Orewa College explosion update

The New Zealand Department of Labour has released a media statement about the prosecution reported on yesterday but

"The Department will not name either the parties or the specific charges until the charges reach court."

This may be an indication of the political sensitivities of the prosecution.

A representative of the Orewa College Board of Trustees, Phil Pickford,was interviewed by New Zealand Radio on 21 December 2009. The interview is available online.

Pickford states that he is proud of the OHS systems that are in place at Orewa College and places Orewa in the top 10% of schools for OHS performance.

It is difficult for anyone to make public statements on an OHS prosecution without knowing who has been charged and with what.

From SafetyAtWorkBlog's perspective, regardless of any action taken by the DoL, it would have been expected that both the school and the Education Department would have undertaken their own investigations in to the death of one of their own employees, if for no other reason than to stop a similar occurrence in other schools.

A TV report of the explosion from mid-2009 is available online.

Kevin Jones

Safety photo article reproduction

A very popular posting at SafetyAtWorkBlog has been Col Finnie's piece on taking photographs for OHS purposes. An edited version of Col's article was published, with authorisation, in the 19 November 2009 edition of Accident Prevention e-News which is now available online.

Our thanks goes to editor Scott Williams, firstly, for reading SafetyAtWorkBlog and secondly for going through due process in seeking a reprint of the blog article.

Col has been an important addition to the small group of SafetyAtWorkBlog contributors and we hope to see more of his articles in 2010.

Kevin Jones

CSR in firing line on asbestos compensation

SafetyAtWorkBlog has not reported on the asbestos compensation problems faced by James Hardie Industries directly because in 2009, the issue is one of corporate responsibility more so than workplace safety. The reality is that asbestos kills and victims deserve compensation. The fact that asbestos companies are avoiding their responsibilities is of little surprise.

In Australia, most of the focus has been on James Hardie due, principally, to its corporate conduct to the Australian stock exchange and its prosecution by the financial regulators. But another asbestos miner and building product manufacturer is at the Australian Courts in December 2009.

In some ways, CSR Limited is the more notorious asbestos manufacturer due to its operation of the Wittenoom asbestos mine. It could be said that CSR is the James Hardie of the 1980s.

According to a media report in the Sydney Morning Herald, CSR is planning to demerge but the Federal Court has been told that the Australian Securities & Investments Commission believes that insufficient allowance has been made in the strategy for asbestos compensation.

CSR is splitting its sugar and renewable energies divisions away from the building products division where the compensation is likely to sit. The sugar business will be called Sucrogen.

For those who do watch the corporate manoeuvrings of asbestos manufacturers, CSR's actions should be familiar but those new to the issue should look beyond James Hardie to gain fuller appreciation of asbestos and capitalism.

For a global perspective on the whole industry it is hard to go past "Defending the Indefensible" by Jock McCulloch and Geoffrey Tweedale.

Kevin Jones

John Holland prosecution

The John Holland Group has featured several times in the SafetyAtWorkBlog in 2009. Any organisation as large as this Australian conglomerate who promotes their commitment to safety and whose Board Chair, Janet Holmes a Court, has such a high profile is going to draw media scrutiny. In fact, the evolution of the John Holland safety culture and the struggle to maintain such a culture as a company grows in profitability and complexity would make a fascinating case study.

On 18 December 2009, Comcare released details of its latest successful prosecution of John Holland. This time the company was fined $A180,000 over the death of a worker, Mark McCallum, at the Dalrymple Bay Coal Terminal in Queensland in May 2008. According to the media statement:

"Justice Collier stated that “It is clear that, despite the efforts taken by the respondent to implement a safe working environment, the operation involving the transportation unit was flawed in its original conception. The dangers were obvious from the start, relatively simple to avoid, but unrecognised and unaddressed in a manner which raises the objective gravity of the offence in these proceedings towards the higher end of the scale." [emphasis added]

When a judge determines that the process was flawed from the very start, one's expertise in managing an established practice safely should be critically reviewed. Such fundamental failures in a safety management system should cause any company to realise something is wrong in the way it is addressing safety needs, particularly in an economic climate that is bursting with new infrastructure projects for which one is competing.

The circumstances of the fatality are that

"A team of five John Holland workers were involved in moving large precast concrete decks to the end of a jetty under construction. The precast concrete decks were being transported on two jinkers that were being pushed by a front end loader. During this procedure, a worker’s foot became trapped under wooden scaffolding planks on the jetty, and he was fatally injured when he was run over by the wheels of the jinker."

The Federal Court judgement listed the safety deficiencies that John Holland acknowledged

"The respondent acknowledges that:

(a) its work method statement did not adequately identify the risks associated with the relevant work process, and did not adequately identify suitable control measures to remove or minimise those risks; and

(b) it did not carry out a plant hazard assessment with respect to the front and rear jinkers, which may have identified a requirement for a remote braking system or other controls on the jinkers for use by spotters and others; and

(c) it did not have in place a formal system whereby employees were certified as being competent in the use of jinkers; and

(d) it did not have in place a formal protocol or procedure for the use of radios to ensure that the transmitter of a radio message was able to be informed that the message had been received by its intended recipient and understood; and

(e) it did not have sufficient communication mechanisms in place to ensure that employees working out of sight of the loader operator and the rear spotter were able to communicate directly with spotters and the loader operator; and

(f) it did not ensure that an observer of a trainee jinker operator was also issued with a radio to directly communicate with the other members of the transportation crew responsible for the propulsion of the load; and

(g) it did not provide workers who were working out of sight of the loader operator or rear spotter with any form of alarm or safety device, other than a radio to alert other workers of the occurrence of an emergency situation; and

(h) it did not ensure that the clearance of obstacles in the path of the loader was done in a timely or effective manner, thereby requiring the front jinker operator to perform that duty during the progress of the transportation unit and whilst out of the line of sight of the loader operator."

