Watch the webinar recording below to hear essential information you need to help you manage the safety of on-hire workers.
This 45 minute webinar hosted by WorkCover Queensland and presented by HopgoodGanim Lawyers, outlines what you can do both before placement, and after placement, to ensure a safe working environment for your workers with the goal to prevent injuries and claims from occurring.
Topics include: information gathering, matching the worker to the role, training, and ongoing monitoring.
Anna advises exclusively in insurance litigation, acting on behalf of major public liability insurers, workers' compensation insurers and self-insurers, compulsory third party insurers and professional indemnity insurers. She has been a WorkCover Queensland panel solicitor since September 2011 and was an approved delegate solicitor from 2008. Anna is an author of the Workers' Compensation Law Manual Queensland.
Janine is an Associate at Hopgood Ganim and has approximately 10 years experience in personal injuries litigation. Prior to joining HopgoodGanim, she worked as an In house Lawyer at WorkCover Queensland during which she focused on defending common law claims brought against labour hire employers and provided advice in relation to the management and progress of their claims.
Download a copy of the presentation slides (PDF, 1.21 MB).
Mr Ironside: Good morning and welcome to today's webinar. Thank you for joining us. Today's webinar is about managing the safety of on-hired workers. Hopefully by the end of the webinar you'll get an insight in how to best manage the risk for on-hired workers. My name is Mike Ironside and I am your moderator for today. I've been with WorkCover for almost five years. I currently look after the mining industry, but prior to that I spent two and a half years within the labour hire industry. Before we get into things, here is a bit of housekeeping for you all. As you can see, to the right of your screen there is a dialog box. There are three main parts to this. The first is a small red button, use is to hide and unhide the panel. The second is your sound source selection. You can choose between your telephone or your speakers. Lastly, there is a section in which you can write any questions you may have throughout the webinar. Time permitting, we will allocate time to answer some of these questions asked throughout the day.
A recording of the presentation and the slides will actually be available on our website within a week or so under the Forms and Resources section of the website. If we don't answer all of your questions asked today, we will certainly collect them and publish them on the website along with the webinar. Please, if you don't mind, complete a short survey at the end of the webinar. Your feedback will help us improve webinars and topics for the future. I will now introduce our speakers today. Firstly, we've got Anna Hendry, Senior Associate from HopgoodGanim. Anna advises exclusively in insurance litigation, acting on behalf of major public liability insurers, workers' compensation insurers and self-insurers, compulsory third party insurers and professional indemnity insurers. She has been a WorkCover Queensland panel solicitor since September 2011 and was an approved delegate solicitor from 2008. Anna is an author of the Workers Compensation Law Manual in Queensland.
We also have Janine Oberhardt. Janine is an Associate at HopgoodGanim and she has approximately 10 years' experience in personal injuries litigation. And prior to joining HopgoodGanim, she worked as an in-house lawyer at WorkCover Queensland, during which she focused on defending common law claims brought against labour hire employers and provided advice in relation to the management and progress of their claims. Now before we kick things off, you can see there's a slide here on trends. This is a bit of a snapshot of the type of injuries. As the injury man shows, although the number of labour hire injuries compared to all industries is lower, the incident and location of these injuries clearly shows that labour hire employees need the same consideration and level of training as all employees and we need to address it as situations that may put them at risk. I will now hand you over to Anna to kick things off.
Ms Hendry: Thanks, Michael. Those statistics are really interesting because, from my experience, handling labour hire employees is much more difficult than handling your own employees. You've obviously put them in the hands of someone else and the type of action you have to take to properly monitor those employees is much greater. And that's really our topic for today, just to give you some practical hints and tips about how you can go about managing your workers' safety. We've divided that topic into two sub-topics. We've got 'Before Placement' and 'After Placement'. In the 'Before Placement' section we'll be covering off information gathering. That's the information you gather about the host company, the role, the site and the candidate and then using that information to match the worker to an appropriate role. In the 'After Placement' section we'll be talking about training, both general training provided by the labour hire company, and then job specific training provided by the host employer. After your training you need to consider, of course, the ongoing monitoring of the site and the worker. So I'll hand over to Janine now to talk about the 'Before Placement' actions.
