John Merritt and ‘reasonably practicable’ 4

On 4 August 2009, John Merritt, Executive Director of WorkSafe Victoria, spoke at an OHS function hosted by the Australian Human Resources Institute in Melbourne.  John is a lively speaker whose passion for workplace safety is obvious. I had the opportunity to ask the following question

“How is reasonably practicable NOT a ‘get-out-jail-free card’?”

Many readers will know that I am skeptical about “reasonably practicable” as is evident from the question.  However John’s response was the first from a non-lawyer that saw some positives in the concept.  John said

“I do think [the concept] is a real strength in the law.  In trying to move people to embrace this issue, for those who are in that denial phase, they often think we are asking them to do the impossible, and I find it really useful to say “no we’re not.  We’re asking you to do that which is reasonably practicable.

Our job, if  we say what you’re doing is not reasonably practicable, all we have to do is go and find someone who is just like you who is doing it.  We’re not asking you to do anything that somebody else, and usually in some critical mass of numbers, isn’t already doing, so why can’t you do it?” And I think that’s a reasonably sophisticated law.

You’ve got to have really good teams of investigators and lawyers and inspectors and all that sort of stuff to make that sort of law work.  But that’s good, that’s doable …. but I do think, in our field, its a reasonable proposition.

The alternative, which is an absolute duty – you must have a safe workplace and if someone is hurt, prima facie, you’ve failed and you need to prove to us that you’re innocent – can be made to work as well and most of the research is …. but in trying to move that hearts and minds of, particularly, our target audience, I think it’s the right way to go.”

It was refreshing to hear that “reasonably practicable” can be used as a tool for good instead of evil through illustrating an example of a control measure that has already been found to be reasonably practicable.  Tangible examples have been missing from OHS in Australia for a long time, ever since the OHS Solutions databases fell over in the 1990s.

If WorkSafe finds such examples useful for businesses, it would be good to see such databases resurrected. The images below show some pages from “Share Solutions” a hard copy database produced by WorkSafe’s predecessor, the Occupational Health and Safety Authority, in the late 1980’s.  It would be a good idea if someone like Safe Work Australia investigated the feasability of resurrecting this initiative.

Kevin Jones

Share Solutions 001 002

Share Solutions 003

OHS harmonisation – chemicals draft 2

As part of the Australian government’s program of national OHS harmonisation, Safe Work Australia has released “Proposed revisions to the workplace chemicals regulatory framework“.  This has been a long time coming.

This is not yet open for public comment but is a great indication of what Australian workplaces that handle chemicals may be in for.  Not being experts in dangerous goods, SafetyAtWorkBlog will let the document speak for itself.

“This National Standard marks a significant change in the approach to the classification and communication of chemical hazards in the workplace. The National Standard adopts the principles of the Globally Harmonised System of Classification and Labelling of Chemicals (GHS) published by the United Nations.  The adoption of the GHS in the workplace chemicals framework serves two important purposes:

  • it represents best practice in the classification of chemicals and the communication of hazards using a standardised approach that will allow harmonisation amongst international trading partners; and
  • it allows the promulgation of a streamlined framework for identifying, assessing and controlling chemical hazards in the workplace, where hazards may be related to health or physical effects.

The previous national framework for managing chemical hazards in the workplace was based on a distinction between hazardous substances and dangerous goods. Hazardous substances were associated with human health effects (for example acute toxicity or carcinogenicity) and dangerous goods were predominantly associated with physical effects (for example corrosivity, flammability). In many cases, a single chemical would be classified as both a dangerous goods and a hazardous substance, triggering the need to comply with two distinct regulatory frameworks.

This National Standard provides a consolidated basis for the control of health hazards and physical hazards arising from the presence of chemicals in the workplace. In this framework chemical substances, mixtures and articles can be classified as “hazardous chemicals”― a term that includes both health hazards and physical hazards.”

From a brief look, it is noted that MSDS loses a letter to become SDS, Safety Data Sheets.  The principal reference codes and guidelines such as those below are now being reviewed and the public comment period began on 31 July 2009.

