Impairment argument fails to convince Fair Work Commission over unfair dismissal 7

On 16 January 2015 the Australian newspaper (paywall) reported on a Fair Work Commission (FWC) decision involving an unfair dismissal claim by a worker who, as a result of a random drug test, was found to have methylamphetamine in her system “at levels four times above the minimum detection level”.  The company, Downer EDI Mining, sacked the worker, Leah Cunningham, as she presented a hazard to her work colleagues. The newspaper article was called “CFMEU slammed for drugs defence” and the FWC decision is Tara Leah Cunningham v Downer EDI Mining Pty Limited (U2014/1457) (14 January 2015).

The Australian, a newspaper with no love for the trade union movement and the CFMEU in particular, focussed on the apparent absurdity of a trade union, that places such a high priority on workplace safety,  contesting the dismissal of a worker who presented a hazard to herself and others at work.  The newspaper quotes Commissioner Ian Cambridge:

““It was highly regrettable to observe during the hearing that an organisation, which apparently conducts campaigns which strongly advocate safety in the workplace, could contemplate a proposition which, in effect, would countenance a person driving a 580-tonne truck whilst having methylamphetamine in their body at a level four times the reportable cut-off figure,” he said in his decision this week.

“Any realistic and responsible pursuit of the case on behalf of the applicant should have been confined to the development of evidentiary support for the applicant’s explanation for the presence of the methylamphetamine. Indeed, much greater energy and focus should have been devoted to such an evidentiary position rather than any attempt to defend the indefensible.”

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Trade Union Royal Commission affects OHS credibility 3

Whether one believes that the Royal Commission into Trade Union Governance and Corruption is a political witch-hunt or a genuine attempt to clean up a corrupt industry sector, the Royal Commission seems to have revealed an abuse and exploitation of occupational health and safety (OHS) – an exploitation that has received next to no attention. The release of the Commission’s interim report allows for a quick analysis of this situation.

Former Prime Minister Julia Gillard was a particular target of the Commission in relation to a “slush fund” established by her then-boyfriend, Bruce Wilson, commonly referred to as the “AWU affair“.  The “slush fund”, known as the Australian Workers Union Workplace Reform Association, was developed, according to Gillard

“… to support the re-election of union officials who would campaign for workplace reforms including better occupational health and safety.” (Interim Report, Vol 1, page 99)

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New book on pipeline safety has OHS lessons for all Reply

Hopkins Hayes Book CoverAny new book by Andrew Hopkins is a cause for excitement.  The latest book co-written with Associate Professor Jan Hayes* focusses, primarily, on two pipeline disasters in the United States but has sufficient information and thoughts for those OHS professionals outside this sector and jurisdiction.

Nightmare Pipeline Failures: Fantasy planning, black swans and integrity management” is a typically slim volume written in Plain English that benefits from the broad knowledge of its authors.  Readers of Hopkins’ early books will get all of the cross-references.  In some ways, this book can be seen as almost a case-study of Hopkins’ work on mindfulness and high-reliability organisation, as the themes of management perspectives, activity and decision-making occur repeatedly in this book. More…

FOI request for cost of introducing WHS laws fails again 5

Last year SafetyAtWorkBlog reported its failure at gaining the release of the Victorian Government’s full cost analysis of the introduction of the national Work Health and Safety laws.  In November 2014 the Victorian Government changed from conservative Liberal to traditionally more worker-friendly Labor Party.  So I submitted another request, with the same result, the report was

“…prepared for the purpose of submission for consideration by Cabinet in 2012…”

It seems we will have to wait another 28 years, apparently, to see the full estimated costs of Victoria introducing occupational health and safety laws that most other States have already introduced.  It is worth remembering that one State, South Australia, provided dramatically different cost estimates and the Productivity Commission estimated cost savings for some companies:

“…multi-state businesses are likely to see compliance costs fall and safety outcomes improve, generating total possible net cost savings of $480 million per year [under the new Work Health and Safety laws]” (Chapter 8, page 153)

The previous Liberal Government pledged never to introduce the model Work Health and Safety (WHS) laws.  The new Labor Government failed to mention these laws in its 2014 election/policy platform so their intentions on WHS laws are unclear.  However, it is widely believed that Victoria has lost its claim to be at the leading edge of OHS/WHS legislation in this country.  If such status is important to the Labour Government, as it has been to the Australian Labor Party in the past, it is hard not to see it harmonising its OHS laws to those of the other States even if through quiet diplomacy rather than a noisy legislative change.

Kevin Jones

Political statements on OHS need to be tested 3

Today Australia’s Employment Minister, Senator Eric Abetz, released a statement concerning a change to the renewal of Comcare licences in the spirit of reducing business red tape but there are two mentions of workplace safety that are curious.

