“At this point in time, it looks unlikely that harmonisation will be achieved at any time during 2012, if it is ever achieved at all.”

The question needs to be asked whether the whole harmonisation process has been waste of time of whether some good has resulted from all the effort.  Prior to Christmas 2011, some legal commentators were satisfied that the harmonisation process had “lifted” several States’ OHS laws to a contemporary standard but the aim of harmonisation, indeed the “promise” of harmonisation was so much more.

Australian businesses that operate over multiple jurisdictions are justified in pointing the finger of blame at the ultra-conservative business groups, lobbyists and alarmists for stifling a very promising reform.  The administrative process could have been handled much better but each government had signed commitments to reform from which many are now weaseling out of.  Regardless of subsequent changes of government, these commitments should have been upheld.

Tooma, Titterton and Cornell summarise by writing:

“For legislative reform that was meant to be about providing clarity to a complex area with differing standards across multiple jurisdictions, after four years of significant effort, it appears we may have been merely gifted more confusion and simply a different set of differences.

Unfortunately, we know that it is the safety of our people that will ultimately suffer when confusion over such requirements reigns.”

Safety law is set to become more confusing and more complex.  Increased reliance on legal advice,with the subsequent increases in business costs, is likely.  However this does not necessarily mean that the management of safety is any more onerous.  An employer’s duty of care to workers is an established obligation that has been integrated in business standards, corporate obligations and community expectations.  The social expectation that workers will not place themselves at risk of harm has substantially increased.

What has changed, if harmonisation does fail, is that safety professionals and business operators must not rely on OHS laws for change and compliance but must look to other reference points for safety compliance.  There are already international safety and risk Standards that provide a framework for compliance and which have been provided some legal legitimacy through the OHS regulators.  Where these are not sufficiently specific, safety organisations, such as the Safety Institute of Australia, the Institution of Occupational Safety and Health and SIWA, must show leadership.

If the Norton Rose comments are correct, it is time to ask who will reduce the confusion and who will clarify the “different set of differences”?  If the reference point for lawyers is the law, what should be the reference point for safety professionals?  If the OHS law reform process has fallen over, it is time for Australia’s safety organisations to “piss or get off the pot”.

Kevin Jones

Recently St John Ambulance in England, according to one newspaper report, claimed that

“Better training would have a greater effect on the health and safety culture than changes to regulations discussed by the [UK] Government…”

The St John Ambulance CEO, Sue Killen [not the most appropriate surname for a CEO of a lifesaving organisation] spoke about the UK Prime Minister’s “culture of fear” saying by asking:

“…what is causing this fear? At St John Ambulance, we believe it comes from a lack of knowledge – specifically, first aid knowledge.

We think that one of the key factors underlining this whole argument about health and safety culture is the nation’s attitude towards first aid….

If more people knew first aid, they would have the confidence to deal with emergencies when they occur. Instead, a lack of skills and the nervousness associated with this leads to events being cancelled, communities disappointed and shock headlines.”

Killen overstates the occupational health and safety (OHS) significance of first aid training. OHS aims for harm prevention and first aid deals with the aftermath of failure. The causal link is mostly anecdotal where trained first aiders realise that they never want to use the skills they have been given and so have an increased awareness of hazards. Having worked in the first aid training sector for some years in the 1990s, I can vouch for this realisation but I doubt the hazard awareness is sustained for very long when the first aider returns to their workplace and the culture operating there.

St John Ambulance in Victoria regularly claimed that first aid training could result in a reduction of injuries of, from memory, 30%, but the research report on which the claim was based was of a small sample of workers in the Tasmanian forestry industry in the early 1990s or the 1980s. Killen’s claims above may prove to be true but there seems to be little evidence other than anecdotally that this is the case. The first aid organisations are strong on supporting medical research into first aid effectiveness but there is little research into the workplace context of first aid training.

First aid is proven to increase the chance of survival from a serious or life-threatening injury but does it assist in preventing that injury? Sue Killen has a belief that first aid training does prevent injuries.  Research needs to be undertaken to verify or dismiss that belief.

 Kevin Jones

On the workplace bullying issue, Tweedly has said previously that he does not believe that WorkSafe has a toxic work environment. When the accusations were being aired in 2011 it was Tweedly who faced the media, where in the past it would have been more likely for the Executive Director to address these issues. Bullying accusations are highly embarrassing for WorkSafe as they issue the sdvice on preventing bullying at work, however WorkSafe is only one of the many government bodies in Victoria and in other Australian States that have been accused of this hazard. Other instances of workplace bullying reports have resulted in independent inquiries but not so with WorkSafe. Perhaps Tweedly is right and the working environment in WorkSafe is not toxic, or no more toxic than any other government department or authority. Perhaps the critics should be focussing on the problem of bullying in the workplace rather than the workplace, or the executive management, itself.

