Let’s talk about quad bike safety

QUAD bike safety is an important topic.

This is particularly so in our community where there are farms and rural workplaces that often use quad bikes.

The reality is that quad bikes are a major risk area for serious injury or death.

Safe Work Australia compiles the data relating to quad bike fatalities.

In the eight years from 2011 to 2018, there were 126 quad bike fatalities in Australia (40 in Queensland). Sixty-two were workers, 76 were the result of a rollover and 77 occurred on a farm/property.

Whether you are the owner or operator of a rural workplace, farm or property, you owe a duty of care to the users of quad bikes on your property.

The user may be an employee or non-employee.

Whatever the case, adequate steps must be taken to address the many safety risks that arise from operating a quad bike. For workplaces and businesses, you will also have duties and obligations under the Work Health and Safety Act 2011.

Safe Work Australia publishes information specifically on this risk area, which is publicly available at www.safeworkaustralia.gov.au, for a guide for managing the risks of machinery in rural workplaces and quad bikes in rural workplaces.

They also provide guidance on ways to prevent quad bike injuries and death.

Quad bike safety is currently being reviewed nationally and there may be regulatory changes in this area soon.

Until next week – Keep it Legal!

Katie Caldow
kcaldow@walkerpender.com.au

*The legal information in this article is of a general nature only and not intended to be legal advice to rely upon.

Employer and individual liability for workplace safety

LAST week I spoke about an employer’s duty to manage risks to the mental health of its workers.

Of course, an employer must also manage risks to their workers’ physical safety.

If they fail to comply with their obligations, the employer is at risk of being prosecuted by Workplace Health and Safety (“WHS”). This may include the individual with responsibility for the employer entity.

If you look at the statistics published by Safe Work Australia in 2016-2017 in relation to WHS prosecutions and outcome, there appears to be trend of increased financial penalty and individual liability.

This is evidenced by the fact that, despite a 24 per cent decrease in the number of legal proceedings resulting in a conviction, order or agreement, there has been an 8 per cent increase in the value of fines awarded by Australian Courts. In addition to the above, over the past six months there have been two instances of Australian Courts sentencing an individual to a term of imprisonment following a fatality in their workplace.

The first was a 72-year-old self-employed scrap metal business owner in Victoria who was sentenced to six months in prison. The second, a director of a Brisbane roofing company who was sentenced to one year in prison.

Employers who think they won’t be prosecuted or are sheltered from personal liability should think again. Is safety a primary focus in your business? It should be.

Until next week – Keep it Legal!

Katie Caldow
kcaldow@walkerpender.com.au

*The legal information in this article is of a general nature only and not intended to be legal advice to rely upon.

Mental health in the workplace

AN EMPLOYER has a duty to manage risks to the mental health of its workers. It arises under both common law and Queensland legislation, primarily the Work Health and Safety Act 2011.

If you are an employer you need to ensure your workplace is mentally healthy and that you are adequately managing risks within your organisation to the mental health of your workers.

According to Workplace Health and Safety Queensland, “one in five adult Australians experience a mental health condition in any given year and workers who feel their workplace is mentally unhealthy are three times more likely to take time off work than those in mentally healthy workplaces”.

So the benefits of ensuring a mentally healthy workplace are not just for the benefit of workers; there is a flow-on commercial benefit in reducing absenteeism.

Employers play a big part in helping to break down the stigma that is still largely associated with mental health.

They also need to be complying with their legal obligations in this area.

An adequate management system should include proactive measures to manage risks to mental health arising from the employment (for example, fatigue, bullying, work-related stress etc.) as well as support and promotion of positive wellbeing and health practices and the provision of adequate support mechanisms.

There is no time like the present to consider the current risks to mental health within your organisation and whether your management systems are adequate.

Until next week – Keep it Legal!

Katie Caldow
kcaldow@walkerpender.com.au

*The legal information in this article is of a general nature only and not intended to be legal advice to rely upon.

Household Worker insurance?

AS BUSY individuals, we sometimes pay cleaners, babysitters, gardeners and others to help us at home. There is a common misconception these people are always contractors, as opposed to employees. But that may not be the case.

You have a duty of care to entrants on your property to take reasonable steps to avoid exposing them to risk of injury. If an entrant is injured on your property, then, assuming you have public liability… insurance, the policy will usually respond to any injury claim. However, public liability insurance does not cover employees injured during the course of employment, which would leave you personally liable (the amount could be significant).

You should consider if your workers are properly characterised as contractors or employees and what, if any, compulsory insurance obligations you might have.

The Australian Taxation Office provides a tool, the “Employee/contractor decision tool”, which can assist in characterising a worker as an “employee” or “contractor”. If employees, consider whether they meet the definition of household worker under the Workers’ Compensation and Rehabilitation Regulation 2014, which is “a person employed solely in and about, or in connection with, a private dwelling house or the grounds of a dwelling house”.

If you employ a household worker, you must have workers’ compensation insurance. WorkCover Queensland offers a specific Household Worker insurance policy with a $50 premium for two years.

Consider your individual circumstances and seek advice if needed.

Until next week – Keep it Legal!

Katie Caldow
kcaldow@walkerpender.com.au

*The legal information in this article is of a general nature only and not intended to be legal advice to rely upon.

New cladding laws for private building owners

I WOULD be surprised if combustible cladding is a term you have never heard.

