Legal opinion on Australia’s model OHS laws Reply

The comments on the Australian Government’s response to the report into Australia’s model OHS laws have been pretty muted.  There were the obligatory compliments from those in favour and the obligatory criticisms from those against but both types of response were in the immediate aftermath of the Workplace Relations Ministers’ Council meeting in mid-May 2009.

Going from the institutional and media quiet, there must be few changes that are expected to have any great impact.  Law firm Blake Dawson released their take on the government’s response.  Here is their advice to employers – pretty much “wait and see”: 

Lessons for employers

  • The decisions made by the WRMC on the proposed national model OHS Act will bring changes to virtually all areas of OHS in all Australian jurisdictions.
  • All employers and other duty holders should carefully review the model OHS Act upon its release and consider whether changes need to be made in advance of the laws being enacted.
  • Particular areas of focus are likely to be:
    • ensuring all duty holders have a clear understanding of the nature and scope oftheir duties and obligations;
    • ensuring that officers of corporations are taking proactive steps to promote health and safety;
    • in respect of some Australian jurisdictions (eg NSW) preparation for the introduction of health and safety representatives and the role that HSRs may play in an organisation;
    • thorough preparation for regulator investigations.

It is strongly recommended that their full “alert” be read for interest.

Kevin Jones

Presenteeism and swine flu Reply

Craig Donaldson interviewed Joydeep Hor, managing partner of Australian law firm Harmers on employment issues related to the swine flu outbreak.  Joydeep rightly points out that HR and OHS processes should not differentiate between swine flu and other workplace illnesses.  Hor briefly discusses the employers duty of care and how to question one’s traditional approaches to the “sniffles” at work.

Of course there is also the much under-enforced obligation of the employee not to put their work colleagues at risk – the major argument against presenteeism.

Kevin Jones

Trade union OHS protests are shortsighted Reply

On the eve of the ACTU Congress, the construction unions have threatened disruptions to building sites in, not surprisingly, New South Wales. This State was always going to be the one with the most to give up for the sake of national harmonisation of OHS laws.

It is reported in the Australian Financial Review on 2 June 2009 (page 11, not available online) that the CFMEU acting state secretary, Jim Tulloch, has said

“This is a line in the sand issue for trade unions……There’s a lack of leadership at the federal level and lots of states have been coerced into signing something that they are going to be held accountable for.”

This may be the case and the CFMEU may be positioning themselves prior to the ACTU Congress but the disruption is a risky strategy.  Not only would any of the action be illegal, the Federal Government has yet not abolished the draconian Australian Building & Construction Commission (ABCC).  Union protesters are likely to find themselves again in front of the ABCC being forced to answer questions.

The national OHS system is still being finalised but the union action will serve little purpose other than confirming the political perspective that the New South Wales government is overly influenced by the union movement.  Surely by now the union movement has learnt there are other ways to achieve aims than by confrontation.

Kevin Jones

Guarding – last line of defence 2

Guards around power tools or over moving parts of equipment (e.g. covers over compressor pulleys) are there for seriously good reasons. Injuries and deaths from people getting cut or caught in machinery keep happening all the time.

It’s a common misunderstanding that bits of clothes caught in moving machinery can’t be that dangerous, after all cloth rips doesn’t it? Wrong.

A loose bit of overall sleeve caught in between a pulley and pulley belt is unlikely to rip. It will have an arm or hand mangled in a micro second. Nip points on equipment can catch skin.  A de-gloved hand, where a pinch of skin is caught in machinery and the skin is ripped off the hand is as ugly as it sounds.

Do regular checks of things like angle grinders and moving parts of equipment to make sure the guards originally fitted are still in place and doing the job they have to.  People will remove guards.

Have a policy that when guards are removed to do repair or maintenance work on equipment the guards are refitted as soon as those sort of jobs are done.

Monitor use of power tools in the workshop.  Stop any work being done with power tools when the guard has been removed.

Don’t consider that a guard isn’t necessary if an operator is using some other sort of personal protective gear (e.g. using protective eye gear with a bench grinder that has no fitted shield in front of the grinder wheel).  Treat safety as a thing that works best in layers. Murphy’s Law never rests.  One level of safety protection will always fail at the wrong time.

Do regular checks on all guards on tools and equipment.  Make it a specific check. Include an evaluation of whether equipment that can catch clothes or part of a body is properly guarded.  Modern equipment designers are generally pretty good at making sure guards are fitted where they need to be, older gear is not so well designed.  If it seems entirely possible for a person to get caught by a moving bit of equipment look at having a guard made and fitted: use a specialist to do that.

Readers are at liberty to use this stuff as they see fit, but acknowledgement of the author and the source (i.e. SafetyatWorkBlog) is expected. Contact Kevin Jones first if ya wanna use it. Cheers.

