New UV Safety Guidance Note Reply

As the Australian Safety & Compensation Council winds down before its transformation into Safe Work Australia, it is leaving with a flurry of activity.  The legacy that had most immediate appeal was the revised Guidance Note for the Protection of Workers from the Ultraviolet Radiation in Sunlight.  This is the most relevant and contemporary approach to UV as a workplace issue for many years and deserves to be carefully considered.uvguidancenote-cover

The need is great.  The report includes these justifications

  • Australia and New Zealand have the highest incidence of skin cancer in the world (Ferlay J, Bray F, Pisani P, Parkin D. GLOBOCAN 2002. Cancer incidence, mortality and prevalence worldwide. IARC CancerBase No. 5, version 2.0. Lyon: IARCPress, 2004)
  • At least 2 in 3 Australians will be diagnosed with skin cancer before the age of 70 (Staples M, Elwood M, Burton R, Williams J, Marks R, Giles G. Non-melanoma skin cancer in Australia: the 2002 national survey and trends since 1985. Medical Journal of Australia 2006; 184: 6-10); and
  • Skin cancer costs the Australian health system around $300 million annually, which is the highest cost of all cancers (Australian Institute of Health and Welfare. Health system expenditures on cancer and other neoplasms in Australia, 2000 – 01. Canberra: AIHW2005).

The report lists the following skin cancer contributory factors

  • exposure received during childhood
  • participation in outdoor work and leisure activities resulting in increased exposure to solar UV radiation
  • because of higher solar UV exposures, the closer people live to the equator, the more likely they are to develop skin cancer. Queensland has a higher rate of diagnosed skin cancers than Tasmania
  • solar UV radiation intensity increases with height above sea level 
  • solar UV radiation is at its greatest intensity between the hours of 10.00 am and 2.00pm, although dangerous levels of UV radiation can still be experienced outside those hours. (Note: These times should be adjusted to 11.00 am and 3.00 pm when there is daylight saving.)
  • the risk of skin cancer is greatest in people with a fair complexion, blue eyes and freckles, who tan poorly and burn easily, but others, for example, individuals who have Dysplastic Naevi Syndrome, are also at risk, and
  • there is an increased risk in people who have already had a skin cancer or Keratoses diagnosed.

These are the bases for a good, contemporary and useful workplace policy on UV protection.

Sexual harassment and politicians Reply

Bernard Keane, political columnist with Crikey.com, wrote on 20 November 2008 about the unacceptable conduct of Australian politicians.  He wrote:

We’re not talking here about ordinary poor behaviour. There are boors and fools and thugs in workplaces across the country. It’s the sense of entitlement that seems to motivate many MPs to treat other people — whether they are staff, or waiters, or anyone who happens to cross them — with contempt. It’s a sense of entitlement encouraged by the job — one with a large salary, expenses, vehicles, travel and public profile. Most MPs manage to prevent it from going to their heads. But a lot don’t, and they make other people’s lives hell. Particularly because MPs aren’t under the same workplace laws as everyone else. 

SafetyAtWorkBlog believes that, as the sexual harassment is occurring in workplaces, predominantly, that MP’s ARE “under the same workplace laws as everyone else”.

Keane refers to one case where a Minister who was sexually harassing a staff member was relocated to another ministry.  The case recalls the Catholic Church’s risk control measure with paedophile priests.

Workplace safety regulators have been trying to emphasise for years that unacceptable behaviour in workplaces is more serious than a “bad day” or a “bad mood” and that this can be symptomatic of a sick workplace culture.

It is hoped that Crikey readers get to realise that inappropriate conduct at work can be criminal, a breach of OHS legislation or, even, a contravention of our Human Rights obligations.  That the Australian political parties tolerate such behaviour is shameful

Competent safety professionals Reply

Australian worksites have established a system of red, green or blue cards that are used to indicate a level of OHS competence on a range of worksites.  This type of system is reflected around the world in different industries and different forms, such as Safety Passports, or the green card in Canada and the United Kingdom.

Some professional safety organisations in Australia have banded together, with the support of at least one OHS regulator, to establish a competency benchmark for safety professionals under the banner, Health and Safety Professionals Alliance (HaSPA).  As people and organisations digest what is involved with HaSPA, some in the OHS industry believe the initiative is beginning to wobble.