The tragedy of the Grenfell Tower fire in 2017 was a catalyst for the increased media focus on cladding, but it certainly was not the first event of its kind. Part 4A of Queensland’s Building Regulation 2006 was introduced by the Building and Other Legislation Cladding Amendment Regulation 2018.

It came into effect on October 1, 2018, and obligates owners of private buildings (as defined) to take steps to identify combustible cladding and the safety risks associated with it.

It represents Queensland’s approach to addressing this very serious and topical issue. There are four deadlines associated with the process of which private building owners should already be aware:

March 29, 2019 – buildings must be registered on the “Safer Buildings” website and complete the Part 1 Checklist, which will determine if the building is an affected building. May 29, 2019 – affected buildings to engage an appropriately qualified building industry professional to complete a statement answering technical questions about the building.

The statement must be uploaded and the Part 2 Checklist completed, to determine if the building remains an affected building.

August 27, 2019 – fire engineer to be engaged and registered on the system.

May 3, 2020 – upload building fire safety risk assessment and fire engineer statement and complete Part 3 Checklist.

There are penalties for non-compliance and the first deadline is fast approaching.

Until next week – Keep it Legal!

Katie Caldow
kcaldow@walkerpender.com.au

*The legal information in this article is of a general nature only and not intended to be legal advice to rely upon.

Wills – what are they and why you should have one

A “WILL” is a legal document stating your wishes regarding the division of your estate, that is, your money and assets, after you pass. You also appoint someone to administer your estate, known as an Executor, usually a family member, close friend or legal advisor.

If you die without a Will, this is called dying intestate and your estate will be dealt with according to the intestacy rules set out under the Succession Act 1981 (Qld). These rules provide for the distribution of an estate to the deceased’s relatives.

Whilst there is no law against preparing your own Will, this is not recommended as there is a risk of the Will being invalid if it does not comply with the applicable legal formalities. These uncertainties can ultimately lead to costly legal proceedings to resolve the issue, which reduces the value of the estate.

It is recommended that you engage an experienced legal professional to assist you in preparing your Will. It may be necessary to amend your Will at various times throughout your life, depending on the nature and extent of changes in your circumstances. For example, significant life events such as marriage, divorce, children, significant change in assets and death, generally give rise to a need to amend the terms of your Will.

Given the importance of a Will, it must be kept in a safe place and the Executor should be told of its whereabouts.

Until next week – Keep it Legal!

Katie Caldow
kcaldow@walkerpender.com.au

*The legal information in this article is of a general nature only and not intended to be legal advice to rely upon.

THE “RIGHT” OF AN ACCUSED PERSON TO BAIL

A cornerstone of the Common Law upon which the Australian Legal System is based is the “presumption of innocence”. This means of course that if you are accused of a crime, you do not have to prove you are innocent.  Instead, it is the job of the Prosecutor to prove you are guilty beyond a reasonable doubt.

Consistent with this concept of innocence until proven guilty is the general right to be allowed to remain in the community until one’s trial is heard.

The Bail Act 1980 (Queensland) provides a duty on the part of a Court to grant bail unless certain circumstances apply.

Essentially, unless a person is charged with murder, a Magistrate can and must grant bail unless he or she is of the view that the alleged offender is an unacceptable risk of re-offending, obstructing the course of justice, failing to appear in Court or of self-harm.

It is important to note of course that often conditions will be put in place by the Court that reduce any perceived risk, in particular, of the person re-offending or failing to appear in Court to answer the charge. These conditions often include reporting to Police, having no contact with the victim residing at a particular address, submitting to a curfew and drug testing.

It is also important to note that where an alleged offender is said to have committed an offence whilst already on bail for a serious charge or alternatively where an alleged offender is said to have committed an offence whilst armed with a weapon then the onus of demonstrating why they should receive bail shifts onto their shoulders. If this does not apply then the burden of demonstrating why a person should not get bail fails with the Prosecution.

Obviously when determining these issues a Court will look at the type and severity of the offence the offender is alleged to have committed, the strength of the evidence said to exist in relation to the charge and having regard to their criminal history, or lack thereof, the likelihood of them complying with bail conditions.

*The legal information in this article is of a general nature only and not intended to be legal advice to rely upon.

Debt Recovery

I OFTEN receive inquiries from businesses or individuals that are owed a debt. Generally, by the time I receive a call, they have made numerous unsuccessful attempts to recover the debt. At that point, they are looking for legal options.

There are many different types of debt, including unpaid accounts and invoices, money lent but not repaid and work done that has not been paid for (to name but a few).

The legal options depend primarily on the type and value of the debt. Debts up to $25,000 can be pursued through the Queensland Civil and Administrative Tribunal provided the debt meets the definition of a minor civil dispute under the relevant legislation.

Larger debts of up to $150,000 are dealt with in the Magistrates Court. The District and Supreme Courts also have jurisdiction for debt claims of more significant amounts.

There are advantages and disadvantages of pursuing a debt through a tribunal or courts. In some cases, the legal costs to pursue a debt through the court may outweigh the value of the debt itself.

Of course, there are also cases where legal proceedings are commercially justified. Whatever the case, reasonable efforts should always be made to resolve a debt dispute by means of alternate dispute resolution (i.e. resolution other than by tribunal or court order).

You should seek legal advice regarding debt recovery options, including the commercial context of each dispute resolution option as it relates to your particular circumstances.

Until next week – Keep it Legal!

Katie Caldow
kcaldow@walkerpender.com.au

*The legal information in this article is of a general nature only and not intended to be legal advice to rely upon.