The government believes such changes will reduce “red tape” but only in the narrow context of workers compensation.  The Work Health and Safety Act expands the definition of worker but another piece of legislation in the same State restricts it.  Inconsistencies of concepts are likely to lead to duplications, confusion and arguments that may generate as much unnecessary business and legal costs as the initiatives were intended to save.

One example of confusion of worker definitions can be found in the licenced brothel industry.  For years the brothel owners and their lobbyists have clung to the ATO definition of worker refusing to acknowledge the broader definition of worker under OHS laws.  Issues, such as safety and worker welfare, are seen as non-monetary and therefore of secondary importance.

There is also a focus on various types of business insurance, of which workers compensation is the most relevant here.  Insurance compensates for injury and does not prevent harm but insurance is an accepted, or unavoidable, business cost.  It can be managed, minimised or, sometimes, manipulated but it “stays on the books” and the accounts.  The cost of workers compensation is not enjoyed but it is understood by business.

Keeping the worker defined by an economic relationship allows a business owner to have their closest professional relationship with their financial officer rather than with operations or, heaven forbid, the safety manager (if they have one).  It allows for some to see workplace injury as an SEP, “someone else’s problem”. That someone else could be the Return-To-Work Coordinator, the Workcover agent, the human resources officer, the part-time paymaster, but most commonly, the worker.

The brothel worker case discussed in an earlier SafetyAtWorkBlog illustrates how a focus on workers compensation, instead of on the harm prevention of OHS, can lead to extended pain and disruption to the worker, legal costs, reputational damage and workers compensation costs.  Most of these business costs can usually be avoided by good safety management and the valuing of workers, what many describe as a business’ most important asset.

By hanging on to an ATO definition of worker because it fits how one wants to manage one’s personnel and ignoring other legal and social obligations is an unsustainable, short-sighted and immoral stance.  The Queensland Government  may think it is helping businesses and reducing red tape by applying the ATO definition of worker to its workers compensation arrangements but it is also encouraging the business sector to look at managing an incident instead of managing a hazard.  It weakens the authority (such as it is) of the recently introduced Work Health and Safety laws.

Kevin Jones

Media Misunderstanding

One example of a careless  headline is in the Herald Sun newspaper for 11 May 2013, “$20 million Budget boost to stop workplace bullying“.  The Australian Government’s changes to the Fair Work Act do not prevent bullying, it only provides further options for remedy.  OHS is principally about preventing harm and the Fair Work Act changes do not help in this aim.

Also the article states

“Bullying costs the economy $36 billion a year in lost productivity.”

This is technically correct but removed from the context of the original (2000) research, a context discussed in an earlier SafetyAtWorkBlog article. Also the original cost estimates did not specify that the costs related only to productivity.

Liberal Party Policy

But to the Liberal Party IR policy.  The section on workplace bullying states:

“The Coalition believes that bullying is unacceptable in any workplace. It is a risk to health and safety and can have very serious, life-long consequences.

Although bullying is an occupational health and safety matter, Labor has promised to amend the Fair Work laws to include bullying. The Coalition will support Labor’s proposed changes to address workplace bullying but only if it is clear that a worker has first sought help and impartial advice from an independent regulatory agency, and further, the changes are expanded to include the conduct of union officials towards workers and employers.” (page 8)

The party needed to start with a moral stance and does so but should be reminded that the Australian Parliament is also a workplace and much of the conduct of parliamentarians from all political parties on the floor of Parliament could fit the most recent definition of workplace bullying – “Repeated unreasonable behaviour directed toward a worker or group of workers that creates a risk to health and safety”.  The Liberal Party may be focusing on heavy-handed union officials but a little self-analysis on bullying would be prudent.

The statement acknowledges  that the Liberal Party sees workplace bullying as an OHS issue with real risks to health and safety.  This is significant because often the reality of workplace bullying has been scoffed at.

The Liberal’s conditional support for the Fair Work Act changes requires a worker to seek “impartial advice from an independent regulatory agency”.  The intention seems to be that such agencies are those already operating in States and territories but the Federal Workplace Relations Minister, Bill Shorten, has agreed that these are under-resourced to deal with workplace bullying.  The Herald Sun article mentioned above anticipates additional funding in next week’s Federal Budget but, if the rumour is correct, it is the Fair Work Commission and not State OHS regulators that will get the money.

In effect, the Liberal Party is agreeing with the Australia Labor Government.  Bipartisanship is almost always a positive but the original changes proposed by the government remain a post-incident action.  People will continue to be psychological harmed by workplace bullies under these new arrangements, now supported by the Liberal Party.  State OHS regulators will continue to be under skilled and under-resourced to assess and assist with workplace bullying reports.

As Steve Bell, a senior associate  with Herbert Smith Freehills, said at a breakfast seminar recently, the Fair Work Act changes establish another “avenue for remedy” on workplace bullying.  Bell said that some legislative changes, particularly those relating to “reasonable management action”, are likely to create a future legal “battleground” in workplace bullying cases.  It is unlikely that such a legal battle will help with the psychological rehabilitation of of the bullied worker.

The focus on post-incident remedy was not the main intention of the government when it established the Parliamentary Inquiry into Workplace Bullying.  The terms of reference for that inquiry gave equal weight to prevention and:

• “…procedures to influence the incidence and seriousness of workplace bullying”;
• “…improve coordination … to address and prevent workplace bullying”;
• “…enhancing protection against and providing an early response to workplace bullying;” and
• “..a sufficient deterrent against workplace bullying”.

But the prevention of harm seems to have been lost in the political debate from all major political parties in Australia.

Kevin Jones

In the letter Peter Cash of Norton Rose Australia says that his client HondaMPE believes that a sticker on each Quadbar identified as a “compliance plate” may misled or deceive ”members of the public and, in particular, prospective purchasers of your device”, and potential purchasers of Honda quad bikes.

The wording of the sticker is:

“COMPLIANCE PLATE

Certification/ fitment contact

Manufacturer 118 Industries

http://www.quadbar.com

7 Margaret St Clifton, Qld Aust.

MAXIMUM VEHICLE WEIGHT 300kg

Model/ Serial Number

401-IS/00040″

SafetyAtWorkBlog is not in a position to dispute the contents of the letter but, although the complaint may be legitimate, it is a curious action to be taken by HondaMPE.  The company is not making any claims about the safety or otherwise of the Quadbar product.

