Rebekah Fryer, Associate
A Victorian Magistrate has fined a packaging company a total of $100,000 for breaches of that State's occupational health and safety legislation in relation to injuries to migrant workers. The decision highlights the importance of ensuring all employees are trained in their OH&S obligations, irrespective of their visa status.
Lakeside Packaging Pty Limited operates a printing company at two sites in Victoria. They hired Chinese workers via a contact in Shanghai. The workers were bought out to Australia on subclass 457 working visas and spoke virtually no English. The prosecutions were the result of injuries sustained by two employees in separate incidents. Neither employee had received appropriate training in occupational health and safety requirements.
Facts
The first employee suffered a broken arm when he attempted to fix a paper misfeed in an unguarded machine. The machine rode over his right arm and crushed it. He was told by doctors that he would never be able to straighten his arm again. The Magistrate commented that the business owner must have known that the machine was in an unsatisfactory state. Safety improvements were apparently made following the incident at minimal cost.
The second employee broke his wrist and chipped two teeth after he fell while attempting to lay an electrical cable. He had been shown where the cable was to go but was left with no further instruction. The employee had placed a step ladder on top of a steel table and had fallen. While the employee was certified medically unfit for work for 10 days, after speaking with the agency that arranged his visa and his employment, he returned to work after only 5 days off and with his arm in plaster.
On his return to work, the employee was given tasks requiring the use of both hands. One of these was to build a scaffold over the roof of a machine. The employee had not built a scaffold before and was not provided with any training in the task. It was also a task that required 2 hands, and the employee still had a cast on his broken wrist.
While building the scaffolding, the employee used his left arm to steady the drill. However, the drill jammed back against his left wrist. He continued working until the end of the day, using his right hand and chin to support the drill. He was then driven to hospital by a work colleague and his arm was put in plaster. The employee returned to work 10 days later and was given a warning letter, written in English, stating that his job was at risk if his safety performance did not improve.
Decision
The company was fined a total of $100,000 in relation to 7 counts of breaching the Victorian Occupational Health & Safety Act. In addition to the fine, the company was ordered to pay costs and a conviction was recorded.
The Department of Immigration and Citizenship also imposed a sanction on the company, preventing it from accessing the 457 visa program for 1 year for breaching its sponsorship undertakings.
Lessons for Employers
While it would seem common sense that occupational health and safety obligations apply to all employees, regardless of their visa status, this case highlights the need for employers to be sensitive and aware of an employee's potential language barrier when undertaking inductions or training.
It is important that employers who sponsor s.457 visa employees provide appropriate training in occupational health and safety obligations, including, if necessary, training in the employee's native language. It is not sufficient to assume that the employee will understand Australian requirements, or even understand basic instructions about how to do the job.
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