The Herald-Sun played the media release(not yet available online) straight and simply reiterated the content about Tweedly’ decision but The Age linked implied that Tweedly’s non-renewal of his contract was a response to the government’s removal of $A471 million of WorkSafe money. There has been little outrage over the government’s economic decision and The Age’s report seems to indicate that The Age sees the decision as an injustice. Placing money generated from and by the workers’ compensation premiums paid compulsorily by almost all Victorian businesses into consolidated revenue should be criticised. The WorkCover funds should be directed to easing the pain of work-related injuries and not into the government revenue pool.

It could be argued that, as was said in Tweedly’s media release, Victoria is “the safest state in Australia in which to work” and, therefore, there is reducing need for WorkCover funds but it is also acknowledged that the incidence of occupational illnesses is under-reported and that the complex and expensive workplace issues of stress, fatigue and mental illness are not being addressed in an effective manner. WorkCover revenue could easily have been directed to specific preventative strategies on these emerging workplace hazards, in a similar way to how WorkCover funded its WorkHealth campaign.

The decision to redirect funds originating from businesses intended to fund compensation and harm prevention activities and programs reflects the political ideologies of the current Conservative Government in Victoria. Where there was the potential to use a revenue pool in a positive, creative manner within the economic sector that generated that pool, the government chose to remove, or at least limit, that potential.

There is no evidence that this economic decision has any relation to Greg Tweedly’s decision to leave WorkSafe Victoria. It may be that, like many other executives, eight years in the CEO job where there is no chance for promotion is enough.  More interest should come from who is chosen as Tweedly’s replacement and any new strategy they implement.

Kevin Jones

“… a great big machine of health and safety that has built up over years.”

Cameron feels that he needs to address an OHS regulatory system and enforcement strategies that have become too complex for, particularly, small business to comply with. Part of his solution is to exempt the self-employed, in some specific sectors, from OHS laws. This is a questionable decision as it effectively establishes a two-tier safety management regime and sets a precedent for other similar sectors to lobby for an exemption from other, perceived, onerous laws.

It may be that OHS laws in the UK have become overly complicated over time but the role of the media must be considered in that it has focussed on many absurd managerial decisions that have resulted from a skewed understanding of OHS and risk. Frequently the media reports have no relation to OHS laws and all to do with an increasing litigious society and the pursuit of money through, potentially spurious, public liability insurance claims.

In the 5 January 2012 speech Cameron states that

“…the key about health and safety is not just the rules and the laws and the regulations – it is also the culture of fear many businesses have about health and safety.” (emphasis added)

Cameron explains his answer for reducing this fear of health and safety, the capping of fees that lawyers can earn from legal action against businesses on behalf of their clients, usually, employees. There is no fear of health and safety, it is a fear of litigation. Cameron is not on about OHS law reform, his concern is about “unnecessary” litigation costs. This is unlikely to be reduced by cutting the budget of the Health & Safety Executive (HSE) which must reduce services as the HSE resources have been contracting for some time.

Behind some of Cameron’s criticisms of OHS law is his fractious relationship with the European Union, recently seen through the economic summit with European counterparts but also by an anti-EU ideology embedded in the fibre of the Conservative Party. Cameron is mixing two separate regulatory and social processes because they happen to manifest in the same region. One process concerns money (economic reform) and the other concerns life (safety, health and wellbeing). Reforming both these elements requires separate strategies in European politics for one can be argued from humanitarian grounds but the other relies on capitalism, an economic theory that has always undervalued the welfare of the labour force and originally generated the need for OHS laws through its worker exploitation.

Exempting self-employed from OHS laws, cutting the economic effectiveness of OHS regulators and straining the political relationship with Europe will not dismantle the “great big machine of health and safety”, it will simply lead it to becoming dysfunctional and a dysfunctional OHS regulatory regime will result in greater workplace injuries and deaths. Official statistics may reflect no change in the future as the Government is reducing the regulator’s effectiveness to investigate incidents or to pursue incidents that have not been reported, or to enforce regulations requiring companies to report incidents.

Cameron should be looking to additional HSE funding but with the condition that the HSE needs to instigate a long-term promotional campaign that builds on society’s belief that no person should be harmed at work. The Government needs to develop the citizens’ existing values on work fairness, wellbeing and safety. This will require a more aggressive rebuttal of ridiculous compensation and risk decisions that are lumped under OHS. It will need considerably increased business support to clarify OHS obligations so that business does not waste money in areas that have little safety or health benefits.

