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.
Ministerial responsibility seems to be advantageous in financial policies but irrelevant to workplace safety going by actions by Australia’s political leaders. This week former senior (Labor) parliamentarians, Mark Arbib, Peter Garrett, Greg Combet and Kevin Rudd, will be fronting the Royal Commission into Home Insulation to explain their lack of due diligence on workplace safety matters. This is only a week after the Federal (Liberal) Government released a Commission of Audit report that promoted ministerial responsibility.
The popular perspective is that these ministerial decision-makers will be held to account for the deaths of four young workers but this is unlikely to occur because State occupational health and safety (OHS) laws establish a direct OHS relationship between employers and employees and the senior politicians did not employ anyone who was installing home insulation. The argument at the Royal Commission mirrors the chain of responsibility concept except that in work health and safety (WHS) legislation, government ministers are not covered by the definition of ‘officer’ and therefore have less OHS/WHS responsibility that anyone heading up a company or organisation.
Labour lawyer Michael Tooma has perhaps been the most outspoken critic of this, as he describes it, “purely cynical political” exercise. More…
Most of the Australian media is waiting for the former politicians to appear at the Royal Commission into the Home Insulation Program later this month but the Commission has not been quiet in its many public hearings recently. One of the hearings heard evidence that is particularly significant and relates to risk registers.
According to an April 8 2014 article in The Australian newspaper, one of the few national media covering the Commission, a consultant from Minter Ellison Consulting at the time, Margaret Coaldrake, failed to include workplace safety in a risk register being prepared for the home insulation program (HIP). This article is not specifically about Coaldrake’s actions, and the fact that a Royal Commission has been established into the insulation scheme is testament to the broad variety of matters that have contributed to the failure of the HIP scheme and the deaths of workers. More…
A short time ago the International Workers Memorial Day commemoration in Melbourne, Victoria, concluded. The ceremony was less sombre than in previous years with, it seemed, fewer families and relatives of deceased workers. Certainly there was no speech from a family member, nothing from workplace safety advocates other than the three trade union speakers, Meredith Peace, Brian Boyd and Michael Borowick (all pictured right), however there were tears for some in the crowd and wreaths were laid prior to a minute silence.
The politics was reduced this year as there were no noisy protests from the back of a tray truck and no march on Parliament afterward, however politics is never far from the surface of this type of event. Michael Borowick, Assistant Secretary of the Australian Council of Trade Unions (pictured below right, with microphone), was the more effective of today’s three speakers. (Audio of his presentation is available below)
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HesaMag should be obligatory reading for all OHS professionals, not just those in Europe. The editorial in the most recent edition (9 and not yet on line) is a great example of the value of this free magazine. It critically discusses the upcoming International Workers’ Memorial Day and its significance.
It asks for everyone to enact the commitment shown on each April 28 to every other day of the year. It says:
“Let’s not be taken in by the false sentiment on 28 April, but demand a clear and detailed accounting”
It asks why EU OHS legislation has been so slow to appear or be revised but equally, in Australia, questions should be asked about the status (failure in my opinion) of WHS harmonisaton, the lack of attention to the causes of workplace mental illness, the status of workplace bullying claims in the Fair Work Commission, the lack of attention to heavy vehicle OHS matters by the safety profession and the insidious encroachment of the perception of OHS as a failure of the individual rather than a failure in the system of work. More…
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…
Last week the Australian Financial Review (AFR) brought some focus on occupational health and safety (OHS) by reporting on the most recent annual report from GlencoreXstrata in its article “Mining’s not war, why 26 deaths?” (subscription required). The article is enlightening but as important is that a business newspaper has analysed an annual report in a workplace safety context. Curiously, although OHS is often mentioned as part of its sustainability and risk management program, safety is not seen as a financial key performance indicator, and it should be.
AFR’s Matthew Stevens wrote:
“Everybody in mining talks about ‘zero harm’ being the ultimate ambition of their health and safety programs. But talking safe and living safe are two very different things.”
GlencoreXstrata’s 2013 annual report is worth a look to both verify the AFR’s quotes but also to see the corporate context in which fatality statements are stated. The crux of the AFR article is this statement from the Chairman’s introduction:
“It is with deep sadness that I must report the loss of 26 lives at our combined operations during 2013. Any fatality is totally unacceptable and one of the Board’s main objectives is to bring about lasting improvements to our safety culture.” (page 76)
(A curious sidenote is that the interim Chairman is Dr Anthony Howard, formally of BP and brought to prominence by the Deepwater Horizon oil spill.) More…
Ever since the UK Government reduced the occupational health and safety (OHS) obligations on small business, there have been concerns that a similar strategy could occur in Australia. Of all the States in Australia, Victoria is the most likely to mirror the UK actions, particularly as its WorkSafe organisation continues with its restructuring and (ridiculous) rebranding, and Victoria’s conservative government continues to see OHS as a red tape issue for small business. However a recent finding by the Queensland Coroner should be considered very seriously when thinking of OHS in small business.
In 2011 Adam Douglas Forster
” … came close to the rotating ball mill, then accidently (sic) became ensnared by the protruding bolts and was dragged underneath the ball mill which continued to rotate, thereby causing his fatal injuries.”
The inquest found
“There were no guards, barriers or other apparatus restricting access by any persons to the ball mill.” and
Forster “did not know how to turn the ball mill on or off”. More…
Mental health needs in the workplace has been an evolving area of study and application and has been followed by the SafetyAtWorkBlog since its inception. Several recent statements and reports in Australia have shown that the subject continues to be discussed but not by those who can make the substantial social change, the Government, partly due to a lack of the type of evidence needed by Government to justify the change.
Mental Health is the core element of almost all the contemporary workplace hazards that are categorised as psychosocial. This includes stress, bullying, fatigue, suicide, work/life balance, and many more. Each of these categories are important but most reporting and a lot of the health promotion initiatives in the workplace focus on the manifestation of mental health instead of the source.
On February 21 2014 the chair of the Mental Health Council of Australia (MHCA), Jennifer Westacott, spoke about mental health and the workplace. Westacott is authoritative in her presentation but approaches workplace mental health from the same perspective as many others in this sector – the integration of mental health into the workplace rather than looking at the mental ill-health that workplaces can create. More…
On 29 January 2014 Australia’s Fairfax newspapers published an article called “Safety performances at Australia’s top companies is serious business” written by Adele Ferguson. The article is based on an analysis by Citi Research of the safety performance of companies listed in Australia’s ASX100 share index. Citi Research (Citi) has kindly provided SafetyAtWorkBlog with a copy of this report developed for its fund manager and superfund clients. It is a terrific reference document providing a useful insight to the OHS performance of prominent Australian corporations. It cannot be definitive but we know of nothing else like it in Australia.
In the Fairfax article Ferguson wrote:
“While safety is a complex issue largely due to the fact that safety records are difficult to measure and difficult to compare across companies and industries, it is an important area to explore. For starters, it is a good proxy for the way a company deals with staff and manages risk more generally.”
Safety does not have to be complex but the measurement of safety performance can be as, even though there is a (dreadfully outdated) Australian Standard for measuring OHS performance, companies tweak the existing measures and the principal measurement, the Lost Time Injury Frequency Rate (LTIFR), has been found to be a flawed indicator. LTIFR is tolerated as a measurement simply because a better alternative has not been developed or widely accepted.
The Citi Research report lists LTIFRs for most of the 117 companies but it balances this with almost as many Total Recordable Injury Frequency Rates (TRIFR). More…