Perhaps the HaSPA members need to promote the initiative in a more readily understandable concept – one that people can accept now and worry about the details later.  

SafetyAtWorkBlog proposes the HaSPA Green Card.  The operation of the card follows all the protocols of the other competency cards but in relation to the safety professional.

The concept may not work but it seems that the industrial safety industry has already laid decades of groundwork in competency identification and maintenance so why can’t safety professionals follow this and not impose an additional level of complexity to workplace safety?

The graphic workplace ads keep coming Reply

On 29 October 2008, WorkSafe Alberta released a series of graphic workplace safety ads under the banner “BloodyLucky”.  They are as confronting as the recent WorkSafe Victoria ads and raise many of the same questions about appropriateness, applicability and effectiveness.

The website www.bloodylucky.ca has a cheesy format that doesn’t fit with the explicit nature of the ads.  It is as if they want to blunt some of the impact by adding cheesy humour but it is confusing.  It may be that they intend the cinema presentation to mask the initial advertising impact so that the crush injury from the forklift or the chemical burns to the young girl have maximum shock value.  

Overall the ads are confusing and the ironic title “bloody lucky” doesn’t work on all the ads.

Recently a domestic violence campaign in Australia went with an ironic “thank you” message against inaction and compliance.  This misses the target also except on the ad of the adult male shutting the bedroom door through which we view a young girl.  That ad is genuinely disturbing. [links will be provided when available online]

Compare this to the student-produced video that is effective and dramatic without being extreme, bloody or weakly humourous.  This ad is a little long for a commercial ad but as a short safety video it works very well and the positive steps that can be taken are part of the ad, not an obscure link.

Sexual harassment and occupational health and safety 9

Some old-time safety professionals are struggling with the inclusion of psychosocial hazards in their safety management programs.  Some deny the relevance of sexual harassment to their duties and hope that the issue can be contained within the human resources department, the “dark arts” of workplace safety. 

Many of these same safety professionals are calling for more evidence-based decisions on workplace safety.

Evidence is now in on the social and work impact of sexual harassment. Australia’s Human Rights Commission has issued Effectively preventing and responding to sexual harassment: A Code of Practice for employers  which states on page 48

Employers have a common law duty to take reasonable care for the health and safety of their employees. This common law duty is reinforced by occupational health and safety legislation in all Australian jurisdictions.

An employer can be liable for foreseeable injuries which could have been prevented by taking the necessary precautions. As there is considerable evidence documenting the extent and effects of sexual harassment in the workplace, it has been argued that the duty to take reasonable care imposes a positive obligation on employers to reduce the risk of it occurring.

A work environment in which an employee is subject to unwanted sexual advances, unwelcome requests for sexual favours, other unwelcome conduct of a sexual nature, or forms of sex-based harassment, is not one in which an employer has taken reasonable care for the health and safety of its employees. A work environment or a system of work that gives rise to this type of conduct is not a healthy and safe work environment or system of work. An employer could be regarded as not having acted reasonably to prevent a foreseeable risk if practicable precautions are not taken to eliminate or minimize sexual harassment in the workplace.

Failure to fulfil the duty of care can amount to a breach of the employment contract as well as negligence on the part of the employer. This means that an employee who has been harmed could bring an action against their employer in contract or tort.

The guide can do with considerable translation to what businesses see as useful codes of practice in the application of safety management but perhaps that is for the private sector and State OHS regulators to work on.

There seems to be enough information available now on sexual harassment, fatigue, bullying, violence, fitness for work, shift work, depression and other matters, that the safety profession should be more embracing of these concepts in their own planning.  Let’s hope that in this discipline we do not have to wait for generational change to achieve a change in approach.

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Dangerous Forklift Behaviour 2

At the risk of increasing a young person’s infamy, SafetyAtWorkBlog draws your attention to a (former) YouTube video of a young forklift driver misusing a forklift.

According to a WorkSafe media release:

Dangerous forklift driving has cost a young worker his job, his forklift licence and earned him 50 hours of community work and an order to do a 5-day health and safety course.

WorkSafe today prosecuted 20-year-old Seymour man, Matthew Garry Ward, after posting on YouTube a video of him doing stunts on a forklift.

