Friday, 8 March 2013

Where are the Codes for establishing a safety culture?


Recently a safety professional told me he was investigating an incident on a work site and asked his first question "What do you think caused the incident?" The response was "safety culture". Of course the next question will always be "what do you mean by safety culture?" and in most cases at this point the investigation will stall.
iStock_000023283219XSmallAll workplaces have a safety culture, it is just that most are dysfunctional or immature. In many workplaces, incident causes are handballed to this poorly understood concept of which most take as the latest iteration of "an act of God" or an SEP - "someone else's problem".

Safety regulators need to break the use of safety culture as an excuse by developing codes of practice on how to introduce and build an effective safety culture in Australian workplaces.

Since the 1970s, occupational health and safety (OHS)  have always included vague terms that have relied on case law and legal interpretation.  The most prominent was " a safe system of work".  In 2000 at the Safety In Action Conference, Michael Clark stated that
"Increasingly a ‘safe system of work” has implied the implementation and maintenance of formally documented management systems."
Michael Tooma, in a similar conference paper in 2001, refers to prosecutions stemming from not following a documented "safe system of work", but a safe system of work was always more than a documented safety management system or accreditation to SafetyMAP or AS1401.  A "safe system of work" was intended to be a safety culture before the term "safety culture" was coined.  A safe system of work was always about the way work was done.  Documentation went some way to displaying this but, as Tooma and many others have pointed out, documentation without implementation is not safety.  In fact, such a situation increases the risk of incidents occurring because documentation cab create a false sense of security and compliance.

Around 2001, some legal advisers had begun to understand the breadth of the "safe system of work".  The National Children's and Youth Law Centre (NCYLC) issued a factsheet on the legal consequences of workplace violence.  That document stated:
"Employers are also under a legal obligation to provide a safe system of work, and this includes making sure that all employees behave themselves on the job. If an employer knows that some employees are misbehaving or skylarking, but does nothing to stop this, then the employer will be liable if another employee is hurt."
The NCYLC brings the safe system of work to a more moral basis, similar to the  duty of care.  Indeed, it could be argued that the safe system of work is the duty of care for those jurisdictions that had not already brought the duty of care formally into their workplace safety laws.

Cover of SA OHS HandbookIn 2002 the Workcover Corporation in South Australia produced a Workplace Health and Safety Handbook in which it defines a safe system of work:
"A safe system of work is the total set of methods adopted for carrying out the operations required in a particular workplace. They cover all aspects of the employment situation including the organisation of work processes, the methods of using machinery, plant and equipment, the methods of hiring labour, job training, instruction and supervision about associated hazards and their management, and what to do when things go wrong." [emphasis added]
The breadth of the application of the safe system of work, its potential for application and the challenge it presents, is clear.

Around the same time as many of these discussions of safe systems of work were appearing in magazines, guidances and conference papers in Australia,  Dominic Cooper's work on safety culture also began to appear. "Improving Safety Culture: A Practical Guide" was published in 1998 (a 2001 edition is available online).  Cooper's book could be seen as a major catalyst to the popularity of the safety culture concept but in the 2001 preface Cooper acknowledges the immature discussion of the concept in workplace safety.  On page iv, Cooper writes
"It is also true to say that many people who work in the field of safety do not really know what a 'safety culture' is. Perhaps this is not surprising given that, with very few exceptions, many of us who write or talk about safety culture tend to wave the phrase around like a well worn slogan that is passed its sell-by date. Recent writings, for example, have berated successful real-life attempts to improve safety, and have then gone on to say that what is needed is a 'Safety Culture'. Not only does this create the impression that a safety culture can be pulled out of thin air or poured from a packet of cornflakes, but it also creates obvious difficulties for busy managers."
This is the crux of the problem with safety culture.  People believe that changing the values of an organisation to truly achieve OHS legislative compliance and a safe workplace is easy and quick. Justice McInerney estimated that the New South Wales rail industry could achieve cultural change in three to five years after his 2001 inquiry (page 53) into the Glenbrook Rail Accident.

The concept is difficult to condense into a single definition and, when it is defined, it is often too vague to be practical.  An example of the difficulty to define can be seen in this attempt by WorkSafe WA in a 2007 newsletter.