Ms Oberhardt: Thanks, Anna. Before placing any worker at a third party's premises, you should aim to gather as much as information as possible to ensure that you're placing the right person with the right job. You also want to make sure that you're not sending your employees into an unsafe situation or unsafe workplace. This responsibility should lie not only with-----
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Looking at the company, ask what do they do? And by that we mean, what industry are they in? Are they in manufacturing? Mining? Engineering? What do they sell? If you know, for example, that they're in mining, what is it that they mine? Are they are underground? Above ground? Where are they located? Are they located in a remote location? These simple questions may alert you to specific health and safety risks. If you can – and it might be easier said than done – but try and gain a sense of that company's values and culture. Does the company have a website? It might be useful to have a look at their mission statement, their goals and objectives. Social media can also be a very useful tool, and often you'll see companies who advertise things like "55 days incident free", and that can give you an insight as to the value of that company, of the value that company places on workplace health and safety. Do they have a good or bad reputation for workplace health and safety?
If it's bad, consider whether you really want to send your workers there and if you do send your workers there, consider whether there are any extra control measures that you can put in place to ensure your workers are safe. Are there any specific health and safety risks that are associated with that business? For example, you might be placing a carer in a healthcare environment where they would be expected to do some manual handling, therefore musculoligamentous injuries might be a specific risk. It might be that you're placing your workers in a remote location. If it's a mining company for example, fatigue might be a specific risk associated with fly-in and fly-out work, or travelling to and from the site. The next important issue to consider is the role that you're going to be placing your employee in. You want to make you are fully across of all the duties that your employees would be performing, and most likely you would obtain this information from your client by way of advice, or perhaps they've given you a job description. Make sure that the information you gather is accurate and up to date because quite often, for example, if you get a job description, it might be very brief, it might have a very little description and/or information about what the job entails or it might be 10 years old.
So you want to make sure that you understand exactly what that role entails and whether there's any particular requirements of the job. For example, is a worker required to lift 5 kilograms regularly, say six times every hour, 38 hours per week? Or is it a process worker situation where that worker is required to use their hands and wrists a lot in a repetitive-type nature? Also find out whether there's any specific plant equipment that they're required to use, and if there's any risks associated with using that equipment. Is the equipment difficult or easy to operate? Will the worker be able to operate it? If there's training to be provided, make sure it's clear whose responsibility it is to provide that training. Also consider the level of supervision or autonomy in that role.
It might not be appropriate, for example, to place an inexperienced worker in a position where they're required to work for lengthy periods of time on their own. Are there any specific health and safety issues or risks associated with the job? For example, there might be materials or substances that a worker might be exposed to, or they might be required to work in confined spaces or at heights. Does the role require personal protective equipment or PPE and, if so, whose responsibility is it to provide it? All this information that you gather about the role, it's also very important that you actually pass this onto the candidate so they fully understand exactly what the role entails.
So when you're looking whether the candidate suits the role, as a basic premise, you should always ensure that they have the relevant qualifications, licences, tickets, training and experience for the job. Unfortunately these days you might become aware or sometimes workers might tend to embellish or exaggerate some things on their resume, and for that reason it's important to check and cross-check anything on their resume against their experience. And you might want to, for example, contact a referee. So if you have a worker who lists that they've had 10 years' experience in a particular type of position, our recommendation would be to actually obtain a referee from that experience and check in with that person that they were actually employed there, the capacity in which they were employed and also the duties and responsibilities they had in that employment. Also if you're relying on any licences, tickets or qualification, make sure you sight the originals and take copies of those originals. And if any of those expire during the term of the placement, make sure you follow up and make sure that they are actually renewed by the candidate and you, again, sight those originals and take a copy of them for the file. Will they be------
>>Ms Hendry: Sorry, Janine, I might just jump in with an example there because we can all learn from the experience of other employers. I dealt with a case recently where the employer's failure to sight evidence of a certification really had an unfortunate flow on effect for the worker. It was a young worker in this case, and he had in fact obtained his qualification to work on construction sites. So he had his white card certification, but he had in fact lost the physical card itself. The employer didn't ask to sight that card, so the employer wasn't aware that he'd lost that evidence and because the young worker was worried about being asked by the principal to present the card, the young worker actually skipped the site induction that was run by the principal so even though he was certified, he wasn't then properly inducted onto the site and this caused significant trouble for both the principal and the employer when there was, in fact, an incident and Workplace Health and Safety attended the site. So the failure to sight original qualifications and certificates is to protect you to make sure that the candidate is actually qualified, but also to make sure that they are going to turn up to their induction and nothing has kind of gone wrong in that relationship.
