25 March 2009
INDUCTION training has, in recent months, attracted more attention than
usual. But this has largely been confined to the construction industry.
Because of legislative changes in most Australian States and Territories,
the construction industry has been compelled to provide an improved form
of training for new inductees.
Other industry types less catered for and experiencing less scrutiny by the
regulatory authorities seldom bother with this very necessary and important
first step in a business exercising "due diligence".
At best, the induction training offered is superficial, communicating little,
if anything, of the common law and statutory law compliance requirements.
Perfunctory attention is the norm - as regards employers in their duty to
provide induction training which simply stated, is to provide employees with
the necessary knowledge and skills to safely perform their tasks.
The NSW OHS Regulations 2001 as amended in clause 13, sets out the
employers' duties in this regard. The clause heading encapsulates the three
elements to be addressed - instruction, training and information.
The clause explains that among other duties the employer "must"
(mandatory) include arrangements for reporting hazards to management
as well as health and safety procedures and control measures.
Next, a method must be established that facilitates employees being able to
access any relevant health and safety information.
Finally, address any other matters that should be the subject of induction
training and relevant to the place of work having regard to the competence,
experience and age of the new employee.
The Victorian OHS Act 2004 as amended in section 21(e) is very similar to
the NSW legislation but, includes the word "supervision" which is, in the
writer's opinion, a valuable and crucially important addition to the employers'
duties.
Also, very important in NSW, but the omission and mention of this key duty
(Supervision) in this section of the NSW legislation is unfortunate.
Employers would be wise to never forget this crucially important duty. It
certainly has considerable attention paid to it, in cases brought before the
criminal prosecution tribunals by Workcover NSW inspectors.
See below.
Induction training duty
Closer examination of this induction training duty reveals that, in practice,
it can take many forms.
These can include at one end of the spectrum an employment agreement
setting out chiefly, the terms and conditions of employment covering
information about discrimination, equal opportunity, applicable awards,
superannuation, holiday and leave allowances, overtime and similar matters,
pertaining to the employment including a broad brush paragraph dealing
with OHS duties and obligations.
While somewhat removed from this model, further along the spectrum
of different types of induction training one finds examples of so-called
"induction training" that superficially covers a few examples of the likely
risks and hazard exposures which the employee may experience in the
work environment, and no more.
While at the opposite end of the spectrum, one encounters a "due diligence"
type of induction in which the training material covers and clarifies the fields
of common law, and the statutory obligations of the employer and the
employee.
This continues with a fairly comprehensive list of hazards and risk
exposures facing the employee in the particular job. And indicating the safe
work method to be employed by the worker.
It is this last mentioned "due diligence" example that this article focuses on.
Since this example comes close to delineating all of the elements of a
"due diligence" induction plan but, usually, still falls short of the
compliance requirements.
Ideally, the employee is educated and informed about all aspects of the
"due diligence" infrastructure of the common law and statutory law -
before moving to the risks and hazards in his work environment.
The law's foundation can then be used to support and explain the risk
management approach to be implemented in addressing the specific risks
and hazards of the workers' specific environment.
The employer first needs to communicate the law's obligations, that is, both
the common law and the OHS statutory law. Upon this infrastructure the
employer mounts all of the "foreseeable" risks and hazards and how best to
control them.
In this way, all of the laws' duties and responsibilities and compliance
requirements are sure to be understood and met. And can more accurately
and completely, be complied with.
If we examine this paradigm in detail this is what we find. To begin with,
the common law duties and obligations of the employer are briefly, as follows:
* To avoid exposing employees, contractors, customers and visitors to an
unnecessary risk of injury by establishing and maintaining safe systems of work;
* By enforcing safe systems of work; and
* By ensuring employees are not exposed to risks arising from the negligence
of a third party (example: a contractor).
The common law duties and responsibilities of employee are briefly, as follows:
* It is an implied term of a contract of employment that the employer
will provide a safe place of work;
* Employees have the right to refuse to do work that is non-compliant
with OHS Law; and
* Employees are owed a "duty of care" by their employers.
Statutory law
Moving away from the common law toward the field of statutory law -
the duties of employers are set down in section 8(1) of the OHS Act 2000
in NSW and section 21 of the OH&S Act in Victoria.
(Induction training for contractors falls outside the ambit of this article and
is a quite separate subject. The issues related are not addressed here, save
to point out that in NSW, S8 (2) sets out the statutory law as regards
contractors and in Victoria S21 (3) similarly.
While the statutory rights of employees are to be found in NSW in the
Regulations where for example reference is made to the "right" to be
consulted - see Chapter 3. While in Victoria see section 35 of the OHS Act
in this regard.
The above listed bullet points illustrate the content of the level one induction
training program.
Once the above underpinning in the OHS Law's requirement is understood,
then the employer should move to establish a formal written list of all
"reasonably foreseeable" risks to be found in plant, equipment and work
procedures in the particular work environment applicable.
This is mandatory, yet, few employers comply with this requirement.
When asked to produce a formal, written list of all foreseeable risks and
hazards in their work place 80% of employers cannot respond satisfactorily.
These two elements - namely, the OHS common and statutory law foundation
and the list of all foreseeable risks now enables the employer to embark on
the development of an induction training program that addresses specific
training to be given in re: the employers' specific work environment
exposures and their controls.
For example: the employers' OHS policies; applicable regulatory authority
industry codes of practice; regulatory authority guides; licenses, permits
and qualifications; risk assessments; safe work methods; manual handling;
safety signage - compliance; risk exposures; information dissemination;
safety information access; supervision; consultation; emergency procedures;
accident/incident reporting; PPE compliance; and training, etc.
An employer's induction training obligations are not met by a 10-minute
walk through the employers' premises and a 5-minute "rant" about
"How bloody important health and safety issues are in this business!"
Nor, are the employers' duties met by handing out a booklet perhaps, a
well prepared one running to maybe 10 or 15 or more pages with the
verbal warning: "Listen mate, you must bloody read this thing - it's in your
own interest and that of the business, OK?"
Neither of these "real life" examples evidences your business's "due diligence".
And when the "chips are down" and you face the industrial magistrate in
the IRC on a criminal prosecution charge of 'employer criminal negligence',
you will need far more in the way of hard copy "due diligence" than the
explanation: "Oh yes, we spoke to them and gave the inductees the
training booklet prepared by an expert and a 'good talking to'.
What else can one do?"
*Ray Schaffer is principal consultant RMH Schaffer and Co, health, safety
and environment consultant,
02 9878 0613,
www.environmentdiy.com.au.
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