It is significant that Safe Work Australia is not addressing safety culture through a specific model code of practice.  The National OHS Strategy 2012-22 gives culture and leadership a considerable role but there is little information on what this means at the workplace.
Pages from 2i21In 2001 at a UK conference on "corporate killing", Sir Ken Purvis, as reported in safetyATWORK magazine ( Vol 2 Issue 21, August 7. 2001 ), said this about safety culture:
"I explained that a whole new approach to health and safety, based on best practice, is crucial if we are to cut the human and financial cost of poor health and safety. This can never be achieved by legal penalties alone, but by the development of a safety culture in which companies recognise the benefits of winning a reputation for good health and safety.
A good health and safety culture will enhance a company’s reputation, reduce accidents and illnesses at work and save them money by reducing insurance premiums, employers liability claims and increasing productivity, which helps to win new contracts.
Executives working under the threat of possible imprisonment for safety lapses will simply have to be more alert and better trained to appreciate risks. Responsible managers and directors who are properly equipped with sufficient knowledge to deal with health and safety matters should not be fearful of the proposed laws. Our view is the new laws will force managers and directors to create healthier and safer workplaces."
Australia does not have industrial manslaughter on its statutes but some believe that the new work health and safety laws' category of reckless endangerment is industrial manslaughter in a different guise.  If this is the case, the words of Sir Ken Purvis and others in the UK at the time, may need a reassessment for the Australian context.

Regardless of the types of motivation for change, there is an increasing regulatory will for workplaces to have a positive, generative or other constructive type of safety culture.  It is accepted that such a cultural change needs active engagement and support from the business owners, employers and company boards but most Australian businesses are small or micro-businesses.  Would such change be easier or harder for this size business? No one seems to know, as any research is being conducted at the big end of town.  Safety Culture package sellers are similarly at the big end of town where the lucrative contracts live.  

All of this reinforces the need for Australia OHS regulators to be providing codes of practice on the management techniques that, research shows, can have a major effect on improving safety performance and injury prevention.  Safety solutions should not be the preserve of only those with the capacity to pay.  Safety solutions need to be written in plain and practical English and provided to all Australian workplaces at no charge by OHS regulators.  I(n this way "safety culture" will be seen as a solution and not an excuse.


Monday, 4 March 2013

New campaign indicates old-school thinking


IPC Athletics World Championship, Tuesday, 25 January 2011
Today WorkSafe Victoria launches a new return-to-work campaign which will use Paralympian Jack Swift as the "face" of the campaign.  The campaign is sure to be successful but the increasing focus of safety regulators on return-to-work (RTW)  may illustrate a growing trend where rehabilitation policy strategies are gaining priority over injury prevention. Yet innovative approaches to injury prevention provide the greatest potential for personal, economic and social savings.

In 2001 WorkCover NSW began its Paralympian Sponsorship Program, a program that continues.  The advantage of the New South Wales program is that it features a range of incident scenarios and, most importantly, the paralympians speak about "workplace safety, injury prevention and management and their personal road to recovery, return to work." (emphasis added)  This broad, multi-category approach seems to be missing from the new Victorian campaign.

According to a media release about the campaign  (embargoed at the time of writing):
"He was just 21 and working as a plumber’s labourer on an inner Melbourne construction site when a 14-tonne excavator ran over his right leg, crushing it below the knee. Conscious throughout the ordeal, Jack was rushed to hospital and his leg was amputated the next day.
Jack said the accident “absolutely turned my life upside down” and described the 13 months he was off work as the worst time of his life."
NSW paralympian speakers 2008
Jack Swift provided more details of the workplace incident in an interview to Runner's World in early 2012:
"I’d just turned 21 and was working as a plumber’s labourer in Melbourne. It was a regular day on 6 December 2006; we were laying water mains in Spring Street in the city and had excavated two metres to lay pipes in the ground.
Part of my job was to sweep up the dirt to load it into the back of the truck and take it to the tip. I walked around to the truck, which was beside the excavator, when the driver saw something in the trench and accelerated forward without seeing me. Before I knew it, I had a 14-tonne excavator on my leg and was yelling out for him to back off.
It happened in seconds. I remember looking at my leg as the excavator was reversing and knowing I would never walk on it again. The bone fragments were like splinters. There was a nurse walking past who ran over and took my belt off to strap it around my thigh and restrict the blood loss. The next thing I remember is the paramedics arriving and giving me morphine."
The crucial element in Jack Swift's incident was:
"...the driver saw something in the trench and accelerated forward without seeing me...".
In seven years' time has workplace safety improved sufficiently to prevent such a situation?   People working in close proximity to mobile plant in construction sites continues to be a major hazard. SafetyAtWorkBlog has tried to find out more about the December 6 incident by asking WorkSafe Victoria:
"Did WorkSafe Victoria attend the worksite at the time of Jack Swift’s incident? What action was taken, if any, against the employer due to this incident?"
A spokesperson replied that WorkSafe attended the Jack Swift incident but there was no prosecution. The spokesperson advised that "all safety procedures were in place at the time of his accident".  How could this be the case if a worker's leg was crushed to the extent requiring amputation? Was the worksite "safe"?