The video, which has now been removed, showed him deliberately crashing into concrete pipes, doing burnouts and overloading the machine so he could do wheelies.

Seymour Magistrate Caitlin English convicted Mr Ward, ordered him to do 50 hours of unpaid community work complete a five-day Occupational Health and Safety course and pay WorkSafe’s court costs of $1200. 

Mr Ward was also sacked for misconduct.

Forklifts are possibly the most dangerous piece of equipment on worksites.  Statistics show a high frequency of death and injury associated with their use.

Before phone cameras and YouTube this type of workplace behaviour would never have received the attention that this case has.  The worker may have been sacked for being “bloody stupid” but there would not be the notoriety that can come from this type of act.  The Ward case has appeared on several television broadcasts, is in the papers and is mentioned in blogs like this.

The worker’s actions only came to light when his employer at Australasian Pipeline and Pre-Cast Pty Ltd, which produces reinforced concrete pipes at nearby Kilmore, viewed the video.  If Ward did not have a vigilant internet-savvy boss, it is likely the video would still exist on YouTube and the worker would not have come to the attention of the OHS regulator.

The Ward prosecution came at an opportune time for WorkSafe to re-emphasise their young worker safety campaign in the context of their long-active forklift safety program.

The Ward case indicates the choices young people make between potential internet fame and personal trouble.  There are many examples of this risk management decision in a range of areas related to the internet. Matthew Ward made the wrong decision, or he just took things that little bit too far.  At least he is facing the consequences of his decision.

The right time to do something, or union shortsightedness Reply

The title of this blog is deliberately positive because I find it hard to understand why, when union right-of-entry is such a hot political topic, a New South Wales Minister would defy Federal Court action and accompany union organisers onto a construction site against the wishes of the company who operates the site.

The legal action has been considerably drawn-out but Minister Phil Costa’s seems purposely inflammatory.  In a report on the visit in The Australian on 12 November 2008, the Minister said he was given permission by Sydney Water and a building contractor.  This confirms the confusion over control of a workplace that is being worked through as part of the National OHS Law Review panel.  Who  is the principal contractor?  Who runs the site?

The minister says that permission was obtained from John Holland Construction and the company was accommodating.  The media report did not say if there was any particular reason the minister visited although a media handler said it was a PR visit.

The CFMEU assistance secretary said the only way the union could get on site Was “as a visitor with the minister” and that OHS issues have been raised including dust, wetness and falling from heights.

The minister’s visit just confirms the beliefs of the New South Wales employers that the Labor government’s relationship with the unions is too friendly.  There is some support for this perspective when the government chooses to keep Sydney Ferries out of the credit-rating fire sale, “after intense pressure from union leaders” according to one media report.

In a national context, Minister Costa’s visit illustrates the need for clarity on national OHS laws as John Holland moved from the state workers’ compensation system to the national version, Comcare, a couple of years ago.  So not only did the visit raise matters of workplace control, there was jurisdictional problems.

Unless you are a construction union member in New South Wales, minister Costa’s actions had no positive result.

I have been a union member for several decades and support many of their initiatives but occasionally some in the union movement take short term gains and narrow interest over the bigger picture and the best interest of the whole union movement.  Isn’t short-term gain over long-term benefit what the unions accuse the banks and the corporations of?

Maintaining professional standards by looking outside the discipline 1

I am a great believer that solutions to hazards in one industry can be applied or adapted to other industry sectors.  Regular readers of SafetyAtWorkBlog are aware of the cross-referencing between general workplace hazards and some solutions from the sex industry.

However, solutions can come from other countries as well, and not just from the United States.  Last week, a car bomb set off by Basque separatists in the University of Navarra in the northern city of Pamplona resulted in 248 people being treated for respiratory trouble, coughing and nausea from inhaling unidentified gases.  A university spokesperson, Javier Diaz, reportedly said that the fumes were generated by repair works that “are related to the terrorist attack.”

This occurred seven years after the 9/11 attacks in New York and after the resultant and widespread reporting of persistent health issues suffered by relief workers and emergency services personnel.  Yes, fumes are different from airborne particles of asbestos but the hazard, and the control mechanisms, are similar.  The lessons of exposure by emergency workers in disasters are obviously still to be learnt.

