Peek-a-boo safety – Oh Dear! 8

The Australian Model OHS laws do not have duties and responsibilities that focus on the employer.  The focus is now on  a “person conducting a business or undertaking” or a PCBU.  In a legal seminar in Melbourne on 20 October 2009, this acronym was spoken as a “peek-a-boo”.  Throughout the next 60 minutes, prominent Australian OHS lawyers repeatedly mentioned the OHS responsibilities of the “peek-a-boos”.


If OHS law has not been taken seriously by some sectors now, there is no hope if this absurd terminology continues.

How will regulators and safety professionals “sell” safety in a small business person is described as a peek-a-boo?   If we’re lucky, the employer will think of a game played with young children.  If we are not lucky, they may think of diaphanous female lingerie tenuously constructed with ribbons.  If the employer is a goth, one may get away with a cool reference to a Siouxsie & The Banshees song.

One could speak PCBU phonetically as “pissy-be-u” but even that is dubious. Please delete this term from one’s vocabulary and recommend to the Australian Government that its bill-drafters look for another acronym.

Kevin Jones

Road worker seriously injured at worksite 2

The Ambulance Service of Victoria, Australia reported the injury to a roadside worker on 19 October 2009.  Below is part of their report:

A road worker is in a serious condition after being hit by a car in a road works area this morning.

Advanced life support paramedics from Jackson’s Creek were called to Derby Street in Pascoe Vale at 11.40am.  Paramedic Chris Collard said they arrived within six minutes to find the man lying on the road being helped by an off duty nurse.

‘It appeared the car had been driven into the road works area and hit the man,’ he said. ‘The 33-year-old man suffered a head injury, deep cut to the back of his head and some leg pain…. We encourage drivers to slow down while driving through road works, obey the signs and be wary of the workers on the road.’

Working only a metre or two from traffic, even in a domestic area, like the case above, presents well-known hazards, at least well-known to the workers.

WorkSafe Victoria undertook an education campaign on the issue several years ago.  The remaining website continues some good information although it is a little out-of-date.

In 2005, the Roads and Traffic Authority in New South Wales reported

“… there were 603 crashes at roadwork sites in NSW.  Ten people were killed and 356 were injured.  Injuries to road workers in NSW cost more than $100 million a year, but the financial and human toll could be much lower if drivers slowed down and observed road work speed limits.”

In around 2006, the Highways Agency in the UK began a short campaign on improving the safety of roadworkers,  Some background and the action plan is available online.  As with many government campaigns and plans, it is difficult to quantify the success.

Comments from a spokesperson for the Minister for WorkSafe, Tim Holding, in 2005 illustrate the dominant political position on anything related to road safety be it level crossings or roadworker safety – change behaviour and save the world – and yet behaviour is probably the hardest (and costliest) element in this equation to change :

“…people should stay within posted speed limits. “. . . people should concentrate at driving at or below the speed limit and . . . spend less time worrying about how many kilometres they can drive over the speed limit without getting fined…,”

In 2005 there was a minor political kerfuffle when it was revealed that speed cameras could not be recalibrated to lower speeds for application in roadwork sites.

From experience, Australia is yet to use the portable traffic light systems widely that have been applied in the UK for decades and yet the advantages are that it formally establishes buffer zones, removes flagmen from the role of frontline control and builds on a cognitive language that almost everyone has retained from early childhood – the red, amber, green signage.

Kevin Jones

Independent Aussie politician forecasts “near riots” on OHS Reply

Rob Oakenshott is an independent politician in the New South Wales parliament,  He was formerly a representative of the National Party.  Oakenshott is one of the first Australian politicians who are not directly involved in the program of OHS law  harmonisation to raise any concerns.

What spurred him to speak was a recent case in the High Court of Australia centring around NSW’s absolute OHS duty of care.  Comments from the Allens Arthur Robinson newsletter say:

“The matter will present an opportunity for the court to determine whether the interpretation of the duties under the OHS Act is so restrictive that it makes it impossible for an employer to comply with them and practically removes the benefit of the statutory defences.  The issue of the difficulty of complying with the legislation is something that the defendants have submitted runs counter to the rule of law and the Constitution.”