In the month after Jack Swift's incident, WorkSafe Victoria issued a safety alert on working near mobile plant.  The safety alert lists hazard control measures for consideration such as:
  • "isolating vehicles and plant from persons on the site
  • using fencing, barriers, barricades, temporary warning or control signs
  • planning the direction that plant moves, so visibility is not restricted
  • implementing safe working distances
  • using clear communication systems
  • minimising amount of plant working at one time
  • using demarcation lines or zones
  • using audible reversing alarms
  • using reversing/rear-view cameras
  • using reversing sensors
  • using flashing lights
  • using high visibility garments
  • using spotters or observers"
WorkCover NSW has proved that there is a demand for workers who have survived a traumatic injury to tell their stories.  These stories can be immensely powerful and effective in changing some workers' attitudes to the importance of OHS. ( The story of Charlie Morecraft is probably the best international example.)  The struggle through rehabilitation, what Jack Swift called the "worst time of his life", is inspiring but it seems obvious that the trauma could have been avoided by better safety management at the time.  In times of economic austerity one would expect increased attention on the prevention of harm to eliminate the much greater downstream costs of repair and rehabilitation.

The increasing voice of RTW over injury prevention may be partly due to injury prevention still being seen as an additional business cost and one drawn from potential profits.  RTW is less of a hit to the bottom line in Australia because it is funded through compulsory workers' compensation premiums. In effect, the cost of business mistakes is already covered, where the cost of injury prevention is not.  The existence of workers' compensation funds also results in RTW being more politically "safe" as industry may complain about the size of the premium but it continues to pay it.  Injury prevention has no such funding base.

Previous paralympian-based safety campaigns indicate that the Jack Swift campaign will be effective in communicating the intended RTW message and WorkSafe Victoria should be supported for freshening up such an approach.  However it is an example of the hesitance of all OHS regulators in Australia to tackle injury prevention in any way other than through awareness-raising campaigns.

The Jack Swift campaign is worthy but is also an example of old, safe thinking. We should rather be seeking innovative solutions to injury prevention.

Monday, 25 February 2013

Where to for the "the expensive and failed WorkHealth scheme"?


The Victorian Workcover Authority's (VWA) WorkHealth program is coming to the end of its five-year life. But what is the way forward?  Has the $A600 million program achieved its aims?



Aims and Results
VWA's annual report for 2008 (page 33) stated the following aims for WorkHealth, reiterated in the WorkHealth Strategic Framework 2010-12 (page 1):
"Over the long term, the program aims to:
  • cut the proportion of workers at risk of developing chronic disease by 10%
  • cut workplace injuries and disease by 5%, putting downward pressure on premiums
  • cut absenteeism by 10%.
These goals aim to drive productivity and reduce health expenditure that is associated with chronic disease."
None of VWA's annual reports since 2008 have included any mention of these benchmarks.  Instead, they have focused on the level of activity of the program and not its results.  For instance the 2010 annual report states:
"Results from the first 100,000 checks showed that 40 per cent of participating workers had a high or very high risk of developing type 2 diabetes and cardiovascular disease.
The checks also found:

  • 832 Victorian workers were at very high risk and were advised to see a doctor within 24 hours
  • 93 per cent of workers eat less than the daily recommended intake of fruit and vegetables
  • 73 per cent of workers reported inadequate exercise." (page 12)
Cover of Workhealth strategic frameworkThese figures are interesting but fail to provide any assessment against the initial program's performance criteria.  Curiously all of the activity indicators are percentages except for the 832 workers at "a very high risk".  As a percentage, 832 equals 0.832 of workers checked - important for the 832 workers but minimal in the whole project.  And the 832 were only advised to see a doctor.  The WorkHealth project would have more validity if behavioural and health changes had been made by those workers assessed but so far that evidence is missing.

WorkHealth and Politics

A challenge for the current Victorian Government is that it was critical of the WorkHealth program and in 2010 the (now) Minister for WorkCover, Assistant Treasurer Gordon Rich-Phillips said
"Even if this ill-advised project were possible, it’s questionable whether the $600 million project would provide value for money"
In 2009, Rich-Phillips, in discussing other WorkCover scheme changes, said:
"The changes announced today come on top of the expensive and failed WorkHealth scheme funded through WorkCover, which despite costing $218 million has generated little interest in Victorian workplaces." [emphasis added]
Gordon Rich-Phillips is now responsible for the future of this "ill-advised project".
WorkSafe has stated that
"a full review of the delivery, impacts and results of the program will be conducted in the latter part of 2012/13." (page 11)
The Institute for Safety, Compensation and Recovery Research (ISCRR) has been commissioned to undertake such a review. ISCRR is a joint initiative of three organisations one of which is WorkSafe Victoria.