Mark McCallum's death gained even greater media attention when unions challenged John Holland's nomination for a safety award shortly after McCallum's death.

Kevin Jones

Boiler death puts OHS spotlight on New Zealand Education Department

Reports are coming out of New Zealand that representatives of the Education Department are uncomfortable with being charged under the country's OHS legislation following a fatal boiler explosion at Orewa College.

On 24 June 2009, a boiler exploded at Orewa College in Northland, New Zealand. Initial media reports said that the boiler was being repaired the day after a malfunction. Rough phone video taken by one of the students during the evacuation is available online.

Richard Louis Nel received burns to 90 per cent of his body and later died. A contractor, Robin Tubman, suffered a fractured skull and a shattered face.

The Department of Labour indicated shortly after the event that an investigation had begun but the Board of trustees chairman Phil Pickford has questioned the delay in the prosecution. According to one media report, Pickford said:

"On December 24 it will be six months since the tragedy and here we are at the 21st... They have to prosecute within six months and they have left it to the last minute. Why? I could surmise why, but I'm sure there's another way they could have done it."

SafetyAt WorkBlog contacted the NZ Department of Labour on 21 December 2009 for further information about the prosecution. All the spokesperson would say is that “the outcome of the investigation is still being finalized”.

The belief that schools are not covered by OHS legislation is a common misperception in Australia and, from what one NZ SafetyAtWorkBlog reader says, New Zealand also. Partly this is because the education of children is seen as the principal focus by teachers and educators, to the exclusion of all else. Modern businesses and institutions have slowly learnt that this is not the case and that there are a wealth of obligations, legislative and social, that apply. Educational institutions are often slow to acknowledge this reality.

Another reason, which may stem from the first, is that government departments have been very hesitant to prosecute each other. This may also be supported by the political conflicts that could arise by one politician’s department taking action against another politician’s department. Politicians should not take the credit for departmental achievements and then not be held accountability for failings (although this seems to happen frequently).

In August 2007, The Education Department in Victoria was fined $A8000 for ignoring the directions of a WorkSafe inspector. The media statement on the case illustrates a dismissive attitude to OHS issues.

Of more significance were issues at Merrilands College where “a Victorian principal accused of bullying has been removed from school and given a job in the Education Department after years of complaints by staff” according toThe Age in July 2004. The issues at Merrilands had been occurring for some time:

“It was also revealed that the Education Department - which confirmed there had been "Worksafe (sic) issues" at the school in the past - had known about the allegations since 2000, when 12 teachers wrote to the department after a staff member died of a heart attack that some believed was linked to workplace stress.”

According to the same media report “WorkCover recently issued an improvement notice against the department following allegations of bullying and harassment at two other schools in the northern suburbs.”

To some extent the Orewa College explosion is a more straightforward prosecution because the incident came from an equipment failure and did not relate to the teaching staff or students. The administrative staff are likely to be asked about maintenance schedules, particularly after other schools in the area had their boilers inspected with several found to be less than perfect. It is likely that the prosecution by NZ DoL will illuminate the plant maintenance procedures of secondary colleges but, perhaps of more long lasting significance will be the attitudes of the education department and school representatives on show in court.

Kevin Jones

Coordinated raid on illegal workers in Australia

Illegal migrant workers are not a big problem in Australia. Those who are caught are usually working outside of the allowances of their tourist or student visas. Being an island nation and the bottom of the world, Australia does not have border protection issues to the extent of the United States or Europe.

That's an odd way to begin an article, particularly one of occupational health and safety but there is a relevance.

The issue of migrant workers came up following a media statement from the Department of Immigration and Citizenship on 14 December 2009.

".....10 people [working]on a farm at Carcuma, near Coonalpyn in the South Australian Mallee region [were detained]....

[the group contained] eight Thai and two Lao nationals who are now expected to be removed from Australia. ...

Six of those located were unlawful non-citizens, two were student visa holders and two held tourist visas. .....

All are suspected of working illegally on the farm and investigations will now be conducted into their employment."

Often illegal workers are exploited and accommodated in harsh living conditions, particularly in countries where the trafficking of migrant workers also occurs.

During harvest time in Australia, farmers often struggle to obtain a sufficient workforce and accommodation of sorts is often provided.

A spokesperson for DIAC told SafetyAtWorkBlog that in this particular raid no other administrative agencies were involved although when the issue under investigation concerns matters other than immigration, a joint investigation is conducted.

If any breaches of other laws are observed the relevant agencies are informed. In this instance the workers were housed on the farm and there seemed no need to raise any issues with any other agency.

The spokesperson would no provide any further information such as the type of farm, whether the workers were provided through a labour-hire firm or whether any action was to be taken against the farmer for employing illegal workers.

Coordinated Approach

As Australia moves to harmonisation of its OHS laws AND harmonisation of its OHS enforcement policies, it may be useful for the Government to begin to review its immigration enforcement policies so that safety aspects are also included as a regular inspection criteria.

In Victoria it is common for the OHS inspectors to accompany raids on illegal brothels and construction sites, for instance, where illegal migrant workers are suspected.

In the early 1990s Worksafe Victoria coordinated raids throughout the Melbourne suburbs over dangerous goods. The Hazardous Chemicals Audit Team included officials of the water authority, fire services, port authority, local council, OHS regulator and other relevant bodies. Premises where notified 24 hours before an audit was conducted. The premises were identified by a number of measures. The Victorian Audit-General mentioned HCAT in 1998 in relation to one concentrated area of chemical storage:

11.13 Since 1991, the operations at Coode Island have been the subject of considerable inspection activity. Joint-agency inspections conducted by the Hazardous Chemicals Audit Team soon after the fire identified 400 matters requiring attention, including a number of issues raised by the Metropolitan Fire Brigades Board. A follow-up of those inspections by the Occupational Health and Safety Authority in February 1992 disclosed that the majority of issues had been addressed. Audit was advised that the Authority has since completed further inspections of the site and has provided a range of technical advice to site operators.