Honda has been involved in a campaign about CPDs and quad bike safety for some years.  They, and their industry representatives, the Federated Chamber of Automotive Industries, have lobbied their dealers over the fitting of CPDs and supported and distributed posters against CPDs. But the letter above mentions none of these concerns.

It appears that Honda objects to the Quadbar sticker being labelled as a “compliance plate”.  After years of objecting to the existence of CPDs such a letter, on such an issue, seems to be pedantic and petty.  Honda may be right but why has it chosen a sticker with possibly inaccurate wording to be THE matter that has generated a lawyer’s letter, with a mention of possible “legal proceeding”, to an Australian manufacturer of a device that is claimed to save the lives of farmers. Very odd.

Kevin Jones

Workplace Access & Safety height safety consultant Aaron Carratello on a walkway built for access to HVAC equipment at Mt Eliza Business School

It was when Simon Murray put himself in the witness box and imagined what a judge would say that investing in walkways and guardrails became a ‘no brainer’.

The property and facility manager of the Melbourne Business School was faced with an important decision: whether to install extra roof anchors and static lines or shift towards more passive forms of fall prevention.

Roof anchors were cheaper initially, while the walkways and guardrails offered a far lower lifetime cost but, in the end, price was not the issue.

“A judge would ask whether we had done what was ‘reasonably practicable’,” Mr Murray says, “and if we’d only installed roof anchors and static lines to reach our HVAC equipment, the answer would have been ‘no’.”

The decision came after many hours of research into height safety regulations, prompted by the results of an annual roof safety anchor certification inspection in 2011.

“We thought our fall prevention equipment was all in order but the annual inspection flagged a couple of issues and I sought a second opinion. The first audit report focused on administrative controls, ladders, static lines and anchor points. The second one by Workplace Access & Safety put the emphasis on walkways and guardrails. Presented with such different recommendations, I had to do my homework.”

“I have a good grasp of OHS but height safety is a whole new kettle of fish. I had to reconcile the differences between the two reports with what the law had to say.”

In fact, the uniquely prescriptive hierarchy of controls that applies to safe work at heights turned out to be an invaluable tool for Mr Murray. The hierarchy stipulates passive controls like walkways wherever reasonably practicable in preference to those that demand greater user skill, like harness-based systems.

“The further we investigated it, the more aware we became of the risks associated with roof access,” Mr Murray said. “We kept tightening the administrative controls until, finally, we suspended access to the roof. You can get away with that for a couple of months but not forever.”

“It was my role to advise the School’s Executive Committee of their realistic risk. The school is guided by top people from across Melbourne’s business community and once they realised the situation we were in and the risks that it posed, it was obvious to the committee what had to be done.”

The Melbourne Business School’s Mt Eliza Campus is the home of Mt Eliza Executive Education, which lays claim to Australia’s number one ranking for Executive Education in the years 2008 to 2012. Mr Murray says the school was determined to honour its ethos by doing the “right thing”.

In keeping with the hierarchy, Mr Murray considered moving the air conditioning units to ground level but found that the age and heritage listing of the 19^th century building made success unlikely. In any case, access to the gutters still need to be made safe.

“It was a big job coming up to speed with our obligations but I was reassured by the guidance of Workplace Access & Safety,” he says. “Over the years, I’d been reading journal articles written by its managing director Carl Sachs, who is one of Australia’s leading advisors on height safety and is involved in drafting the governing standards. When it comes to height safety, it’s hard not to know about Carl.”

Satisfying the hierarchy of controls, Melbourne Business School adopted Workplace Access & Safety’s recommendations and fitted large spans of walkways and guardrails across its tiled roof, providing air conditioning technicians access to plant directly from the walkway.

“Our HVAC contractors tell me this is now one of the safest places they work on,” says Mr Murray. Ironically, Mr Murray is pleased that the air conditioning technicians alone have commented on the installation.

“Although the building is heritage listed, when it came to OHS, we don’t worry about aesthetics and nobody visiting the school seems even to have noticed the guardrail – I guess people expect it on buildings these days.”

As an added bonus, roof leaks will be minimised with less foot traffic on the fragile tiles but Mr Murray says the biggest side benefit of the passive fall prevention design is its simplicity.

“A harness-based system demands a very complex set of administrative controls managed by a specialist qualified height safety manager, emergency rescue plans, detailed inductions and ongoing inspections and certification. That’s very difficult and expensive to do properly – you’re committing to high costs indefinitely – whereas our inductions take no time at all.”

“I’d advise other facility managers to educate yourself about height safety. Glean the information from compliance codes and regulations and ask for help from experts, your peers and colleagues. It’s vital to have an idea of the risks at your site and communicate them effectively to the decision makers you advise. Most of all, find a solution that’s safe and manageable because anything else is a false economy.”

“It is widely recognised that strong safety leadership is integral to work, health and safety performance in any organisation.” [emphasis added]

Later he writes

“There is little doubt that safety leadership is a prerequisite to a positive safety culture in any organisation.”

These equivocations may indicate authorial caution on the part of Michael Tooma but  they could illustrate that the role of safety leadership still remains open to question.

Tooma, provides an example to support his understanding by referring to Aurecon Hatch‘s general manager, Ross Parslow, saying

“A key element of building a safety leadership culture has been our focus on distributing leadership and ownership of safety. We have established safety leadership teams at the group level, major project level and workgroup level.”

How is Parslow’s “safety leadership culture” different from being a respected and diligent business manager?  How are the “safety leadership teams” different from the longstanding obligation to consult with all levels of a workforce on occupational health and safety issues?  Is it necessary to build a new way of managing safety with a new lexicon when it may have been possible to achieve similar change by using existing legislative and managerial concepts of consultation, committees and hazard management?

Parslow’s safety leadership teams are reminiscent of many of the elements of industrial democracy and traditional (ie. Robens) consultative OHS models.  It is interesting to wonder whether much of what is considered safety leadership is really a type of “occupational democracy” based on frequent OHS discussions, shared values and collaborative decision making.

(It is also worth noting the interchange and blending of language and concepts in much of the safety leadership/culture discussion.  There is a looseness about terminology that obfuscates the message and the OHS profession already has a struggle with clarity of concepts and language.)