Ms Oberhardt: Also consider whether that employee will be able to safely perform the inherent requirements of the job. You may be aware of some issues that may impact on that worker's ability to safely perform the job. For example, there might be physical, literacy or numeracy issues. A recent example that I came across in a claim was a worker who applied through a labour hire organisation for a specific job. They completed the application form online. They then underwent an induction online with the labour hire employee. They were successful in obtaining the job and they were placed at the host employer where they did a short period of training before being put on the job. Unfortunately, this worker then sustained an injury. They then made statutory and common law claims. And during those claims it became very apparent that this worker did not - they had very poor English skills, so we couldn't be confident that they actually filled out the application forms themselves or they understood the training they underwent with either the labour hire employer or the host employer.
So that takes us to the next point as well. So make sure that – we have to be confident that our workers can complete any training and job requirements, and if there are any barriers that have been identified, how do we overcome them? I am aware of other labour hire organisations who actually offer their induction programs and application forms in different languages, and some labour hire employers may actually offer interpreters. Pre-employment medical examinations can also be a very useful tool when used appropriately. It comes with a warning though because staff must be trained to interpret the result so that they don't lead to direct or indirect discrimination. Make sure you brief your doctors with as much information as possible about the role. So that goes back to your information gathering. Make sure they know detailed requirements of the role and any specifics, such as the 5 kilogram lifts and so forth, and that should be given to the doctor obviously before any medico/legal examination so they can make an accurate assessment of whether that person is fit for the job. Pre-employment checklists can also be a very useful tool. Often those checklists ask things like, "Do you have any difficulties performing the following: Working in confined spaces or working at heights," and they might be able to identify any potential issues.
Ms Hendry: Pre-employment checklists can also be a really useful tool for sorting out which workers should be sent for pre-employment medical examinations. We understand that you have thousands of workers coming through your books and you probably don't want to pay for a medical examination for every single candidate who comes through. So you can use those pre-employment checklists as a sort of funnel to direct those workers that require a medical examination down that path. For instance, you might have a worker who checks the box, "I have difficulty lifting a certain weight," and if you know that the job that you're thinking of putting them forward for involves that particular task, that might be your cue to then send them off for the full medical examination. Of course that links back to how efficient and effective your information gathering was about the role because your pre-employment medical will not be effective if you don't have a full and accurate job description.
Ms Oberhardt: Last but not least, information gathering about the site. Perform site inspections if you're allowed. Now, we do become aware, or we are aware of situations where sometimes the host employer won't let a labour hire organisation onto the site, and if that is the case, make sure you document it. Site inspections should always be done in person if possible, and again, that might be easier said than done, but we recommend that wherever possible, a person perform a visual site inspection and tour of the premises. If there's more than one site, you should do more than one inspection and that's because, even though you might be placing workers who are performing exactly the same role, the policies and procedures, supervision and the way the work is performed might be completely different at each site.