Some companies felt this approach was heavy-handed but others found that an inspection focussing on one are of business operation allowed for a more coordinated approach. There may have still been too much red tape at that time because any penalties were handled by the individual agencies.

The current Government's attack on business red tape in a climate of harmonisation may make this coordinated audit approach more practical. Either inspectors should be trained in the enforcement of a range of laws or, without considering cost and jurisdiction, a team of specialist inspectors should be used.

Kevin Jones

[Kevin Jones provided administrative support to HCAT but never participated in an audit]

Quad bike safety sensitivities

The quad bike safety issue is hotting up on a range of fronts in Australia with the trade unions taking an active interest, meetings between bike manufacturers and safety designers, and the SafetyAtWorkBlog email box filling up with background content and opinion.

One of these emails reminded me of some court action that was taken in 2005 by Honda against the Victorian State Coroner, Graeme Johnstone. Johnstone only recently retired from the position after many years and over that time there were fewer more ardent safety advocates, particularly not any that had the same broad audience and media attention.

In 2005 Johnstone was conducting an inquest into several quad-bike related deaths. At one point he approached a witness outside of the Coronial process to seek their assistance in a training course. Representatives from Honda took exception to this and began court action in the Supreme Court of Victoria to have him dismissed from conducting the inquests.

Justice Tim Smith found Johnstone remained open-minded and impartial throughout the inquest but the unreported judgement available online illustrates some of the tensions of the time and continue to exist to this day.

The judgement mentions the purpose of the inquest:

"The major disputed issues in the inquest relevant to the present application were the following:

• whether the lack of roll-over structures on their ATVs caused the death of Mr Crole and Dr Shephard
• whether roll-over structures should be installed on ATVs
• whether the question of the provision of roll-over structures for ATVs should be investigated further."

In describing the context of Johnstone's contact with the witness, Dr Raphael Grzebieta, the judgement hints at the Coroner's inquest findings (which are not available online)

"In addition, notwithstanding Dr Grzebieta’s conclusion that Dr Shepherd and Mr Crole [the deceased] would have been saved by the fitting of the roll bars and that this would be sufficient to justify a recommendation that they be fitted, the coroner expressed a provisional view that:

“My view at the moment is that it does not give me enough to recommend roll-over protection.”"

The Victorian Coroner continues to be active in investigating quad-bike related deaths as seen in this newspaper article from earlier in 2009. A related article quotes John Merritt, WorkSafe's executive director as saying:

"This inquest came about as a result of a terrible spate of fatalities in the past two years... WorkSafe's position on this is clear. It believes that a quad bike is like any piece of farming equipment and those who use them need the appropriate training to be able to use them safely."

If a quad bike is like any other piece of farming equipment, the equipment designers would be reviewing their designs to minimise the risk of injury as the field bin and silo manufacturers have, or the milk vat designers have or the windmill manufacturers have or, indeed , as have the tractor manufacturers who actively promote the safety features of their new tractors.

The unreported Supreme Court judgement provides a good indication of the major players in the quad bike safety discussion, particularly the expert witnesses for and against.

Many of the issues are resurfacing because safety and work practices continue to change and the only satisfactory resolution is when hazards are controlled and harm is reduced and, hopefully, eliminated. 2010 in Australia looks set to be a year when quad bike safety gets a good going over once more.

Kevin Jones

Barry Sherriff talks about the Work Health and Safety Act

Boardroom Radio often has interesting speakers on topical issues. On 11 December 2009, they interviewed Barry Sherriff who recently joined the Australian law firm, Deacons. The interview is of general interest and reflects many of the issues raised by Australian labour lawyers elsewhere.

Barry is an OHS law expert and was a member of the panel that reviewed Australia's OHS legislation in 2008/09 in order to steer the development of a model OHS law. That process was completed in mid-2009 and the Government took on most of the recommendations. Effectively the Government started a second separate process - the development of legislation based on a range of information, advice and public submissions.

Many recent submissions to the Government in this second phase harked back to earlier findings. Many issues raised in the Model OHS Act Review, such as the issue of "suitably qualified" OHS advisers, are dead. As Barry's interview shows, contemporary thinking provides forward momentum and it is up to all of us to keep our state of OHS knowledge current.

Kevin Jones

Unique company response to confined space penalty

In 2007, according to the ABC news site,

"42-year-old Geoffrey Johnson [died after he] inhaled toxic fumes from paint stripper when he was cleaning the inside of a large chemical tank".

On 16 December 2009, his employer, Depot Vic P/L, was fined half a million dollars over this breach of the OHS legislation.

Initial reports say that the company is no longer in business but it

"told the court is had put aside money to pay the fine."

Wow. What happened to phoenix companies? - the business scourge that closes down to avoid paying outstanding debts and, often the costs associated with a worker's death, and then starts up again under a different structure.

That a company will pay a fine for an OHS breach years after ceasing business seems a remarkable and admirable act.

Hyde Park Tank Depot's assets were purchased by the Scott Corporation several months after Mr Johnson's death, according to information SafetyAtWorkBlog obtained from Scott Corporation. The current business and website listing was not operating at the time of Mr Johnson's death.

WorkSafe Victoria provided background to Mr Johnson's death in a prosecution summary in April 2009. The full summary gives a clear indication why the fine was so high.