  • Approved Criteria for Classifying Hazardous Chemicals.
  • National Code of Practice for the Labelling of Workplace Hazardous Chemicals
  • National Code of Practice for the Preparation of Safety Data Sheets
  • National Standard for the Synthetic Mineral Fibres
  • National Standard for the Control of Inorganic Lead at Work

Because Australia will follow the guidelines of the Globally Harmonised System of Classification and Labelling of Chemicals, the issue of environmental impact of work-related chemicals will also become relevant.  The proposal says

“A full implementation of the GHS would require the provision of appropriate information on labels and safety data sheets (SDS) where a chemical is classified as an environmental hazard.”

All of this sounds like a big shake-up for many Australian businesses and safety advisers but there is still time for the government and Safe Work Australia to provide enough information to minimise its impact.  The release of the proposed revisions prior to public comment is a positive sign.

Kevin Jones

Three OHS case studies 2

The South Australian Industrial Court made three decisions in late July 2009 that are useful cases to look at in order to promote improved health and safety practices but also, in one particular case, to note the approval and endorsement of the judge in the post-incident actions of the employer.

As the SafeWork SA media notice states

“All received 25 per cent discounts from their fines in recognition of their guilty pleas, cooperation, contrition and remedial action to improve their safety systems.”

Case 1

“Bluebird Rail Operations Pty Ltd was fined $30,000 over an incident at its Kilburn workshop in March 2007.  A worker’s arm was crushed beneath a 1,500 kilogram sidewall, which broke loose when a lifting lug failed as it was being lifted to a rail freight wagon under construction.

The court heard that SafeWork SA’s investigation revealed deficiencies in the equipment used, the work processes and the communication channels.

While the worker suffered permanent and debilitating injuries, his employer provided ongoing support including education and training. The employee returned to work after several months and has been promoted within the organisation.”

This case reports a surprisingly short rehabilitation period for a crushed arm.  The words of Magistrate Lieschke should be of considerable note to those OHS professionals who want their clients and companies to go beyond compliance.

“I accept that Bluebird Rail facilitated Mr Sewell’s return to work, in accordance with its legal obligations to provide vocational rehabilitation.  I accept that Bluebird Rail has gone beyond its minimum legal obligations and has provided further re-education support to Mr Sewell, sufficient for him to complete a Diploma in Project Management and for him to now be studying an engineering degree at university. The degree course is being funded by Bluebird Rail.  That is commendable support. Mr Sewell has been promoted and is now working as an assistant project manager.”

Case 2

“International Tastes Pty Ltd was fined $20,250 today after an incident in which an employee had his arm caught in the rotating blades of a pasta-making machine at the company’s Glynde premises in January 2007.

The court was told that the employee was taught to operate the machine with the safety guard open, the interlock switch which would have stopped the machine from operating in such cases was not working, and no safety checks or procedures were in place for either the machine or the tasks involved with its use.

The 24 year old victim suffered fractures, lacerations and nerve damage resulting in a number of operations and considerable pain and suffering.  He has since returned to work interstate with a related company.”

Safety professionals constantly argue for interlocks that cannot be bypassed.  This case shows that the relatively young worker suffered considerably from the incident and has moved interstate to continue with his career.

The judgement raises issues of deep concern to OHS professionals in relation to the level of supervision and induction required for workers and the perennial issue of machine guarding.  The judgement reports the circumstances of the incident:

“On 23 January 2007 [Mr B] suffered serious right arm injuries while operating a pasta making machine in accordance with a method he had recently been taught.  He had received on the job training only and was not given the benefit of any written work procedures.  He had been taught to work in close proximity to unguarded rotating blades.

While using a two litre plastic container to collect pasta mix from the machine the container came into contact with the exposed rotating blades of the adjacent mixing bowl, which in turn dragged his right arm into the blades.”

Case 3

“Central Glass Pty Ltd was fined $9,375 having been prosecuted over an incident in February 2007 at its Salisbury factory, where it makes aluminium window components.

Two workers were manually lifting a slippery steel die weighing 95 kilograms to place it in a press.  In doing so, the die slipped crushing the fingertip of one worker and narrowly missing their feet as it fell to the ground from about waist height.

SafeWork SA told the court there were no safety procedures for the task and the injury could have been averted through the use of mechanical lifting gear, which was later purchased.”

