In what is believed to be the first decision of its kind, a
Victorian Magistrates Court held a printing company guilty of seven
breaches of the Occupational Health and Safety Act 2004
(Vic) (Vic Act) for employees sponsored by the
company under sub-class 457 visas in the Broadmeadows Magistrates
457 visas are a method by which an employer can sponsor an
overseas worker to perform work for them in Australia where there
is a shortage of labour with the requisite skills at a local
The printing company sponsored two Chinese nationals, a Mr Cai
and Mr Fu, neither of whom spoke English to work at their factory
Mr Cai suffered permanent disability after both his arms were
trapped and fractured by an unguarded printing machine he was
working on. He was later forced to return to work by the printing
In April 2006 Mr Fu broke his right wrist after falling from a
ladder that was unsuitable for the task being performed. Then in
June 2006 Mr Fu suffered a further injury while using a drill with
his left hand which kicked back breaking his arm. Mr Fu continued
to work using his right hand which was still in a cast.
Mr Fu's 457 visa was approved on the grounds that he had
attained electrical trade qualifications in China. He was, however,
instructed to perform duties such as assembling scaffolding and
welding, neither of which he held competencies in.
Later while Mr Fu was off work due to the injuries he received
in the second incident, the printing company sent Mr Fu first
written warning alleging that his work performance was not to
standard due to his failure to follow occupational safety and
health procedures. Two months after the warning letter the printing
company later attempted to terminate Mr Fu's employment.
The printing company received fines totalling $100,000. $75,000
was in relation to Mr Cai's incident and $25,000 for Mr
Employers must provide adequate information and instruction to
employees to perform work safely. This extends to tailoring safety
policies to the native language of their 457 visa holders in the
event that they have difficulty reading or comprehending English.
Induction training, safe work procedures, competency assessment and
even safety signs will require translation to ensure an employer
meets their duty.
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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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