Managing site safety stoppages

Site safety stoppages and disputation is complex, and often the legal responsibilities and remedies are overlooked for a quick fix. Unfortunately, despite the best efforts of all partied to these disputes, the solutions may be temporary and there is no process identified for avoiding or reducing further unnecessary lost time.

The below information summarises key issues in relation to managing site safety stoppages; however, members are encouraged to contact Master Builders for specific guidance and advice.

Site resources

Master Builders has developed resources for members to use in circumstances surrounding work stoppages, due to actual and alleged safety reasons. In conjunction with the information outlined below, these resources are designed to help you manage site safety stoppages in a practical and lawful manner.

Resources include:

Management responsibilities

It goes without saying that no reasonable person will willingly put themselves at risk of injury if the risk is real, present and immediate. However, knowing the difference between safe and unsafe is not always clear.

The following elements support safety in the workplace, and are enforced by a huge body of legal obligations:

  • Safety training and induction
  • Safety supervision
  • Safety procedures
  • Audits
  • Safe equipment.

The law also gives workers the right to refuse to work in unsafe situations. In particular, industrial relations law excuses an employee from having to carry out certain work if there is an imminent risk to the employee’s health or safety if they were to continue.

Imminent risk is defined as ‘just about to happen’. An employee will not lose wages for the time lost due to genuine safety stoppages, and the stoppage will not be regarded as industrial action.

The distinction between stoppage for genuine safety reasons, as opposed to industrial action, is a very important one. Failure to understand the difference can often lead to disputation, lost wages and prosecution for unlawful industrial action.

Unlawful vs. lawful industrial action

Unlawful industrial action is defined as building industrial action that is ‘industrially-motivated’, ‘constitutionally connected’ and not ‘excluded action’.

Industrially-motivated action is industrial action motivated by one of the following purposes:

  • Supporting or advancing claims against, or by, an employer in respect of the employment of employees of that employer
  • Advancing industrial objectives of an industrial association
  • Disrupting the performance of work.

Action by an employee is not unlawful action if:

  • The employer has agreed in writing before the action occurs
  • There is an imminent risk to the employee’s health or safety and the employee was not directed to perform other work in a safe area.

Read more about industrial action.

What about strike pay?

The payment of strike pay is prohibited under the Fair Work Act 2009 and the Building and Construction Industry Improvement Act 2005. It is unlawful for employers to pay wages to employees, and for employees to receive the wages, for the period of the unlawful industrial action.

Employees can only be paid where the industrial action is:

  • Based on a reasonable concern by the employees about an imminent risk to health or safety, and provided that they did not refuse to comply with a reasonable direction by their employer to do other work that was safe
  • Authorised or agreed to in advance and in writing by the employer.

There is also a ‘four hour rule’, which means that any disruption that occurs for less than four hours will require the employer to deduct four hours pay. If the duration of the industrial action is less than four hours, four hours pay must be deducted. If the duration is more than four hours, pay for the duration of the industrial action must be deducted.

Civil penalties apply where persons claim strike pay from an employer or where persons take or threaten industrial action with intent to coerce an employer to pay strike pay.

Effective safety disputes procedure

An effective safety disputes procedure will avoid unnecessary and unlawful lost time.

When faced with a site-wide safety stoppage, consider the following factors:

  • Is this reaction justified?
  • Were any workers at imminent risk of injury?
  • Is the action lawful?
  • How could it be avoided?

The first step is to immediately identify the source of the alleged risk and to isolate it. Some employees may be directed to work in other safe areas. Those employees who cannot be allocated appropriate safe work may be required to stand down and wait on-site until further information or instructions come out of the safety disputes procedure.

Site management should then direct all information and discussion on the alleged safety issue to a formal disputes process.

Common features of a safety disputes procedure

The employer must appoint management representatives who are responsible for dealing with specified health and safety issues.

Any unsafe practice or condition in a workplace must be reported it to the workplace health and safety officer or another management representative, such as the leading hand or supervisor. This should include any matter raised by a union official exercising right of entry for workplace health and safety reasons.

As soon as possible after an unsafe practice or condition has been reported, the employer’s management representative and the workplace health and safety officer must meet and determine the most appropriate way to resolve the matter.

In determining the appropriate response to the reported unsafe practice or condition, the following factors must be considered:

  • Whether the hazard or risk can be isolated
  • Number and location of workers affected by the hazard or risk
  • Whether appropriate temporary measures are possible or desirable
  • Whether environmental monitoring is desirable
  • Time that may elapse before the hazard or risk is permanently corrected
  • Person responsible for performing and overseeing the removal of the hazard or risk.

Management should ensure that employees and other workers who are working in the affected areas are advised of the progress and outcome of the reported matter.

Any party may seek the assistance of the Department of Workplace Heath and Safety during the above procedure.