WorkHealth Future

There is some industry speculation that WorkHealth may continue, or morph, into a program encompassing psychosocial health hazards, such as fatigue, stress and workplace mental health.  Any change announced without a detailed assessment of the previous program would be a major error.  

WorkHealth has stated that it has evaluation methods that
"... include feedback from employers, workers and service providers on their experience with WorkHealth through a range of surveillance activities, as well as independent measurement as to changes in workers’ health and healthy behaviours in the workplace." (page 7 of Strategic Framework)
There is no doubt that the basis for some sort of action on chronic illness and disease is warranted.  WorkHealth's Strategic Framework presents snippets of data and WorkHealth produced a factsheet on national and international evidence of the need for health promotion.  What WorkSafe and ISCRR's review needs to report on is whether this specific type of workplace intervention is an effective in reducing chronic illnesses and their impacts on, as listed by WorkHealth in 2008
  • workplace injuries ,
  • workplace disease,  
  • workers' compensation premiums,
  • absenteeism.
  • productivity and
  • health expenditure.
Anything less would be unhelpful.

WorkSafe, the Victorian Government and other stakeholders have been approached on the issue of WorkHealth.  SafetyAtWorkBlog plans to published further articles on the project during its review.

Sunday, 24 February 2013

Double your money, invest in OHS


The corporate wellness advocates have been able to estimate the return-on-investment (ROI) for their programs but there has been little research on the return-on-prevention, until recently. In 2012 the International Social Security Association (ISSA) determined that, in microeconomic terms,
"...there are benefits resulting from investment in occupational safety and health... with the results offering a Return on Prevention [ROP] ratio of 2.2."
This means that for every one dollar spent per employee per year the potential return is 2.2 dollars.
The report also found that OHS provides, amongst other benefits:
  • Better corporate image
  • Increased employee motivation and satisfaction, and
  • Prevention of disruptions.
But why bother costing harm prevention when there is already a legislative requirement to provide safe and healthy workplaces? Such a question usually comes from those whose understanding of OHS is principally compliance and who believe compliance equals safety.

The calculation of ROP, in the ISSA report at least, counters the belief that safety is always a cost with no economic benefit to the company. A positive ROP provides an opportunity to actively participate in the economic debate over productivity and, in some countries, austerity.

Need to focus on safety first and compliance later


Several years ago, a WorkSafe Victorian executive saw "reasonably practicable" as a major legal advantage in safety regulation. It is of legal benefit, but does it make workplaces safer? Does it make it easier to manage workplace safety? In this time of economic austerity and the pursuit of red tape reductions, can the "reasonably practicable" elements of Australia safety law be an impediment to safety management?

Cover of SAW News Oz 089 rawEmployers have always seen legislative compliance as the equivalent of being safe. This position seems sensible because if the safety police of the OHS regulator leave you alone after a site visit and say you are compliant, your workplace must be safe. The safety experts have visited and found nothing wrong, it is logical to then assume safety.
Here's a radical thought - compliance ≠ safety. Never has and never will.

This will be a shock for many businesses, and even a shock for many OHS regulators, because so much workplace safety strategy is based a flawed logic that "if I comply with workplace safety laws, I am safe". Regardless of OHS laws, there is a moral social duty to look after the safety and welfare of one's workers and oneself. When values become codified in law, the law becomes the value, and the moral duty becomes historical.

This is important to remember when considering the pursuit of red tape reductions. Much of the reduction is being sought, particularly here in Victoria, from regulatory agencies in the first instance. It is aimed at reducing the flow-on cost of compliance and will have no positive impact on workplace safety. If a company, particularly a small business is able to save money through the removal of a licence fee or other government charge, does anyone believe that any of that saving will be spent on safety? Savings are often reinvested or distributed to shareholders or spent on production processes to increase output. Changes to the "cost of compliance" maintains the focus on compliance and not on achieving a safe workplace.

In previous decades of prescriptive OHS laws, employers sought flexibility to achieve compliance in ways that acknowledged the differences in each workplace and industry. In industrial relations this was often applied through "structural efficiency principles". The era of "reasonably practicable" began. Curiously around the same time, businesses became more vocal on their grumblings over the cost of compliance. The flexibility they requested made it more difficult to meet a compliance benchmark that was not universally applied. The consequences of that flexibility has been labelled as excessive red tape, and businesses want it reduced.

