On November 12 2014, the Safety Institute of Australia (SIA) conducted its first large seminar on the certification of occupational health and safety (OHS) professionals. The seminar had an odd mix of some audience members who were suspicious, others who were enthusiastic and presenters who were a little wary. There were few who seemed to object to certification but, as the SIA admitted, the process is a long way from complete.
Justification for Certification
Certification works when it is either mandated by government, usually through legislation, or in response to a community/business/market need. Australia does not seem to have either. The SIA explained that there is a “legal requirement” for OHS certification by placing it as part of the OHS due diligence obligations of Australian businesses, that Safe Work Australia (SWA) sort-of refers to it it in its National OHS Strategy and that the “Recommendation 161″ of an unspecified international law:
“….calls for organisations to have access to “sufficient and appropriate expertise” as a basic right of all workers.”
There is no such Recommendation but there is an Occupational Health Services Convention, 1985 (No. 161)
Convention concerning Occupational Health Services (Entry into force: 17 Feb 1988) – a International Labour Organisation Convention that Australia has not ratified.
The SWA strategy repeatedly mentions the important of “health and safety capabilities” as a “national Action Area”. It specifies this action area as:
- “Everyone in a workplace has the work health and safety capabilities they require.
- Those providing work health and safety education, training and advice have the appropriate capabilities.
- Inspectors and other staff of work health and safety regulators have the work health and safety capabilities to effectively perform their role.
- Work health and safety skills development is integrated effectively into relevant education and training programs.” (page 9)
In the strategy’s chapter on Health and Safety Capabilities, SWA says:
“In a decade many existing workplace hazards will still be present and new ones will have appeared. It is particularly important that education and training enable those who provide professional or practical advice to competently deal with old and new hazards. Those who provide advice need to know when to refer the matter to others with appropriate expertise.” (page 12)
There is no mention of certification in the SWA strategy but the SWA is sympathetic to certification. More…
One of the most ignored, but important, elements of occupational health and safety (OHS) management is the business case. Work on this issue is being completed in Australia by Safe Work Australia but the European Agency for Safety and Health at Work (EU-OSHA) has beaten it to the punch by releasing “The business case for safety and health at work: Cost-benefit analyses of interventions in small and medium-sized enterprises“. This document includes new case studies that provide detailed analysis of cost and return on investment from interventions as varied as a vacuum lifter for pavers to warm-up exercises and task assessments of domestic builders by qualified physiotherapists.
The report found that:
- “Wide-ranging interventions appear to be more profitable than interventions targeting a particular
issue related to the sector of the enterprise.
- Interventions that mainly concern training and organisational change appear to be more profitable than interventions based on technical changes (such as introducing new equipment).
- Interventions that include direct worker (participatory) involvement appear to be more profitable, regardless of whether or not increased productivity benefits are taken into account in the
- In most cases, the enterprises managed to estimate benefits related to increased productivity. It
should be emphasised that increased productivity does not always come as a result of improved
safety and health, but it is taken into account in the context of a business case.” (page 10)
Australia’s Prime Minister Tony Abbott provided his interim response to the Royal Commission into the Home Insulation Program (HIP) in Parliament on 30 September, 2014. One should not expect much sustainable or cultural change from an interim response but Abbott’s responses hold some promise.
The commitments include:
“…[asking] Minister Hunt [Environment] to assume responsibility to oversee the Commonwealth response and to coordinate actions across departments and ministers.”
“…[asking] the Minister for Employment to examine these [OHS] findings, particularly as they relate to the reliance of the Commonwealth on state and territory laws, and his work will inform the government’s final response.”
“Minister Hunt and the Minister for Finance have been asked to recommend options to compensate their next of kin [of the deceased workers]”
The annual Safe Work Australia month starts today. The promotion of this month has fluctuated wildly over the last decade. Sometimes there are physical launches with interesting speakers, sometimes balloons and merchandise, other times the national OHS authority has left most of the activity to the States. In 2014, Safe Work Australia has jumped into internet videos, online presentations and webinars each day of the month of October (the full schedule is available HERE). This initiative is to be supported but it has not been tried before in Australia and its success is not guaranteed.
As expected the first couple of videos are polite launches of the strategy with statements from Ministers and CEOs. The potential for valuable content is after the initial launch but this value is debatable. It is unclear who the target audience is. If the seminar series is for OHS newbies, a restatement of legislative OHS obligations is of little interest to experienced safety managers and professionals. More…
Next month Australia hosts the G20 but there is always a lot of activity leading to this meeting and labour relations is part of that preparation. In September 2014 the G20 conducted its Labour and Employment Ministerial meeting at which a Declaration was released that includes some occupational health and safety (OHS) information. The Declaration is full of “weasel words” and “soft verbs” but it is worth noting so that the actions of governments on OHS in the future can be referenced, even though tangible results will be few.
On promoting safer workplaces, the Declaration states:
“Improving workplace safety and health is an urgent priority that protects workers and contributes to increased productivity and growth. We agree to take further steps to reduce the substantial human and economic costs associated with unsafe workplaces and work-related illnesses. We endorse the attached G20 Statement on Safer and Healthier Workplaces (Annex C), and we commit, as appropriate, to implement its recommendations in collaboration with governments, international organisations and social partners.”