"Depot Vic Pty Limited (formerly known as Hyde Park Tank Depot Pty Ltd) undertakes cleaning, repair and maintenance of ISO containers for the chemical industry. ISO containers are confined spaces, being portable tanks used to transport chemicals. The tanks are usually cleaned purely by hydro-blasting, but on occasion the tanks were required to be cleaned more thoroughly.

The system of work was such that when this situation occurred, the cleaning of the tank required 2 stages. The first stage involved the application of a cleaning agent, usually a product known as ‘Selleys Renovators Choice’ stripper (which is not a dangerous good).

The second stage then involved the use of hydro-blasting on the internal walls to remove the stripper and clean the wall. The company's work instructions required that a confined space permit be issued and that appropriate PPE be worn.

On 16 August 2007, an employee of Depot Vic Pty Limited died whilst attempting to remove latex from the internal walls of a 25,500 litre ISO tank. The deceased had entered the tank and instead of using the ‘Selleys Renovators Choice’ stripper, had used a product known as ‘Paint Stripper Gel GS 125’ that was suited to clean external components only (and not the inside of the tank). The label of this product contained safety directions such as “do not breathe vapour” and “use only in a well ventilated area”. This product is a dangerous good ‘class 6.1 (toxic substance) of packing group 111’. It is also a hazardous substance according to the criteria of the Australian Safety and Compensation Council.

The deceased was located in the tank in an unconcious (sic) state, and when retrieved from the tank did not regain conciousness. An expert analysis of the atmosphere inside the tank concluded that that (sic) there was a lethal concentration in all or part of the tank (10 litres of the dangerous good was used). At the time of the incident a confined space permit was not issued, the deceased was not wearing respiratory protection, gloves or a harness, and there was no ‘spotter’ in place to supervise the latex removal works.

Further, there was a lack of training and supervision of employees in relation to the work procedures for confined space entry."

Kevin Jones

Director accountability for OHS reinforced by NZ penalty

On April 5 2008, a cool store in New Zealand exploded killing one firefighter and injuring 7 others. Icepak Coolstore Ltd, according to the fire services investigation report

"[had] very large quantities of combustible material contained in the expanded polystyrene construction panels and also in the foodstuffs stored.

"There were no compliant fire detection or protection systems or hydrants, and very limited firefighting water."

In July 2008, the New Zealand Department of Labour (DoL) issued a media statement and fact sheet concerning the explosive potential of flammable hydrocarbon refrigerants.

[A video of the aftermath of the explosion is available. The audio contains swearing.]

On 15 December 2009, a New Zealand Court penalised two companies and a director with fines totalling over $NZ390,000. The DoL has issued a media statement about the prosecution results.

The many reports and inquiries into the explosion and fire are very informative but one element that the DoL wants to focus on is the penalty applied to the Director of Icepak Coolstore, Wayne Grattan. He was

"fined $30,000 on one charge that he acquiesced in the failure of the company to take all practicable steps to ensure the safety of its employees while at work."

The Department of Labour’s Chief Adviser for Workplace Health and Safety, Dr Geraint Emrys said (click HERE for audio):

“The prosecution against the director of Icepak should serve as a reminder to officers, agents and directors of organisations that they can be held personally accountable for the failures of their organisation.

“Mr Grattan was charged with acquiescing in Icepak’s failure in respect of obligations to its employees. The outcome of the case against Mr Grattan reinforces the requirements of directors to be proactive in health and safety matters."

As many Commonwealth countries have a strong commonality of law, the Icepak Coolstore case should be an important case study in many jurisdictions.

Kevin Jones

Tasmanian mine safety review

Safety in mines in Tasmania has received great attention in the aftermath of Larry Knight's death at Beaconsfield gold mine. On 13 December 2009, the Tasmanian Workplace Relations Minister, Lisa Singh released a regulatory impact statement and information paper on proposed amendments to the Workplace Health and Safety Act 1995.

This legislative package, according to the Minister's media release:

“The proposed package considerably expands upon existing legislation, by including both general duties and hazard specific regulations for the mining industry.

“A key focus is the requirement for each mine to implement a health and safety management system, which must include risk management processes and procedures.”

Any OHS review should be welcomed but what is this trend of short periods of public comment? There were many complaints of the Federal Government for short periods of review on national model OHS laws and now the Tasmanian Government wants responses by 14 January 2010!!??

Just one month for responses and that month includes Christmas holidays and New Year. This brings the consultation period to around 19 working days.

A spokesperson for Workplace Standards Tasmania (WST) said that the various reviews and coronial reports over recent years have put pressure on the Government to improve mine safety legislation. She also said that comments on the Regulatory Impact Statement is an important and necessary step in drafting the relevant legislation.

The spokesperson said that WST is effectively closed down between Christmas and New Year but has an emergency response. Any enquiries from the public about the RIS will be handled by the WST Helpline on other working days untill relevant staff return. The Helpline is being briefed on the RIS this week.

WST emphasised that the consultation on the legislative amendments has been occurring for months. SafetyAtWorkBlog acknowledges this is the case but the Public Comment period is very tight.

The Minister, Lisa Singh, has said in her media release that

"I encourage comment from persons connected with the mining industry, including workers, mine operators and contractors."

SafetyAtWorkBlog contacted the Minister's Office and a spokesperson said that the timing of the Public Comment period is unfortunate but that the Government does not want to delay the process any longer than it has too. She advised that the minimum time period for comments on an RIS is three weeks and that the comment window on this particular process is four weeks.

There is no accusation of a conspiracy here but the unfortunate scheduling highlights a legitimate conflict between the aims of an effective public comment phase and legislative development that seems endemic through Australian politics.

Kevin Jones

The future of the School of Risk & Safety Science

It was good to hear the President of the Safety Institute of Australia (SIA), Barry Silburn on the radio on 7 December 2009. The SIA has traditionally been very hesitant about going public on safety issues but clearly the potential disappearance of the School of Risk & Safety Science from the University of New South Wales is important to the SIA.