In the statement entitled “Comcare self-insurance licence change“, Senator Abetz has welcomed:

“…a reform that will see businesses save more than $1 million a year which can be reinvested in Work Health and Safety and jobs.”

and states

“This reform will reduce the regulatory burden, remove the cost of licence extensions in years two and four, and push back the costs of audit until year eight as well as ensure safer workplaces.”

The argument on reducing OHS red tape is that the cost savings can be reinvested into occupational health and safety measures but there seems to be no independent evidence to support this belief. More…

Sniping in social media raises issues about hydration 9

A spat has recently emerged on one of the safety discussion forums in Linkedin.  The catalyst was a statement that

The source of this data, not disclosed at the time of the original post, was a company that sells

“…a great tasting, scientifically proven mix of cutting-edge branch chain amino acids and low Gi carbohydrates for sustained energy release, combined with a formulated blend of electrolytes for optimum hydration in harsh Australian conditions”.

The discussion quickly refocused from the original safety concern to one of unreliability of statements; sadly the discussion also became personal and abusive. but the discussion raised two discussion points:

  • The reliability of statements on the internet, and
  • the issue of hydration and work performance.

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Workplace Safety finally gets a mention in the Victorian election campaign (sort of) 4

On 25 November 2014 the Federal Minister for Employment, Eric Abetz, attacked the Victorian Labor Party over its pledge to revoke the Construction Compliance Code which, primarily, deals with industrial relations but also has some occupational health and safety (OHS) requirements.

Abetz states that

“the Victorian Shadow Industrial Relations Minister [Natalie Hutchins] falsely claimed that the Code would not improve workplace safety, despite the numerous improved safety standards that it contains.”

The claim, apparently in the Herald-Sun newspaper, cannot be verified except through a reference in a news.com.au article. The original quote seems unavailable.

It is curious that this OHS criticism has come from a Federal Parliamentarian instead of from Victoria’s own Industrial Relations Minister and Attorney-General, Robert Clark. Clark echoed Abetz’s statement yesterday but where Senator Abetz mentions the possible OHS ramifications of the Opposition’s Leader Daniel Andrews’ tearing up (page 16 of the ALP 2014 Platform) of the Construction Compliance Code, Robert Clark hardly mentions the workplace safety context. More…

Australia’s OHS Body of Knowledge project grows 1

The recent launch of several new chapters of the OHS Body of Knowledge (OHSBoK), associated with the Safety Institute of Australia, did not allow for questions from the audience but I was able to catch up with the coordinator of the project, Pam Pryor, and put my questions directly.  (My thanks go to Pam for her honesty and time.)

One of the intentions of the OSHBoK has been to maintain currency and relevance. Was there a plan to review and revise the existing chapters?  Pryor advised that there is a seven-year review schedule for all chapters.  Some chapters may need reviewing earlier, particularly if there are references to specific legislation and that legislation has changed.

Is there a plan to establish an index or to improve searchability?

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Serious questions raised (again) about the role of safety culture 6

One of the central tenets of modern safety management is the need to establish a safety culture.  However recent Australian research has cast serious doubt on whether this current belief is valid or useful.

Cover of 10.2-Organisational-CultureIn October 2014, the Safety Institute of Australia launched several new chapters to the Body of Knowledge (BoK) project.  One of those chapters, based on a literature review and authored by David Borys, addresses organisational culture* and says that safety culture:

“… [has] limited utility for occupational health and safety (OHS) professional practice.”

“… literature has unresolved debates and definitional dilemmas.”

“…..remains a confusing and ambiguous concept in both literature and in industry, where there is little evidence of a relationship between safety culture and safety performance.”

These findings should cause all OHS professionals and company executives to re-evaluate the safety culture advice and products that they have received over the last decade. More…

Lack of progress on Safe Work Method Statements shows immaturity 15

On 27 October 2014 the Safety Institute of Australia, with the support of RMIT University conducted a seminar on safety in the construction industry.  As with the event last year the issue of Safe Work Method Statements (SWMS) dominated the conversation.  The same frustrations were expressed as last year – SWMS are too big and complex, they are demanded for tasks they are not legislatively required for, they are rarely read, they are rarely reviewed and they are written only in English.  What was missing was an indication of  who is (over)demanding SWMS and why.

The seminar contained one client representative experienced in major construction projects who said that he was not directly involved with SWMS as the contract demands only that work is undertaken safely with predetermined levels of risk and reward.  That level of safety may or may not involve the use of SWMS – SWMS were not prescribed.  

He did not review SWMS unless there was a specific reason and most of the time there was not.  It could be argued that too much involvement by the client in how the project is to be completed implies a shared OHS responsibility with the client, changing the client/contractor relationship.

One construction industry representative said that they have been able to reduce the number of SWMS to around twenty types for each of the active construction projects.  This has been achieved by limiting the SWMS to the 19 high risk tasks identified in safety legislation.  It was significant that this perspective came from the top-level of construction companies, the Tier Ones. More…