A recent NSW Industrial Relations Court decision has agitated the question of whether an employer needs to provide written safe work procedures to its employees as part of their duty to provide a safe workplace.
In Inspector McCarthy (nee Shaw) v Siva & Jeya Pty Ltd  NSWDC 15 a company and its director were prosecuted after an employee suffered severe burns while filling a burning pot used to heat food trays for a buffet style meal. The pots were filled using methylated spirits.
One of the allegations in the case was that the employer had not provided the employee with a “written safe work method” for the task. The Court found that the failure to provide the written information was not a breach of the employers obligations:
I do not think that the case for providing her with a written safe work method is made good. The written document for an immigrant such as Anisha may be difficult to comprehend and follow and may not necessarily be effective. A spoken direction is more likely to be effective.
This is not unprecedented, or unsurprising. In a 2013 South Australian decision, Moore v SD Tillett Memorials Pty Ltd  SAIRC 47 it was alleged by the prosecution that the employer should have kept a record of a training document, and who that document was provided to. In relation to that allegation the Court said:
This is of course desirable but what would it have achieved against a background of constant verbal reinforcement? Recording who received the document had not been carried out in the past although there was a universal awareness of the document by the employees and former employees …
Another instructive case is Inspector Shepherd v Desiya Pty Ltd  NSWIRComm 9. In that case workers were provided with “on the job” training in relation to operating machinery and traffic management in a work yard. An employee was killed when he was hit by a truck.
One of the allegations against the company (which was ultimately convicted) was:
The training and assessment of drivers of yard trucks was done via ‘on the job training’ and assessment.
One the job training is a legitimate training method, indeed, as illustrated by the Siva & Jeya Pty Ltd case, may be the appropriate method. In the case of Desiya, on the job training was a deliberate and legitimate strategy:
Verbal instructions were commonly used … as a control measure against employees with poor literacy skills not understanding the written instructions contained within training documentation.
The difficulty lay, not in the strategy, but the execution.
The competence of the trainee or trainer was not assessed against any documented objective criteria. After this ‘training’ process, if the driver was assessed as competent by the supervisor they were then permitted to operate the truck.
There are many appropriate and legitimate ways that an employer can discharge their obligations to ensure that employees are trained and competent to perform their work safely. These might include formal class room training, on the job training, computer based training, the use of written work instructions and so on.
The lessons from these, and similar cases, is that simply providing safe work procedures to employees is not sufficient to discharge and employers obligations. In all likelihood, simply providing training, no matter what its purported “quality” will not be sufficient either.
Documented safe work procedures should be developed and maintained, but they are not an end in themselves – they are simply the evidence of the “objective criteria” against which workplace safety will be judged.
To discharge obligations to ensure relevant training and competency in the workplace, employers need to be able to demonstrate that:
- Workers have been provided with the relevant information about how to do their job safely;
- Workers understand that information;
- Work is actually performed in accordance with the training; and
- There is ongoing supervision and enforcement of the training.
Equally importantly, this does not require dumbing everything down and treating workers like fools. Give workers the information they need to do their job safely, trust them and supervise them with respect – you might just be surprised by the results.