Tooma spends a considerable amount of the article discussing the findings of the 2011 survey by the Australian Institute of Management and the Safety Institute of Australia.  These surveys are, at best, indicative so the weight given to the 2011 Business of Safety Survey is a little surprising.  Tooma concludes his article with a call for a realignment.

“While the top echelon of management in Australia views itself as providing the safety leadership necessary to develop and foster an effective safety culture in its organisations, workers down the chain are not convinced.  Managers must do more than talk about safety: they must provide visible safety leadership.”

But will safety leadership lead to an increased level of safety?  What Tooma seems to be saying is that a change of action and attitude in senior management will change the behaviours of those lower in the organisational structure.  This may be the case in middle management and supervisors but the same level of change is required to those directly on the shopfloor, factories and coalfaces.

Safe Work Australia suggested, in its latest OHS National Strategy, that one leadership outcome is that

“Organisational leaders foster a culture of consultation and collaboration which actively improves work health and safety.” (page 9)

But consultation and collaboration have been legislative obligations for decades.  Does having to restate such a belief indicate that such techniques  and obligations have failed since their introduction in the 1970s and 1980s?

It is unclear whether Tooma is suggesting senior executives display their safety leadership along the organisational communication lines or jump across the structure from the head office to the worker.  Tooma says the AIM/SIA business survey indicates

“…significant disagreement between senior management and specialist safety personnel in relation to evaluating performance and priorities on WHS [work, health and safety]“

But is the problem with the senior executives or the safety personnel?  Where does the misunderstanding of safety leadership sit?  Tooma’s conclusion indicates that the safety leadership message is not travelling to the required workplace levels.  So there is either something blocking the communication of these values and concepts or there is something fundamentally wrong with the message being communicated – safety leadership itself.

Tooma mentions that

:…Trevor Kletz’s 2001 review and analysis of 20 major industrial accidents identified poor management at the root of all incidents.”

But poor management is not the same as inadequate safety leadership, and Kletz’s analyses are primarily on the process industries and not in others which are likely to have different historical and cultural bases.  Kletz’s long history in process safety is admirable, if not legendary, but applying his conclusions into other industrial sectors is difficult.

The lack of clarity and definition around safety leadership is worsened when regulatory codes and guidelines advocate safety leadership without explaining the OHS regulators’ understanding of such concepts.  Barry Sherriff, attempted an explanation in 2011 as part of the OHS harmonisation process but a plain English translation, with case studies, is required.  Also Sherriff’s reference point was the Work Health and Safety laws that have not been applied in all Australian States and are increasingly being played with in those States that have adapted them.

Tooma has provided a very useful contribution to the discussion about safety leadership.  But the discussion requires more clarity, more definition and more consistency. (It has to be said that Tooma does provide some of this in his longer form writings and books.) But with so many consultants and business advisers spruiking value-based safety, safety leadership and other products aimed at the C-suite, it is difficult to cut through to the level of clarity required to say definitively that safety leadership saves lives and reduces injury.

Kevin Jones

I appreciate the thanks I receive for writing this blog but if you wish to republish anything other than excerpts, please contact me.  The copyright statement that accompanies every SafetyAtWorkBlog is not for decoration and will be enforced as much as it can.

Just please ask for permission.  I am not unreasonable.

Please remember that I am a freelance writer and you are welcome to commission me to write OHS articles for you exclusively.

Kevin Jones

ACTU President Ged Kearney addresses the event. (image: VTHC)

The President of the Australian Council of Trade Unions (ACTU), Ged Kearney, spoke briefly at the Workers Memorial Day ceremony in Melbourne Victoria on 29 April 2013.  Kearney reiterated the call for industrial manslaughter laws in Australia echoing the statements by the ACTU’s Michael Borowick yesterday and the ACTU media release.

“There is still unfinished business, beginning with the need for industrial manslaughter legislation to be enacted in all jurisdictions. Why is it that in Australia you can cause someone’s death by action or inaction and be very confident that you will not go to jail? That is the only way to send this message home: no worker should die on the job.”

However details to justify this call for industrial manslaughter laws seem thin.  The trade union movement needs to take care that mentioning industrial manslaughter laws is not used to fill the gap when lost for words, policies or initiatives on OHS. This weekend’s call for industrial manslaughter needs an explanation of how such laws fit in the new regime of Work Health and Safety laws.  Is the penalty already there but under a different name?  When should such a category be applied?  Is ‘reckless endangerment” insufficient?  And how can industrial manslaughter laws penetrate the managerial labyrinthine structures of the modern corporations so that the laws are not only applied to small business, as has occurred in England?

Perhaps, it is the mentioning of industrial manslaughter laws that is the point and not the laws themselves.  Certainly a decade ago when such laws were mooted across Australia, OHS gained a very high profile.  But the response did not lead to greater safety actions in workplaces.  It often lead to senior executives looking for an “out” through insurance or restructuring or distancing themselves. With the new WHS laws emphasis on due diligence, does industrial manslaughter still fit?  This is the type of question that the ACTU should be answering.

Kearney also pointed out that there are greater advances in OHS under Labor governments (but apparently not on industrial manslaughter laws!).  Some would argue this point but there is no doubt that a Labor government provides a better audience for trade union lobbying and better support for the roles and presence of OHS representatives in workplaces.

Brian Boyd

VTHC Secretary Brian Boyd addresses the crowd (image: VTHC)

The Secretary of the Victorian Trades Hall Council, Brian Boyd, was more sedate in his speech this morning than in previous years and focused principally on attacking those who are complaining about OHS red tape.  Sadly he didn’t  explain what he understands red tape to be.

Boyd says the employer associations see red tape as something that impedes productivity and profitability.  They see OHS regulations (“What they hate the most”) as red tape and OHS generally “as a problem and not an obligation”.  He sees this red tape criticism as criticising “the government of the day” as the generator of red tape.

This criticism may be sound if employer associations believe OHS regulation is red tape.  It has been over ten years since Garry Brack said on morning television that OHS regulation is unnecessary.  Expressions of such extremism have not been heard in Australia publicly for many years and one should acknowledge that employer associations and their representatives were present at the National Workers Memorial ceremony in Canberra yesterday.  Some of them have also been strong supporters of OHS research and innovation such as on the corporate impact of a workplace fatality and the application of restorative justice in the OHS context.

The reality may be that employers perceive workplace safety as onerous and generating red tape when it may be that the administration of safety systems is poorly understood or badly managed or handled by inexperienced and poorly qualified safety people or handled as an add-on to another role such as that of a part-time paymaster (a real situation).

