Janet will use her legal skills to assist Members with termination of employment proceedings, WorkCover prosecutions and dispute matters involving government agencies, trade unions or other legal representatives.

Tree felling

This safety alert highlights the dangers of manual tree felling and provides information on safer timber harvesting practices.

Background

Since July 2001, 22 workers have been fatally injured in tree felling operations. Fifteen of these fatalities occurred during manual tree felling operations. Three deaths have also been attributed to mechanical harvesting operations. This safety alert follows two recent incidents where timber workers were struck and fatally injured by falling branches or nearby saplings while conducting manual tree felling operations.

Because these fatalities occurred on private property during native hardwood harvesting operations, this alert is specifically directed at private property forest harvesting operators. However, because it highlights the potential risks of manual tree felling and mechanical harvesting operations in general, the alert is also relevant to Forests NSW hardwood harvesting operations.

Action required

The Occupational Health and Safety Act 2000 requires employers and those in control of workplaces to take all necessary steps to ensure that safe systems of work are implemented and maintained, and that workers are provided with adequate information, training, instruction and supervision to ensure their safety.

Clauses 5 and 11 of the Occupational Health and Safety Regulation 2001 provide general information on dealing with risks in workplaces. Clause 5 requires employers to deal with a risk to health and safety by either fully eliminating it or, where this is not reasonably practicable, by minimising it.

If you’re an employer who needs to minimise a risk, you must take the following measures to minimise the risk to the lowest reasonably practicable level.

1. Substitute the original hazard with a hazard of lesser risk.

2. Isolate the hazard from the person put at risk (eg use a mechanical harvester that isolates the operator from the tree, falling branches, saplings, stags etc).

3. Minimise the risks posed by the hazard through engineering means (eg use a mechanical harvester instead of a manually operated chainsaw).

4. Minimise the risks posed by the hazard through administrative means (eg establish safe work practices, training, instruction and supervision, and ensure that workers are trained and accredited to operate a mechanical harvester or in manual tree felling).

5. Ensure that chainsaw operators use personal protective equipment (ie hard hat, face shield, hearing protection, high visibility clothing, cut resistant trousers or chaps, lace up boots that provide good ankle support).

To reduce the risk of fatal incidents during tree felling operations, WorkCover NSW recommends that private property contractors use mechanical harvesting machinery, where it is reasonably practicable to do so. Otherwise, where manual chainsaw operators are required to fell trees, workers are to be trained and assessed according to recognised industry training programs.

When mechanical harvesting operations are conducted, the following is recommended.

1. Safe operating procedures are developed for the use of mechanical harvesting equipment.

2. Mechanical harvesting equipment is appropriate for the type and size of timber harvested and the type of terrain it is used in.

3. Operators of mechanical harvesting equipment are competent and trained/accredited by an accredited trainer/ assessor to the Forest and Forest Products Industry Training Package unit FPIHAR3214A – Operate a single grip harvester; or trained/assessed to an equivalent training course.

4. Mechanical harvesting equipment is maintained and serviced to the manufacturer’s specifications by competent persons and records are kept of inspections and work completed.

5. Safe operating procedures are implemented, supervised and enforced for mechanical harvesting operations.

6. When harvesting, processing, snigging, log loading or on site transport operations are in progress, appropriate safe work procedures, inductions, signage, communication systems and emergency procedures are implemented to ensure the safety of all personnel on site.

When manual tree harvesting operations are conducted, the following is recommended.

1. A documented risk assessment is completed for the manual tree felling operation and it details why mechanical tree felling is not practical for the harvesting operation (eg the type of timber, the type of terrain, environmental factors, and/or cost factors may mean that mechanical tree felling is not appropriate).

2. Safe operating procedures are developed for manual tree felling operations.

3. Manual chainsaw operators conducting tree felling operations are competent and trained/accredited by an accredited trainer/assessor to the Forest and Forest Products Industry Training Package unit FPIHAR3202A – Harvest trees manually (intermediate) or FPIHAR3212A – Harvest trees manually (advanced).

4. Manual chainsaw operators are provided with and use all appropriate personal protective equipment (eg hard hat, face shield, hearing protection, high visibility clothing, cut resistant trousers or chaps, lace up boots that provide good ankle support).

5. Manual chainsaw operators carry an axe and two wedges at all times when undertaking tree felling operations. Wedges can be used when felling trees that stand up. They can also be used to fell side leaning trees, when cross cutting, to prevent the saw jamming or to remove a jammed saw.

6. Manual chainsaw operators conduct a thorough visual assessment of each tree before felling it. Assessment should include the lean of the tree, weight distribution of the crown, intergrowth with adjoining trees, hang ups, direction of fall and defects.

