ENSURING SAFETY FOR EMPLOYEES

The employees were employed by wholly owned subsidiary companies of Tempo Services Pty Ltd (‘Tempo’). Tempo had in excess of 4000 employees and used a number of subsidiary companies to engage these employees to fulfil Tempo's obligations under Government cleaning contracts. Tempo supervised the employees of the subsidiary companies and those employees were issued with Tempo handbooks. The Area Managers were employees of Tempo and controlled and directed the staff of the subsidiary companies – effectively the subsidiary companies were labour hire companies used by Tempo.

It was accepted that the use of these subsidiary companies was ‘merely an accounting treatment.’ Tempo was the employer as it ‘effectively stood in the shoes’ of the employing entities and was the ‘de facto’ employer of the injured workers.

Two employees had been sexually assaulted within a 12 month period between November 2003 and October 2004 at different school sites. Both employees were working alone in unsecured areas and in isolation from other employees. Tempo argued that the attacks were not reasonably foreseeable as there had been no prior attacks at the individual sites; this argument was rejected. Justice Haylen ruled that both attacks were reasonably foreseeable and were serious breaches of the applicable legislation. The employer had been issued with an improvement notice from WorkCover following an incident concerning an intruder in a school during 2002. The employer had known of the risk posed to workers in schools since as early as 1996 when cleaning workers had raised repeated concerns regarding intruders in school buildings.

Following the first attack, the employer had taken steps to prevent further attacks at the first site but had not taken any steps to protect workers at other sites from similar attacks. The employer did not make the fact of the first attack known to workers engaged on other sites. These failures were viewed as being ‘inexplicable’ by the court.

The remedial measures taken by Tempo following the 2003 and 2004 attacks were considered to be ‘modest’ both in terms of their cost and in terms of the amount of management resources devoted.These included a security risk assessment, violence prevention training and manuals and the provision of personal alarms. Some consideration was also being given to appropriate communication methods.