Observe workers performing the roles which your employees will be filling. Now this might be useful in highlighting any differences between the information you've obtained about the role, whether it be from the client or a job description, versus the role the worker will actually be doing. So that comes back, again, to the information gathering about the role. Meet people responsible for workplace health and safety, including the supervisors at the site, particularly those that will be in charge of your workers. Have they the appropriate experience and qualifications to be supervising your workers? Review safety documentation, policies and procedures in place with the third party. That includes any safe work method statements, risk assessments and policies and procedures. Sometimes you might be placing a worker in an organisation where they might not have these documents because they, for example, might be a small organisation, and if that is the case, you might have to take further steps to satisfy yourself that the job is being performed safely.
Always complete a risk assessment for each role that's to be performed. The risk assessment should be breaking down the tasks that are to be performed by your worker with a view to identifying any potential hazards and then recommending control measures to minimise the risks of injuries. Now sometimes – and we see this often – labour hire out companies might have regard to a host employer's risk assessment. And that's okay, but just make sure that you do a gap analysis, so have they missed anything? Quite often we see that a risk assessment has been completed, but sometimes control measures are insufficient and the labour hire organisation has done, perhaps, nothing to address it. And one recent example I had was when the risk was identified of manual handling because this particular host employer had a policy where workers could lift up to 35 kilograms on their – sorry, 30 kilograms on their own.
An injury was suffered by an employee and when we had a look at the control measures, the control measure was manual handling training. Now, unfortunately, no manual handling – no amount of manual handling training will help you in that instance because 25 kilograms is, arguably, an unsafe lifting limit. So always make sure that the control measures are sufficient. Ensure that the training and instruction provided to workers is sufficient. Drill down and see if it's a formal or informal program and, if it's informal, perhaps have even a closer look at that. What does it entail for example? Is it a buddy system? Is it just basically on the job and learn as you go? Who is supervising them during that training period? You also have to do an assessment as to whether or not that training is actually adequate, and that will be a consideration of the role and the person that you're placing. It's not, unfortunately, a one-size fits all approach.
Last – I'm sure Anna will back me up on this – but record keeping is incredibly important. I can't tell you how many times and how many claims we've come across where there's some crucial information missing on documents. And that can be, for example, a date where a risk assessment has been performed, but there's no date on the risk assessment. So that means that we couldn't argue that the labour hire employer had performed a risk assessment prior to sending their workers on-site. It could be that the role was missing or training. For example, there was no name on the document to indicate that the person had undergone the relevant training. So always include as many particulars as you can, including names, roles, dates and any other relevant information that you can think of. And, please, make it legible. Follow ups, please always follow up in writing. So if you do identify an issue, and perhaps you speak to the supervisor at the host employer site, don't just speak to them, send an email in writing and, if there's any follow ups to be done, put it up in your bring ups and follow it up and follow that up in writing as well. We do sound like lawyers, but it's incredibly important for the record keeping point of view. Now I'm going to hand over to Anna to talk about what to do after you've placed your employees at the third party site.
Ms Hendry: Thanks Janine. Okay, we're half way there. Have a little stretch. And if you could just pick up your pen for me and write down this, "I solemnly promise to keep a record and to follow up on any issues." Now, if you take nothing else away from this seminar today that is the most important thing. So in the 'After Placement' section, we're going to talk about training. That's general training that you provide to your workers, and site specific training that's provided by the host employer, and then monitoring. So, communicating with your worker, undertaking site inspections and dealing with changes to the workplace. Turning first to training, you will have an opportunity to provide your worker with training before they're placed at the job site. And this is an excellent opportunity to educate your workers about when and how they should communicate with you. When they should communicate with you is really important.
The bare minimum is that they would let you know if there's an accident or an incident, but depending on how often you do site inspections and attend to the workplace, your worker is probably your first line of defence and information in finding out about what's going on at that worksite. So you should educate your workers to contact you in the event of workplace, health and safety concerns or near misses, changes to their role or changes in the equipment that they're required to use, and any other general concerns about the workplace. It's all very well to teach them when they should communicate with you, but they also need to know how to get in touch with you, and I've see one labour hire employer do a really good job of this. They handed out business cards to every single worker, and on one side of the card it had contact details, which was basically a 24 hour hotline that they could call to contact the employer, and on the other side of the card it listed out the types of things that they might call the employer about. It's very simple. Everyone carries a wallet, everyone can fit a little card in there, so that's something you might consider implementing in your business.
