четверг, 17 декабря 2015 г.

Австралия (охрана труда). Есть инструкции по охране труда, и они должным образом оформлены и выполняются в соответствии с законодательством. Однако бывает так, что случается инцидент, который не был предусмотрен разработчиком инструкции и соответственно для предупреждения этого инцидента не были предусмотрены соответствующие мероприятия. Суд, конечно, может прийти к заключению, что наниматель не мог предусмотреть того, что произошло. Однако, еще на стадии разработки инструкций, полезно знать какие критерии, суд или другой уполномоченный орган использует для решения указанного вопроса. В ниже приведенной статье не приведены такие критерии. Лишь один старый пример из студеной практики Верховного Суда Австралии.

HS Bulletin logo
Thursday 17th December 2015
After an accident at your 

workplace, should you be 


In today's Health & Safety Bulletin:
  • What else could you have done?
Jeff Salton PortraitDear Reader,A short time ago there was a serious accident at your work, which has since been investigated fully. Now you have just received a court summons to appear before a judge following the safety regulator’s decision to initiate proceedings against you and your business.
You’ve been provided with a copy of all the relevant documents that the prosecutor intends to rely on in pursuing the charge (this is known as the prosecutor’s brief). The court expects you and the business to enter a plea of either guilty or not guilty to the charge.
Following the trauma associated with your workplace accident, you sat down to assess your health and safety management system.
You checked that the system complied with the relevant legislation and regulations in your jurisdiction. Then you conducted an audit on your health and safety management system to ensure it complied with the relevant legislation and regulations in your jurisdiction. It did.
You are certain that all the leaders in your business were aware of the H&S management plan and were also responsible for ensuring it was effective.
Every Monday morning managers conduct toolbox talks and seek feedback from your workers about identifying safety hazards and risks and how to fix them. You can attest to being proactive in this area. You have made changes to procedures to make them safer for all workers and visitors to your business.
You’ve worked constantly to limit the risks associated with your work and have implemented a number of controls.
You would assess your safe operating procedures as first class and up to date. The operators even helped to develop them and training on all equipment is regular.
Everything was functioning like clockwork until the accident. And since the accident, things have returned to normal (apart from morale being a bit low at the moment).
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Should you be worried about going to court?
Michael Selinger, partner at Holding Redlich and Editor-in-Chief of the Health & Safety Handbook, says this is not something to take lightly and is definitely the time when you do need legal representation.
He says by having taken steps to create a safe workplace, like those outlined above, you will certainly stand a better chance of avoiding prosecution.
But what else could you have done?
In Kirk v Industrial Relations Commission of NSW (2010), the manager of a farm was killed while towing three lengths of steel in an all-terrain vehicle (quad bike). The manager, who was highly competent and took responsibility for implementing safety measures on the farm, had decided to leave a purpose-built road and drive overland down the side of a hill, where the vehicle overturned.
WorkCover NSW laid charges against the company who owned the farm and the director of the company, who had no involvement in day-to-day operations.
The defendants pleaded not guilty before the NSW Industrial Relations Commission, arguing that it was not foreseeable that the manager would ride down the side of the hill as he did.
However, they were convicted.
These convictions were later quashed by the High Court of Australia on the basis that WorkCover had failed to identify what reasonable measures should have been taken to reduce the risks of injury to the deceased.
Hopefully, a workplace accident of any level at your business can be prevented by following your health and safety management system, as outlined above. But even so, sometimes an accident will still happen.
Being thorough and proactive will be your best defence against any prosecution.
To help prevent any workplace accidents and also avoid any prosecution, isn’t it time you developed your own H&S management system, or at least revised the one you have?
By purchasing your copy of the Health & Safety Handbook, written in easy-to-understand language by legal expert Michael Selinger, you will definitely simplify your business.
Keep up the good work,
Jeff Salton signature
Jeff Salton
Editor, Health & Safety Bulletin
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