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
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.
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.
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.
The Federal Court handed down the largest-ever court fine for breaches of the Subclass 457 business sponsorship program.
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