It is accepted that the forecast economic status of the United Kingdom in 2012 will not allow an increase in funding to government agencies but Cameron’s strategy is attempting a short-term fix to a societal issue that requires societal change. The introduction of OHS laws in the 1970s was intended for the long-term by establishing fundamental social and legal principles from which OHS laws can evolve over time. It may be that, after some time, OHS laws began to grow in ways that were incompatible with modern society but that indicates a lack of management, planning and strategy on the government’s part over those decades.

The Lofstedt report is a good start in that the government has agreed to greater HSE involvement with local government (how this is to be paid for during reduced funding is unclear) and continuing communication with the European Union on OHS issues, although with an ideological program that may be incompatible with EU philosophies. But the agenda of the UK Government is to increasingly simplify OHS but by continuing with its OHS monster strategy it is also decreasing OHS effectiveness.

Kevin Jones

Here’s an excerpt:

The Louvre Museum has 8.5 million visitors per year. This blog was viewed about 160,000 times in 2011. If it were an exhibit at the Louvre Museum, it would take about 7 days for that many people to see it.

Click here to see the complete report.

“… the failure to address workplace bullying in the same framework as any other workplace hazard/risk.”

This is a significant challenge but without access to the ACTU submission on the draft code it is difficult to determine the exact context of this fundamental flaw.

Of more concern is the apparent move by the ACTU, according to The Australian, to have single instances of inappropriate behavior covered by the workplace bullying code. This is contrary to the bullying concept that only repeated instances of abuse should be considered bullying.

Regardless of this challenge to established definitions, it is very hard to see how such a situation could be enforced by either OHS representatives or OHS regulators. The regulators have struggled for years with the existing definition and could have no effective role in workplaces if the unions’ wishes were successful.

Business groups are understandably concerned by the inclusion of restructuring and other organisational and managerial issues as contributory factors to workplace bullying. Workers’ compensation claims do increase during restructuring and redundancies but these claims are more to do with the complexities of stress than bullying.

Again the unions and lawmakers are placing too much emphasis on bullying and not enough on the overarching concepts of mental health and stress.  Stress manifests in many ways of which one can be bullying.

Business groups also express concern that workplace bullying is included in a Code rather than a guidance as a Code may have a stronger legal standing in Court proceedings. This argument occurred in Victoria over a decade ago when the Victorian Government “weakened” its commitment and introduced a guidance note rather than the Code that the unions and the safety profession was hoping for.  It could be argued that, had that jurisdiction introduced a Code, the prevention and treatment of workplace bullying would have been greatly improved.

Whether workplace bullying is addressed by Code or guidance may have little relevance to those suffering the stress that comes from being bullied at work.

The debate on the Draft Code on Workplace Bullying has too narrow a focus.  If the workplace hazard is to be treated in the same framework as other hazards, it will be necessary to aim for the elimination of bullying and not accept less effective administrative controls such as training in personal coping strategies.  Such an aim can only be sought if bullying is considered within the broader context of psychosocial hazards which includes stress, mental health, fatigue and others.

The debate on bullying is a distraction from the real workplace hazards of stress and mental health; hazards that are being ignored because effective controls can only be implemented if there is a substantial reassessment of how employers treat their labour.

This debate will not be resolved until governments develop a strategy that addresses the multitude of psychosocial hazards and show the business case that supports this strategy. The pieces of evidence exist but the government needs to pull these together to address this substantial business and social cost.

Kevin Jones

“It’s descended into a farce, a shambles – only four jurisdictions are ready for the laws.”

This seems supported by the words of the recently-appointed Workplace Relations Minister, Bill Shorten, who says that the new Occupational Health and Safety (OHS) laws will cover 58% of the workforce. This also equates to 42% NOT being covered – hardly a success for harmony.

Victoria’s WorkCover Minister, Gordon Rich-Phillips, continues to miss the point of national harmonisation by continuing to argue against harmonisation with parochialism. He says that the new laws are very likely to increase the regulatory and cost burden without acknowledging that Victoria has many prominent businesses who operate nationally and will incur increased compliance costs due to his delay in the implementation of the harmonised laws.

The AFR article implies that a major reason for objection is that senior executives, the ridiculously named “C-suite”, will face increased accountability for decisions that affect worker safety. Perhaps, but this increase has been coming for some time and should have been anticipated by the C-suite.

The article also implies that hesitation over these laws comes from the increased accountability of senior public servants and departmental heads. Tooma acknowledges this change:

“To date, heads of departments in the public service have never been able to be held criminally liable under federal laws.”