The closure of this school seems absurd, particularly, when the fact of its profitability is shown.

The university's decision appears wrong and, from the evidence of the radio interview, it seems that the decision has occurred recently. Dropping a school, regardless of the prominence claimed by the SIA, which has a problem with prominence of its own, is a harsh decision if there has not already been a consultative process or a strategic program for improvement and increased relevance.

It is not as if the school does not have access to top talent. Names familiar to Australian OHS professionals, researchers and regulators include

Professor Chris Winder

Dr Anne Wyatt

Dr Jean Cross

Michael Tooma

In the University of New South Wales' Australian School of Business, there are several other prominent OHS academics. Most familiar to SafetyAtWorkBlog are

Professor Michael Quinlan

Professor Stephen Frenkel

Barry Silburn (a video of Barry Silburn talking about the SIA is available online) accuses the University of New South Wales of sacrificing the safety profession for short-term gain:

"They're not looking at the overall picture of OHS within Australia they're looking at very short-term money considerations on their courses that they're conducting within the university".

This seems an odd accusation when compared with the fact that the school has made a profit two years running.

It seems to SafetyAtWorkBlog that the limitations of the University's review are clear in the statement of Deputy Vice Chancellor, Richard Henry:

We had an external review of the Faculty of Science by a committee of internationally respected scientists and their recommendations to the university were that the Faculty of Science should concentrate on its strengths; areas such as maths, physics, chemistry, psychology, biology.

The university wants to focus on pure science rather than applied science after a review undertaken by "a committee of internationally respected scientidists". HMMMM?

OHS academics are often less dependent on government funding than other schools and departments because the skills and knowledge can be more readily applied in a practical way and they live closer to the economic realities of business and workpalce safety.

Silburn's accusations of greed are too narrow. The safety profession can continue without the School of Risk & Safety Science. There are many sources of OHS graduates still in Australia and, from the activity of the University of Queensland, these opportunities are increasing.

It seems that the university may have been too narrow in its selection of the review panel for the Faculty of Science. But if we take the panel's recommendations seriously, Richard Henry does not see the School of Risk & Safety Sciences as fitting in the Faculty of Science. Surely it could fit in the university's School of Organisation and Management. Going from this School's profile in the website:

"The School of Organisation and Management is a multi-disciplinary unit comprising 32 full-time academics. Our mission in the School of Organisation and Management (O&M) is to conduct high quality applied research and to prepare students for employment in diverse organisational settings. Our main areas of research and teaching include: Organisational Behaviour, International Business, Human Resource Management, Industrial Relations, and social and psychological aspects of Management."

Anne Wyatt researches the psychosocial issue of workplace bullying. Chris Winder researches occupational toxicology and his most recent academic paper is "Managing hazards in the workplace using organisational safety management systems: A safe place, safe person, safe systems approach."

If the University of New South Wales cannot see the continuing relevance of its profitable School of Risk & Safety Science, it should perhaps get examined at its own School of Optometry and Vision Science.

Kevin Jones

The School of Organisation and Management is a multi-disciplinary unit comprising 32 full-time academics. Our mission in the School of Organisation and Management (O&M) is to conduct high quality applied research and to prepare students for employment in diverse organisational settings. Our main areas of research and teaching include: Organisational Behaviour, International Business, Human Resource Management, Industrial Relations, and social and psychological aspects of Management.

Legal advice and safety management

The legal commentaries have begun to appear following the release of Australia's draft Work Health & Safety Act.

One of the first, as usual, is a response from law firm Deacons. It should be noted before discussing the suggestions that in the last couple of months Australia's OHS legal brains are now concentrated in this law firm since Barry Sherriff jumped ship from Freehills. A month or two earlier, Sherriff's protegé, Penny Stephens, left the firm and took several others with her to Hall & Willcox. This brain drain sets Freehills' OHS practice back considerably.

However, Deacon's first missive on the new OHS laws has been released, under the bylines of Sherriff & Tooma, and identifies several issues. The first, and very useful to know, is the definition of due diligence that is now included in the Act under Duty of Officers:

"...due diligence means to take reasonable steps:

(a) to acquire and keep up to date knowledge of work health and safety matters; and

(b) to gain an understanding of the nature of the operations of the business or undertaking of the body and generally of the hazards and risks associated with those operations; and

(c) to ensure that the body has available for use, and uses, appropriate resources and processes to enable hazards associated with the operations of the business or undertaking of the body to be identified and risks associated with those hazards to be eliminated or minimised; and

(d) to ensure that the body has appropriate processes for receiving and considering information regarding incidents, hazards and risks and responding in a timely way to that information; and

(e) to ensure that the body has, and implements, processes for complying with any duty or obligation of the body under this Act; and

Examples

A body's duties or obligations under this Act may include:

• reporting notifiable incidents.
• consulting with workers.
• ensuring compliance with notices issued under this Act.
• ensuring the provision of training and instruction to workers about work health and safety.
• ensuring that health and safety representatives receive their entitlements to training.

(f) to verify the provision and use of the resources and processes referred to in paragraphs (c) to (e)."

This should provide more tips to OHS professional associations about where their services fit in general business obligations but it also sets the bar much higher for professionals in how they must upgrade their own OHS skills to match expectations.

Curiously, Deacons continues with issues of concern with the Act which have little to do with improving worker safety. Several items hark back to the OHS Model Act Review Panel which has little more than historical interest nowadays but may reflect the fact that Barry Sherriff was a Review Panel member. The list of concerns further supports SafetyAtWorkBlog's position that safety law often masquerades as safety management.

