Danger! Peligro! Publicity order in five languages

In the recent NSW Industrial Relations Commission decision in Inspector Ochoa v East Sun Building Pty Ltd & Gao, a company was fined and ordered to publicise their conviction in newspapers in five different languages.

The prosecution related to a scaffolding collapse during a residential construction project which resulted in a worker sustaining serious injuries.

Workers did not speak English
None of the employees at the company, East Sun Building, could speak English. Instead, they required their supervisor (who was also the General Manager of the company) to translate any instructions given on the construction project. The supervisor had been advised by other contractors on the project that workers were not to use scaffolding at the premises as it was in a partially dismantled state, and that other equipment was available to the workers if they required it. The supervisor, however, failed to pass these instructions onto his workers.

The workers at East Sun Building did not hold appropriate qualifications and the company did not keep any records of their training. The injured worker was not provided with any instructions as to how to undertake the work, nor was he provided with any safe work method statements or work procedures in relation to the work to be undertaken.
East Sun Building and the general manager were both charged with breaching the Occupational Health and Safety Act 2000 (NSW) and both pleaded guilty. The company was fined $80,000 and the General Manager $4000.

On top of the fines, the Court also made an order that the defendants pay for newspaper advertisements publicising the offences that had occurred and warning others of the risks associated with construction work. The advertisements were ordered to be published in English, Mandarin, Cantonese, Korean and Spanish. The reason these five languages were selected was because they represented the nationalities that predominantly undertake finishing trades in the construction industry in Australia.

What should employers do?
This case is an important reminder for employers that they must go the ‘extra mile’ in order to ensure migrant workers understand OHS obligations and procedures. Overcoming the language barrier is just one hurdle. Another consideration for employers needs to be that some migrant workers may not come from countries where OHS is a part of their working culture, and the business has an obligation to take extra steps to ensure workers grasp the seriousness with which workplace safety obligations are taken in Australia.

According to the Australian Bureau of Statistics, as at November 2008, the Australian labour force comprised 11.1 million persons, of which 2.9 million, or 26%, were born overseas. Of the 2.9 million, 1.7 million were born in non-English speaking countries. It should come as no surprise then that dealing with issues surrounding migrant workers has been a focus of OHS regulators across Australia in recent years.

Most OHS regulators in Australia have information brochures and guidelines available in languages other than English. In Victoria and Western Australia, there are guidance notes available for employers with strategies on how to communicate OHS matters to migrant workers. The OHS Regulator in NSW has recently initiated an assistance program for employers with non-English-speaking workers.

A global issue

Concerns relating to OHS and migrant workers are not restricted to Australia. According to studies conducted in the USA by the Occupational Safety and Health Administration (OHSA) and the US Bureau of Labor Statistics, in 2008, 804 Hispanic or Latino workers were fatally injured while at work. Fatalities to Hispanic or Latino workers accounted for 15% of workplace fatalities that occurred in the USA in 2008. Hispanic or Latino workers had a fatal work injury rate of 4.2 fatal work injuries per 100,000 full-time equivalent (FTE) workers compared with the all worker fatal work injury rate of 3.7 fatal work injuries per 100,000 FTE workers. In 2008, foreign-born Hispanic or Latino workers accounted for 503 workplace fatalities, or 63%, of the fatal work injuries to Hispanic or Latino workers.

Perhaps the most alarming statistic is that in the USA, while overall workplace fatalities have dropped 20% in the last decade, workplace fatalities among Hispanic workers, especially those working in the construction industry, have risen almost 35% in the same period. Given these figures, OSHA has made identifying ways to improve the safety and health of immigrant workers a priority.

*Michael Tooma, Partner, Norton Rose