The public service is going to be a fierce battleground considering that psychosocial issues are so prevalent in this sector. It will be fascinating (and sad) to watch senior executives in government departments being prosecuted under OHS laws for workplace bullying, excessive workloads and the generation of stress. (The size of the challenge may be seen by recent bullying issues in the Australian emergency services, WorkSafe Victoria and WorkCover NSW)

The AFR has been one of the very few newspapers reporting on OHS harmonisation but, not surprising given its specialized readership, it has focused on the business costs of implementation. Rarely has it discussed the positive benefits to safety management or the potential increase in worker safety. Perhaps there are none.

There is little safety innovation in the new laws. If OHS is about preventing harm, these laws are no improvement on the previous.

But then safety has rarely come from laws but from how people react to, or apply, the laws. The debate on harmonisation has been missing the voice of the safety profession in Australia but perhaps that’s because there is nothing new to say. Perhaps the management of safety will not have any fundamental change. It may be that the only change is that the CEOs begin to listen to their OHS advisers. Let’s hope that is enough.

Kevin Jones

This year the blog has been blessed by perceptive and controversial articles by Col Finnie and Yossi Berger, in particular.  These contributions spread the workload but also broaden the voice of the SafetyAtWorkBlog.  (Now if only the unsolicited advertising masquerading as blog contributions would stop…. )

I will be taking some time away from the blog in January but the Twitter account will continue to scour media sources around the world for relevant content.  Please consider following SafetyOZ on Twitter and please keep emailing your suggestions for articles and your OHS tip-offs (we follow-up each one).

All the best

Kevin Jones

Most law firms that have occupational health and safety professionals sit the unit with the Workplace Relations portfolio, for good reasons mostly.  Workplace Relations, or Industrial Relations in other jurisdictions, deals with the pay and conditions of workers and the negotiation of these issues with employers and business owners.  ”Pay” is mostly wages and the remuneration received for effort but “conditions’ is more inclusive with OHS a major, but often underplayed, component.

Madgwicks asked two significant questions:

“Currently which workplace relations issues are the most challenging for your business?” and

“Which workplace relations issues do you believe will be the most significant for your business?”

None of the responses (pictured below) to these questions included any occupational health and safety issues.  There was no stress.  Nothing on workloads or working hours.  Nothing on workplace bullying.

A major reason for this disparity will be that, as Madgwicks says, the

“The purpose of the survey was to gauge the sentiment of our clients about the operation of Fair Work Australia.”

This survey is intended to identify issues associated with “conditions” but not with OHS, as OHS operates under separate legislation and separate regulators, but the results do OHS a great disservice by “silo-ing” OHS out of workplace relations.  It is not Madgwicks’ fault in the big scheme of things because that big scheme is governmentally controlled and the government controls the regulatory silos.

As businesses grow, organisational silos develop and grow with them.  Somewhere along that growth line, businesses get the impression that issues are managed better through specialisation.  This is compounded by many business service providers promoting their speciality.  There are very few “jacks of all trades” because business, understandably, only want to deal with the “best”, the specialists, but specialists often provide advice that is so narrow (so “silo-ed”) that it is effectively useless.

Businesses may need “safety jacks”, OHS professionals who have sufficient experience and knowledge to interpret the expert opinions and to suggest ways of applying the expertise to the specific businesses or workplaces.  Business need interpreters, but this will only work over the long term if business embraces integration and smashes the silo structures.

This structural demolition will need managers to relinquish their egos, to acknowledge the negative impacts of the empires they have built over the last few decades, and then embrace a new future.

This demolition, similarly, needs applying to the “soft management sciences” in which OHS can be included, and to the professional associations representing those sciences.  The following business disciplines must develop a coordinated strategy to assist prospective clients – Human Resources, Occupational Safety, Wellbeing advocates, Industrial Relations, Trade Unions, Mental Health, Occupational Medicine, Industrial Hygienists………

This is certainly the hard way to change but it seems that the best sustainable solutions are rarely the easiest or the ones that occur with the least disruption.

It would be a step in the right direction to include OHS when undertaking workplace relations surveys, even if the response data is not immediately useful.  How different, and more interesting, Madgwicks survey would have been if the challenges and issues were not restricted to those administered under Fair Work Australia.

Kevin Jones

Here’s the rub: I don’t think it’s possible to get a clear idea of what it means to comply with the due diligence obligation as set out in clause 27(5)(a); in turn, this means the obligation is, for all practical purposes, unenforceable.