Col Finnie
col@finiohs.com
www.finiohs.com

Offshore industry regulator performance 2

Australia’s National Offshore Petroleum Safety Authority (NOPSA) has released a report of its own OHS performance based on data from 2005 to 2007.  NOPSA has been in the public eye far more than normal due to the Varanus Island explosion and the various investigatory reports.

The report seems to indicate that, as a regulator, NOPSA is performing to expectations.  NOPSA’s CEO John Clegg has acknowledged that the  industry is below the level of its overseas counterparts.  This is peculiar given that other Australian resources industries, like mining, are ahead of other countries and that safety in the offshore industry has had a high profile ever since Piper Alpha.

The report identifies challenges that are difficult but not very surprising:

  • improving leadership – strong leadership is required for the Australian industry to move to the next level
  • dealing with a shortage of skilled personnel
  • managing ageing facilities and minimising gas releases

It will be very interesting to watch the benchmarking of NOPSA and its future role through the OHS harmonisation process that Australia is undergoing.

Below is the full report and the performance summary.

Kevin Jones

NOPSA 2007-08 cover

   NOPSA summary 2007-08

The latest OHS advice on managing swine flu Reply

Some time ago SafetyAtWorkBlog was critical of OHS regulators releasing swine flu information because the advice was not being easily translated in the workplace, and some of the advice was just silly. 

Workplace_Guide_to_Managing_an_Influenza_Pandemic_Page_1Much better advice is available from the New South Wales government however, curiously, the Workplace Guide to Managing Influenza Pandemic has been issued by the Department of Commerce.  The department’s Office of Industrial Relations has released the document which makes more sense however the release seems to be contrary to WorkCover New South Wales who defers to the NSW Health Department, surely the most logical central point for communication on this public health issue.

There are too many “experts” on the workplace impact of swine flu influenza and pandemics.  SafetyAtWorkBlog has kept out of this issue as we share the position of WorkCover NSW – defer to the State or National authorities.

However, some companies feel obliged to be seen to be doing something, anything, about swine flu and their half-cocked measures are discrediting their overall process of safety management.

One national company recently issued a new policy advice to all staff on swine flu.  The policy was little more than a cut and paste from an official fact sheet.  It added little to the employees’ knowledge of the hazard and in no way answered staff questions such as 

  • If my child’s school is closed due to a swine flu threat, what type of leave am I entitled to take?
  • The company has provided annual influenza vaccinations.  Will I need re-vaccinating in the event of swine flu and will the company cover this cost?
  • In what circumstances can my employer send me home?

Not only was it next to useless, the company had the cheek to include its own corporate logo on the policy.  Public health and OHS information is usually flexible in its reuse but somebody in the company looks like they are empire-building rather than managing their staff.

People want advice on how swine flu will disrupt their lives and working lives, not information on swine flu itself.  Employers should leave the health information to the health authorities and concentrate on the management of the disruption and potential health threats within their area of expertise, their own workplaces.  

If employers raise expectations by issuing policies in areas outside of their expertise, they begin a spiral of the demand for information that it may be impossible to satisfy.

Kevin Jones

Worst Case Scenarios and Pandemics – 2005 interview Reply

In 2005 I had the great opportunity to spend some time with Peter Sandman, a world renowned risk communicator.  We spoke about worst case scenarios and risk communication in those times of avian influenza and smallpox threats.  The interview has gained additional poignancy in this time of swine flu.  

Although the audio is “noisy” as Collins St in Melbourne had more traffic on a Sunday morning than I expected, I think some readers may find this excerpt very useful at the moment.

Click on the magazine’s cover image below to download the interview transcript.

[For Peter Sandman's current commentary on swine flu, see http://www.psandman.com/index-infec.htm#swineflu1 and especially http://www.psandman.com/col/swinecomm.htm]

or Peter Sandman’s current commentary on swine flu, see

 

Kevin Jones

6i11 cover

The new generation of foolhardy reporters Reply

In 1975 five Australian reporters were killed while covering the armed dispute between the Indonesian military and, what used to be called “freedom fighters”, the Fretilin in East Timor.  An indication of how circumstances can change is that José Ramos Horta, the current President of East Timor was a founder and former member of Fretilin, the Revolutionary Front for an Independent East Timor.

Since that time, in particular, in Australia, the issue of safety of media employees has gained considerable attention, primarily through the work of the journalist’s union, the MEAA, and the international Dart Center for Journalism & Trauma

But there are a new generation of freelancers and writers who come to reporting from outside the tertiary journalism courses (this writer included) who do not have the benefit of accessing the wisdom and advice of experienced reporters.  These writers (I do not apply the term journalist  even to myself) see the excitement of reporting from exotic locations and areas of conflict.  New technology of recording and distribution only encourages them because it makes the reporting process easier or, at least, makes it easier to provide content, the quality of the content is often questionable.