Boyd may have been referring to statistics released by the Australian Institute of Company Directors last week that said that a recent survey of company director sentiment found there was

“growing concern about the amount of regulation and red tape, which jumped from seventh to be ranked the equal second most significant economic challenge facing Australian businesses…” “According to the Index findings, directors believe that the level of red tape and board time spent on regulatory compliance has increased over the last 12 months, with regulation surrounding workplace health and safety and employing workers rated as having the highest impact on productivity.”

This concern sound serious but is it valid?.  To date there is still no clear explanation of what red tape is.  The closest was a statement by Victoria’s Red Tape Commissioner John Lloyd in January 2013.  Lloyd  considers red tape to have a:

“…broad definition – it’s not just the laws, regulations, rules, codes, it’s the whole range of government requirements placed on business and people in Victoria…”

He also sees his role as looking why red tape is there:

“….what’s the purpose of the requirement, the regulation, the rule or the form or whatever – what purpose does it serve and is that end of any use, does it serve any purpose for government, does it add any value and what is the cost”.

Just as with the current business lobbying over productivity, so red tape needs defining.  As happens in OHS, often the risk is discussed without first understanding the hazard.  It is the job of the OHS regulators and organisations like the trade unions to identify exactly what red tape is.

Kevin Jones

“By erecting this monument, we tie the lives and memories and families of thousands of Australians to this place.  We stand here in this place as a mark of respect from a civilised community as an expression of failure and regret.  That’s what all memorials are, and this one is no different.  This is a symbol of the mourning for those lost too early from our tribe Australia.”

Speaking at the inauguration of a memorial allows people to be more reflective and sombre but a national memorial allows an opportunity to address a national audience (although it seems that only Canberra’s newspapers and the ABC are interested) and Shorten did so.  In his speech he asks the:

“…captains of industry, and I ask union leaders, and I ask workers…do not accept poor OH&S standards quietly.

Do not accept near enough is close enough.

Do not accept silence about health and safety standards.

Too often it ends up in the prolonged silence a place like this generates.”

One SafetyAtWorkBlog reader pointed out that government needs to work to these standards and expectations also.

The ABC news report allows Shorten to reiterate the Australian government’s commitment to addressing workplace bullying but he seems to be edited before expanding on this comment.  The ACTU raises the issue of industrial manslaughter laws which is a curious comment as it is understood that the new Work Health and Safety laws around most of Australia already have the same type of punishments and penalties that industrial manslaughter laws would have.  The only thing missing is the title of “industrial manslaughter”.

It is also noted that the Australian Capital Territory, where the national memorial was unveiled, already has industrial manslaughter laws.

SafetyAtWorkBlog is attending the Victorian memorial this morning and will be reporting on the event later today.

Kevin Jones

Business leaders seem to be incapable of understanding that they have the  power to reduce what they see as OHS red tape by changing their behaviours, perhaps by embracing and implementing safety leadership.

Many politicians and commentators have linked recent factory explosions and collapses around the World Day for Safety and Health at Work on 28 April.  As quoted in The Guardian, Tom O’Connor, executive director of National COSH.

“But as companies decry regulations and emphasize profits over safety, workers pay the ultimate price…”

O’Connor could easily have replaced “profits” with “productivity” but he does link worker welfare to the arguments against red tape and regulations.

In 2011 Fiona Haines explored this paradox of regulation in a book of that title.  Her analysis

“…suggests the limited effectiveness of regulation is caused by two different factors. First, regulation as the quintessential instrumental form of policymaking is both politically and technically attractive, but can be thwarted when the risk to be reduced is not amenable to narrow, targeted interventions.  Nonetheless, regulation may remain popular as it allows claims that progress has been made and that, this time, the lessons from tragedy have been learnt.   Secondly, the analysis here suggests that even when regulation can be effective in avoiding catastrophe it needs sufficient political support to ensure its implementation but not overweening political intervention that prevents the regulator framing the regime in the optimal direction.” (page 3)

On Haines first point, it is suggested that work stress and workplace bullying may be one of those hazards that is not “amenable to narrow, targeted interventions.”

On her second point it is clear that regulation may be created as a politically attractive “fix”, particularly after a disaster, but that the aim of the regulation will not be realised without ongoing political will.  It is perhaps in this context that one can argue that workplace safety regulation always has a political or industrial relations context and to control or eliminate a hazard successfully requires safety professionals and OHS regulators to understanding that context.

Henderson may argue that workplace safety will always have an economic context as well as political or industrial and this is acknowledged by most safety professionals but the size and type of economic impact is not always a burden or cost as Henderson would say.  I would argue that seeing OHS as an additional business cost is a fundamental misunderstanding of basic business management.

Safety is only an additional cost if that unavoidable cost was not considered in the earliest steps of developing a business management plan or undertaking proper due diligence.  The cost of safety is a cost of operation and can be quantified in operational estimates of productivity and output  at the business design stage but business is usually seen in terms of productive quantities and not the quality of production.  Safety management and safety regulations must apply a broader pool of concerns, particularly the human element.

Haines writes that

“To be successful, regulation must embrace actuarial, sociocultural and political risk reduction through a common regulatory project.” (Page 7)

All these elements must be considered and balanced as well as they can but whether this is dependent on a “common regulatory project” is debatable.  Such a project encourages the dominance of regulation as a political and social tool. More sustainable change may come from the re-emphasis of social values, recently mentioned by Minister Bill Shorten in Brisbane and again, today, in Canberra, those of dignity, trust and respect.

Kevin Jones

“…has called on the designers and manufacturers of quad bikes to urgently reconsider improving the design of quad bikes so they are not prone to roll over.”

This sounds a sensible and safe suggestion but independent Australian research is still to be completed on whether these work vehicles are prone to roll over as a result of their design, and not simply driver (mis)behaviour.

Hoy notes that people continue to die whilst riding quad bikes and is quoted saying:

“We cannot sit by and watch people being killed and seriously injured by these vehicles. Everyone has a responsibility for quad bike safety but it must involve a safer product. We need to ask ourselves how much a life is worth opposed to the cost of a crush protection device.”

Quad bike designers and manufacturers have been emphatic in their position that rollovers are, primarily, the fault of driver behaviour and that crush protection devices are likely to contribute to rollovers or exacerbate worker injuries from rollovers.