Below is a slab of the preliminary words and the provision, with a bit after it for context:

“(5) In this section, due diligence includes taking reasonable step

 (a)  to acquire and keep up-to-date knowledge of work health and safety matters; and

 (b) to gain an understanding of the nature of the operations of the business or undertaking…”. [emphasis added]

In the process of going through the WHS stuff to see what changes I need to look at for a client’s SMS (well in advance of the Victorian move over to the national laws) I decided to look at the due diligence stuff first.

A quick read of sub-clause (5) shows there is a whole bunch of stuff on the sort of things you’d expect a “mindful” organisation to be doing to keep senior managers up-to-speed.  There isn’t an issue with paragraphs (b) through to (e); they deal with good mindfulness stuff for their business and undertaking. It’s para (a) that has quizzical compliance issues.

It’s pretty obvious that a safety management system ain’t gunna work properly if senior managers don’t have “an understanding of the nature of the operations”, don’t have the resources and processes to manage safety, etc. 

All of those things are listed in paragraphs (b) – (e). But there is an important element to the sensible stuff in those paragraphs: they are all categorically linked to mindfulness in the context of the business or undertaking. The tricky bit about paragraph (a) is that there ain’t any nexus with the business or undertaking.

A wise counsellor passed on an excellent tip when I was having a frustrated rant about trying to get a bunch of people to see what a particular provision we were drafting actually meant.  Her tip was, if the people are having trouble understanding the law, they should read it.

It’s something I use a lot. It’s all about reading the words carefully and without any of those common legislation-reading filters that whisper “I want it to say” or “it probably means”.

Reading exactly what 27(5)(a) says I see that every defined officer of the business or undertaking has to acquire and keep up-to-date knowledge of work health and safety matters generally, not just in the context of the business or undertaking.  That is a big call.

How do I work out when I’ve taken enough “reasonable steps” to make sure my officers have enough knowledge of all sorts of health and safety matters?  How extensive should be the learning outcomes for an information or training program I might put together? Given the liability stuff that comes with due diligence, should I putting in place a very comprehensive assessment component to any training, and will it be sufficient to just use a competence measure for that assessment?

I reckon I’d spend a minimum of an hour a day, every day of the week going through stuff like Graham Dent’s excellent WHS LinkedIn blog discussions, Kevin Jones’ equally excellent SafetyAtWorkBlog, monitoring a coupla customised Google News Alerts on OHS, reading the plethora of newsletters on OHS topics, popping into Oz regulators web sites, the EU OHS sites, the ILO OHS sites etc.  Add to that all the ordinary research I’m doing as part of me work as an OHS practitioner and trainer on a day-to-day basis, and I reckon I’m making a fair dinkum effort to keep up to speed on OHS stuff generally.

But, would I stake me ute on a guarantee that, in absolute terms all that monitoring and research on OHS info ensures I have acquired, and kept right up to date on all work health and safety matters over the huge range of things that could be described as “work and health and safety matters” right around the world?  No way, I love me ute.

And what would be your reaction if you were at a safety conference and a speaker starts the presentation with “Hello, I have acquired and kept up-to-date on everything, anywhere, on every OHS matter in the entire world; I’d like to talk about that” ?  I suspect you’d be tempted to nip out and call a CAT team to take the speaker away, safely.

Draftin’ up laws has a parallel to cooking.  Despite the big range of principles, methods and rules about ingredient combinations, there is one over-arching rule that has to prevail when whipping up a dish: it has to taste good. Drafting laws has gobs of principles that have to apply to the process, but the job also has one over-arching rule: the law has to be fair and reasonable.

Is it fair and reasonable to expect an officer of a firm to acquire and be up-to-date on all knowledge about all health and safety matters that may have nothing to do with their business? I don’t think so.

Does it make sense to have such an obligation on an officer when there is a bunch of entirely sensible and good things they are obliged to know; as listed in paragraphs 27(5)(b) through to (e)? I don’t think so.

Given the difficulty in working out just what is needed to satisfy the clause 27(5)(a) obligation, will it be possible for OHS regulators to enforce it? I don’t think so.

Should there be a provision in legislation, intended to be adopted as a Principal Act, that needs to be “fluffed over” because its inferred obligation is a bit wonky and so will probably just get ignored?  Absolutely not.

Col Finnie was WorkSafe Victoria’s Principal Legislation Officer (OHS) from 1989 – 2000 he now operates his own OHS advisory and training business - fini:OHS pty ltd.  Col has contributed previous articles to SafetyAtWorkBlog.

On Australian radio on 14 December 2011, a geologist became embroiled in an interview on asbestos and cancer.

