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

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

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

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

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

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

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

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

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

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

Kevin Jones

Evidence of heart attacks due to secondhand smoke Reply

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

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

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

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

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

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

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

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

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

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

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

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

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

Kevin Jones

CFMEU, IPA, Gretley Mine – political lessons 2

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

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

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

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

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

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

Kevin Jones

OHS model law remains divisive 1

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

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

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

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

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

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

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

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

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

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

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

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

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

Kevin Jones

Changing weather conditions can present unexpected hazards Reply

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

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

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

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

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

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

Kevin Jones

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

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

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

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

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

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

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

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

Kevin Jones

Safe Work Bill, suitably qualified and professional plans Reply

Dr Geoff Dell of Protocol Safety Management and a prominent member of the

Dr Geoff Dell

Dr Geoff Dell

Safety Institute of Australia (SIA), believes that the most crucial issue facing the safety profession in Australia is the lack of the requirement to use a “suitably qualified” safety adviser.

The Australian Government was recommended to include such a requirement in its draft OHS model laws but rejected the recommendation because

“an unintended consequence could be that persons conducting a business or undertaking would be encouraged to delegate their responsibilities”.

This is odd because the Safe Work Bill includes seemingly clear duties:

“The person who has management or control of a workplace must ensure, so far as is reasonably practicable, that the workplace, the means of entering and exiting the workplace and anything arising from the workplace are safe and without risks to the health of any person.”

Unless the “suitably qualified” person (undefined in the Safe Work Bill) is also the “person who has management or control of a workplace”  who has to ensure safety, it is hard to see how the Government’s concerns about abrogated responsibility are relevant.

Dr Dell wrote to the Workplace Relations Minister, Julia Gillard, on behalf of the SIA.

“Our motivation for urging you for inclusion of a “suitably qualified” requirement in the model OHS legislation should not be misinterpreted as any desire on our part to diminish or eliminate the equally important requirement for companies to consult their workers, or the workers’ elected representatives, on issues and decisions relating to the workers’ health and safety. Collaboration of employers and workers in the delivery of appropriate workplace health and safety outcomes is an essential precept.

Rather, it is our strong view that when those workplace collaboration processes need the OHS advice of others, there is an important need to ensure the persons providing that advice have the appropriate credentials to deliver that advice to the maximum benefit of those involved at the workplace.”

Pages from Geoff_Dells_letter_to_Julia_GillardThe argument is repeatedly expressed as a comparison between a suitably qualified safety advisor and doctors or plumbers or other licensed or registered occupations.  But the Government has twice now indicated that it sees no the risks of abusing such a formalised position outweigh the benefits – the first in not accepting a review panel recommendation and second by omitting the issue in the Safe Work Bill.

Should the safety profession, as a whole, continue to push the issue with an unsupportive government or should it accept that the battle is lost and begin a Plan B? A plan where, perhaps, the market begins to demand certainty about the skill level of their safety advisors to such an extent that a scheme of accredited safety professionals is an indispensable business resource?

This may be the tactic of the SIA in its support of  an elite level of safety professional who must have a tertiary OHS qualification.  It is certainly devoting considerable resources to the program, supported by hundreds of thousands of dollars from WorkSafe Victoria.  The caveat of this approach is that the SIA gets control of the profession.

This is not the case with the professions with which the SIA likes to compare itself.  Those professions have independent assessment bodies, ethics bodies and sometimes industry/profession ombudsmen.

What the safety profession needs to counter is the argument that the Government has accepted from somewhere, that business is highly likely to push its OHS responsibility to others if it can.  The profession, and the SIA, needs to convince the Government that business will accept its OHS duties.

Dr Dell told SafetyAtWorkBlog that the Safe Work Bill has been written for lawyers by lawyers and seems aimed at what to do after an incident has occurred.  It is about harm minimisation and not safety.  He says that the preventative aim of OHS legislation has been severely diluted.  In this he echoes some of the  SafetyAtWorkBlog position that the new laws are not about safety management but about safety law, and have little bearing on the shop floor where hazards are most often faced and controlled.

It is also important to remember that OHS law was intended to be a law that could be understood by the layman and implemented by the layman.  The new Safe Work Bill will be incomprehensible to anyone other than lawyers and even then, as seen from recent blog articles about Mike Hammond, Michael Tooma and others, the lawyers are unlikely to agree on interpretation and application.

Kevin Jones

[Note: Kevin Jones is a Fellow of the Safety Institute of Australia]

Mobile phone cancer link still unclear Reply

A new research study into the possible health effects if using a mobile phone remains inconclusive.  According to a report in the Journal of Clinical Oncology,

“The current study found that there is possible evidence linking mobile phone use to an increased risk of tumors from a meta-analysis of low-biased case-control studies.  Prospective cohort studies providing a higher level of evidence are needed.”

Basically this is saying there is a bit of evidence but more research is needed.  In the context of cancer risks from using mobile phones, status quo remains.

Although only the abstract of the research is available online for free, a long discussion is available at Australia’s ABC website. The significant issue in this article is that “high quality” research found evidence of a possible cancer link and “low-quality” research found none.

If one is not a medical researcher, as SafetyAtWorkBlog is not, this research provides no practical guidance for the reduction of risk.  In fact, it goes some way to fostering the layman’s suspicion of research.

If one has the task of minimising the (perceived) risk of receiving cancer for workers using mobile telephones, this study is useless.  In reducing the increasing concerns from staff about this occupational hazard, this study is useless.  The research does indicate that, at least, research is continuing but it adds nothing to the state of OHS knowledge needed to manage the potential hazard.