A Safe Work Australia spokesperson has advised that Rex Hoy’s media statement has resulted from his frustration with the continuing fatalities related to quad bike use.

Prominent OHS professional and contributor to SafetyAtWorkBlog, Dr Yossi Berger provided this comment on the Safe Work Australia statement:

“Generating definitive decisions for workers’ safety when academics, experts and activists are not in agreement is a difficult and very distressing business. I’ve been through it with asbestos (repeatedly) , synthetic mineral fibres, various chemicals and pesticides, the Toyota skid-steer that killed many workers before dumb Toyota woke up to the obvious… too many, too many occasions, mate, to detail in here. In the end my main decision criterion has been whether I’d be comfortable if someone I loved was exposed to the specific hazard; like my wife of nearly 50 years.

I’ve delved in some depth into some 24 different sources of information about quad bike safety, including reading two entire PhDs on the subject. I’ve also read a lot of the research material the industry says it depends on. I’ve had a real go, and talked in detail with many forensic engineers.

And I don’t say this lightly: But I’ve come to the view that the industry is simply being dishonest. And their agents (representatives) are being placed in an untenable position of supporting very poor science and deliberate misinformation. Let me repeat this: deliberate misinformation is taking place.

It’s a breath of fresh air to see Safe Work Australia, through Rex Hoy’s statement, tackle the single most important matter of safety of quad bikes. The device that may very quickly save lives. There’s been too much talking and deliberate ‘manufacturing’ of uncertainty, trying to defend the indefensible, (easy to do – you want to hear about the moon landing theories!?) Not unlike the tobacco and asbestos industries.

If my children (who seldom take any bloody notice of my advice), or my wife were to get on a quad bike I’d not want them to listen to the terribly flawed advice the manufacturers try to ‘sell’. I cannot say this clearly enough: the industry and their agents are misinforming their distributors and the public.

Is this fraud? In my view, maybe; to do with their fear of retrospective liability. But probably not at the local, Australian level, where the agents are ‘treated like mushrooms’.”

Hoy references Minister Bill Shorten’s Quad Bike Safety Forum but the pressure on quad bike manufacturers is not only coming from government OHS bodies. In late March 2013, the Australian Competition and Consumer Commission issued a statement concerning quad bikes, only this statement addressed the lack of rider training and the selection of the right bike for the rider.

At a doorstop interview this morning Minister Shorten said, in relation to trade union conduct against a major construction company:

“we need to be straight and say that workplace safety is an issue which, unless people are talking about it, pushing it, complaining about it, it never seems to attract the attention it is.”

Over the next few days, leading up to the  World Day for Safety and Health at Work,  there will be plenty of talk about occupational health and safety however the commitment of those talkers will be judged by the actions they take after this weekend.

Kevin Jones

The memorial has been coordinated by the National Capital Authority who has established a website for this memorial. The website will have live coverage of the inauguration ceremony at 11.00am AEST.

The intriguing part of the inauguration ceremony is that speeches are limited to around 5 minutes, if that, and the focus will be on the memorial and its significance.  Political statements may occur off site or prior to the event but that is the case with every event that includes politicians.

The inauguration is a public event and Canberrans are encouraged to attend but the committee has also invited a good cross-section of workplace safety advocates with representatives from

• Work Injury Resource Connection
•  Asbestos Diseases Foundation of Australia
• Workplace Tragedy Support Group
• The Workplace Tragedy Family Support
• Bernie Banton Foundation
•  Asbestos Diseases Society of Australia
• Industrial Deaths Support and Advocacy Inc

It would be good to see official representatives of the Safety Institute of Australia, the National Safety Council of Australia and Safety In Workplaces Australia and others at this ceremony.

It is noted that Safe Work Australia is holding the National Safe Work Australia Awards in the early evening of April 29. It makes sense to coordinate such an event with the workers memorial day but at previous awards nights  the significance of the day has rarely been acknowledged.  A minute’s silence would be quite telling.

The purpose of Australia’s memorial is

• “serve as a reminder of the importance of workplace safety and the need to continue to work together as a nation to improve health and safety performance and prevent work-related incidents, accidents and disease
• honour and pay tribute to all of the working Australians who have lost their lives to work-related accidents, incidents or disease
• provide a place to reflect and remember the sacrifice of all such workers who have lost their lives
• recognise and celebrate the vital contribution and significant achievements of Australian workers in building this nation
• provide a focal point for International Workers’ Day held 28 April each year.”

Dean Mighell, ETU, addressing the Workers’ Memorial Day rally in Melbourne 28 April 2010

Several Australian States should emulate locating their workers memorials in apolitical locations.  Victoria’s memorial is located in the grounds of the Victorian Trades Hall, a contentious location which encourages topical political statements from union representatives (as pictured right) about workplace safety and even, in the past, sloganeering for upcoming elections.   The focus of any commemoration should be on those we have lost and a dignified ceremony can be just as motivating as any political rallying.

Kevin Jones

Shorten states an occupational health and safety principle:

“…we know [workplace deaths] are preventable. They are not accidents.

Let me repeat this: by far most deaths and serious injuries are predictable safety failures.

It’s not a systems’ failure or risk assessment failure, or hazard identification failure…and all those other handsome words without tears.

It is the failure that springs as a readymade monster from the knowing tolerance of small daily hazards at the daily tasks.” (emphasis added)

Even given the qualifications in the highlighted statement above Shorten believes workplace incidents are safety failures that occur due to a “knowing tolerance” of hazards.  The risk is not in the hazards themselves but in our tolerance of these hazards.  He is referring to workplace culture without mentioning it.  He may also be referring to our lack of attention to near misses, fortuitous lessons that are mostly ignored.

Shorten provides advice on how to improve workplace safety:

“Begin by not tolerating small daily hazards, that’s how this long journey starts, by everyone knowing that even small safety failures will not be tolerated at any workplace.

Foster and nurture a demonstrable intolerance to small daily hazards.

This is doable, this is not expensive, there is no excuse for not doing it.

You don’t need any extra training or extra paper work.

You need to understand what it is to have a sense of dignity at work. To understand what workers mean when they say, “The safety program here is in good hands.  Remember this:  IN GOOD HANDS.  Where trust and respect live.”

