Impairment argument fails to convince Fair Work Commission over unfair dismissal 10

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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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…

A top OHS blog for 2014 13

I am very proud to receive recognition from LexisNexis again in 2014 for my work on the SafetyAtWorkBlog.  On 16 December 2014 LexisNexis Legal Newsroom Workers’ Compensation named the SafetyAtWorkBlog as one of the Top Blogs for Workers’ Compensation and Workplace Issues. It is a great honour for a blog that is self-funded and written in my spare time.

LexisNexis has described some of the articles as “insightful and entertaining” and reflective. One article in particular was a discussion spurred by the writings of Terry Reis and would not have been possible without his initial article.

I thank LexisNexis for this unexpected honour and feel very proud to be amongst the other honourees for 2014.  It is good to see new ones on the list and encourage all those OHS professionals who feel they have something to say, to say it.  The more voices the OHS profession has, the richer our debates and the greater our state of knowledge.

Kevin Jones

 

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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What if “reasonably practicable” was applied to a disease outbreak? 4

There seems to be an increasing trend for the principles of occupational health and safety (OHS) to be applied to matters outside the workplace.  OHS principles were created to reflect the values of society in the 1970s and 80s and, although the laws have changed to reflect economic needs, the principles remain basically the same.  A major legal change has been the move away from preventing harm “at the source” to one of reasonable practicability and this can reduce the overall level of safety available to workers and others.

It is interesting to note that statements on the current Ebola outbreak argue the sense in dealing with the outbreak “at the source”.  Why do we accept a reasonably practicable control measure for harm at work but expect a stronger preventative measure for public health threats?  Shouldn’t we be aiming to reduce all harm “at the source” regardless of the type of harm? 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…

EU-OSHA releases a business case for safety and health at work 2

cover of The business case for safety and health at work-2One 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
    economic evaluation.
  • 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)

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Australian PM responds to Insulation Royal Commission 4

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]”

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Safe Work Australia month begins with an online gamble Reply

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…

HIP Royal Commission – Leadership and Culture 2

The findings of the Royal Commission into the Home Insulation Program (HIP) deserve a great deal of analysis by the safety profession. Amongst the lessons are important ones concerning leadership, culture and consultation.

The final report identifies major deficiencies in the design and administration of a major project regardless of the politics and jurisdictional argy-bargy.  Although many are disappointed the report did not identify any big name politicians as the major evildoer, Commissioner Ian Hanger is brutally forthright when necessary.

In the introduction of the report, there are several references to what a “competent administration” would have done, clearly implying that the government of then Prime Minister, Kevin Rudd, was incompetent in the management of HIP. In fact Hanger writes:

“It ought also to have been obvious to any competent administration that the injection of a large amount of money into an industry that was largely ‘unregulated’ would carry with it the risk of rorting and other unscrupulous behaviour.” (para 1.1.19)

“It ought to have been obvious, to any competent administration, that such an exponential increase in work to be undertaken would require a similarly huge increase in the workforce to do it.” (1.1.9)

“The reality is that the Australian Government conceived of, devised, designed and implemented a program that enabled very large numbers of inexperienced workers—often engaged by unscrupulous and avaricious employers or head contractors, who were themselves inexperienced in insulation installation—to undertake potentially dangerous work. It should have done more to protect them.” (1.11.18)

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