Deacons concludes its update with the following "7 steps":

"There are 7 steps that every business needs to undertake to prepare for this new era in Work Health and Safety regulation:

• Legal risk analysis...
• Review contracts ...
• Implement interface coordination plans ...
• Develop robust consultation processes ...
• Develop dispute resolution processes ...
• Develop processes on right of entry and regulatory rights and obligations ...
• Develop an OHS Corporate Governance Statement ..."

Unsurprisingly, the first two involve assistance from one's legal advisers. SafetyAtWorkBlog recommends that businesses wait and see what support documentation is supplied by the OHS regulators first as it is they who determine the parameters for OHS compliance.

Businesses need to remember that the Work Health & Safety Act is not yet law and, in fact, has a long way to go before States introduces this law into their own jurisdictions. Western Australia is still objecting to the law so it is unclear if this Act will ever be introduced without substantial change. So until then keep following the local OHS legislation but keep both ears open in anticipation of the future.

OHS debate is over, says Deputy PM

Deputy Prime minister and Workplace Relations Minister, Julia Gillard, has told the Australian Financial Review (only available online to subscribers) that the OHS law changes were finalised at the recent Workplace Relations Ministers' Council.

Gillard again rejected the trade union movement's concerns about weakened worker protection. The Minister emphasised that substantial economic benefits would flow to business as a result of increased administrative efficiencies.

However, the likelihood of a nationally harmonised OHS system seems as far away as ever with the West Australian Government continuing to refuse to apply the new laws which it sees as too friendly to the unions.

Significantly, the Australian Government has backed down from its earlier threat to penalise any governments that do not support the changes. This lets the WA Liberal Government off the hook and provides the New South Wales Liberal Party with an easy platform option for the 2010 State election.

The conservative forces in Australia can take heart but Minister Gillard's position has the union movement facing difficult decisions. It has strongly funded a campaign against elements of the OHS laws and branded the laws as "second-rate safety". It now needs to decide whether to give up the campaign totally as a lost cause or to pare it back so that, over time, the campaign fades away, as did the industrial manslaughter campaign of around five years ago.

The ACTU has expressed disappointment but must have realised, privately at least, that some union powers, considered to be extreme by business and industry groups and over which the business complaints have been load and long, were going to be sacrificed in any harmonisation process.

Former Prime Minister and ACTU President Bob Hawke achieved many industrial relations reforms in the early 1980's by pushing "consensus". This negotiation process had strong similarities to the current OHS harmonisation however big C Consensus is now rarely spoken by the Australian trade union movement. One of the few contemporary outings was when current ACTU Secretary Jeff Lawrence, who expressed the disappointment above, speaking about industrial relations said on 14 June 2007:

"I'm tough enough but I'm also a person who likes to work by consensus".

To operate constructively at the big tripartite table of OHS, the unions will need to accept a defeat and gain whatever they can from the new rules. This is doubly important in the lead-up to the planned harmonisation of workers compensation. Australia will see some fiery rhetoric when harmonisation threatens to reduce the income and entitlements of workers who are already injured.

Kevin Jones

“Suitably qualified” looks dead

In many submissions to the Australian Government's development of a Model OHS Act, there was a request, sometimes passionately made, for the inclusion of a legislative provision for "suitably qualified" OHS advisers.

This week's Communique from the Australian, State, Territory And New Zealand Workplace Relations Ministers’ Council (WRMC) included no mention of "suitably qualified". So where does this leave the safety professionals? What is the future of the WorkSafe-promoted Health & Safety Professionals Association?

For those safety professionals who wish to pursue the "suitably qualified" matter below is a list of the members and attendees of the latest WRMC meeting (taken from the Communique) for you to follow-up. However, it may be quicker to accept the reality and plan for professional credibility with the legislative crutch.

Kevin Jones

• The Deputy Prime Minister the Hon Julia Gillard MP, Minister for Employment and Workplace Relations (Cth)
• The Hon John Robertson MLC, Minister for Industrial Relations (NSW)
• The Hon Michael Daley MP, Minister for Finance (NSW)
• The Hon Tim Holding MP, Minister for WorkCover (VIC)
• The Hon Cameron Dick MP, Minister for Industrial Relations (QLD)
• The Hon Paul Caica MP, Minister for Industrial Relations (SA)
• The Hon Troy Buswell MLA, Minister for Commerce (WA)
• The Hon Lisa Singh MP, Minister for Workplace Relations (TAS)
• Ms Katy Gallagher MLA, Minister for Industrial Relations (ACT)
• Ms Laurene Hull, Executive Director, NT WorkSafe (NT proxy)
• Mr Simon Finn MP, Parliamentary Secretary for Industrial Relations (QLD)

Apologies:

• The Hon Martin Pakula MP, Minister for Industrial Relations (VIC)
• Dr Christopher Burns MLA, Minister for Public Employment (NT)
• The Hon Kate Wilkinson MP, Minister of Labour (NZ)

Accident Comp changes put to Victorian Parliament

According to the WorkSafe Victoria website, changes to the Accident Compensation Act were introduced to the Victorian Parliament on 10 December 2009.

WorkSafe is very confident that the changes will be passed. The summary only talks about "when" the bill is passed. There is every likelihood it will be passed but the summary has a tinge of arrogance to it.

A summary of the proposed changes is available online.

It all sounds positive and most of it seems about financial improvements. There are always concerns when a government move from prescriptive- to performance-based practices. The summary describes the Return-To-Work benefit:

"Prescriptive return to work requirements will be reframed as performance based duties to improve flexibility."

Usually this sort of change is a red flag for rorts and abuse.

The summary does say that enforcement activities will be increased:

"The Return to Work Inspectorate will have a wider range of tools to improve the effectiveness of compliance activities in relation to return to work obligations, maintaining a fair and consistent application of the law."

