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In a recent OHS Alert article, the first non-pecuniary penalty orders made under NSW's mirror WHS Act (ss239 and 241) has been enacted.

In June, the manager of a bricklaying company was placed on a two-year work health and safety undertaking and issued a training order, under s239 and s241 of the State Work Health and Safety Act 2011.

In NSW, s239 states that a court "may (with or without recording a conviction) adjourn the proceeding for a period of up to two years and make an order for the release of the offender on the offender giving an undertaking with specified conditions (a 'court-ordered WHS undertaking')".

Section 241 states a court can order a person to "undertake or arrange for one or more workers to undertake a specified course of training".

Mr Wilson, the Manager’s lawyer said the orders imposed on the manager represented a "significant step" in the treatment of WHS offences by courts, where "alternatives to fines as a sentencing option are no longer mere possibilities".

Following a WorkCover NSW investigation after the incident in 2012, the manager was charged with breaching s28 (duties of workers) of the Act for a category 3 offence, in failing to instruct workers not to work near the unsupported walls before they were properly braced.

The manager pleaded guilty, and following negotiations with WorkCover, was ordered by the Local Court to enter the undertaking, undertake safety training, and pay $3000 of WorkCover's costs.

The manager's safety performance at the site had been "solid", with his company establishing safe work method statements, conducting regular safety walks and toolbox talks, and requiring workers to wear PPE, Mr Wilson said.

Ironically, just weeks before the incident, the manager had been given a safety award by the "peak" contractor.

Further, the manager entered an early guilty plea, cooperated with WorkCover and regularly visited the severely injured worker in hospital and in a rehabilitation facility.

OHS Alert tells us that the decision is not available online.

Lessons for us?

Knowledge is the key to the success of your safety program and its often knowledge or lack of that is often the cause of many injuries in our workplaces. When it comes to training here are our tips:

Go for generic training where cost is an issue or your workplaces frequently changes as some knowledge is better than none. Generic training can also work with a highly skilled workforce as they are better equipped at translating the information to fit their specific workplace.

Specific tailored training is often the best as it makes reference to the workplace, uses specific scenarios and deals with your workplace issues. It is particularly useful if your work tasks are highly specialised or specific.

Training doesn’t have to be to face to face. Training can be online, on-the-job or mentoring. For online training we like E3 Learning, our Safety Consultant helped write some of the safety content and the beauty of this platform is you have access to the learning management system so you can see who has done what, their scores and competency achieved – a must for your record keeping!

Keep records of all training undertaken by staff and a brief synopsis of what the training involved – you must be able to demonstrate competency in any audit or investigation.

We recommend you keep your training log separate so that it’s easier to track, measure and analyse. We’ve seen some employers keep records on individual files and then when it comes to audit time, find it very hard to track. Your employees should be keeping any certificates of competency or attendance for their own records.

For any assistance with your training needs, whether it be generic or specific please contact us on 9222 7400, email us or check out the website.