Another area for general training is bullying, harassment and discrimination policies. As the employer, you owe an ongoing duty to your workers in relation to bullying, harassment and discrimination even though they're being placed at another host site. You need to educate your workers about what type of conduct constitutes bullying, harassment and discrimination and what they should do in the event of such conduct. Quite likely, you need to outline to them that they should contact you if they have concerns in relation to that type of conduct. You might also consider providing your workers with training in basic risk assessment techniques. For instance, the Take 5 technique is relatively simple, and it can be applied to most situations because it's a very general type of risk assessment technique. It will help your workers to be more aware of any risks involved in their worksite or the work that they're undertaking and be able to communicate those risks back to you. The final area for general training is basic manual handling training. No doubt the labour hire – sorry, the host employer will provide more specific job related manual handling training, but it's very useful to provide the basic manual handling training techniques. Now, of course, the other part to training is to document that training. In addition to keeping a record of the fact that the training has actually been undertaken, it's really important to keep a record of the content of the training. So where that training is delivered by video or online course or workbook, that content should be retained. We've had many a case where we've been trying to defend the labour hire employer and we want to prove that the training was undertaken, and we can prove the training was undertaken.
We've got a checklist that's been signed by the worker, but we can't prove the content of that training, and that's often very important. So once you've done your general training, then your worker will go off to the site and, no doubt, be provided with site specific training delivered by the host employer. Your role in the site specific training is, really, to keep a record of that training. Again, it's about keeping proof that the worker was trained and also copies of any training manuals, videos and online courses. There should also be some follow up with the worker after the training has been completed. And that follow up, if it's done over the phone or in person, should contain some very directed questions. You need to ask the worker did they understand the training? Is there any part of the job that they don't feel confident about? Would they like more training in relation to any aspect of their role? And I guess this ties back to the example that Janine gave us earlier about the worker whose poor understanding of English really got in the way of them understanding their training properly.
If that particular labour hire employer had made inquiries with the worker after that site specific training was delivered, it's likely they would have discovered that that worker had not properly understood the training and steps could have been taken to provide retraining or perhaps have someone come into the workplace who spoke that worker's first language. And as with all things, you need to keep a record of that conversation that you've had with the worker and follow up on any concerns that the worker has raised. So your next step is to monitor the worksite and also monitor your worker. You've done your initial check in with your worker after the training, and now you need to undertake further check ins, either by phone or preferably during site visits. When you do check in with them, again, it's all about asking directed questions. Ask the worker do they have any safety concerns? Do they need any further training? Have there been any changes to their role? Are they using any new equipment? Those sort of directed questions will be much more useful to you in gathering information about the worker and the worksite than a sort of general are you happy in the role-type question. A really good example of when directed questions of this type could have saved the employer's skin is a case that I ran several years ago now. In that case, the labour hire employer had placed quite a lot of workers at a particular manufacturer's site, and that manufacturer had a piece of equipment that was very close to being decommissioned. It wasn't working properly and, instead of decommissioning it or having it repaired, the host employer was having the workers go inside the safety gates of that piece of equipment to essentially help the equipment do the job properly. The safety gates were there because the equipment posed a very significant risk of a crushing injury, so it was quite a risky step by the host employer to have workers go inside those safety guards. The labour hire company undertook periodic site inspections, and those site inspections were always pre-arranged with the host. So, of course, what did the host do?
Every time the labour hire employer was due to have an inspection, it quickly shooed all of the workers outside the safety guards and the labour hire employer was none the wiser to this unsafe practice. Had that labour hire company specifically asked its workers about whether they were undertaking any unsafe work practices, whether they perhaps felt uncomfortable with any of the work practices, it might have been alerted to the fact that the workers were working within those guards and taken steps to address that issue. Unfortunately, that didn't happen and the claimant in that case sustained an amputation of this thumb, so a very serious injury. So, I would encourage you to use those directed type of questions when you communicate with your workers. You, of course, need to keep a record of those conversations and then follow up on the issues that are raised. I can hear you all thinking how often do I have to check in with my workers? I have thousands of workers, I can't possibly check in with them all. I can't give you a golden number of check ins that you need to undertake in order to either guarantee the safety of your workers or to properly defend a common law claim, but there are several factors that might affect how frequently you undertake those check ins.