Non-regulatory OHS change

Here's another radical thought. Aim to achieve a safe workplace and you will find that you also comply with the safety laws.

Also, your workers will be happier because they see you investing in their safety and mental welfare. Their perception of the value of their work improves, they may become happy and this happiness may manifest in increased productivity because people enjoy what they are doing in a company that looks after them.

Oh and you will be able to achieve this without lawyers because lawyers are part of the reactive process of failure and damage. Failure and damage is minimised or eliminated because healthy, happy workers look after each other. Safety becomes part of their working life instead of a legislative imposition. No retainers for a law firm, there's a big cost saving and a reduction in the associated red tape. Who would have thought?

The pursuit of red tape reduction is being imposed on government agencies by political leaders but it was only in 2009 when some Australian OHS regulators saw the importance of reducing red tape and began the process because it would benefit both businesses and workers. The ideology behind the national harmonisation of OHS laws in Australia was already on show. The opportunities identified by the Victorian and New South Wales politicians occurred through State-based cooperation and almost all of the aims listed in the Safety At Work Bulletin article came to reality.

This article may read as a bit of a rant but is borne of frustration when safety professionals, regulators and others speak about workplace safety when they are really meaning compliance, lawyers are often the worst offenders. The semantics may seem pedantic but words reveal beliefs, ideologies and misperceptions.

Unions are often portrayed as being a bit loony or obsessed when they discuss safety but these criticisms often display the safety misunderstandings of the critic. Trade unions can be weird but they argue on the importance of safety, regardless of compliance. They believe, as I do, that focusing on safety first will almost always include compliance, but that focusing only on compliance does not ensure safety.

Tuesday, 12 February 2013

Australian Government shifts workplace bullying into the industrial relations system


Politicians are sufficiently media-savvy to release policies and information to gain the maximum exposure in the media cycle.  For some reason, Australia's Workplace Relations Minister, Bill Shorten, missed the opportunity to have his changes on workplace bullying in the newspapers for 12 February 2013.  The news cycle is also being dominated by the resignation of Pope Benedict.  However Shorten's response to the Parliamentary Inquiry into Workplace Bullying deserves detailed analysis.

??????????????????????????????????Shorten is bringing the investigation of workplace bullying cases under the Fair Work Commission.  There are likely to be complex consequences of this decision, a decision that is clearly the Minister's as the Parliamentary Inquiry made no clear recommendation on the location of the "new national service".
"The Committee did not receive evidence on where such a service ["a single, national service to provide advice to employers and workers alike on how to prevent, and respond to workplace bullying" 5.51, page 136] should be located.  It might be best situated within an existing government agency or department such as Safe Work Australia, the Fair Work Ombudsman or the Department of Education, Employment and Workplace Relations.  It may also be considered appropriate for the service to be an independent body that is funded by the Commonwealth. Consequently, the Committee does not have a clear recommendation as to where the new national service may sit." (Section 5.58, page 138)
Clearly Shorten's announcement could easily have been "Minister rejects independent body on workplace bullying".  The Minister should be asked about his reasons for not establishing an independent body into this important issue.

 It is easier to understand him not giving his department the role as it has demonstrated a flawed understanding of OHS in the past and Ministers are often held to be responsible for departmental cock-ups.  But why not give the role to Safe Work Australia (SWA), an agency that is providing national guidance on how to prevent workplace bullying?

Shorten said this on ABCNews24 this morning in explaining what was wrong with the existing system (transcript not available online):
"Well, there are state regulators, so being a federation made up of former colonies every state does something different. And what we have is safety regulators - and I think they're doing the best they can with the resources they can - but we have a Fair Work Commission. Workplace relations is, increasingly, a matter upon which there is national law, and we should have a national solution to complement what the safety regulators are already doing.' [emphasis added]
The quote above indicates State OHS regulators are under-resourced on tackling workplace bullying.  The magnitude of the call centre and help line activity has been discussed previously by WorkSafe Victoria, in particular, but also in submissions to the inquiry.  The government needs to explain why it moved bullying to the FWC instead of increasing resources to the State OHS regulators?

Shorten sees the new Fair Work Commission role as complementing State regulators but Shorten's comments are implying that the FWC will have the lead role and perhaps pass on cases to the State regulators.  Who is the dog and who is the tail is unclear.