This case can relate to the concept that existed for some time in Australia of a “safe lifting weight”.  This concept has been shown to be a myth as it focuses on only one part of the work process and assumes that the particular lift is outside the other lifting actions that a worker may have been performing previously. It also assumes that everyone has a similar lifting capacity.

The judgement of this case provides more detail

“On 16 February 2007 Central Glass Pty Ltd unnecessarily exposed its employee [Mr R] to a risk of serious injury at work.

With the help of another worker [Mr R]was required to manually lift an oily 95kg steel die from ground level and place it in a close fitting slot in a press at about waist height.  While doing so the die slipped and crushed one of [Mr R’s]fingers.  The die then fell to the ground narrowly missing the feet of [Mr R]and of his colleague. [Mr R] suffered a crush injury to the tip of his left middle finger.

Central Glass had not previously carried out any hazard identification and risk assessment process in relation to changing and fitting dies.  It did not have any safe work procedure for this task and did not provide adequate safety control measures such as mechanical lifting assistance.”

Kevin Jones

New OHS research on the limits of management based regulation 7

The National Research Centre for Occupational Health and Safety Regulation at the Australian National University is one of the few Australian research centres who provide free access to their data.  The number is growing but is still way behind institutions overseas.

Pages from wp%20-       -1.72813E-062unningham     0x1.8e0c80p-893nd              (null)inclair coverThe latest research report they have released concerns management-based regulations as opposed to prescriptive regulations.  Australia and many other countries have moved away from prescriptive OHS rules but this research by Neil Gunningham and Darren Sinclair has some good points on establishing workplace safety cultures by looking at a couple of case studies.

The abstract says

“The paper argues that notwithstanding the heavy emphasis currently being placed on both internal (company driven) and external (government driven) management-based regulation, a commitment at corporate level does not necessarily percolate down to individual facilities where ritualistic responses or resistant sub-cultures may thwart effective change. The findings have important implications for the effectiveness of management based regulation and meta-regulation more broadly.” (my emphasis)

The researchers go on to discuss the spread of shared values and shared meaning, how individuals and small units can thwart the good management intentions by a lack of organisational trust, through a literature review as well as the case studies and empirical data

For anyone who is the least bit interested in establishing a workplace safety culture, the following quote should get them downloading this report.

“Management based regulation does not ignore the challenges of engaging with group behavior. Indeed, its proponents assert that the capacity to achieve cultural change is one of its attributes (Welford 1997).  But whether, to what extent, or in what circumstances this is the case remains a matter of conjecture. Certainly changing cultures is no easy matter and it may well be far more difficult for senior management to manipulate than many organizational theorists assume (Morgan 1986:139).  Yet without cultural commitment on the part of those who are expected to implement the system, then edicts from regulators or (in the case of internal regulation) from senior management, may be met with creative compliance (McBarnet & Whelan 1999), resistance, “ritualism” (Merton 1968; Braithwaite 2008a:140-56) or various other forms of tokenism.”

Kevin Jones

UK’s HSE wants OHS professionals to be accredited 3

In early July 2009, the Chair of the Health and Safety Executive (HSE), Judith Hackitt spoke in favour of an accreditation system for OHS professionals.  This has particular relevance for those countries and professionals associations which follow some of the UK initiatives.

Hackitt is quoted in the HSE media release said:

“We do believe that there is a need for an accreditation system within the competency framework for health and safety professionals. We have no interest in HSE directly controlling or regulating such a scheme, but we are very keen to ensure that all professional bodies who establish an accreditation scheme do so in a way that measures competence in practice, not just acquired knowledge.

“Accreditation must include continuing professional development as a requirement as well as a means of sanction, with real teeth, for anyone who acts unethically in their professional activities – including providing inappropriate advice or guidance.”

She said that those involved in health and safety needed to be competent to assess and manage risk by applying common sense, taking a proportionate approach and exercising judgment about what is reasonable.

Competence is one of the cornerstones of the new health and safety strategy for Great Britain, and HSE wants to see increased competence as the basis of a more sensible and proportionate approach to managing risk.”

SafetyAtWorkBlog asked the Institute of Occupational Safety and Health (IOSH) for their response on the issues raised in Hackitt’s speech.  The response is below

Richard Jones, IOSH’s policy and technical director, said: “IOSH has long advocated some form of official accreditation of the health and safety profession. It is something that has been mooted for many years, but has never had formal government support, so has never got off the ground.

