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LAWS5029 Work Health And Safety Legislation

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LAWS5029 Work Health And Safety Legislation

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LAWS5029 Work Health And Safety Legislation

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Course Code: LAWS5029
University: The University Of Newcastle

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Country: Australia

Question:

1. This inquest concerns the death of Simon Co. 2. The role of a Coroner as set out in s 81 of the Coroner’s Act 2009 (NSW) is to make findings as to: (a) the identity of the deceased; (b) the date and place of the deceased’s death; (c) the physical or medical cause of death; and (d) the manner or circumstances surrounding the death. 3. It must be taken into account that inquests are not criminal investigations, nor are they proceedings to determine civil liability.   4. Mr Co was born on 13 January 1984 in  New South Wales.  At the time of his death, he was married with one young daughter.  5. After completing his secondary education, he undertook an electronics course at a TAFE College.  He had a special interest in telecommunications. On 20 October 2017, he was employed by LongReach Telecommunications Limited (which I will refer to as ‘LongReach’) as a technician.6. LongReach is an ASX-listed Australian telecommunications company and a carriage service provider within the meaning of the Telecommunications Act 1997 (Cth).  The company was established in 2007 and provides mobile telecommunication services to over 5 million Australians, primarily in the eastern states. 7. LongReach operates a large transmission network across Australia.  It has over 10,000 base stations which it owns.  It also has arrangements with other carriers allowing LongReach’s customers to utilise the base stations of those other carriers.  A base station provides a wireless connection between mobile phones and the carriage service provider’s mobile telecommunications network.  Put simply, it is the antenna to which customers’ mobile telephones connect to the mobile telecommunications network.  Given the ubiquity of mobile telephones, it is no surprise that base stations can be found in a variety of locations including on transmission towers and on the top of buildings. 8. In 2016, the Commonwealth Government announced plans to provide $500 million to upgrade Australia’s mobile telecommunications network and reduce the amount of ‘mobile black spots’.  The project is called the “Improved Reception Scheme” (the ‘Scheme’).  Telecommunications carriers, such as LongReach, are eligible for grants under the Scheme.   9. The grants are distributed by a body corporate established by the Commonwealth Government called the Federal Communications Corporation (which I will refer to as ‘FedComm’). FedComm was constituted under the Telecommunications (Connecting Australia) Act 2017 (Cth) (‘the TCA Act’).  Section 5 of the TCA Act lists the functions of FedComm to include: (a) investing in technology to improve telecommunications coverage in Australia; and (b) providing grants to carriage service providers for the installation of additional telecommunications base stations in Australia. 10. In September 2017, LongReach obtained a $100 million grant to build new base stations.  The grant was made available under a Base Station Facilities Agreement entered into between LongReach and FedComm.  Clause 20 of the agreement provides: 20. Safety LongReach must ensure that LongReach, and its employees and contractors: (a) comply with all work and safety obligations under work health and safety laws; and (b) comply with all safety policies of FedComm. 11. One of the policies issued by FedComm was the Working from Heights Policy (the ‘Policy’).  The Policy provides that all workers working from heights must wear a fall arrest device (commonly known as a safety harness).  12. The Scheme clearly had financial benefits for LongReach.  Using the funds from its grant from FedComm, it employed 25 new technicians, one of them being Mr Laing.  Each technician was given a one-week training course with LongReach which included information about the company, its operations and how to carry out work safely. 

Answer:

Liability of longreach for the incident under the work health and safety legislation
Issues
The issue which is involved in the case is whether Longreach can be held liable for the situation under the work health and safety legislation.
Relevant laws
The issues can be resolved by making a discussion about the provisions of work health and safety legislation. For the purpose of understanding the liability of longreach, the Work Health and Safety Act 2011 and Work Health and Safety regulations 2011 should be highlighted which provides a protection to the health safety and welfare of the workers at their workplace. Workers including employees, contractors, subcontractors and others are provided with protection under the provisions of this Act. It is provided under the Division 2 of Part 1 of the Act to make and ensure protection for the workers in the workplace from any risk to their health and safety. Further it provides that all the workplace must ensure appropriate review of the action which has been taken by the person who are exercising the powers under this Act. It is the duty of the person undertaking or conducting a business have a duty to ensure health and safety of the workers. Under Section 19 of the said Act, it is provided that the person who is conducting the business, should ensure safety regarding the health of the workers, maintenance of the system of work, safe use of the equipment and plants. The workers should be provided with adequate facilities at the workplace for their welfare. It is required that the management should look into the matter with serious concern where a defect relating to a work equipment is reported to them. The work related equipment should be inspected from time to time to avoid the likelihood of hazards and risks. It is provided under the Schedule 3 of the Act that the protective and safety system should be regulated under the provisions of this Act. Division 5 of Part 2 of the Act imposes certain penalties for not complying with the health and safety duties as mentioned under this Act.
Application
In this given situation, the workers were exposed to risks as their nature of work was such that they had to work from heights. Longreach was expected to observe strict protection for their workers. They are required to verify whether the safety system they are providing for their workers are sufficient. It is required that the person who are undertaking a business should properly maintain the safety equipment they are providing to the workers who are working from heights. It was the responsibility of Longreach to cross-check the fall protection systems. But herein, the Longreacgh failed to perform their duty. Additionally, they were not concerned about the ensuring the protection system even after being notified that the lanyards of the harnesses were not in proper working conditions. They overlook the foreseeable risk to workers which caused death to Mr. Liang. Mr.Liang faced the injury while working within his course of business, which is nothing but the result of lack of maintenance and care of the company to implement the Work Health and Safety regulations. At the same time, Longreach did not comply with the safety policy that the Fedcom had issued and breached the term of the agreement that they had entered into. Longreach had committed a breach to their duty to provide proper safety to Mr. Liang.
Therefore, from the above discussion, it can be concluded that, Longreach is liable for not complying with the provisions of Work Health and Safety Act 2011, and penalty can be imposed on them for breaching their duty.
Liability of Fedcom in relation to this incident
Issues
The issue underlying the situation is whether Fedcom liable under the Work Health and Safety legislation.
Relevant rules
This issue can be solved by discussing the provisions of Work Health and Safety Act 2011 and Work Health and Safety regulations 2011. Part 3 of the Work Health and Safety Regulations 2011 imposes a duty to identify the hazards in a workplace on the duty holder. It requires that the regulations for managing the risk in workplace must be complied with. Part 9.3 of the Act provides that management of risk should be appropriate and reviewed from time to time. The Work Health and Safety Act 2011 prescribes specified requirements which should be taken into account to determine the risk control systems for workers working at heights.
Application
Fedcom is the body that distributed grants which the Commonwealth Government provided, whose function was to make investment and providing grants. They had also provided a safety policy for Longreach. They were concerned on their part and performed their duty with due care. The policy ensures that the worker working on a height must wear safety devices to reduce the risk. There was no fault in part of Fedcom for the incident which happened to Mr. Liang. Their policies were effective but it was the fault of Longreach that they did not implemented the policy. The primary duty of Fedcom was to provide funds for improving technologies. To ensure whether the harnesses were in proper condition or not, was not the duty of Fedcom. There is no relationship between the duties of Fedcom and the incident which happened to Mr. Liang. No liability can be imposed on them under the Work Health and Safety legislations.
Conclusion
Hence, it can be concluded form the above discussion that, SafeWork NSW can not held Fedcom liable under the Work Health and Safety legislation.
Bibliography
Hale, Andrew, David Borys, and Mark Adams. “Safety regulation: the lessons of workplace safety rule management for managing the regulatory burden.” Safety science 71 (2015): 112-122.
Holt, Allan St John, and Jim Allen. Principles of health and safety at work. Routledge, 2015.
Schilling, Richard Selwyn Francis, ed. Occupational health practice. Butterworth-Heinemann, 2013.
Stergiou-Kita, Mary, et al. “Danger zone: Men, masculinity and occupational health and safety in high risk occupations.” Safety science 80 (2015): 213-220.
Legislation.gov.au (2018) https://www.legislation.gov.au/Details/C2017C00305 Accessed on 11 September 2018
Work Health And Safety Regulations 2011 (2018) Legislation.qld.gov.au https://www.legislation.qld.gov.au/view/pdf/inforce/current/sl-2011-0240
Working At Heights (2018) Safeworkaustralia.gov.au

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