In this text he targets safety culture, the “common sense” of safety, the business costs of training and the nonsensical threat of “red tape”.  Shorten also comes to the humanity required to improve OHS – dignity at work, trust and respect.

Audiences at work memorials are dominated by trade union members and officials who often introduce topical political statements that have no place in such a ceremony.  These statements would be like raising party political matters while speaking at an ANZAC ceremony, however it occurs.  Shorten carefully acknowledges the significant safety contribution of the union movement but curiously prefers the term “labor movement”.

His ideology is, particularly, displayed in his advice to business:

“I take the opportunity on this memorial day to say to management teams:  forget the big canvasses and the fancy words and the fancy theories.

Begin by not tolerating small daily hazards, that’s how this long journey starts, by everyone knowing that even small safety failures will not be tolerated at any workplace.

Foster and nurture a demonstrable intolerance to small daily hazards. “

He invokes Lao-Tzu who said “a journey of a thousand miles begins with a single step.”  However, Australia is already a long way into that journey and even the government has developed big canvasses, fancy words and fancy theories through its National Work Health and Safety Strategy.

Shorten’s speech hits the morality of workplace safety very well and its juxtaposition of this international day of mourning with ANZAC Day celebrations is very well handled.  It is a cleverly crafted speech that allows Shorten to speak with passion, which he does well, but also to make critical and constructive points about workplace safety.  The speech is a useful reference point for the Australia Labor Party’s thoughts on workplace safety and an important comparison to some of the speeches that will be presented at various memorial ceremonies over the coming days.

Kevin Jones

But sometimes there is an OHS professional who colours their call for imprisonment by suggesting that, once in prison, offenders should be harmed or even raped.  An example appeared on an OHS discussion forum within the last week.  The comment, on an issue of fall prevention, included this phrase:

“Only need to send a few for a short holiday with “Bubba” and some soap on a rope, to get the message across to the masses.”

This person is suggesting that the deprivation of liberty is insufficient punishment for an OHS offence and that the offender should also be raped.  What does this say about the real values of a person whose profession is based on harm minimisation and the elimination of hazards?

If, as The Guardian newspaper says, the two main principles for jail are ”in order to punish wrongdoers, and to remove the danger they would otherwise pose to the wider world”, where is the justification for abuse?

The “Bubba” comment above, and many similar comments I have heard over the years, may be an extension of the cynicism that many OHS professionals seem to acquire over their time in the profession.  But it is also offensive and shows an approach to humanity that I do not share and that I believe has no place in the OHS profession, or anywhere, for that matter.  It is lazy thinking, and these thoughts come from those who advise Australian businesses!  It is a shameful situation.

Kevin Jones

“On Apr. 11, 2013, Walter Cardin, 55, of Metairie, La., was sentenced to serve 78 months in prison followed by two years of supervised release…. after being charged by a federal grand jury with eight counts of major fraud against the Tennessee Valley Authority (TVA), an agency of the United States.” [link added]

According to the US Attorney’s Office

“Cardin generated false injury rates which were used by the Shaw Group to collect safety bonuses of over $2.5 million from TVA. … Cardin was convicted of providing the false information about injuries by underreporting their number and severity… The evidence presented at trial encompassed over 80 injuries, including broken bones, torn ligaments, hernias, lacerations, and shoulder, back, and knee injuries that were not properly recorded by Cardin. Some employees testified that they were denied or delayed proper medical treatment as a result of Cardin’s fraud. Evidence showed that Cardin intentionally misrepresented or simply lied about how the injuries had occurred and how serious the injuries were.” [link added]

There are many safety management issues related to the conduct of Walter Cardin. Under-reporting of injuries is clearly a breach of OHS law.  Most OHS regulators have requirements for businesses to notify them when certain types of workplace injuries occur, such as RIDDOR or other mechanism.  This is usually clear-cut with OHS laws or regulators providing a list of notifiable incidents but no one wants to gain the attention of OHS authorities even if there was little that could be done to prevention the incident.

Fessing-up to a regulator will expose one’s safety and production methods to outside scrutiny and there are few companies or safety managers who do not see this as an intrusion.

Hidden Injuries

More common is hiding injuries or recategorising them.  For instance, there may be a requirement to report any workplace incident that results in a certain number of stitches.  A specific number provides clarity on obligations and seems like common sense.  But what if an injury results in one less stitch than is reportable?  Is the incident less significant?  Is the hazard that generated the injury any less important?

Also, some incidents are no longer treated with stitches. Glue is often used for minor injuries but as there are no stitches, there is no need to report! In Cardin’s case above, glue was not the issue.  Cardin may have fudged the figures and broken the law but the consequences to his work colleagues was

“Some employees testified that they were denied or delayed proper medical treatment as a result of Cardin’s fraud.”

Safety Manager or Medical Manager

This is outrageous but one wonders what Cardin’s role was with the Shaw Group at the time. One article describes Cardin as “the safety manager for the Shaw Group, a construction contractor”.  Another describes Cardin as:

“a Medical Case Manager for Stone & Webster Construction Inc., a Shaw Group Inc. company…” [link added]

Walter Cardin’s LinkedIn profile describes him currently as Environmental Health and Safety Manager at Shaw Group and as a Medical Manager for the period of the offences.  Cardin describes the Medical Manager role as:

• “Oversight of medical case managment thropughout division
• Tracking industrial injuries from onset through maximal medical improvement or return to full duty work; Significant reduction of cost associated with work place illnesses and injuries;
• Provide manamgent support for critical medical and injury incidents; serve as lead investigator for serious injury investigations; coordinat3e third party health services.” (sic)

It will be interesting to see if this profile is updated during his incarceration.

Cardin’s Linkedin profile implies that he was less involved with safety and the prevention of harm than with the post-incident injury management.  This role that has in the past sat with Human Resources or a Return-To-Work coordinator is increasingly being allocated to an expanded safety manager’s role.  One effect of this is a closer alignment with injury treatment and injury reporting and the techniques resulting from this has raised the ire of the Australian Council of Trade Unions (ACTU).

“Verifying” medical diagnoses

In November 2012 the ACTU complained about increased interference in the medical treatments of injured workers by employers. ACTU Assistant Secretary Michael Borowick said

““There is a growing trend of employers insisting injured workers visit company-approved doctors rather than a worker’s own doctor.  This can lead to substandard care that is focussed on employers’ needs, rather than the health of the patient.

