It’s tempting as an employer to think of WorkCover as a thing to be feared.

Fines and penalties are scary in any business, but apply them to life and death situations and very often it results in employers being unnecessarily fearful of the bodies that are there to actually help.

The old 2000 OHS Act (NSW) relied upon reverse burden of proof, so you were deemed guilty until you could prove otherwise. This, probably, is what has caused the sense of fear on the part of employers. Yet the new WHS Act 2011 places the burden of proof back upon the WorkCover authority to prove the employer has not done everything practicable in regards to work safety. Two cases in recent months show the difference between the 2011 and the 2000 Acts.

Workcover vs Baiada Poultry Pty Ltd

A cleaner in the service of Ecoswize Specialist Hygiene Services suffered serious injuries when his right arm was caught in the rotating paddle blade of a spin chiller at the defendant’s processing plant.

The prosecution scrutinised the system of work, detailed the isolation of the work area, the engagement of the subcontractor Ecowize by Baiada Poultry, and how the sub-contractor was managed.

While Baidida Poultry received a fine, it was light and significantly less than that of Ecoswize Specialist Hygiene Services. The judge stated “The failures for which Baiada is responsible are not organisational failures but failures of imagination at relatively junior levels. Such failures are inevitable in any organisation reliant upon human frailty. In that spectrum I regard the responsibility for the failure falling in the least criminal end of the spectrum. That is at a level barely consistent with guilt.”

WorkCover NSW Vs Eastern Basin Pty Ltd

In this case, a stevedore employed by Newcastle Stevedores Pty LTD was killed when he was crushed by a collapsing stack of aluminium ingots packed inside the hold of a ship.

The summons was dismissed when WorkCover could not prove its case. While there was scrutiny of the actual process of work, the company was able to prove the preventative measures in place before the accident, including:

• Hazard ID and Risk Assessment Form (ITS- HAC)
• Safety alerts instructing workers what to do – demonstrating that if the worker had followed these he would not have been put at risk
•  A letter sent by Eastern Basin to Newcastle Stevedores in Feb 2012 requesting an action plan for improving safety

The judge ruled that neither lead contractor was guilty, but under the 2000 Act he would have had no recourse but to fine the company. However, under the new 2011 Act, he could dismiss the findings.

Whilst they are there to keep workplaces safe, the WorkCover authorities can provide businesses with a great deal of assistance including:

• Free resources to develop a simple and effective workplace health program
• Mentoring – large businesses offer their knowledge, skills and expertise in identifying ways to improve safety, for free
• Online safety webinars
• Safety advisory visits
• Small business rebates
• Onsite presentations and workshops
• Paralympians who have suffered permanent disabilities through a workplace injury can come to your workplace and raise awareness about safety