Significantly, though, at a lunchtime press conference in Canberra, Amanda Rishworth, the chair of the Parliamentary Inquiry, and Minister Shorten, were asked how prevalent bullying is in the workplace.  Rishworth said that this could not be determined.  (If it can't be measured, it can't be managed?)  A major weakness of the inquiry was that it could not provide details of the size or cost of the workplace bullying problem in Australia.  That wasn't from wont of trying as the question came up repeatedly in the inquiry's hearings.

ABCNews24 asked the Minister about frivolous workplace bullying claims, an issue addressed in the Parliamentary Inquiry report.  Shorten stated that reasonable management of performance is unlikely to constitute bullying but perhaps the significance is in the question, a question repeatedly asked of the Minister.  The media sees workplace bullying claims as making trouble or as misunderstandings, personal clashes or being overly sensitive.  There is a serious misperception of workplace bullying in the media and this can readily be extended to OHS as a whole.  OHS is seen as a disruption to business instead of part of business.  This perception is there in the questions and the tones of the interviewers.

The Minister's media release provides a more rounded package of interventions than the media reports suggest: states
"The Government’s response supports measures to adopt a national definition of workplace bullying, to promote education and awareness of what constitutes workplace bullying and to lead the development of national training standards to improve responses to bullying complaints."
There is very little in the media release to indicate how workplace bullying will be prevented and this is a major weakness of this embryonic strategy.  The Australian Council of Trade Unions, mostly happy with the Minister's decision as it places workplace bullying in a legal structure that the ACTU is enormously familiar with (others may say manipulative), at least acknowledges that bullying needs prevention:
"But no matter what the laws, employers must be accountable for providing safe workplaces in which bullying does not occur in the first place."
It was clear from the inquiry, submissions and hearings that a quick or timely investigation and resolution to workplace is required as the longer the mental anguish continues, the greater the personal consequences.  The media statement says that
"Other recommendations supported by the Government include Safe Work Australia developing materials for employers that provide advice on preventing and responding to workplace bullying.
Safe Work Australia will also work with the states and territories to develop nationally accredited training for managers and health and safety representatives to help them deal with bullying."
SWA is already developing a National Code but it has almost always been the States that have taken the lead on workplace bullying advice.

Another weakness is that any training MUST be fully supported by employers and their industry associations.  And, again, the training is for "dealing" with bullying and not preventing it.

The Government will need to amend the Fair Work Act to implement its plans.
“Today’s announcement to empower the Fair Work Commission to deal with bullying complaints will provide an accessibleaffordable and timely pathway to help resolve bullying matters for workers and employers.”
The words highlighted above are the measures that will need to be applied to determine the success of the Government's workplace bullying strategy.  The FWC is a national body with State presence.  It will need additional resources to ensure workers and others can access their services and those services must be effective and efficient.  It is unlikely that in this period of red tape obsession, that State workplace bullying services will be duplicated so will the resources transfer to the FWC or will the FWC delegate to the State resources, resources that Shorten has admitted are under-resourced?

Affordability will be crucial as many of the workers seeking justice will be mentally fragile and may already be on workers' compensation.  If legal representation is needed, who will pay?  A better way to achieve affordability, and  timeliness, is by structuring a suitable mediation service that minimises, if not removes, the need for legal representation.  When one has been subjected to behaviour that one sees as unjust, legal jousting will not help.

The Minister's announcement is less that 24 hours old and, at the time of writing, the industry associations and conservative organisations are yet to make comment.  Analysis will come but this will be from the usual suspects and through the prism of industrial relations.  The safety profession needs to step up on this issue and reclaim some control of the management of workplace bullying.  It needs to emphasis the hierarchy of controls and the aims of the Work Health and Safety Act that seek to eliminate hazards and harm.

Monday, 11 February 2013

How can one learn from OHS mistakes if those mistakes are hidden?


Occupational health and safety (OHS) regulatory agencies have existed for decades, originally with an enforcement role but increasingly aimed to prevention and education.  It is fair to say the "2nd generation" of OHS regulators in Australia appeared in the 1980s.  It is also fair to expect to be able to readily access the corporate memory and prosecutorial activity of the regulators, particularly since the growth in the Internet. Very recently WorkSafe Victoria reviewed its online database of OHS prosecutions excising prosecution summaries prior to 2012.  This decision is a major weakening of the "state of knowledge" about workplace safety in this State, a decision that some have described as outrageous.  How can one learn from mistakes if those mistakes are not made available?

Prosecution Summary Database

Cover of Recent_Pros_99Prosecution summaries do not provide a great deal of information by their nature but what they did was
  • provide an outline of the cause on a workplace incident;
  • list who the employer/employee/offender was who had responsibility for workplace health and safety;
  • state the financial, or other, penalty awarded by the Courts.
In this new world of Work Health and Safety (WHS) laws and due diligence, it also provided an easy way of verifying the OHS legal history of whoever was tendering or applying for work and contracts.