”We’ve also had reports of doctors being pressured to change medical certificates and return-to-work plans.”

A summit in November 2012 was to hear of:

• “Employers or their representatives attending medical appointments with workers
• Injured workers being subject to constant medical assessments even after their doctor has cleared them to return to work
• Growth of Doctor Networks, funded by employers, and concerns that these are providing substandard care and sending injured workers back to work too soon
• Employers seeking access to ALL of a worker’s health information rather than that directly linked to a workplace injury
• Employers inappropriately sharing medical information with third parties, such as insurers and superannuation funds”

The ACTU media release refers to a case in Fair Work Australia which found against Boral Australia over a minor injury involving stitches.

Key Performance Indicators

Behind much of this is the imposition of Lost Time Injury Frequency Rates as key performance indicators.  Walter Cardin took advantage of the opportunity to obtain performance bonuses by manipulating safety performance figures to defraud the Tennessee Valley Authority of US$2.5 million.  According to a November 2012 article by law firm Covington and Burling LLP:

“The criminal indictment alleged that Cardin fraudulently misclassified injuries as non-work-related, knowing such injuries were recordable and work-related, and that Cardin consulted a doctor who participated in the fraud by concurring in the injuries’ misclassification. Cardin submitted these documents to Stone & Webster, knowing the false documents would be transmitted to the TVA to support the award of bonus payments.”

Significantly, a doctor seems to have colluded with Cardin.  One could argue that this example of fraud illustrates a need for a company to verify a doctor’s diagnosis and treatment, however there is simply insufficient details of the prosecution and judgement publicly available to deduce relationships, contractual obligations, inducements, key performance indicators or other management decisions relevant to Cardin’s actions.

This prosecution deserved a more detailed investigation to identify the motives of Walter Cardin in this fraud.  From the information available it is unclear if Cardin benefited personally or to what extent.  Shaw Group paid back more than the fraud amounts following a civil case prior to Cardin’s prosecution but what was the type of corporate and workplace culture that allowed Cardin to think he could get away with it or hide the injuries in the first place?  Did the service contract allow for inadequate oversight, monitoring or auditing of safety performance?

In an OSHA Quicktakes newsletter (April 15 2013) Dr. David Michaels, assistant secretary of labor for occupational safety and health,was quoted saying:

“This case shows the destructive consequences that purely rate-based incentive programs can have. Far from promoting safety, the bonus led to a systematic effort to conceal injures. Injured workers were denied or delayed medical treatment. Underlying workplace safety issues went unaddressed. There is a better way. A comprehensive injury and illness prevention program in which employers commit to finding and fixing hazards can achieve real safety in the workplace.”

Most of the information on this case has originated from media releases from the US Attorney’s Office with embellishment and distribution through Associated Press.  It is hoped that local investigation occurs into this case.  The trial transcript or judgement would be a fascinating read with, probably  answers to some of the questions above.   Questions that could easily appear in relation to many Australian workplaces.

Kevin Jones

[Special thanks to the SafetyAtWorkBlog reader who brought this to my attention]

* Pick the source you prefer Deming or Drucker

“If you need to use that, you’ll almost certainly die,” says fall prevention expert Carl Sachs, pointing to a guardrail on the rooftop of a multi-storey Melbourne office block.

Fixed to flimsy aluminium flashing, the guardrail flies in the face of several mandatory and voluntary standards but Sachs says non-compliances are more the norm than the exception on Australia’s rooftops. The problem, he says, is that height safety equipment installers need no training or qualifications and nobody is checking that their work really is capable of saving lives.

“Australians wouldn’t accept unqualified electricians wiring our houses but, as it stands, all you need is a ute, a credit card and a cordless drill to install the safety gear that stops us falling off skyscrapers,” he says.

It’s a concern echoed by, plumbers, building surveyors, facility managers and builders.

Paul Naylor of the Master Plumbers Association of NSW, says plumbers risk deadly falls daily.

“Whilst due diligence principles can be applied and all care taken to ensure that height safety systems are adequate, without some form of regulation or certification, workers are placed at risk of serious injury everyday due to a lack of knowledge and regulation specific to fall prevention,” Mr Naylor says.

Compliance confusion

“The current Code of Practice for Managing the Risk of Falls at Workplaces refers to over nine separate Australian Codes and Australian/New Zealand Standards, as well as gives consideration to individual manufacturer’s requirements,” says Mr Naylor.

“Surely it makes sense to have the installation of engineered structures such as guardrails, anchor points and even access ladders, carried out by a licenced specialist who has in-depth knowledge of the standards required and also experience in the practical application of installation.”

The maze of codes, regulations and standards dealing with fall prevention is all too familiar to Carl Sachs. The managing director of Workplace Access & Safety, Mr Sachs also represents the Master Builder’s Association and Facility Managers Association (FMA) on Australian Standards review committees.

“It’s a very technical field with serious legal ramifications and workplaces rightly rely on specialist contractors to do their jobs properly,” Mr Sachs says.

“In many cases, they don’t, risking the safety of workers exposing everyone else to hefty penalties and jail terms.”

Competence difficult to measure

Prominent OHS lawyer and author Michael Tooma says workplaces have every reason to be concerned. [A video interview with Michael Tooma on this issue is available HERE]

We asked Mr Tooma to advise whether those responsible for a site could rely on roof anchors, guardrails, ladders and so on that were designed by engineers, specified by architects, installed by builders and certified by independent certifiers. The answer was “no”.

“You cannot simply always rely on contractor assurances,” Mr Tooma says, “but the extent of your obligations and the inquiries you need to make will depend on the circumstances.”

The WHS Act requires obligation holders to do what is “reasonably practicable” to ensure safety and health, he says, and how that is defined varies with each case.

On the other hand, Mr Tooma says there is plenty workplaces can do to ensure obligations are met. Chief among them is to, “after undertaking appropriate investigations, select a designer with appropriate skills and competence to undertake the task.”

General manager of WorkCover NSW‘s Work Health and Safety Division, John Watson, says ‘competence’ is key, although self-regulated.

“Installers of these systems would need to be competent,” Mr Watson says.

“This requires installers to have, through training, qualification or experience, the knowledge and skill to carry out the task. The basis of safe installation relates to designer/manufacturer instructions that must be followed when installing these systems. This provision is required as per the Work Health and Safety Regulation at Clause 201 duties of persons conducting businesses or undertakings that install, construct or commission plant.