7. Manual chainsaw operators are adequately supervised and regularly audited to ensure they are using safe felling techniques, which include:

• making appropriate scarf cuts that intersect to control the direction of the tree being felled
• ensuring there is no overcutting or undercutting of the scarf cuts, which will prevent the tree standing up and not falling, as well as preventing the trunk from splitting, – this will ensure control of the tree as it is falling
• ensuring the back cut is horizontal and placed above the scarf approximately 50mm for each 500mm of the trees diameter
• ensuring there is adequate holding wood – approximately 10 per cent of a trees diameter – to maintain control of the tree when it is falling (holding wood will need to be thicker for defective trees)
• establishing a clear escape route at 45 degrees from the stump to ensure a safe and quick escape for the chainsaw operator as the tree is falling
• removing saplings that are in the direction of a tree’s line of fall to prevent branches/trunks from being broken off and thrown back in the direction of the chainsaw operator
• establishing good directional felling to prevent injury to the chainsaw operator, or damage to other trees and environmental areas
• ensuring appropriate assessment and management of stags (ie dead, burnt out, rotten or storm-damaged trees) so that the chainsaw operator is not injured by them if they inadvertently fall because of vibrations from machinery, or from the impact of other trees hitting the ground. Management of stags may include their removal or isolation from the falling area.

8. Manual chainsaw operators conduct appropriate risk assessments of the area before any tree felling takes place (ie consideration of factors such as the terrain, weather conditions, holes, hung up trees/branches, stags, operation of machinery in the fall zone).

9. Manual chainsaw operators ensure that their chainsaw and all other equipment is in a safe condition and regularly maintained.

Further information:

Visit the NSW Legislation website – legislation.nsw.gov.au – to find the relevant sections of the Occupational Health and Safety Act 2000 and the Occupational Health and Safety Regulation 2001.

Visit the Forests NSW web page at the NSW Department of Primary Industries website – dpi.nsw.gov.au – or call Forests NSW on 1300 655 687 or (02) 9871 3377.

Visit the Timber Trade Industrial Association’s website – ttia.asn.au – or call the Association on (02) 9264 0011.

Visit the WorkCover website – workcover.nsw.gov.au – to find the WorkCover NSW code of practice 2001 Safety in forest harvesting operations and the WorkCover NSW-Forests NSW Forestry industry safety tool, or call WorkCover on 13 10 50.

Disclaimer

This publication may contain occupational health and safety and workers compensation information. It may include some of your obligations under the various legislations that WorkCover NSW administers. To ensure you comply with your legal obligations you must refer to the appropriate legislation.

Information on the latest laws can be checked by visiting the NSW legislation website (www.legislation.nsw.gov.au).

This publication does not represent a comprehensive statement of the law as it applies to particular problems or to individuals or as a substitute for legal advice. You should seek independent legal advice if you need assistance on the application of the law to your situation.

©WorkCover NSW

Catalogue No. WC03441 WorkCover Publications Hotline 1300 799 003 WorkCover NSW, 92-100 Donnison Street, Gosford, NSW 2250 Locked Bag 2906, Lisarow, NSW 2252 | WorkCover Assistance Service 13 10 50 Website workcover.nsw.gov.au

ISBN 978 1 74218 911 6 ©Copyright WorkCover NSW 0811

In conjunction with the industrial sessions, the TTIA will also inform Members of the new National Workplace Health and Safety (WHS) Legislation changes to assist them to effectively manage their OH&S.

For details of dates and venues, please contact the TTIA Office on (02) 9264 0011.

Whilst some media have reported the new wage increase as being $19.40, Members are advised that the increase is, in fact, 3.4% of the modern award rate.

The reported increase of $19.40 is for the national minimum wage mainly used for those workers who are not covered by an award or agreement.

The following is an extract from the actual decision:

“[334] The economy is performing reasonably well, labour productivity is growing, the profit share remains at historically high levels and underlying inflation is well within the RBA’s medium-term target band. Employment is growing, unemployment is reducing and labour force participation remains high. In the circumstances a significant increase is appropriate which will improve the real value of award wages and assist the living standards of the low paid. For the reasons discussed in Chapter 8 we have adopted a uniform percentage increase. The increase in modern award minimum wages we have decided on is 3.4 per cent. Weekly wages will be rounded to the nearest 10 cents.

[335] The national minimum wage for award/agreement free employees is currently set at the minimum wage for the C14 classification, the lowest wage level in the Manufacturing Award. No cogent basis was advanced for disturbing that relationship. The national minimum wage will be $589.30 per week or $15.51 per hour. The hourly rate has been calculated on the basis of a 38 hour week for a full-time employee, as required by s.62 of the Fair Work Act. This constitutes an increase of $19.40 per week or 51 cents per hour.”

