In all Australian states and territories, laws governing health and safety in the workplace (also known as OHS in Victoria, OSH in Western Australia, WHS in New South Wales, Queensland, South Australia, Tasmania, the Australian Capital Territory and the Northern Territory) provide that an employer (or Person Conducting a Business or Undertaking) is responsible not only for their employees/workers* but also (under, for example, the Victorian Act) to:

“ensure, so far as is reasonably practicable, that persons other than employees of the employer are not exposed to risks to their health or safety arising from the conduct of the undertaking of the employer”.

(Section 23 of the Occupational Health and Safety Act 2004 (Vic) (OHS Act))

When it comes to schools, the most significant “persons other than employees” means students, although “other” can also include members of governing bodies, visitors and neighbours.

Recent Victorian Case

The Victorian Department of Education and Training recently pleaded guilty to charges brought against it by WorkSafe Victoria, the state’s workplace health and safety regulator, arising from the Department’s failure to ensure that, so far as was reasonably practicable, a student was not exposed to risks to his health or safety.

Seven-year-old Jovan Talwar, a student at Warringa Park School (which is a special needs school), was in his wheelchair which tipped and fell at the base of a ramp at the school at Hoppers Crossing in late 2018. As a result of the head injuries that he sustained during the fall he died only days later.

Worksafe Victoria alleged that the Department failed to maintain the ramp, document supervision and mobility requirements of its students, and appropriately train its teachers in documented supervision of its students.

Worksafe Victoria’s investigations found that the ramp, whose construction had been contracted out, was both poorly constructed and was not maintained properly. Doubt was also cast on the level of training that staff, aides and trainee teachers at the school had been given. The procedures that may have been able to assist in establishing appropriate supervision were also not adequately documented. The Age reported that it was alleged that a student teacher who was supervising the student's movement between classrooms had told investigators that she was not provided with specific information about the special mobility needs of each student. It was believed that another student was in fact helping Jovan Talwar at the time that he sustained the injuries.

This matter was taken very seriously in the Melbourne Magistrates Court where the matter first arose, with the case being escalated to the County Court for sentencing. The County Court is able to impose the maximum penalty under the OHS Act. Under section 23 of the OHS Act the maximum penalty is $1.486 million for each offence for a body corporate (9,000 penalty points), whereas the cap on sentencing for offences in the Magistrates Court is a mere $413,000 (2500 penalty points).

Sentencing has not yet occurred but the Department of Education faces fines of up to $3 million.

Insuring Against Penalties Imposed

And just before you reach for the phone to contact your insurer, note that in NSW it is now an offence to insure against penalties imposed under workplace safety legislation, and it is understood that this offence is being either planned or considered in other jurisdictions. WA has included this provision in the new Workplace Health and Safety Act 2020 (WA) that hopefully will take effect sometime this year.

Lessons Learned

Clearly it is essential that that a school has procedures in place for ensuring that students are properly supervised at all relevant times and that school buildings and facilities are subject to regular inspection and maintenance schedules. Schools will also recognise the importance of having documented procedures for these hazard control measures which can be used as compliance checklists, as well as the basis for ensuring that staff have received appropriate training in those areas. However, this case is another frightening and tragic reminder that student teachers and casual teachers, who through a lack of adequate and timely information from the school about the risks associated with individual students, can place those students at the greatest risk of harm.

Looking After Your Staff

Safe Work Australia has issued two new guides this year which are of particular relevance to school staff.

One is the Preventing workplace violence and aggression guide which provides information on preventing and responding to workplace violence and aggression, and addresses physical and psychological violence and aggressive behaviours, which may occur face-to face, online, or on the phone. The guide refers to education as being a “higher-risk industry”, together with retail and hospitality, health care, and community services.

The other guidance material is titled the Preventing workplace sexual harassment guide and is the first foray by Safe Work Australia into what has traditionally been considered a human resources issue.

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*Note that contractors are treated as if they were employees to the extent of any joint responsibility between the school and the contractor’s employer. Volunteers are considered to be the employer’s “workers”.

Authors

Svetlana Pozydajew

Svetlana is a Principal Consultant (NFP) at CompliSpace. She has over 20 years of experience in strategic and operational human resource management, occupational health and safety, and design and implementation of policies and change management programs. She has held national people management responsibility positions in the public and private sectors. Svetlana holds a LLB, Masters in Management (MBA), Master of Arts in Journalism, and a Certificate in Governance for not-for-profits.

Filip Manganaro

Filip Manganaro is a Legal Research Associate at CompliSpace. He recently completed his law degree at the University of New South Wales.