And those factors are things like is it a high risk workplace, the skill level of the employee. We've got quite a lot of labour hire employers who are registered training organisations, so their workers are apprentices and they have very little experience in the job and also very little life experience. So that type of labour hire employer might feel the need to check in more frequently with its workforce. Another factor would be previously identified issues with that workplace or prior incidents. Another aspect of monitoring is undertaking site inspections. And, again, I can't give you a golden number about the frequency with which site inspections should be undertaken. It really depends on the nature of the work, the workplace, previously identified issues, things like that. The content of the site inspection is really important. It's not enough to turn up to the site, say hello to the accounts staff, get the timesheets for the week and maybe have a cup of tea. It's really important to – if you can – to do a walkthrough of the site and a visual inspection. A visual inspection, not just of your own workers, but of the worksite in general because a worksite where you identify minor safety breaches, like trip hazards, PPE not being worn, people working with guards up, that will alert you to a general sort of laxity on safety that should be addressed with the host employer. It's also an opportunity for you to meet with your key relationship contact and any safety staff at the host employer and, when you meet with those personnel, you should, again, be asking very directed questions. So those questions might include have there been any changes to the system of work or the equipment that's being used, have there been any incidents or near misses and have there been any issues identified with worker training or the performance of particular workers? In terms of the value of those directed questions, I'll give you an example so we can all learn from it. I did act for an employer who had placed workers, again, at a manufacturing-type host. The workers were asked to climb onto a bench to undertake a particular part of their task and they had to do that several times per shift. Climbing onto that bench created a very real risk of falling, in particular, because the bench had a small lip on the edge which created a trip hazard when the worker was descending from the bench. There had in fact been a near miss at that worksite with that particular system of work, but the labour hire employer was not aware of that because the near miss didn't involve one of its workers.
If the labour hire employer had gone in with that directed-type questioning of asking the relationship contact whether there had been any incidents or near misses, they might have become aware of that unsafe system of work and been able to take steps to address it. The step to address it was relatively simple and inexpensive. It was just providing a three step ladder to be able to undertake that particular task. Unfortunately, it didn't make those enquiries. The system of work wasn't changed, and one of the labour hire workers, ultimately, did fall from that bench and sustained a fairly serious spinal injury. So I think we can all learn from that and start implementing some directed questioning when we meet with those key contacts. And, finally, of course, keep a record and follow up on any issues that are identified. Now, the last part of monitoring is knowing how to address changes to the work or changes to the workplace. If you become aware of a change to the role, the workplace or the equipment it may be necessary to conduct a fresh risk assessment of that particular task. And that's the same process that Janine identified in relation to obtaining information at the very start of the placement.
Once you've done that risk assessment, you'll also need to look at updating the job description so that that's current and giving consideration to whether workers require additional training. If the change has already taken place without you being consulted in the implementation process, you should also check in with your workers to find out whether any issues have arisen as a result of that change. Just because a system of work has changed to make it seemingly more safe, it doesn't mean that other issues might not arise because of that change. And the classic example that I've seen has been factory workers who are provided with anti-fatigue mats to stand on. Now, obviously, that's a safety feature. They're putting those mats in place so the workers have less leg fatigue from standing for long periods but, upon questioning the workers, it may well become evident that those mats create either a trip hazard or a risk of twisted knee type injuries when pivoting to undertake different tasks. So you can see how you can't just take at face value that a safety measure implemented by the host won't cause other safety concerns that need to be addressed. And of course, again, you know what I'm going to say, keep a record and follow up on any issues that are identified. So I hope that that has provided some practical and maybe commonsense tips to help you manage the safety of your on-hired workers. I think we've received a number of questions during the presentation, so I'll let Michael read out the first question and see if we can answer.