Ian Plimer is a well-known Australian geologist and is a professor of mining geology at the University of Adelaide.  Plimer is a controversial and outspoken critic of climate change.  The climate change debate is a fringe consideration in occupational health and safety but today,  Professor Plimer entered the debate on asbestos, a carcinogen that is responsible for hundreds and thousands of work and non-work related deaths.

On ABC Radio, prominent Australian journalist and writer on asbestos industry issues, Matt Peacock, took Ian Plimer to task about Plimer’s 2008 claim that chrysotile, or white asbestos, is not carcinogenic.  In the audio of the interview, Plimer bristles at Peacock’s questions, with some justification given that the interview stemmed from Plimer’s new book that is not about asbestos (a video of Plimer’s speech at the launch is available online). But in his blustering replies Plimer refuses to deny saying that chrysotile is non-carcinogenic.

Plimer states that since 2008

“…. the mineralogy and the epidemiological work has been done since then and it is now quite equivocal as to what chrysotile does. Three or four years ago we had a different view.”

He continues to say that asbestos is a commercial name for chrysotile and refers to a mineralogy website, Min dat (believed to be www.mindat.org), to support his statement that

“…chrysotile is a serpentine mineral……..whereas asbestos minerals are amphibole minerals.”

Mindat’s reference page  for chrysotile confirms that it is a serpentine mineral but also states that a synonym for chrysotile is “white asbestos”. White asbestos is identified elsewhere as carcinogenic.  A 2006 asbestos-related document from the World Health Organisation states:

“Asbestos (actinolite, amosite, anthophyllite, chrysotile and tremolite) has been classified by the International Agency for Research on Cancer as being carcinogenic to humans.” [link added]

Peacock justifies this out-of-context questioning of Ian Plimer by saying that the 2008 statement undercuts Plimer’s professional authority and credibility.  This is a fair comment even though the asbestos question seems to have blindsided Plimer.

Speak about what you know

A major lesson for safety professionals is not to speak about issues outside of one’s area of expertise.  And if asked a question that is on the fringes of one’s profession and one’s state of knowledge, do not provide a definitive answer or statement, as appears to have happened in correspondence with Matt Peacock in 2008. (Peacock has been approached for additional information on the correspondence he references.)

Also any contact from a journalist or interview request from a writer does not have to be immediately accepted.  It is possible and, indeed, common to ask for additional information on the subjects to be covered, the types of questions that will be asked and the audience for the content.  If a question is asked that one does not want to answer or is outside of the agreed discussion area, say so when refusing to answer.

Basic media training is readily available and it is highly recommended if one is considering talking to the press and raising one’s professional profile.

Questioning

SafetyAtWorkBlog supports the questioning of myths through the application of “clear thinking” – a subject that was specifically included in secondary schools several decades ago.  Current schools in Australia include the development of  analytical thinking in the curriculum.  Propaganda exists at both ends of the political spectrum and people need a “bullshit radar” through the development of analytical skills.

Both Matt Peacock and Ian Plimer are questioners.  We should all be questioners, we should also respect those who hold alternate views but there is also a point at which overwhelming evidence establishes facts.  It is a fact that asbestos is a carcinogen and it is my wish that Ian Plimer had stuck to geology.

Kevin Jones

“In tractors, rollover fatalities have decreased by 60% after the introduction of regulations requiring compulsory rollover protection structures.”

The very successful introduction of rollover protection structures (ROPS) in Australia was given a major boost by OHS regulators offering substantial rebates for the fitting of ROPS on top of the regulatory requirements.  A safety “spoonful of sugar” as it were.

Over time, regulations can become onerous as new regulations are imposed to address new hazards or the lack of compliance by business.  This can lead to accusations of red tape.  But it could be argued that some of the legislative complexity stems from businesses not complying with the initial laws.  Is it possible to break the cycle?

Tony Lower implies that the new Work Health and Safety Act in Australia has the potential to radically change the management of “powered mobile plant”, in agriculture this would principally apply to quad bikes and tractors.  Lower explains that

“From 1 January 2012, the new national Model Work Health and Safety Regulations 2011 will require that all “powered mobile plant” (including tractors, field machinery and quad bikes) must manage risk in accordance with the hierarchy of controls…, including risks of overturning.  The quad bike industry continues to rely on training and helmets — low order solutions in the hierarchy of controls — to minimise risks.  Given the new regulations require these risks to be managed “so far as is reasonably practicable”, this is unlikely to be adequate.” [link integrated]

Previous OHS Acts in Australia stated aims such as eliminating risks “at the source” but this was never given the same emphasis in regulations and so became aspirational rather than operational.  By requiring by law that risks are managed to the hierarchy of controls, employers must demonstrate that the elimination and substitution of risks are not possible and that engineering controls are not available before applying administrative controls and personal protective clothing.