“Absence of evidence is not evidence of absence”* seems to fit the situation of mobile phones and cancer.

Kevin Jones

*  Both Carl Sagan and Donald Rumsfeld have used this phrase.  Allocate credit to whichever you choose

OHS is becoming criminal law in a social context Reply

On 14 October 2009, Australian law firm Deacons hosted a breakfast seminar of the draft OHS model law proposed by the Australian Government.  The speaker, Mike Hammond, expressed concern about many sections of the draft laws because they do not seem to fit how OHS law has been structured in Australia and the UK for over thirty years.

This is not to say the clauses and sections are worthless, useless or wrong, but the Government has not provided enough information on the rationale for the changes or the context for those changes so that those who need to use the law understand the law.

Hammond had five major concerns with the proposed law in the Victorian context:

  • Person conducting business or undertaking vs employer
  • Officers’ duty to exercise due diligence
  • Failure to acknowledge “Control” as issue of first principle
  • Abrogation of right to silence and privilege against self-incrimination for individuals
  • Unions able to cause work to cease

Hammond is, of course, looking at the laws from a lawyer’s perspective and not that of a safety professional or business operator but he raised some excellent points, some of which have been discussed previously in SafetyAtWorkBlog.

The coverage of the proposed OHS laws is so broad as to include anywhere where work is conducted.  Tooma, a partner of Hammond at Deacons, touched on this impractical definition in some of his statements.  The way some work is done in 2009 is radically different from 1985 for example, mainly due to technology.

This blog article could be written on a kitchen table, in a cafe, on a park bench or a desk in an office.  Each of these would be workplaces because work is being undertaken however if the article is being written on a laptop in a cafe, at the moment, the cafe owner would have no OHS obligations on my actions.  There would likely be public liability and safety issues, particularly if the laptop was also plugged into the cafe’s power supply, for instance, but the cafe is only a workplace for the employees of the cafe.  Under the draft Safe Work Act (or Bill), if the customers are working there, the cafe owner would have OHS obligations for them.  The customers, the workers, of course would have their own OHS obligations as they do now.

Hammond made the point that the new proposed laws dispense with the legal relationship of employer and employee.  This fundamentally changes the coverage of OHS legislation.  As I put it to Hammond at the seminar, the changes remove the “occupational” from the OHS law.  It has become a criminal law in a social context.

Hammond sees no reason to change the employment relationship to the extent proposed if the aim is to encompass the new varieties of work activity and workplace.  He believes that these circumstances can still be met specific provisions to deal with the new varieties of work whilst maintaining the fundamental employer- employee relationship.  Business and society would then be able to better understand some of the changes because the context would be within what has been understood for decades as “work”.

The proposed Safe Work Bill is trying to be too much too quickly and will set back OHS gains a long way.  OHS has accrued considerable social awareness and acceptance.  The legal principles of a safe workplace and safe work have been largely embraced by the community.  Australia has not experienced the “OHS has gone mad” campaigns waged in the United Kingdom but if this law proceeds as it is, government will not be able to manage it, business will dismiss it through frustration, and the community will think (rightly) that OHS is a joke.  Safety professionals and OHS regulators will be seen as sucking the sense out of what used to be sensible.

Mike Hammond has seen criminal law reacting to changing social circumstances.  He said that this proposed law is attempting to set a social agenda and a dangerous precedent.

Kevin Jones

Verify website data 1

At SafetyatWorkBlog the use or reuse of material is carefully considered.  Some articles are not proceeded with, or media used, because of copyright, restrictions or cost.  No content is used from websites without permission or without referring back to the original source and providing hyperlinks if possible.  An example of how internet information can go wrong occurred earlier this month in Australia.

On 2 October 2009 the Safety Institute of Australia advised its members through its homepage that the Cancer Council, one of its strategic partners, is

“is gearing up to launch three new workplace guides as part of National Skin Cancer Week in November.”

The guides are listed on the SIA website:

  • Skin cancer and outdoor work: a guide for employers
  • Skin cancer and outdoor work: a guide for working safely in the sun brochure
  • SunSmart and iCourses ‘Working safely in the sun’ online training course

www-sia-org-au_news_updates_sun-protect-workplace-announce20091002-htmlThe odd thing was that the first guide listed was published in January 2007.  The second seems to be a companion leaflet for the guide for employers.  They are not new and are not being launched in November 2009.

When the anomaly was brought to the attention of the Cancer Council advised SafetyAtWorkBlog that their website had not been updated for a long time and that the information was out of date.  Not only should this have been obvious from the age of the publications listed but the page said the guides were to be launched on Tuesday November 20.  In 2009 November 20 is a Thursday.  The advice on the SIA site is based on old information.

(A slightly more recent policy statement for “sun protection in the workplace” is available elsewhere on the Cancer Council website)

It is very important, particularly in OHS where safety advice can change frequently, that any information taken from the internet is verified, especially if one is putting one’s name to it as the SIA’s CEO did in this instance.

The Sunsmart guidances produced by the Cancer Council still contain solid advice but if the risk of skin cancer or the hazard of working in direct sunlight is relevant to your worksites, make sure that the safety guidance is current and do not just rely on one information source.  In this instance, see what advice  the local OHS authority can provide, particular in the couple of months preceding summer.

If you run your own OHS information website or intranet, be extra careful when using other organisation’s information………..and check the dates of the information.