October 2009 – Page 6 – SafetyAtWorkBlog

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

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

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

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.”

The 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

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

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

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-html The 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.

Who is advising John Holland?

The person, Sir John Holland, died in May 2009. The company, John Holland Group (JHG), is in danger of a shortened life if it continues to make bizarre decisions.

John Holland Group has been widely criticized by the union movement, principally for its decision to jump out of State OHS jurisdictions to the Commonwealth (Comcare) structure. This was seen as a purely financial response to a politically sensitive opportunity that was presented by the Liberal government of then-Prime Minister John Howard. Comcare was seen as the insurer of the defence forces and public servants and, unions claimed, enforcement of OHS to an acceptable level was beyond the skills and resources of the administrative agency.

Due to union pressure, John Holland Rail was dropped from the finalists for a national safety award in early 2009. JHG probably came in for more criticism than other companies who also jumped because it is in the highly-unionised construction sector and their construction work is so public.

One of the advantages of moving to the Federal OHS scheme was that any prosecutions would occur in that jurisdiction and JHG has been prosecuted there. JHG had several OHS breaches in 2005 and 2006. It came under the Federal OHS law in March 2007. In September 2008, Worksafe Victoria charged the company over one of the 2006 breaches.

According to a report in The Age on 14 October 2009, JHG

“issued a High Court challenge, claiming the charges were ”incompetent” because it was not liable for conviction under Victorian workplace law for offences committed before it came under the Commonwealth jurisdiction.”

High Court challenges are not cheap and the wisdom of the decision to contest the State actions was always questionable, doubly so now the High Court unanimously decided against JHG’s arguments.

The High Court challenge confirmed for many the impression that John Holland Group will try to avoid safety obligations, if possible, and that the move to a “softer” regulatory scheme was one of the reasons behind the move to the Comcare scheme. The legal action undermines all of the positive safety culture messages that the corporation has issued.

JHG is involved with many new infrastructure and construction projects. Harmonised OHS laws are set for 2011 which include the federal OHS laws under which Comcare operates. Within a decade of taking up an opportunity for a “softer” regulatory regime, the advantage may be gone and the John Holland Group Board should ask themselves “was it worth it?”

Kevin Jones

Grappler death in forestry operations – WorkSafeBC Slide Show

Below is the latest safety video from WorkSafeBC. It is included not only as an important indication of a hazard that can be readily controlled or avoided but as a terrific example of how generic safety alerts can be given currency by using the available technology.

It is one thing for text-based safety alerts to be circulated, or for media releases to be broadcast, but this type of safety alert has more influence and provides a clearer understanding of the hazard than text ever could.

Yes, the video is Canadian and may not reflect the work practices in other countries but the hazard is usually the same. In this case, it was the location of the spotter, the level of communication between the workers and overall a clearly inadequate system of work.

WorkSafeBC should be applauded for its efforts in communicating safety to a broad audience in an effective manner.

Kevin Jones

A spotter working in blind conditions was struck by a grapple. Confirm spotters are in the clear before throwing a grapple.

[vodpod id=ExternalVideo.882790&w=425&h=350&fv=allowfullscreen%3Dtrue%26quality%3Dhigh%26bgcolor%3D%23ffffff%26]

more about “WorkSafeBC Slide Shows – Mon Oct 12, …“, posted with vodpod

Month: October 2009

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

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Safe Work Bill, suitably qualified and professional plans

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Mobile phone cancer link still unclear

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OHS is becoming criminal law in a social context

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Verify website data

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Who is advising John Holland?

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Grappler death in forestry operations – WorkSafeBC Slide Show

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