Mr Ironside: Thank you Anna. Yes, so we've got a few questions here. We'll start with the first one, and the first question is, "On training to review the results of medical checks, is there any guidance available for this?"
Ms Hendry: Thanks, Michael. That's a really good question, and I think the simple answer to it is that if you have a really good job description, and then a really well-drafted medical report, you actually won't be required to interpret the results. So when I say 'a really good job description', I mean one that actually sets out, not just the worker must pick up this box, turn around here and put it on this bench, one that documents the weight and the frequency of the task. So, lifting a 5 kilogram box, six times per minute and, you know, walking 100 metres. So, once you've got that level of detail, you provide it to the doctor and then the doctor should be able to specifically say whether that particular worker can undertake that specific task. Once the report says something like that, you don't need to interpret it, it's all there for you. However, if you don't have a job description that's quite that specific, then it's really all about comparing the job requirements with the worker's capabilities or restrictions. So, that's the key thing that you need to focus in on all the time, and that will also help protect you from any potential discrimination allegations.
Mr Ironside: Fantastic. Thank you for that. The next question we have is from an employer who has found that some labour hire workers are reluctant to raise issues they believe may make them be seen as troublemakers. How can we overcome this belief?
Ms Oberhardt: That is really difficult, and I suspect it happens quite a lot. One thing you could do is when you're doing your inductions and your training with your staff, make sure you stress to them the importance of it and say it so much that you encourage it because it's for their benefit and it's for your benefit as well. And have that sort of approach that it's okay and, as Anna said, there are certain things that some employers have done, for example, those little business cards, where that can be seen as an encouragement too to contact a representative of the employer if they feel something isn't quite right or if there is an issue at the site. So always have that open and, I suppose, frank discussions and encourage them, and keep stressing to them that it won't be seen as a trouble making-type of issue, it will be seen as something that they will take onboard and you may raise it with the host employer and, if they feel uncomfortable, maybe they can do it, or maybe you can do it in a way that it's confidential so you don't actually have to name the employee for example, you just say, "Look, we've become aware of this particular issue," and follow it up that way. And that might give them a sense of – I suppose, a sense of security that they won't be causing further trouble down the track.
Mr Ironside: Fantastic. Thank you for that, Janine. The next question we have, "How long should we keep records about the placement and ongoing monitoring for?"
Ms Hendry: Okay. Well, there's no hard and fast rule, I suppose, about how long to keep records but, as a general guide, I would certainly keep the records for as long as either the worker or the client is involved with your business. So, if it's a personnel file for a particular worker, I'd keep it, obviously, as long as they're working for you. And the same with the client, you want to keep all of those communications, records about that client for as long as you are contracting with them. Also, if there has actually been an incident, then you would need to make sure that you keep all of those records. You don't want to throw away any part of those communications with that client, even if it's now a former client, if you know that there has been an incident at that site. Otherwise, a bare minimum of three years because this is the statute of limitations for personal injury claims, but I think it would probably be prudent to keep them longer than that bare minimum of the three years. And now with electronic record keeping, we should be better and better at keeping our records, and then also searching our records when we have to find relevant information.
Mr Ironside: Absolutely, and obviously better to be safe than sorry. All right, and we've got another question here which has a little bit of a common law flavour to it. "If a labour hire company does everything right before, after and during the placement and a claim still eventuate, would that mean that the labour hire apportionment is 0%?"
Ms Oberhardt: I wish I could guarantee that but, unfortunately, I can't. It certainly will assist in any arguments in trying to get the apportionment lower but, of course, it is still open for a court to find that there are other reasonable steps that the employer could have taken. But, certainly, if you can prove that you've ticked all the boxes, it certainly goes a long way in arguing for at least a reduction in apportionment and minimising any exposure that you have to any common law claims.