It is likely to be difficult for the makers of quad bikes to argue that design changes that would reduce the likelihood of rollovers are not possible.  However, if this could be argued it is likely that the engineering solution of crush protection devices is unavoidable, particularly with recent independent research that shows positive safety outcomes for such devices.

The cautious application of these new WHS laws could benefit society through the reduction of agricultural worker deaths to a similar extent to that achieved by the imposition of ROPS on tractors.  It may be that the new laws will indeed break the cycle of prescription and self-regulation, at least, in relation to quad bikes.  If this occurs, it will be a significant safety wedge in the safe design of all types of workplace machinery.  And as almost all the quad bikes are manufactured outside Australia, international manufacturers and safety regulators will not be able to ignore the safety demands from the bottom of the world.

Kevin Jones

The media statement reports on a $A99,000 fine against Bulk Maritime Terminals Pty Limited (BMT).

“On 17 September 2008 two employees were unloading 25 to 30 bulk bags of clay powder into a tanker truck for transportation. Each bag weighed approximately 900kgs.

One employee was using an overhead gantry crane to lift each bag from the floor of the warehouse to the height of the tanker. The second employee was harnessed to the top of the tanker truck to open the spout on the bag.

After being lifted off the ground, one of the bags fell off the crane hook, knocking the operator of the crane to the ground.

The 900kg bag then landed on top of the worker, who sustained significant injuries and required multiple surgeries.

The Industrial Court found that BMT had failed to develop a safe system of work for the lifting and decanting of the bags into the tanker.”

In relation to risk assessments and SWMS,

“The Court also found that while the company had carried out a risk assessment, it was inadequate to identify the risks of lifting such large bags.

BMT had also failed to supply its employee with adequate information, training, and instruction on how to use the crane, and how to properly load the clay bags.”

Many people believe that SWMS are only relevant for the construction industry due to the emphasis on SWMS by Australian regulators  and the Federal Safety Commission, but the case above illustrates that risk assessments of work tasks are required in all workplaces, particularly, for high-risk activities.

The most effective SWMS are those that are undertaken on the day of a work task, at the specific work location and, perhaps most importantly, with the full cooperation and understanding of the workers undertaking the task.  This combination of elements constitutes the type of consultation required by some current and upcoming OHS legislation in Australia.

And when people complain about the red-tape associated with workplace safety, think of this prosecution and how better quality risk assessments could have saved a worker from serious injuries and saved a company around $A100,000.

Kevin Jones

The article reports that

“HOTELS Association chief Peter Hurley addressed Premier Jay Weatherill wearing a high-visibility vest yesterday in a provocative protest against a culture of over-regulation.

“It’s the decade of the rise and rise of the fluoro high-vis jacket,” he said, targeting State Government SafeWork SA. ”An audit visit from Work Safe SA (sic) is the only thing that makes you wish you were at the dentist having root canal work.”

He said he had been told drive-in bottle shop staff had to wear high-visibility vests.

“Then the guy delivering bread started arriving in high vis. What took the cake recently was the bloke who tops up the condom vending machine arrives, gets out with his case of rubbery delights, resplendent in a high-vis vest. Maybe the topless waitress is next?”"

As the opportunity for the comments was the AHA/SA Christmas function and the association developed its influence through alcohol, one could excuse Hurley’s comments as inspired by the event but he produced a fluorescent vest as a prop so his comments appear premeditated.

Not only did he criticise the South Australian Government in front of that State’s recently appointed Premier, Jay Weatherill,  SafetyAtWorkBlog has been informed that the Workplace Relations Minister, Russell Wortley, was also in the audience.  Hurley picks his moments well.

SafeWorkSA is not impressed.  It has advised SafetyAtWorkBlog that:

“Peter Hurley’s words and implied attitude to workplace safety are disappointing to us.

SafeWork SA seeks to work cooperatively with employers to demonstrate the benefits that safe workplaces can offer both to the wellbeing of staff and others, as well as the business bottom line.

Precautions such as high-visibility vests have come about because workers have been injured, sometimes fatally, by moving vehicles where the operator has been unable to sight people nearby.

Anything which can help catch the attention of the operator of a forklift or a truck alerting them to the presence of a nearby worker may well be the difference between life and death.

Employers who cut corners, take shortcuts, make assumptions or rely on luck, sooner or later get caught out – and it’s usually their workers who pay the heaviest price.”