As SafetyAtWorkBlog has mentioned previously, not all Court decisions on workplace safety offences are reported.  The WorkSafe database was one of the few sources of Magistrate Court decisions on OHS breaches.  Now, without physically attending a Court hearing, decisions of these Courts may occur without anyone reporting them.

Cover of prosecutions_2003Steve Bell, a Senior Associate at Herbert Smith Freehills told SafetyAtWorkBlog that:
"The prosecution results database provided duty-holders and their legal teams with an invaluable database of the prosecutions of, and penalties imposed on, businesses in Victoria.  It provided businesses with a good understanding of the likely impact of a breach of health and safety laws, and struck me as a central plank in the general deterrence which can be afforded by such prosecutions.
To reduce the history of prosecutions to a mere 12 months will significantly curtail the benefit afforded by the database, and generally reduce the state of knowledge in Victoria about safety matters. It seems to me to be entirely inconsistent with the corporate objectives of a safety regulator.
Many health and safety matters are determined in the Magistrates’ Court, and so by removing the existing database this may mean that the only reliable source of truth regarding those prosecutions has now been withdrawn."
WorkSafe Victoria was approached for comment on the changes to the database and the response was:
"In 2012, we became aware that information contained about prosecutions on our website was not complete.  Once identified, the page with the information on prosecution results was removed until it could be rectified.
The new webpage was relaunched this week and provides information on all successful prosecutions backdated to the start of 2012.  While it does not have the same functionality as the obsolete webpage, the updated webpage is accurate, which has always been our key priority.
We are always looking at ways to improve the WorkSafe website and feedback from employers, workers and other members of the community will be considered in any future upgrade."
Pages from WORK7225_Prosecutions_WEBWithout knowing the incompleteness and inaccuracies specifically it is difficult to argue.  However the removal of a search capacity for the database is a mistake as it increases the time needed to look manually for the information needed, and increased productivity and decreasing red tape is becoming a hallmark of the Victorian Government.  For instance, if one was to wish to search for all prosecutions involving machine guarding, the WorkSafe Victoria database does not help.

To provide some indication of the size of the information change, below is the text of current a prosecution summary of Ranges Tree Services Pty Ltd:
"On 8 August 2011, a worker was injured whilst tree lopping. On 7 December 2012, Ranges Tree Services Pty Ltd was convicted and fined $15,000 and ordered to pay costs in the sum of $4,409.00. (Ringwood Magistrates' Court)"
Here is a prosecution summary from 2002 concerning a Stephen Booth:
"Date of Offence: 15 November 2001
Date of Prosecution: 31 October 2002 at Mildura Magistrates’ Court
Magistrate: Raffaele Barberio
Plea: Guilty

A mobile crane on hire to the defendant tipped over while removing a palm tree from a Mildura caravan park. The crane boom collapsed to the ground, narrowly missing a cabin and a toilet block.
The crane operator suffered broken ribs when he fell from the tipping crane. There was no dogman present at the time of the lift because Mr Booth had told the hiring company, Mildura Crane Hire Pty Ltd, that he was experienced in the removal of palm trees and did not require a dogman. The crane operator, Robert Twaddle, did not check that Mr Booth held a certificate of competency as a dogman.
Breach of the Occupational Health and Safety Act 1985, section 22.
The magistrate said there was no reason why health and safety requirements in the rural community should be less than in the city. The defendant’s excuses were insufficient to absolve him.
Result: Convicted and fined $7,500 plus $1,720 costs." (page 12)
It is clear to determine which summary provides the most useful information on hazard control and consequences of poor management.

The 2002 text comes from the Prosecutions 2002 publication still available on the WorkSafe site under Publications. Hard/PDF copies of these reports remain available but only for the years 1999-2006 (download them all while you can). In the 2002 publication the then Executive Director of WorkSafe Victoria, John Merritt, explained the purpose of the summaries.
"Since most of the cases summarised in this publication are unreported, Prosecutions 2002 is an important reference for employers, employer associations, employees, health and safety representatives, trade unions, the judiciary, lawyers, OHS professionals and the wider community.
By detailing the consequences of unsafe work practices and fraud, we hope that Prosecutions 2002 will help increase understanding of the importance of protecting people in the workplace." (page 1) [emphasis added]
In 2003, Merritt wrote:
"By publicising the consequences of unsafe work practices and fraud, we hope that Prosecutions 2003 will help increase understanding of the importance of protecting people in the workplace and serve as a powerful deterrent for those who still choose to ignore their legislative obligations." (page 1, link added)
In the last of the publications, 2006, Merritt makes specific reference to the searchability of the database:
"Along with the new online searchable prosecutions database on WorkSafe’s website (worksafe.vic.gov.au), we hope Prosecutions 2006 will further educate the community of the commercial and personal consequences of breaching Victoria’s workers’ compensation and workplace health and safety laws." (page 1, link added)
It has to be acknowledged that none of the OHS regulators are as good as they could be in supporting the state of knowledge on OHS prosecutions.

