senior inspector of the Workplace Health and Safety Queensland (WHSQ) to carry out his obligation. Additionally, the argument that the documents are privilege documents is not sufficient enough to defeat the purpose of the law.

References

Blewett, V., and O ’Keeffe, V. (2011). Weighing the pig never made it heavier: Auditing OHS, social auditing as verification of process in Australia. Safety Science, 49, 1014–1021.

Mardell, J. (2017). Personal Injury and Clinical Negligence Litigation2017.College of Law Publishing.

Nandoskar, N., & Srivastava, A. K. (2015). Occupational Health Services: A challenging area for Occupational Therapy practice in India. Indian Journal of Occupational Therapy, 47(1).

Occupational Health and Safety Act 1991 (cth)

Owen, M. S., Bailey, T. S., & Dollard, M. F. (2016). Psychosocial safety climate as a multilevel extension of ERI theory: Evidence from Australia. In Work Stress and Health in a Globalized Economy (pp. 189-217). Springer, Cham.

Vivoda, V., & Fulcher, J. (2017). Occupational Health and Safety (No. Mining Legislation Reform Initiative, Working Paper No. 6, pp. 1-8). Mining Legislation Reform Initiative, AUA Center for Responsible Mining.

Winter, B., & Moffitt, M. (2017). Corporate law: Absence of adequate risk assessments result in $1 million fine. Governance Directions, 69(3), 174.

Work Health Safety Act 2011 (Qld)

Work Health Safety Act Regulation  (Qld)