“The present system in the UK means that anyone can operate as a health and safety consultant. This means some businesses are likely to be getting advice from health and safety consultants with inadequate qualifications and experience or none at all. We feel this is wrong. You wouldn’t have an unqualified doctor looking after your medical needs, so why should you put lives at risk because of incompetent health and safety advice.

“Employers have repeatedly asked for better guidance on how to identify competent assistance, so they can be sure they’re getting good quality health and safety advice. We believe an accreditation scheme will help reassure them about the competence and suitability of the person they’re engaging.”

Richard added: “IOSH has been actively pushing the need for accreditation for some years now, in evidence to two select Committee Inquiries, through our ‘Get the best’ campaign and lobbying activities, and more recently through our ‘manifesto’. We’ve had discussions with government, the Health and Safety Executive (HSE), MPs and other stakeholders on the need for an accreditation system for health and safety practitioners.

“We believe the majority of consultants are doing good work and providing a valuable service. IOSH’s professional development scheme helps ensure our members keep their knowledge and skills at a satisfactory level. However, the scheme obviously doesn’t apply to those who aren’t members of IOSH. Our hope is that an accreditation scheme will mean that all those working in the health and safety field have sufficient qualification, skills and knowledge to do the job properly and are maintaining these on a regular basis.

“At a meeting on 21 July, representatives from the HSE and key health and safety organisations came together to discuss an accreditation scheme for health and safety consultants. These stakeholders will now form a ‘steering group’ looking to take the proposal forward. It is hoped that an accreditation scheme could be introduced by around autumn 2010.”

Some Australian readers may want to keep an internet eye on the Australian OHS professionals’ alliance HaSPA.

Kevin Jones

Tasmanian Premier talks of workers compensation fairness Reply

On 26 July 2009, the Tasmanian Premier, David Bartlett spoke at the Tasmanian ALP conference.  Below is an extract from his speech in which he refers to the State’s review of workers compensation, the Clayton Report, and reflects the national industrial relations agenda by emphasising the Australian Labor Party’s favourite word of the day – “fair”.

“Delegates,

Not only must we act to keep Tasmanians safer on our roads – but so too in our workplaces.

The Labor Party began as we shall continue – as representatives of the working men and women of Tasmania.

That is why I am pleased that we have finally been able to reform the workers compensation provisions in this State, to return a fairer balance and provide the protection that workers deserve.

I have met people as Premier who have suffered terrible injuries at work.

I met a man last year who’d lost all the fingers on one hand, and yet had not been able to access the level of worker’s compensation that he so clearly and richly deserved.

That is not fair, and that’s why we’re changing it.

Unlike our opponents, who enthusiastically supported the flawed and unfair WorkChoices regime, we stand for a fair go for Tasmanian workers.

Some will say we’ve gone too far.  But this is about decency and dignity.

And it’s about respect for working people, and providing workers with the support and protections that they deserve.”

Kevin Jones

National scaffolding campaign Reply

This week a national scaffolding safety campaign was launched in Australia.  There are several sources for new and useful information about the campaign, two are below.

Mike Hammond of law firm, Deacons, has written a backgrounder on the need for the campaign and how to prepare for the compliance visits.  Hammond lists the key messages form the campaign as

  • “The campaign is designed to ensure compliance with existing workplace safety laws in relation to scaffolding;
  • Increase industry awareness of the safety issues associated with using unsafe scaffolding;
  • Recent incidents have highlighted a need to be vigilant when erecting, altering, using and dismantling scaffolding; and
  • A wide range of trades that use scaffolding are exposed to significant risks of death and injury when the scaffolding does not comply with AS 1576.”

WorkSafe WA Commissioner Nina Lyhne said in a media release on 24 July 2009 that

“The construction industry is a high risk industry. Sadly, we still see a large number of injuries and deaths on construction sites.

WorkSafe [WA] focuses a lot of attention on education as well as on enforcement to reinforce the need for improved safety.  Recent scaffolding incidents have led to the death of a number of workers and seriously injured others across Australia.

Industry is being advised of the intervention campaign, and inspectors from WA will be undertaking inspections over two months from 1 August to 30 September.”