Oakenshott stated in a media release (not yet available on his website):

“I am also concerned that aspects of NSW state legislation such as the absolute liability elements are being considered by the Federal Government,” he said. “Having been involved in state politics for fifteen years, I can assure the government they will have near riots on the streets from the small business community of Australia if they mirror NSW legislation in the quest for harmonious national laws.”

This would be the first time that OHS would ever have raised the passion of Australian small businesses to this extent.   A survey produced for the ACTU (considered to be representative of the general population by the research company) quoted the following statistics:

67% believe that workplace safety is important, but only 40% see it as “very important”.

Kevin Jones

SafeWork Australia releases six workplace statistical reports Reply

In early September 2009, Safe Work Australia released four national statistical reports.   On 19 October 2009 a further six in the 2005-06 stats series were released:

It is not possible to provide the executive summaries of each report in this instance but there were several issues of particular interest as listed in the media release that Safe Work Australia:

  • “part-time workers in the retail trade industry recorded a frequency rate of injury nearly double that of full-time workers
  • agriculture, forestry and fishing workers experienced the highest rate of injuries, with 109 injuries per 1000 workers
  • employees in the construction industry recorded a similar rate of injury to self-employed workers. Similarly there was little difference in rates of injury between those working on a contract and those not working on a contract
  • young workers (15 to 24 year olds) in the manufacturing industry recorded an injury rate 44% higher than the corresponding rate for young workers in the Australian workforce as a whole, and
  • transport and storage workers aged 35 to 44 years recorded an injury rate 75% higher than the rate recorded by all Australian workers of this age.”

Kevin Jones

Two forklift cases in Australia – one death and one fine Reply

On 19 October 2009, SafeWorkSA released details of a court case against Macbar Nominees Pty Ltd trading as Southern Cross Trailers .  The company has been fined over $A15,000 due to the incapacitating injury of a worker from a load falling off a forklift.  The event, described below, occurred in July 2007.

“A man aged 38 at the time had been with the firm just two weeks in his job as a labourer. He and two colleagues had been instructed to clean a work area: a job, which involved lifting several large items by forklift.

In the process of this task, a drum that was part of an unsecured load raised aloft by the forklift, fell about two metres onto the man as he moved a second pallet beneath.

He suffered a head wound, which required stitches and a finger injury that required surgery. In a Victim Impact Statement, the court heard that the worker had been unable to resume his work as a labourer as a result of the finger injury.”

A forklift-related incident occurred in Queensland on 5 October 2009 and details of the incident are being reported in the media.  According to Queensland Emergency Services

“Firefighters and paramedics responded to a business on Riverview Road at Dinmore around 10.50pm after a man became trapped under a forklift.  The 18-year-old suffered from crush injuries to his head, neck and chest and was declared deceased at the scene.”

According to media reports, the man had been working at the abattoir for only two months and was not licenced to operate a forklift.  Clearly the management of the site has some very serious questions to answer to the family and the Government.

It is still too early to make more than basic recommendations from this case as the available information is conflicting or not yet released.

  • Licences for driving forklifts or for operating any specialised plant  must be produced and verified, regardless of the size of the site or the complexity of the task.
  • Whether the man was specifically given the task to drive the forklift or whether he was “skylarking”, still raises the issue of supervision.
  • The matter of communication with the family of workplace victims, whether by the Government or the company, is also very relevant.

Kevin Jones

Evidence of heart attacks due to secondhand smoke Reply

According to a media release from the Institute of Medicine (IOM) in the United States, a new research report says:

“Smoking bans are effective at reducing the risk of heart attacks and heart disease associated with exposure to secondhand smoke, says a new report from the Institute of Medicine.  The report also confirms there is sufficient evidence that breathing secondhand smoke boosts nonsmokers’ risk for heart problems, adding that indirect evidence indicating that even relatively brief exposures could lead to a heart attack is compelling.”

iStock_000008022857Large match lowThe report claims to have undertaken “a comprehensive review of published and unpublished data and testimony on the relationship between secondhand smoke and short-term and long-term heart problems”.  It has looked at “animal research and epidemiological studies” and “data on particulate matter in smoke from other pollution source”.

The study was sponsored by the U.S. Centers for Disease Control and Prevention which has summarised the report on a new webpage.  SafetyAtWorkBlog has been unable to obtain a copy of the full report.

The report is unlikely to help those safety professionals who need to control the hazard of secondhand smoke in the workplace.  Legislation has been in some States of America for over thirty years identifying where people cannot smoke and around the world the major control measures are moving smokers outside and encouraging them to quit.