Workcover NSW has limited searchable prosecution data and no summary publications.
Workplace Health and Safety Queensland has prosecution summaries for the previous 5 years and very good searchable database but only over the same period.

According to the Prosecutions Publishing Policy of SafeWorkSA, prosecutions will be listed on their website but only if "a finding of guilt or conviction" (page 2).  Prosecutions matching this criteria are listed on the website back as far as 1988 and are included in the search option on the main page.  Such a publishing policy should be included for all OHS regulatory websites but especially when change is to be undertaken, as in WorkSafe Victoria's case.

WorkSafe WA also only publishes successful prosecutions.  Its list extends mainly to 1997 with a similar level of detail to what was previously available in Victoria but occasionally a large amount of detail.  The database has a good search capacity.

It has been suggested that the new improved prosecutions summaries for Victoria will follow some of the other States by only including successful prosecutions.

Privacy & Due Diligence

Although WorkSafe did not mention this matter, there is an increased concern in the community about privacy, particularly of former offences.  It may be the case that WorkSafe has undertaken changes to remove acquittals or names at the request of those who have served their time or paid their dues.  If this is the case, an explanation for the database changes should be included on the website, perhaps through a Prosecutions Publishing Policy.

The redaction of information and names creates a problem for companies seeking to satisfy their due diligence obligations.  It is common, when seeking suppliers to ask, whether they have been prosecuted by the OHS regulator for OHS breaches.  In Victoria, for incidents between 2007 and 2011, it will not be possible to verify the applicant's response as it once was.  Perhaps in the future, the question for Expression of Interests should be have you been prosecuted by WorkSafe successfully?  It is doubtful that a simple "No" response would meet the due diligence obligations.

Deterrence, Protection, Evidence and Prevention

This article has focused principally on the deficiencies of WorkSafe Victoria's prosecutions database.  Any change of information being made to the public by government and agencies needs to be explained.  Why was the change needed? Can the same level of information be sourced elsewhere?  Does the change continue to support the corporate objectives and, some would say, legislative obligations, particularly in areas where public health and safety is involved?  The quote from WorkSafe Victoria above is the only information available on the change/"upgrade" and that came in response to a media query.

The most effective way to prevent illness and injury is to make available information on previous failures.  If it is true that we learn by mistakes, we must know about the mistakes or else the mistakes will recur as new people enter the workforce and business.

Michael Tooma, a strong advocate on OHS Due Diligence even before it became a legislative requirement  has listed the six elements of due diligence under the Work Health and Safety Act.  The first relates directly to an OHS state of knowledge and this knowledge:
".... would be... knowledge of the theory and practice of safety leadership and safety culture; knowledge of their legal obligations, the company's legal obligations and the due diligence requirements; and knowledge of risk management, incident investigation and auditing methodology." (page 26)
WorkSafe Victoria's actions restrict our access to that data and knowledge and impede our capacity to improve safety, to minimise risk and to communicate information of work hazards to others.  Corporate objectives of a government agency can change but it is hard to argue against the aims and statements made by WorkSafe Victoria's previous Executive Director last decade.  Prosecutions data can:
"...serve as a powerful deterrent for those who still choose to ignore their legislative obligations," and
"... will help increase understanding of the importance of protecting people in the workplace".
These aims are not even a decade old and yet they appear to be out of fashion.

Saturday, 9 February 2013

How safe is unsafe?


roofwork 01Across the street from an office in Melbourne, a pub is installing a roof area for entertaining.  The work has gone smoothly as far as one can see but the position of the platform ladder in the corner of the roof was curious. If someone was working from the ladder and wobbled, it would be possible to not only fall a couple of metres to the roof but perhaps over the roof's edge to the pavement two storeys below.

The worker in the front of this picture was moving to erect another platform ladder towards the front of the roof.

roofwork 02The second picture shows the worker on that platform ladder.  Similar risks of wobbling and falling over the roof's edge.

How safe is unsafe?  There is the potential for the worker to fall from the ladder to the street some distance below but he didn't.   So was his positioning of the ladder and work undertaken safe?