However with the government's recent spate of administrative mistakes, sloppiness and oversights exposed through the Auditor-General's reports, accountability in this important area will need to be carefully watched.

The Minister for Workcover, Tim Holding's speech to the Bill's second reading concluded (according to the draft Hansard):

"This bill providers (sic) fairer and better benefits to injured workers and their dependents, recognises that getting injured workers back to work is a central pillar of the scheme, and provides greater transparency for employers in their interactions with the scheme. The benefit enhancements in this bill are financially responsible, affordable, and consolidate Victoria’s position as the leader in workers compensation in Australia."

Kevin Jones

OHS law and safety management

Regular readers will be aware that SafetyAtWorkBlog holds the belief that OHS legislation is not the same as managing workplace safety. Safety can be managed without recourse to law (this is what many mean when they say that "safety is just common sense") but legislation provides some parameters in which that management occurs.

The Australian Council of Trade Unions has issued a call for tougher OHS laws and used workplace fatality statistics as the basis. Tying the two issues together serves a political purpose but avoids the fact that a range of economic, political, social and even environmental issues can affect how workplaces manage safety.

The media statement issued on 11 December 2009 says:

"A sharp rise in work-related fatalities last year shows that proposed new workplace health and safety laws need to be strengthened, not watered down, say unions.

There were 177 fatal injuries in workplaces in 2008-9, according to newly released statistics from the national regulatory body, Safe Work Australia. This is an 18% increase from the previous year.... [hyperlink added]

ACTU Secretary Jeff Lawrence said the increase in fatalities was disturbing at a time when proposed changes to Australian workplace safety laws would result in a weakening of protections and rights.

“A double-digit increase in workplace fatalities in one year is shocking,” Mr Lawrence said. “Each of these victims is someone’s partner, parent, son, daughter or friend. The Federal, state and territory governments will make significant decisions about new national health and safety laws today. If any evidence was needed that requirements for employers to provide a safe workplace need to be toughened, this is it. We urge the federal and state governments to make workers’ safety their highest priority.”

The ACTU is doing what it should by serving the needs of its members but the push for union prosecutions of OHS breaches is only one part of its social charter. The aim of improving safety can be best achieved by motivating union members and establishing a dialogue with the general community, which includes business, small and large.

Is the day far off when we may see joint statements from unions and employer groups on the issue of workplace safety? Can politics be put aside for the benefit of improving safety? Comments welcome.

Kevin Jones

"Best Practice...First Aid"? - not sure

First aid is one of the most neglected areas of workplace health and safety but, when required , vital. The neglect comes from it rarely being integrated into the safety management system and on relying of the advice from first aid training and equipment suppliers. "Why shouldn't it be relied on? They're the experts."

In a previous career I worked for a first aid equipment and training provider in various roles. A major task was to visit workplaces and assist them in determining their first aid needs. Over the years that I undertook this role I came to the general conclusion that first aid kits were almost always over stocked in comparison to what was needed. (Assessing the first aid needs of 28 McDonalds restaurants in 2 days was fun, at first)

In relation to first training, most companies had insufficient first aiders and those they had were trained fair beyond the needs of their workplaces.

Granted most of these workplaces were not high risk organisations or in isolated locations, mostly they were in urbanised areas. But it was also this fact that generated most of the oversupply of equipment.

I was reminded of my many years in that role in the 1990s when SafeWork SA announced the release of its "Approved Code of Practice for First Aid". (The Code will be available on the SafeWork SA website in a couple of days, and I will review it then) This Code comes into effect on 10 December 2010 which means a busy 12 months for most South Australian OHS professionals.

According to SafeWork SA's media statement, the new Code:

• provides a more contemporary and best-practice approach to first aid
• gives workplaces more flexibility to tailor their first aid arrangements to suit their type of business
• better aligns South Australia with provisions interstate.

SafeWork SA's Executive Director, Michele Patterson, says

“An extensive two-year consultation by SafeWork SA revealed that existing workplace first aid kits were often too big, not relevant to the individual workplace needs, and resulted in considerable wastage......"Under the new Code, first aid kits can be smaller, will cover more types of injuries and should reduce wastage."

The capacity for tailoring first aid kits to the needs of the workplace has been allowed in Victoria for almost twenty years. New packaging and configurations were designed by suppliers, - cloth pouches, wall-mounted plastic boxes, back packs... But the contents and packaging was determined in relation to the manufacturers costs, more than the needs of the client.

Here is my first aid kit. A pair of disposable gloves, a disposable resuscitation faceshield, a ziplock bag to keep them in and a mobile phone. Everything else should be determined by need.

If you don't remember that first aid is "emergency medical treatment", you will be ripped off by equipment providers.

Of course it is possible to provide first aid without even this amount of equipment. The above package is purely personal protective equipment to stop infectious liquid passing between the injured and the first aider. There are plenty of cases of people who have no access to this PPE still saving lives.

Patterson says that a benefit of the Code is that it brings South Australia's first aid training levels up to the standards of the other States. This is relevant for some workplaces but most will wait to see what the national OHS harmonisation process produces and then apply that.

But Patterson says something that holds more wisdom than she expected.

“The more people trained in basic first aid who may be able to keep a person alive until an ambulance arrives – the safer both our workplace and communities will be."

Here is the core of first aid. The skills are basic, usually stop the bleeding and keep someone breathing. I used to refer to this as "plug them and puff them". If a first aider achieves these two aims on an injured person until an ambulance arrives, they are fulfilling their tasks.

The other vital element is "until an ambulance arrives". Most workplaces are in urbanised locations with good emergency response. Victoria has a targeted ambulance response time of around 15 minutes and over the last couple of decades the ambulance service has been supplemented by emergency medical services from the fire brigade.