Peter Hurley’s motivation for the speech is unclear but his attempt at criticising the “nanny state” through ridiculing high visibility personal protective equipment (PPE) illustrates his ignorance of OHS, an ignorance that seems to be increasing in the Australian business sector.  It may also be part of the larger lobbying agenda of the AHA/SA as the accusation of the “nanny state” is being used to criticise increased liquor licensing.

Personal Protective Equipment

The core OHS issue in the Advertiser’s article is that an unspecified someone has told the workers at his drive-through bottle shops that high-visibility vests are to be worn.  (According to some workers SafetyAtWorkBlog spoke with this evening, Woolworths, one of the two largest supermarket chains in Australia, has a policy of PPE for its bottle shop workers.)  The usual rationale for this type of PPE is to increase personal visibility when working in close proximity to vehicles, a constant scenario for bottle shop workers.

But what Hurley does not acknowledge is that PPE for bottle shop employees is only one of the control measures implemented to stop workers getting hit by by vehicles.  Many bottle shops have speed humps at the entrance and exit in order to reduce the speed of vehicles in the area shared by personnel and cars.  The ubiquitous closed-circuit television cameras are usually in place, predominantly, for after an incident.  Driveways are brightly lit, mostly for marketing purposes one imagines, but this also allows for easy identification and may deter attacks.

If the world of OHS has lost its “common sense”, as many Conservatives in the United Kingdom believe, how has the workforce been able to accept and internalise safety clothing as an automatic part of their working lives?  Isn’t the widespread practice of wearing PPE to work an example of the common sense that they claim is missing?

If individuals need to be more accountable for their behaviours and the work choices they make, surely, the personal use of PPE should be supported by business leaders, and not ridiculed.

Kevin Jones

Understandably, these comments generated considerable discussion from the audience of around 50 people.

The crucial nub of Hammond’s concerns was the lack of essential definitions in the model law.  Given that there is a new type of duty holder – “person conducting business or undertaking” – Hammond questioned the absence of a definition of “business” and “undertaking”.  He also questioned the lack of a definition of “work” and “workplace”, the latter he expanded on considerably in the light of the powers of inspectors and regulators to enter a workplace “ with, or without, the consent of the person with management or control of the workplace”.

In response to questions from the audience about “what is a workplace?” SafetyAtWorkBlog put the concept that, under the proposed laws, a workplace can be considered centred on the worker.  When the worker is undertaking a work task, wherever that task is occurring – at home, in a café, in an office, on a construction site, a workplace exists and therefore the new WHS laws apply.  Bearing this concept in mind, Hammond’s concerns about the powers of entry by inspectors, persons assisting inspectors and others generated considerable concern in the audience.

One participant said that Hammond’s presentation was an effective marketing strategy by generating fear and then offering a solution to that fear, but this was not overt in Hammond’s presentation and his posing of challenging questions on the model WHS laws contrasted strongly to previous presentations in this series.

Hammond repeatedly stated his support for the harmonisation of occupational health and safety laws but could have corrected some of the audience questions.  For instance, the delay in the implementation of the model WHS laws in Victoria is not due to any legal concerns as inferred in several questions, according to the Minister’s media statement, but to economic concerns:

“The Victorian Government supports the principle of OHS harmonisation, however we need to be able to assess the benefits and costs to Victoria, to ensure that the proposed package is in Victoria’s interests”

The concerns raised in Hammond’s presentation seem well-founded but the absence of public debate on these concerns may indicate that they are not such a big issue in other jurisdictions or industries.  A couple of States have already passed the model Work Health and Safety laws so the new concept of workplaces are now operational.  And the “new-ness” of this concept is debatable.  Queensland’s 1995 Workplace Health and Safety Act defined a workplace as:

“…any place where work is, or is to be, performed by

(a)             a worker; or
(b)             a person conducting a business or undertaking.”

This seems fairly compatible with the new model WHS laws.

Putting a positive light on the various delays in the introduction of the new laws, any delay allows for the airing of concerns, other than those associated with economic costs and benefits, and for an active debate.

Early in the harmonisation process, many lawyers said that any anomalies or definitional confusion would be ironed out in the years following the laws’ introduction.  This always seemed to be a weak excuse for lazy law writing and did not consider the cost or distress of the participants being prosecuted.

The harmonisation of OHS laws across nine jurisdictions was always a big challenge and it seems to have been too much of challenge particularly if crucial concepts of “what is a workplace” have been missed in the process.

Whether Mike Hammond’s concerns are shared by others in the legal and regulatory fraternities, many in the audience yesterday morning did not know what hit them.

Kevin Jones