TTIA Members will be sent new wage summary sheets in due course.

Please remember the increase is fully absorbable into over award payments and is effective from the first pay period on or after 1 July 2011.

Basically, personal/carer’s leave covers both sick leave and carer’s leave and accrues according to the number of ordinary hours an employee works. Personal/carer’s leave can be carried over from one year to the next.

An employee can take paid personal/carer’s leave:

• if they can’t work because of their own personal illness or injury

• to provide care or support to a member of their immediate family or household because of an illness, injury or emergency.

Immediate family:

spouse (including a former spouse, a de facto spouse and a former de facto spouse) of the employee. A de facto spouse means a person of the opposite sex to the employee who lives with the employee as the employee’s husband or wife on a bona fide domestic basis; and

child or an adult child (including an adopted child, a step child or an ex-nuptial child), parent, grandparent, grandchild or sibling of the employee or of the spouse of the employee.

An employee must be paid for any personal/carer’s leave taken at their base rate of pay for the ordinary hours they would have worked.

Employee’s who have taken personal/carer’s leave also need to be able to provide evidence, such as a medical certificate, if asked by an employer.  It is however, only appropriate that employers ensure that employees are aware that a policy requiring a medical certificate exists prior to any request for such documentation.

COMPASSIONATE/BEREAVEMENT LEAVE

There also appears to be some confusion with regard to compassionate leave (which used to be known as bereavement leave).  Compassionate leave is separate to personal leave and is not subtracted from the ten days per year that an employee accrues under the National Employment Standard.

A permanent employee is entitled to paid compassionate leave if a member of their immediate family or household:

• has a life threatening illness
• has a life threatening injury
• dies.

Casual employees are entitled to unpaid compassionate leave.

Notice and evidence

The employee must provide the same notice and evidence for compassionate leave as would be required for paid personal/carer’s leave.

Period of compassionate leave

Employees who are entitled to compassionate leave can take the leave on each occasion as:

• a single continuous two day period
• two separate periods of one day each
• any separate periods to which the employee and his or her employer agree.

Amount of leave

An employee is entitled to two days of compassionate leave for each occasion (a permissible occasion). Further, if the permissible occasion is the contraction or development of a personal illness, or the sustaining of a personal injury, the employee may take the compassionate leave for that occasion at any time while the illness or injury persists.

Rate of pay

You must pay the employee at their base rate of pay for their ordinary hours of work for that period.

Final consultations have taken place and the decision will be issued in late May or early June.  TTIA will provide Members with comprehensive award rate guidance as soon as possible.

The minimum casual loading for employees covered by the Timber Industry Award 2010 will increase to 22% from the first pay period commencing on or after 1 July 2011.

In the past, most industrial awards including the previous Federal Timber Industry Award provided a stand down clause which provided the relevant information about when employees could be stood down without pay (i.e. machinery breakdown, strike or any other circumstance where the employer could show reasonable cause that the circumstance were beyond the control of the business).  The later instance could then be subject to debate/challenge and ultimate adjudication if the parties were in disagreement over the nature of the stand down.

In the post 1 January 2010 environment with the new “modern awards”, the Fair Work Act provides a less specific, more general provision in that employers may also have this right, in certain circumstances, when there is a stoppage of work for any cause for which the employer cannot reasonably be held responsible, to stand down an employee without pay.  This would generally apply to situations involving natural disasters similar to the widespread flooding in Qld, NSW and Victoria.

Employers should firstly check to see whether their modern award or enterprise agreement (if applicable) has specific stand down provisions as these provisions will take precedence and will apply in lieu of any provisions under the Fair Work Act 2009.

In these circumstances where a natural disaster prevents normal workplace functioning, an employer and an employee often agree to the taking of annual leave to cover the period of down time.  It is important that this arrangement be confirmed by the parties in writing and on a proper annual leave application form (can be obtained from TTIA).  This will to ensure that there is no future dispute about whether the leave was indeed taken by the consent of the parties.

It should also be noted that employees who volunteer to help out in times of disaster have certain rights under the National Employment Standards.  They are entitled to be released by the employer and time off (on an unpaid basis) when they are engaged in the activity, as well as travelling time and a reasonable rest time immediately following the volunteer work.

It should be noted that to be eligible to take community service leave the employee must be of a recognised emergency management body like a Bushfire Authority or State Emergency Service. The employee can also be requested by their employer to provide proof/evidence that they have been engaged in an eligible community service activity.

If you need further clarification of how natural disasters interact with an employment contract and the current workplace laws, do not hesitate to contact the TTIA Enquiry Line on (02) 9264 0011 for further assistance.

What does this mean for your workplace?