“So the controller of the workplace can confirm with the installer if they are following manufacturers’ instructions and for them to demonstrate this. This may be in the form of safe operating procedures. It can also be confirmed that those individuals installing the system have received training in these procedures.

“Finally, questions that can be asked directly to the installers is whether they have installed this specific system, where they did this and how long ago.”

Since there is no industry-recognised training or qualification for fall prevention equipment installation, such as a licence, verifying installers’ assurances of competence can be tricky. Builder, Ken Carter of Flexem Constructions, says the complexity of the codes and standards make formal qualifications essential.

“It is essential to understand that no one person is capable of knowing the content and details across all the Australian Standards or BCA requirements for even a basic building. That is why we need licensed experts like electricians, plumbers and A/C techs and why we need to be able to trust them,” Mr Carter says.

Facilities managers are equally troubled, says Facilities Management Association CEO, Nicholas Burt.

“Assessing the competency of fall prevention installers can be a real challenge for the facility manager,” Mr Burt says.

“It is vital that they not only work with companies that demonstrate compliance but they also develop a good understanding of the current standards themselves. Lack of knowledge can be one of the major hurdles to securing the safety of a site and ensuring it is compliant for work at heights.”

Call for mandatory accreditation

To help facility managers deal with safe work at heights compliance, Workplace Access & Safety runs regular seminars and Carl Sachs says attendees are desperate for the reassurance that formal qualifications would bring when engaging contractors.

His own firm has attained a variety of accreditations, including Registered Training Organisation (RTO) status, a specialist builder’s licence, and, most recently, ISO9001 accreditation, while staff members sit on Australian Standards review committees to stay ahead of industry developments. While Mr Sachs agrees all of this is also very marketable, he says it is critical that workplaces demand more information from contractors.

“Ask your contractors for a copy of their accreditations and check the details,” he recommends.

“You need to be sure the accreditation applies to the job you’re doing and that they were independently verified. Any shonky contractor can spend $500, fill in the blanks of an electronic ISO9001 system or generic off the shelf safety plan template, falsify their training records, issue a certificate themselves, sign it and claim compliance.

“Independent accreditation and certification by a reputable organisation like SAI Global and Bureau Veritas, which has been around for 180 years, means your contractor is actually doing what the system says it must be doing, and that the scope of the accreditation relates to the work. It’s not much use having a contractor whose ISO9001 scope is for general construction or fabrication installing equipment on site.”

Checks and balances inadequate

Enforcement of Victorian law seems to be falling through the cracks. Both the Victorian Building Commission and WorkSafe have jurisdiction but neither undertakes inspections – until after a serious injury or death.

A spokesperson for the Victorian Building Commission instead said the building surveyor’s fit for occupancy inspection should pick up non-compliant installations.

Ken Carter said that was unrealistic.

“In some cases where we have built buildings with roof access systems, a certificate has not been part of the private certifier’s requirements for the granting of an occupancy certificate so it isn’t even considered as an essential part of the construction,” Mr Carter says.

“Each certifier has differing requirements but all require the basics – structural, fire, emergency signage, electrical, hydraulic and mechanical.

“In my opinion both a system for roof access safety (even if it is just an anchor point) and a certificate from a licensed installer should be mandatory on all new buildings.”

The Building Commission’s stance is also flatly rejected by Victorian state president of the Australian Institute of Building Surveyors (AIBS), Con Giazi, who says his organisation is lobbying for urgent change.

“To those who say that a building surveyor should be able to pick up all non-compliances, I’d point out that building surveyors are only there on limited occasions and there are provisions for them to rely on certificates issued by qualified or competent installers.”

Given that no qualifications are required and certificates of installation could be issued by anyone, Mr Giazi says building surveyors cannot assess the competency of installers.

“The building surveyor’s not there as a site supervisor,” Mr Giazi says. “At the end of the day, the principal contractor wears the responsibility.”

“When self-regulation fails, it falls on those with deep pockets and, ultimately, the architect, engineer, builder and building surveyor.

“The AIBS is lobbying the Victorian government to have every practitioner – and their subcontractors – on site registered with the building practitioner’s board to add more rigour. While that may create extra work, it does provide credibility and makes each trade more accountable.”

The FMA also calls for a powerful regulator.

“The FMA has a strong advocacy and representative role in the development of standards, and any regulatory agency should be properly resourced to undertake their role in ensuring compliance,” Mr Burt says.

Ken Carter, who deals with fall prevention installers daily, says he “could write an essay on this question,” when asked what would make Australia’s rooftop workplaces safer.

“I think a real shake up in the regulations and standards plus some sort of enforcement – somewhat similar to the introduction of the fire regulations some years ago.”

“Licensing of installers and professionals in the field should be introduced with a short course and test to ensure they know what they are doing. Then we could (as builders) rely on any certificates provided for installations with a degree of trust.”

As those whose lives literally hang in the balance, plumbers are also keen to see increased regulation.

“Having the structures installed, tested and certified by a licenced installer would give peace of mind to our plumbing members by knowing they could confidently work from, or, attach to, engineered structures,” says Paul Naylor.

New push for safer fall prevention installations

Calls for improved installation safety are not new. Australian Rope Access Association founder, Peter Ferguson, says lax regulation has been a “bugbear” of his for many years but dangerous installations are becoming more common.

“There is no oversight and the installation sector is driven by speed, a quick buck and minimal control,” he says. “We have a crisis here.”

“As more and more roof anchors are installed, we will begin to see more and more fatalities in line with the frightening US statistics, where harness-based systems dominate.”

Mr Ferguson says the installation crisis is well-known but industry attempts to deal with it had failed to date.

“WorkSafe and the equipment manufacturers know there’s a problem but we have not been able to improve the competency of people designing and installing fall prevention systems.”

According to the Victorian Building Commission, neither the Building Commission nor the Building Regulations Advisory Committee has considered a specialised category of registration for practitioners who install safety platforms.

“Stakeholders and lobby groups who believe the building legislation should be amended are encouraged to submit a Regulation Amendment Proposal to the Commission,” a Building Commission spokesperson said.

A group is currently being formed to build a proposal for the licensing of fall prevention installers and for mandatory training. Carl Sachs says it is keen to attract more members to ensure all stakeholders are involved. For more information, contact Mr Sachs at Workplace Access & Safety.

[The original article is available HERE]