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…
Commenting on the Australian Government’s new employment services model, Anglicare provided a research paper, Beyond Supply and Demand, that referenced occupational health and safety (OHS) and so caught our attention. The report said:
“…job seekers may experience issues with the importance of getting to work on time, keeping the employer informed if they are unable to attend work, and the following of basic policies and procedures, such as those around occupational health and safety (Cortis et al., 2013). The research also identified that this lack of workplace knowledge leads to assumptions that recruits were lacking in work ethic or disinterested in the work.” (page 6)
The report goes on to discuss the social services context primarily but the OHS mention deserved following up. The research by Natasha Cortis, Jane Bullen, and Myra Hamilton states that employers often misunderstand new job recruits and although OHS is specifically referenced only in the mention of reporting accidents, the rest of the quote below should be noted by employers and safety professionals when preparing OHS communications to new workers. More…
Since I heard about the Gaia hypothesis in the 1980s, I have read most of James Lovelock‘s books. I was confronted by his argument that nuclear power is undervalued as one of the cleanest and sustainable sources of power, as I have grown up listening to anti-nuclear activists like Helen Caldicott and being frightened by films like Fail Safe and Threads. I am not sure I agree with Lovelock but I respect him. In his latest book, though, he makes a couple of negative references to occupational health and safety (OHS) that are cheap shots, unfair or disappointing.
Lovelock says, on page 2 of “A Rough Ride to the Future” that the chemical industry is “now mainly run by an intelligent and usually responsible technocracy” but that
“…we may be hampered in our attempts to solve the large problems [of pollution] by the absurdly zealous application of health and safety laws.” (emphasis added)
In discussing oxygen levels in the atmosphere and how its regulation is so important, Lovelock says, in parentheses,
“We are fortunate there is no inbuilt health and safety system in Gaia, otherwise the dangers of fires would have led to the banning of its production.” (page 13)
This comment, moreso than the former, shows Lovelock misunderstands OHS regulation and application. Earlier in the book he praises the banning of chlorofluorocarbons on climatic reasons and then, absurdly, implies that OHS would advocate the banning of oxygen. It’s a cheap shot. OHS is about trying to eliminate the risk of harm and by investigating the source of the hazard, usually through the scientific method. More…
WorkSafe Victoria has been reviewing a series of enforcement and prosecution policies for some time. One of these policies set for re-issue relates specifically to the publication of prosecutorial information through its website and media releases and, although the “new” policy is not yet available, it may be worth remembering the previous policy, last revised in 2005.
WorkSafe Victoria’s “Supplementary Enforcement and Prosecution Policy on Publishing Prosecution Outcomes and Other Enforcement Information and Data” (no longer available on-line) says that
“WorkSafe will release media statements and authorised representatives will grant media interviews, as appropriate, to the print, electronic, and/or broadcast media.” (original emphasis)
The reason behind this mode of dissemination, and others, is outlined elsewhere in the policy: More…
In late March 2014, the Construction Forestry Mining and Energy Union (CFMEU) was fined $A1.25 million over a violent dispute at the Emporium construction site that occurred in 2012. In its media release about the fine, the CFMEU’s state secretary, John Setka, says:
“The protest at the Myer site in 2012 was about safety.”
Yes and no. The dispute was about the representation of workers on safety matters, which is a different thing. Setka goes on:
“Building workers need someone on site who genuinely represents their interests, and that doesn’t happen when that person is hand-picked by the boss.”
The core issue in this dispute seems to be that the CFMEU will not accept the Health and Safety Representatives (HSR) chosen by the workforce at the Emporium site, which is being built by Grocon P/L. The CFMEU has its own HSRs that it believes will better represent the workforce on OHS matters.
The dispute represents an ideological dispute that seems more about unionism and industrial relations than about safety, but worker safety may still be the lose.
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Australia’s Royal Commission into the Home Insulation Program (HIP) demands the attention of all occupational health and safety (OHS) professionals, primarily, because a job creation and economic stimulus program was so poorly planned at the highest level of government, that it seems to have established a culture that led to workplace deaths. However the Royal Commission is already revealing information that shows how OHS is misunderstood by decision-makers, a situation that still persists in many jurisdictions and will only change by watching the Royal Commission carefully and analysing this information through the perspective of workplace safety.
State of Knowledge
The Royal Commission has been investigating when the workplace deaths in New Zealand from using metal staples with foil insulation were known by the Australian Government. In OHS-speak, it is trying to determine the state of knowledge on this workplace hazard in the decision-making process. The deaths of four young Australian workers prove that the state of knowledge was inadequate however it is well established that Australia and New Zealand operate independently and that, although there are legislative similarities, it is rare for a death in one country to generate regulatory change in another. (One could look to the quad bike safety issues for an additional example.) The recent legislative changes in New Zealand may indicate that they listen to Australia more than vice versa. More…