The IOM report seems to confirm the seriousness of the issue but provides no new ideas for control.  This would be like producing a new research report that says mercury, lead or asbestos are harmful – like duh?

US OSHA provides some data on legislative interventions on tobacco smoke but new information on this hazard in the workplace setting is thin.  The US Cancer Institute issued a monograph in 1999 defining ETS as

“…an important source of exposure to toxic air contaminants indoors. There is also some exposure outdoors in the vicinity of smokers.  Despite an increasing number of restrictions on smoking and increased awareness of health impacts, exposures in the home, especially of infants and children, continue to be a public health concern.  ETS exposure is causally associated with a number of health effects.”

More recent monographs are available at the Tobacco Control Research site.

The UK Health & Safety Executive provides this specific environmental tobacco smoke advice

  1. Employers should have a specific policy on smoking in the workplace.
  2. Employers should take action to reduce the risk to the health and safety of their employees from second hand smoke to as low a level as is reasonably practicable.
  3. Smoking policy should give priority to the needs of non-smokers who do not wish to breathe tobacco smoke.
  4. Employers should consult their employees and their representatives on the appropriate smoking policy to suit their particular workplace.

The status of workplace smoking and secondhand smoke in most westernised countries seems to have plateau-ed or perhaps got to the point where every control measure that is reasonably practicable has been done.

That people continue to die directly and indirectly from tobacco smoke illustrates the flaw in the reasonably practicable approach to safety legislation and management which is “so what do we do next?”  Perhaps the attention being given to nano particles may help but is it the particulates in secondhand smoke that is the problem or the fumes themselves? Regardless, a new approach is needed to control this persistent workplace hazard.  Shoving smokers onto the streets and balconies is not enough.

Kevin Jones

CFMEU, IPA, Gretley Mine – political lessons 2

Readers outside of  New South Wales may vaguely remember that in 1996 four miners died in a coalmine in the Hunter Valley 0f New South Wales.  They may also remember that the was some press about the prosecution of some directors of the mining company.  It was one of those incidents and court cases that should have gained broader attention that it did.

As OHS stakeholders in Australia ponder the ramifications of the Government’s proposed Safe Work Bill, it is important to also ponder the legal legacy of the Gretley mine disasater.  It may provide non-NSW and non-mining readers with a better understanding of the resistance to the new harmonised laws from the mining industry in both New South Wales and Western Australia.

Cover ARTAndrewVickersOpinionPiece091009On 15 October 2009, Andrew Vickers of the Construction Forestry Mining & Energy Union used the Gretley saga as a justification to call for the harmoinised legislation and support systems to allow for variations to meet the special needs of the mining sector.

cover PHILLIPS        5.04925E-210RETLEYOn the other side of political fence, Ken Phillips of the Institute of Public Affairs, a conservative thinktank, produced a document about the politics of the Gretley saga.  The publication was supported by a video, available below. Phillips’ paper is a useful illustration of business’ opinions of the unions and New South Wales’ OHS legislation.  This legislation is a centrepiece to the ACTU and union movement’s concerns and opposition to many elements of the current draft Safe Work Bill.

Prominent sociologist, Andrew Hopkins, has written about the OHS management issues raised by the disaster and its aftermath.

SafetyAtWorkBlog believes that these political and safety resources can provide a primer to many of the issues being discussed in the current debate on OHS laws.

Kevin Jones

OHS model law remains divisive 1

An article in the Australian Financial Review (not available on line) on 16 October 2009 provided some additional legal opinions on the implementation and aims of Australia’s draft Safe Work Bill.

Other than Michael Tooma’s well established thoughts on the draft law, Liberty Sanger of Maurice Blackburn, a law firm with strong trade union links, is said to support the capacity for jurisdictional variations in the harmonisation process. She is quoted as saying there

“need to be regional difference in a country as vast as ours and with such a different industry composition as ours…”

This position is supported by a call from the CFMEU’s General Secretary, Andrew Vickers.  In a media statement released on  15 October 2009, Vickers uses the aftermath of the Gretley mining disaster of  1996 as an indication of the need for OHS laws specific to the mining industry.  He says

“Under the Federal Government’s National OH&S Harmonisation Review, there is a growing view among lawyers and bureaucrats that industry specific safety laws – laws that protect coal and metalliferous miners for example – ought to be scrapped.