A new book is being released in Australia concerning the Balibo Five and the author spoke to the Australian Broadcasting Corporation.  Tony Maniaty, who was in Indonesia at the time and spoke with the Australian reporters, touches on the risks to which the new generation of reporters are willingly exposing themselves.   His comments are timely and reinforce the importance of what used to be called listening to the wisdom of elders but now seems to be mentoring.  His comments apply to all occupations and professions.

A feature film is being made about this period and the events surrounding the Balibo Five.  Maniaty attending the shooting of the film and spoke about this in a Youtube video, ostensibly for the promotion of his book. 

Kevin Jones

 

 

Lack of restraint – Australian approach, Singapore deaths 1

sa0200906[1]_Page_1The Northern Territory OHS  authority issued a guidance this week about unrestrained travel in work vehicles, a practice many of us stopped some time ago.  Obviously not everyone has.

The NT guidance is a curious document as it strongly advocates that employers assess the hazards of unrestrained travel and decide the appropriate control measures.  This advice is in line with legislative requirements and safety management protocols but clearly the authority has much clearer advice.  The document is headed 

“No seat – No belt – No ride”

The assessment has been done and the heading gives the best advice.  In OHS profession speak – if there is no seat for a passenger and/or no seat belt then NT OHS says allowing someone to travel on or in the vehicle is not acceptable.

Australia can often be glib about workplace incidents as it always looks past its region for comparisons from the US or Europe rather than looking at its immediate neighbourhood.  

Singapore’s Strait-Times reported in May 2009 about the real consequences of unrestrained travel after

“…three foreign workers sitting in the back of a lorry died after it crashed into the back of a trailer. A fourth man in the front seat also died.”

The article goes on to list the law changes that Singapore has introduced but, more interestingly, tells how much more complicated the issue is than in Australia due to the level of foreign labour.

Kevin Jones

Swine Flu – isolation – a personal view 6

Australia’s swine flu numbers are increasing and the government is introducing new measures regularly in response. I write this post from self-imposed isolation from the swine flu outbreak in my son’s high school.  There are some interesting decisions that have been made which provide me with optimism but also illustrate some useful personnel management actions.

I heard about a confirmed case of swine flu at the high school at my son’s soccer match last Sunday.  I was asked by a soccer mum whether my son knew a boy at his high school who was a confirmed swine flu case.  He did and we had not heard.

When I returned home there was no message from the school on my answering machine and nothing on my mobile.  I looked on the internet and the case was reported but more importantly the school was to be closed for a week.  I confirmed the media report by looking at the local health department website.  The case and control measure was mentioned.

However, what does it mean in the broader context when a school is closed?  Is my son in “isolation”? Are the other family members?  The websites could not help with this so I rang the helpline listed on the website.  Yes, my son should have no contact with people outside the house and we should monitor his health, and that of others in the household, for symptoms.

I knew my employer had issued an email from Human Resources in late April advising what to do in the case of an outbreak of swine flu.  However, this is not much help for the days prior to symptoms or confirmation of the infection.  As I am not in isolation I could be going to work as normal and potentially and innocently infecting work colleagues – not a good risk control.  (I have written elsewhere on the matter of presenteeism, here was a preventative opportunity)

I put some risk management questions to the employer even though my advice would be to have me work from home.  Within 12 hours, my employer had set me up to work from home for the rest of the week.  The IT adviser emailed me a procedure entitled “Flu Pandemic Remote Access”.  I commented that I was a little surprised that the company was this prepared.  The IT adviser said it was only new and I was the first user.

My wife’s employer is still assessing the situation but we are of the same opinion that if work can be done from home, we should be located at home for the remainder of the isolation period.  We are lucky that our occupations afford us this option.

On Monday morning the school rang me to answer any questions about swine flu.  I didn’t ask any as we had done our homework and arranged to go to school to collect some of my son’s schoolwork for his time in isolation.

It could be asked why the school waited 24 hours to notify me? How does any company or organisation contact up to 700 people on the weekend?  These are issues that are currently also being discussed in a Royal Commission into Victorian Bushfires in Melbourne.  The school had all of its staff and teachers on the phones after a meeting at 9.00am that morning.  The school’s website did not get an update until Monday morning but not everyone turns on their PC on a Sunday.   In the context of the slow encroachment of swine flu in Australia, I think this was reasonable.

It should be noted that although my son was friends with the infected boy only the immediate classmates were provided with Tamiflu and that this occurred on the Sunday – a fair response.

Anticipating the family being at home for a week, I purchased some supplies including a thermometer as a useful way of identifying  at least one of the swine flu symptoms.

Two days into isolation and there are no symptoms.

From a professional OHS perspective, communication has been acceptable. Available online information was okay and company support reassuring.  At this early stage of the outbreak in Australia, we are optimistic and not worrying ourselves over issues over which we have no control.

Kevin Jones