Kevin Jones

New old US research into driving and talking Reply

The New York Times has revealed research on the hazards of driving and using mobile phones that was withheld since 2003.   The newspaper understandably focuses on the intrigue that prevented the report from being released but the content of the report has the potential to substantially change how companies “manage” the hazard of their staff using mobile phones whilst driving. Pages from original

The report, obtained through Freedom of Information and made available on the newspaper’s website, was a  substantial project for the National Highway Traffic Safety Administration and, according to NYTimes:

“The research mirrors other studies about the dangers of multitasking behind the wheel. Research shows that motorists talking on a phone are four times as likely to crash as other drivers, and are as likely to cause an accident as someone with a .08 blood alcohol content.”

The full report is available by clicking on the image in this post.

Kevin Jones

BHP Billiton’s safety record is again in the Australian media 2

BHP Billiton’s production report has generated some OHS-related interest in the Australian business media on 23 July 2009, but not all.  [SafetyAtWorkBlog has written several pieces about BHP Billiton's safety record]

The company’s iron ore production has fallen short of its May 2009 guidance.  Iron ore is the only division where production has dropped.  The Age newspaper reports that the five deaths “forced a production slowdown” and noted the Western Australian government’s review of BHP’s safety management.

Malcolm Maiden’s commentary in the same newspaper mentions the BHP production results but describes the five workplace fatalities as “production glitches”.   He writes

“Production glitches for both companies [BHP Billiton & Rio Tinto] might have been handled better if their iron ore operations were merged, as is now proposed.”

Safety management may have been improved.  Rio Tinto’s OHS performance is considerably better but the description of the fatalities as “production glitches” is cold.

This contrasts considerably with the coverage provided to the BHP results by the Australian Financial Review (AFR) which listed the issue on the  front page  with the headline “Poor safety record hits BHP output” (full article not available online without a subscription).  AFR says

“the safety issues overshadowed better than expected results from BHP’s petroleum and  metallurgical coal units….”

There was no overshadowing according to the writers in The Age.

The AFR article identifies a raft of safety matters that illustrates well the OHS status of BHP Billiton and emphasises just how serious the workplace fatalities are.

  • “Tensions with the WA government [over a variety of issues, including safety] have escalated…”
  • Seven BHP workers died in Australia and South Africa in 2008/09.
  • “Eleven BHP staff… died while on the job in 2008.”
  • On 22 July 2009 WA Minister for Mines & Petroleum, Norman Moore, praised BHP’s efforts to improve safety but said “It is very difficult to understand sometimes why fatalities occur within the safety frameworks that operate in most major mining companies…” said on 22 July 2009

Warren Edney, an analyst with the Royal Bank of Scotland and occasional media commentator, spoke in relation to the safety record of BHP’s Pilbara operations, where five workers died.  He said in the AFR article:

“It’s better than Chinese underground coalmining but that’s not a big tick, is it?… In part you’d say that we’ve undergone this mining boom in WA so you’ve got workers who haven’t had the safety brainwashing that other parts of the workforce may have had over the last 10 years.  Part of it reflects that and part of it may be that people get pressed to do things quicker.” [my emphasis]

It seems odd to compare the safety performance of an open-cut Australian iron ore mine with “Chinese underground coalmining”.  Similarly describing safety education and training as “safety brainwashing” is unusual.  SafetyAtWorkBlog has contacted the Royal Bank of Scotland for clarification of Warren Edney’s comments.

The AFR has almost been leading the Australian media pack on reporting of safety management in 2009,  partly due to the OHS harmonisation regulatory program and its impact on business costs.  This may also be due to some of the concerns about increased union activity on worksites under the new industrial relations legislation.  The AFR should be congratulated for discussing the OHS context of BHP’s iron ore production figures and providing a front page prominence.

Kevin Jones

The myth of the three-hour sleep Reply

The Australian media has widely reported that Australian Prime Minister, Kevin Rudd, exists on three-hours sleep per night.  He doesn’t and Professor Drew Dawson, a prominent Australian sleep researcher, discusses the exaggeration of high-flying professionals in an article at Crikey.com on 21 July 2009.

More research of  Professor Drew Dawson, Director, Centre for Sleep Research, University of South Australia, is available online.