The trouble is miners and their families and their union have been left in the dark. We still do not know if the new laws will be tailored to meet the safety needs of our industry. Despite this, the Federal Government is pressing on with its changes.

Yet the reality remains that the safety of miners and their families and the future of our mining communities are too important to ignore. And we have fought too long and too hard for tough safety standards in our industry to give them up now.”

The AFR article also quotes Miles Bastick of Freehills.  The article says Bastick believes that the jurisdictional changes that have so alarmed some are likely to relate to only peripheral issues.  The article says that although Bastick generally supports to the Safe Work Bill

“….he said, that in practical terms, OHS laws were likely to be enforced differently across Australia, even if laws were nationally consistent because of the different prosecution policies of OHS authorities and the approaches of different courts and tribunals that would hear prosecutions.”

SafetyAtWorkBlog would argue that the variations Bastick identifies provide very strong reasons for the Government to take the big step forward of one national OHS law supported by a nationally consistent enforcement policy through a single national safety authority and a coordinated court system.  This may be a fantasy but it remains an option for the Federal government.  Some lawyers believe the Government has not dismissed the  application of the Corporations Act in the OHS field as it has already unified the IR system through a similar process.

Such a national system would achieve many of the aims of the government by

  • reducing red tape across States, businesses and Courts,
  • reducing the number of OHS regulatory authorities saving considerable expenditure from many areas of duplication from administrative staff to publications and advertising,
  • providing a single focus to business for clarity and consistency of information; and
  • still allowing for industry-specific variations that can be coordinated consistently with the general OHS principles.

If Australia is looking for an OHS regulatory system that it expects to last as long as the previous system, all stakeholders may need to look in a slightly longer term and broader perspective than they are currently.

Kevin Jones

Changing weather conditions can present unexpected hazards Reply

In the south-east corner of Australia, a drought has existed for over a decade.  This week in Melbourne, it has rained on and off for several days, changing the way the community is feeling.  Farmers are happy, owners of rain water tanks are happy, gardeners are happy, even commuters who have to relearn how to drive in the wet are less complaining.

Some months ago, I spoke to a mother whose two-year-old daughter had never seen a heavy rainstorm, thunder or lightning.  Early last year, a colleague and I looked out of an office building window on a 13th floor and saw smoke swirling round the city.  It turned out to be rain but we had not seen rain for so long that we mis-identified it.

This morning, I was removing money from an automatic teller in the street and I was dripped on from the leaking roof of the bank for the first time ever.  A local chemist had buckets on its floor to catch drips from the ceiling that they had never seen before.

Yesterday, 15 October 2009, a concrete pumper at a housing development site in Coburg sunk in some mud just enough to swing the pump’s hose into a worker, killing him.  Other media reports say that a stand of the pumper may have malfunctioned.

There are always many lessons from workplace deaths but one to be taken from this incident is that external factors to the actual tasks in hand must be considered.  Those factors, in this case weather and soil stability, can change within a work period and this variability of environment must be watched and anticipated.

Mud on a construction site is not a new hazard.  But if a hazard is not always  present or regularly encountered, it is easy to give it less attention.

Kevin Jones

WorkSafe’s take on John Holland’s High Court failure Reply

Further to the posting about John Holland Group’s failed bid to the High Court of Australia, WorkSafe Victoria has issued a media statement on the case which indicates what will happen in Victoria:

“WorkSafe charged John Holland Pty Ltd in relation to an October 2006 safety incident associated with the transport of concrete panels for Melbourne’s Eastlink tollway.

At the time, the company was operating under Victoria’s workplace health and safety laws, but several months later it became a self-insurer under Comcare and subject to the Commonwealth’s OHS law.

John Holland Pty Ltd argued in the High Court that since it transferred to Comcare before the charges were issued, under the Australian Constitution, the Federal OHS law should prevail.

In a unanimous decision, seven High Court judges on Tuesday upheld the right of the states and territories to take action where the incident occurred before the jurisdictional change and ordered John Holland Pty Ltd to pay WorkSafe’s costs.

Matters that have been on-hold in other states and territories are also likely to proceed now.”

Australian law firm, Allens Arthur Robinson also issued a background statement on the case.

Kevin Jones