This morning, 10 November 2008, we wake up to a Russian submarine disaster that immediately reminds us of the tragedy of the Kursk in 2000.  Overnight 200 submariners and shipyard workers were affected in  the K-152 Nerpa submarine from exposure to freon gas.  Three servicemen and seventeen civilians have died.  Initial reports say that the gas was released when the fire extinguisher system was activated.

Russian submarines off the east coast of Russia can easily be dismissed by newspaper readers and business professionals as largely irrelevant but the media has said that 

“A Russian expert has reportedly said that a lack of gas masks among too many untrained civilians may have elevated the death toll in the submarine.”

Does insufficient PPE and training sound familiar? The release of gas in a restricted area?

For OHS professionals everything is relevant to making the best decisions possible for clients and employers.  The trick is to allocate the appropriate level of relevance to the information.  Risk managers and OHS professionals need to filter information from the widest possible pool of knowledge in order to provide the best advice.

We are not all Russian shipyard workers in a just-built submarine but, increasingly, we could be helping people from the rubble of a collapsed building, or helping in the aftermath of a natural disaster or a terrorist attack, or advising on a fire safety procedure and safe design of buildings.  We need to read, listen and digest so as to maintain and improve our personal core body of knowledge.

Legal summary on OHS Review report from Mallesons Reply

Mallesons is the next Australian OHS law firm to issue a statement on the first report by the National OHS Law Review panel.  The report is not much more than a summary, as commentary is kept to a minimum.

What is interesting is that they mention the alternate sentencing options of 

  • adverse publicity orders
  • remedial orders
  • corporate probation
  • community service orders
  • injunctions
  • training orders, and 
  • compensation orders.

As with the monetary and custodial sentences, if these become included in the law it does not mean that the will be applied very frequently, if at all.

Adverse publicity orders seem peculiar and outdated as they usually apply solely to the print media.  With the growth of the internet and with most companies having websites of some sort, it would be useful to vary such orders to include longevity and reach, rather than a single ad in a newspaper that does not remain in the public mind for long.

Now there is an opening for a safety-monitoring weblog.

National OHS Law Review – First Report released Reply

The first report of the National OHS Law Review panel was presented to the Australian Government yesterday. The best initial assessment of the report can be found at a safety blog operated by Deacons law firm.  In that report by Michael Tooma and Alena Titterton, the following points are made:

  • there should be a general duty of care for health and safety
  • “worker” is defined more broadly as ‘person who works in a business or undertaking’
  • “the Report recommends that a defined ‘reasonably practicable’ be built into the offence in the model OHS Act which reflects the current approach taken in all jurisdictions except New South Wales and Queensland.”
  • The prosecution will bear the onus of proof beyond reasonable doubt on all elements of an offence”
  • Offences could be indictable and heard in front of a Judge and jury. 
  • Increased penalties in line with those for environmental breaches – Corporation = $3 million,  Individual = $600,000 Imprisonment – up to five years  
  • An appeals process where cases could be taken to the High Court of Australia

“Reasonably practicable” remains a concept with a floating meaning for most business owners and OHS professionals.  For a type of legislation that is intended to be readily understood by a layman, this legalese is disappointing however it is likely that clarification will come from the OHS regulators as it has already in some States.  The review panel supports this type of clarification.

Interestingly, the report says on “the primary duty of care” that it “should not include express reference to control” and that 

‘Control’ should not be included in the definition of reasonably practicable.

The panel says that “control” will be discussed in the second report as will the definition of a “workplace”.

The Deacon’s authors remind us that reports of this type are not automatically implemented by governments and that the review process has several months to run.

The report needs to be read carefully by OHS professionals as the recommendations will set the scene fro OHS law in Australia for, perhaps, decades.  Also, going beyond the list of recommendations allows readers to see which of the issues considered were contentious and which had uniform acceptance.

The trade union movement is yet to release public statements but according to one media report, Geoff Fary of the Australian Council of Trade Unions is

“disappointed that a qualified duty of care would continue to rest with the employer”.

That same report is headed “Prison time for unsafe bosses” raising the spectre of industrial manslaughter.  That does not seem to be case and may say more about the readership of The Australian or the politics of the sub-editors.  However, it will be interesting to see the responses of the employer associations over the coming days.

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