Mr Ironside: Excellent. I think, looking at the time, I've got time for two more questions. So the first of the two, "What should we do if the job description provided by the host does not cover all of the necessary information?"
Ms Hendry: That's a tricky one. I guess it depends how much do you want to invest in this particular relationship with the host. The first and easiest thing that you can do is work with that host client to update their job description. That will be done by observing and then documenting the role, and you want to be documenting, as I said before, very specific information about the physical aspects of that task; what am I lifting, how often am I lifting it and any other conditions associated with that role. If you've got a high risk role that you're looking at, or you're looking at putting a lot of staff into a particular role, you might decide that it's a good idea to really invest some money in having a proper, full job description drafted. And that might be done by engaging an occupational physician who can come in, watch the role and really drill down to the individual tasks. That will be useful for you, not only in matching the right worker to the right role, but also if you do need to undertake any of those pre-employment medical examinations because, as we said before, the medical examination is only as useful as the information contained in the job description.
Mr Ironside: All righty. And the last question we have that we'll address today, "What do I do if a candidate discloses a medical condition in the pre-employment checklist?"
Ms Oberhardt: It would really depend if that medical condition would impact on the worker's ability to safely perform that role. So even if they – they might identify, for example, they have an ankle injury but, if they're in an admin capacity, it may not actually affect their ability to perform that role safely. So if you think it might, consider having the worker undergo a pre-employment medical. And, again, make sure that the doctor is briefed with the specific information about that role so that they can make an accurate assessment. And that will – the better you do that, or the more information the doctor is provided, the more accurate assessment of the worker's capability to perform the role can be made.
Mr Ironside: Excellent. All right. Well, look, that concludes our webinar for today. As I did say at the beginning of the webinar, all the questions that we've answered, including those that we haven't got to, will be available within a week or so on our website, along with a copy of the webinar presentation itself. Thank you all for joining us today. I hope you all have a great day.
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Questions and answers
Answers to the questions we didn't have time to answer during the webinar are listed below.
A1 The host's duty of care to labour hire employees placed at their premises, incorporating their obligations to undertake a health assessment and monitoring of those workers, is analogous to the duty of care they owe to their own employees.
A2 A prospective employee must, where requested by a prospective employer, disclose all pre-existing medical conditions which they are aware of, that could reasonably be expected to be aggravated by performing the employment related duties. We would recommend that forms requesting disclosure of any prior medical conditions, clearly note that failing to disclose relevant past injuries may result in disciplinary action. However, it will only be in extraordinary circumstances, that failing to disclose a pre-existing medical history would justify that worker's dismissal.
A3 The parameters of the parties' roles in workplace health and safety should be clearly defined during the procurement stage and the labour hire agreement should outline the responsibilities of both parties.
A4 Employees can be reluctant to raise safety issues for fear of being labelled as a “troublemaker”. The key to overcoming this concern is to foster a culture that recognises that workplace safety is an important issue and is the responsibility of all parties involved. This message should be reinforced during general training provided by the labour hire company and again in the periodic communications with workers such as tool box training, refresher training etc.
A5 Assuming this question relates to interpreting pre-employment medical examinations, the key to interpreting the results of pre-employment medicals is to keep firmly in mind the physical requirements of the role and whether the candidate can fulfil those requirements. If you provide the assessing doctor with a detailed job description, the medical report should specifically comment on whether the candidate can perform each requirement of the role and so very little “interpretation” will be required.
A6 If there are no light duties available to a worker in their pre-accident role you should consider:
- Availability of light duties within the labour hire company office
- Availability of light duties with another host employer
- Light duties arranged by WorkCover Queensland.
A7 All prosecutions which result in a successful conviction, and in respect of work health and safety and electrical safety breaches, all applications for enforceable undertakings in lieu of prosecution accepted by Workplace Health and Safety Queensland are published online and listed in its annual report. Also consider performing social media or online searches (e.g. Google) as there might be information about the company's past in relation to workplace health and safety. In any event, it is prudent to make formal enquiries of the workplace health and safety record of the host employer at the procurement stage.