If we were to deconstruct this statement, accepting that the paragraph is extracted from the labour relations context, the Australian Government, and other parties, does not accept that OHS is an “urgent priority”, only that improving it is. Any government can prove that it is “improving” OHS even when controls are removed due to red tape reduction or by the ideological strategy of increasing employer control through increased flexibility. More…
Little of the recent commentary on the findings of the Royal Commission into the Home Insulation Program (HIP) have mentioned the opinion of the Royal Commissioner Ian Hanger that the Australian Government acted in a “grossly negligent” manner. Such a comment deserves considerable analysis by a specialist lawyer but it remains a remarkable criticism in terms of obligations under OHS/WHS laws.
Commissioner Hanger wrote:
“To encourage inexperienced young people to work in an environment where there was a risk of defective electrical wiring, and allow them to install conductive material was, in my opinion, grossly negligent. It is no answer for the Australian Government to say that it was the responsibility of those young people’s employers to protect them.” (para 5.2.20, emphasis added)
Gross negligence has been equated to the term “reckless endangerment” included in Australia’s Work Health and Safety laws. One legal website site says that:
“Reckless endangerment is the offense of engaging in activity that has a disregard for risks with foreseeably dangerous consequences.”
Commissioner Hanger’s comments certainly seem to fit reckless endangerment as the risks, not only of electrocution but simply from working in domestic roof spaces, were well known.
SafetyAtWorkBlog has written previously about the evidence of Margaret Coaldrake to the Royal Commission into the Home Insulation Program (HIP) given at the public hearings and also the occupational health and safety role of risk management and risk registers. The release of the Royal Commission’s final report on 1 September 2014 provides further details on a risk management process that is common to all large projects.
Commissioner Ian Hanger spent considerable time on the issue of the risk register as this was one of the crucial elements in the project’s whole decision-making process up to Ministerial level.
Commissioner Hanger was scathing of the risk management process that not only ignored the risk of worker fatalities but purposely dropped this risk from the register. He was unforgiving in his criticism of Margaret Coaldrake. He criticised her judgement. In working with her Minter Ellison colleague Eric Chalmers:
“it was up to [Coaldrake] to make sure that she and the people working with her were qualified to provide the service that Minter Ellison consultants had been retained to do.” (para 7.11.15)
In Sydney this afternoon a workplace safety trade show held a fascinating (and free) panel discussion on safety in construction. The topic of Safe Work Method Statements (SWMS) was raised, as expected, but the comments were sound – SWMS are only required for specific high-risk activities so make them simple enough to satisfy legislative requirements AND have workers work safely.
One participant asked about obtaining a SWMS template for an activity that was not necessarily high-risk. She was advised to forget about the template and instead approach one of her trustworthy subcontractors and have that contractor step her through the work process to be undertaken and the associated risks. Then she should write a SWMS based on that information. In this way she has consulted on a safety issue, talked with a subject matter expert and developed a SWMS tailored to the workplace needs. In other words, she would have done everything that was reasonably practicable to achieve a safe and healthy work environment.
One of the other issues raised was the need to train people on the use of the risk matrix on which many SWMS are based, and that is embedded in Australian OHS Standards. The audience was advised to ignore the risk matrix as most of the workers do not understand it. It was also mentioned that many OHS/WHS regulators see it as overly complex. The audience was, instead, encouraged to based the SWMS on the Hierarchy of Control (HoC).
It was argued that workers understand the linear decision-making of the HoC more easily and that they are well aware of the consequences of failure or an unsafe act. They do not need to see a risk-rating to accept the risk of an amputation or a fall from heights or a trench collapse.
The trade show seminar had an audience of over one hundred but each one of them received the best advice from the panel of legal and industry experts available. That this cost each participant nothing but their time may indicate why safety conferences, at least in Australia, are struggling for relevance.
The purpose of OHS Moot Courts is to provide a taste of the Court experience in the context of a prosecution for occupational health and safety (OHS). Moot Courts and Mock Trials [for the purposes of this article the concepts are interchangeable] have specific meanings in law schools and overseas but in Australia there is an increasing trend to tweak the moot/mock format to motivate OHS change by showing the consequences of an OHS breach and resultant prosecution. This application of the concept still needs refining both in structure and purpose but may have had its time.
SafetyAtWorkBlog has attended around half a dozen such events since a cold rainy night at Monash University law faculty over 30 years ago. That Moot Court, conducted by the Australian Human Resources Institute, had a genuine sense of occasion and fear. Prosecutors went in hard as is the potential for any court case. A more recent OHS Moot Court was almost jovial and failed to communicate the import of the court process and, therefore, the significance of the potential consequences of the court’s decision. More…
Macquarie University researcher Sharron O’Neill is traveling around Australia refining, through consultation and seminars, her research into Work Health and Safety (WHS) Due Diligence. In a Melbourne seminar this week O’Neill, and her colleague, Karen Wolfe, provided thought-provoking discussions on three principal areas:
- Due Diligence,
- Performance Indicators, and
Below are some of my thoughts that they provoked.
WHS Due Diligence
WHS Due Diligence is still a poorly understood concept. Part of the reason is that the major explainers of due diligence seem to be, predominantly, labour lawyers who, not surprisingly, emphasis the legal requirements and origins rather than the safety elements and application. There are few safety professionals who are explaining due diligence; rather they are discussing OHS/WHS in the context of due diligence.
One colleague explained how an established organisation employed her as their first dedicated OHS professional around the same time as due diligence was being discussed as part of the national OHS harmonisation process. By looking through the company’s existing system of work, More…