Too many workplace first aid courses teach people how to immobilise a broken leg. In most circumstances, a broken leg will be treated by ambulance officers. Only yesterday a high school student attending an end-of-school function broke their nose. The supervising teacher did the correct action and called an ambulance. I am sure the boy's parents also supported the decision.

Companies may consider the skills gained from a five-day first aid training course to be worthwhile for those employees who have children or bushwalk but in relation to workplace first aid, they were overtrained. First aid courses have been trimmed from the standard workplace first aid course of fifteen years ago but as long as one signs up to an off-the-shelf training course, there will be training elements that are not required.

The last nugget of wisdom from Michele Patterson's statement above is that the more people trained the better. Imagine if everyone on one office floor were training in basic first aid. There would always be a first aider present in the workplace, regardless of the hours of work. No juggling of this level first aider and that level, or training additional people to cover the absences of the designated first aiders. The emergency first aid response would the fastest possible and therefore the survival rate would be the best achievable.

Teach everyone in the workplace to "plug them and puff them" and you will be looking after your own health too. For if you keel over and stop breathing, you will have at least one first aider at your side within a minute. More likely you'll have more than one and two-person CPR is very effective. In this circumstance "reasonable practicable" may increase the level of first aid response rather than diminish OHS standards as it usually does.

It is also worth considering what provides the best first aid coverage in your workplace one first aider trained to a high level (who may be away on the day they're most needed) or five first aiders trained only in CPR. The cost would be about the same but which scenario provides the better emergency response and which scenario is more likely to provide compliance.

Kevin Jones

New guidelines on aggression in health care

WorkSafe Western Australia and the other OHS regulators in Australia have produced a very good, and timely, guideline for the "Prevention and Management of Aggression in Health Services".

The hazard has existed for many years and hospitals, in particular, are torn between the competing priorities of keeping their staff safe and maintaining contact with their clients. Glass screens and wire are effective barriers to violent attacks but it can be argued that such structures encourage aggression by implying that "violence happens here".

The guidelines, or what the regulators call a "handbook for workplaces" (How does that fit in with the regulatory hierarchy for compliance?), provides good information on the integration of safe design into the health service premises. But as with most of the safe design principles, as is their nature, they need to be applied from initial planning of a facility and so, therefore, are not as relevant to fitting-out existing facilities. In health care, it often takes years or decades before upgrades are considered by the boards and safe design is still a new concept to most.

Another appealing element of the guide is that it does not only consider the high customer churn areas such as casualty or emergency. It is good to see the important but neglected issue of cash handling mentioned even in a small way.

Another positive is the handbook includes a bibliography. This is terrific for those who want to establish a detailed understanding of the issues and the current research. For the OHS regulators, it allows them to share the burden of authority. Just as in writing a blog, by referencing source material the reader understands the knowledge base for the opinions and the (blog) writer gains additional credibility by showing they have formed opinions and advice from the most current sources.

Having praised the bibliography, it is surprising that of all the Claire Mayhew publications and papers mentioned her CCH book "Guide to Managing OHS Risks in the Health Care Industry", was omitted.

The regulators have often had difficulty determining whether checklists or assessment forms should be included in their guidances. In Victoria one example of the conflict was in the Manual Handling Code of Practice that included a short and long assessment checklist. Hardly anyone looked beyond the short version and many thought this undercut the effectiveness of the publication.

The fact is that safety management takes time and business want to spend as little time on safety as possible but still get the best results. Checklists are an audience favourite and contribute to more popular and widely read guidelines, and broad distribution of the safety message is a major aim.

Interestingly amongst the checklist in this health services aggression publication a staff survey has been included.

(At least) WorkSafe WA has listened to the frustrations of readers who download a PDF version but then have to muck about with, or retype, the checklists. This handbook is also available as an RTF file for use in word processing.

This is the first OHS publication that has come out from a government regulator with this combination of content, advice and forms. It is easy to see how this will be attractive to the intended health services sector.

Kevin Jones

News on Australia's OHS model Act

Safe Work Australia (SWA) has released the latest communique following the Workplace Relations Ministers' Council meeting on 9 December 2009. Various amendments have been made to the draft Act following the public submissions period. Those amendments that SWA consider significant are:

adoption of the definition of ‘officer’ in accordance with the Corporations Act 2001 and the definition of ‘due diligence’ to clarify officers’ duties

a duty for the persons conducting a business or undertaking (PCBU) to consult not only with workers directly affected by the health and safety matter, but with other duty holders who have a duty in relation to the same matter

the requirement for a PCBU to provide training to a health and safety representative (HSR) within three months of a request for training

removal of compensation orders as a sentencing option

removal of requirements for union right of entry which are already prescribed under the Fair Work Act 2009

restructuring of the most serious category of offence to a reckless endangerment offence when a duty holders’ conduct has exposed a person to a risk of death or serious injury of another person

monetary penalties, not penalty units, used to ensure consistency between jurisdictions

a 14 day timeframe for commencing negotiations between a PCBU and workgroup

allowing a PCBU to refuse entry on ‘reasonable grounds’ to a person chosen by the HSR to provide assistance, if no relevant assistance could be provided by the nominated person

being subject to a criminal penalty regime, except in relation to right of entry offences in Part 7. Right of entry offences in Part 7 would be subject to a civil penalty regime consistent with that in the Fair Work Act 2009. A framework will need to be established for civil penalties, and

penalties for the non-duty of care offences for corporations, ranging from a maximum of $500 000 for serious breaches to a maximum of $10 000 for minor administrative breaches.

Significantly, all the submissions that pushed for the inclusion of a "suitably qualified" OHS professional seem to have missed out. Clarification or confirmation of this is being sought from Safe Work Australia.

Kevin Jones