If you were covered by a federal award on 31 December 2009, including Notional Agreements Preserving State Awards (NAPSAs), you should be using the appropriate modern award.  The modern award that covers a significant proportion of timber related employers is the Timber Industry Award 2010.  Your business should have a copy of this award.

If you were previously covered by a NSW state award (mainly sole traders and partnerships) on 31 December 2009, that award was preserved as a state reference award and, under the national systems transitional arrangements, you have been able to continue to refer to this award until 31 January 2011.

Please note: From 1 February 2011, your business will be required to use the appropriate modern award.

Where do I find out about which modern award or awards cover my workplace?

You should contact the TTIA regarding the relevant modern award that covers your enterprise.  Members will also be provided with a copy of the NES and an explanation of its implications.  The TTIA Enquiry Line is (02) 9264 0011.

“HARMONISED OH&S LEGISLATION THROUGHOUT AUSTRALIA

The Timber Trade Industrial Association (TTIA) and Timber and Building Merchants Association (TABMA) are the two principal national employer Associations representing timber and timber products companies throughout Australia in the area of Occupational Health and Safety.

To date, the management of OH&S in each State of Australia is fraught with difficulty for businesses due to the complex and differing OH&S legislation throughout the country.  With the introduction of harmonised OH&S legislation to be adopted by each state, there appears to be a unique opportunity for a simpler and fairer OH&S regime which should improve the safety of workplaces throughout the country.

TTIA and TABMA have now been made aware through recent media statements, that the NSW government may not honour its commitment to adopt the national OH&S agreement in its entirety, planning to give Unions power to act as prosecutors and to reverse the normal onus of proof, which is “innocent until proven guilty.”

TTIA, TABMA and its member companies, which number over 800, strongly object to the government’s plans to backtrack the harmonised legislation, believing that going down this path will disrupt the legislative process and will lead to a nationally inconsistent OH&S regime.      

TTIA, TABMA and its members also believe that OH&S prosecutions should not be carried out by the Unions who have a vested interest in the outcome, but should be carried out by an independent body. The harmonised OH&S legislation would allow this independent body to use the onus of proof as adopted by criminal law which enables the defendant  to be considered innocent until proven otherwise.  The Harmonised OH&S legislation would also provide the defendant appropriate right of appeal in the Courts.

With the introduction of their new CEO, WorkCover NSW is focussing on more productive and safer workplaces throughout NSW.  If the NSW government do backtrack the harmonised legislation, TTIA & TABMA believe that it will have a dramatic impact on the productivity of NSW businesses, making it very difficult for them to compete with businesses in other States of Australia.  NSW risks losing investment and vital jobs if national OH&S legislation is not adopted in this State.

TTIA, TABMA and timber companies across Australia ask the NSW government to act on this submission and to accept the harmonised OH&S legislation in its entirety. Let us build a productive and safer Timber Industry throughout Australia and commit to this long-overdue reform.

Brian Beecroft, Chief Executive Officer, Timber Trade Industrial Association, PO Box 236, Darlinghurst, NSW 1300.  Tel:  (02) 9264 0011

email:  brianbeecroft@ttia.asn.au

&

Colin Fitzpatrick, Chief Executive Officer, Timber and Building Materials Association, PO Box 518, St Leonards, NSW 1590.  Tel: (02) 9277 3100

email:  colin@tabma.com.au

29 October 2010

HAULAGE DRIVERS

The first is the inclusion of haulage drivers to the Award. 

Through the award modernisation process the imported classification for drivers had been left out of the Timber Industry Award 2010.   The TTIA and other parties believed that the alternate driving awards were not suitable for these workers.  Haulage drivers i.e. the removal of logs from the forest, are now based on level 5 of the award.

PAYOUT OF SICK LEAVE

The next variation is the payout of sick leave.   The payout of sick leave had always been a feature of the Timber and Allied Industries Award 1999 until it was removed by WorkChoices.  WorkChoices allowed it only where it was included in an Enterprise Agreement.  There were a number of Members who did do single clause agreements but they were daunting, with one member having the regulator wanting 13 pages of amendments for a 2 page document.

Prior to the award modernisation process the TTIA ran a survey of our Members in relation to payout of sick leave and we found that a majority of Members wished it to be included into the award.  Our Members found that it was a way of regulating sick leave.  Our submissions therefore reflected the views of the majority of the Members.  The FWA however, did not include the clause.

The TTIA found an award where it had been included and so it was decided that we would seek, in conjunction with the Union, to vary the modern award.

We are pleased to say that the Commission agreed to the variation sought.

The features of the sick leave payout are as follows.

• The employee must apply for the payout
• The employee must retain a bank of sick leave of 15 days
• The maximum payout per year is up to 64 hours