Polite or ignorant?
Coroners can be a polite lot, preferring what they would call ‘substance’ to emotion, accuracy to grand standing. They also hope that their Findings make a difference and help to protect people against a range of lethal circumstances. Ex-coroner Graeme Johnstone (Victoria) was an outstanding example in OHS. So any comments in their Findings ought to be considered against this background.
However, the comments by the South Australian State Coroner Mark Frederick Johns in his Findings (9/2/2011) in the death of Daniel Nicholas Madeley who died (6/6/2004) as a result of an occupational incident are puzzling. Either the man is being very polite or seriously ignorant of what really goes on in industry. And it does matter because coroners carry a lot of authority. Work by Johnstone, Olle and Tasmanian coroners (mining disasters) has been very helpful.
Poor guarding
To paraphrase: Daniel was 18 years old when he died of ‘horrific injuries sustained when he was caught in a horizontal boring machine’. He became entangled in the machine and was spun violently around so that his feet were amputated by the force when they came into contact with parts of the machine.
This imported machine was old, probably built between 1960 and 1970 in the then U.S.S.R.
“The machine had no guarding or other safety devices that might have prevented the occurrence of an event such as that which took Mr Madeley’s life.”
Preventable and ‘unbelievable’
He wrote that this
“…tragic death was entirely preventable” and that the company was operating a machine which was clearly unsafe.”
So far so good. But then he goes on to write:
“It is inexplicable in an age in which occupational health, welfare and safety is so much a part of the modern workplace, [where has this man been?!] that a workplace could have existed so recently as 2004 with a machine that was so obviously unsafe….. The system of work employed in its operation, namely the need to lean in towards the work with the plastic bottle of lubricant and squirt it on the work, was a major accident waiting to happen. The horizontal boring machine and the method of its operation might have been something one could have expected to see in a workplace in the 1950s, but certainly not in 2004.”
“I simply cannot understand how such a workplace existed in South Australia in 2004 bearing in mind the existence of SafeWork SA and its various predecessors, and the Workcover Corporation which, I understand, also takes an interest in occupational health, welfare and safety.”
“I would have thought that an intelligent ‘strategic intervention’ by SafeWork SA might have decided to target small manufacturing businesses in possession of heavy machinery such as the horizontal borer. I certainly would have thought that such a ‘strategic intervention’ would have been taken very soon after Mr Madeley’s death.”
“However, it was not until more than 6 years after Mr Madeley’s death that the ‘strategic interventions’ section of SafeWork SA finally commenced compliance project to identify the number of horizontal and vertical borers at South Australian workplaces and ensure that they are appropriately guarded, amongst other things. In my view this is completely unacceptable.”
So what’s the problem?
So what’s my problem with what he writes? I’ll group the bits that worry me. He writes:
- It is inexplicable;
- The horizontal boring machine and the method of its operation might have been something one could have expected to see in a workplace in the 1950s, but certainly not in 2004;
- I simply cannot understand how such a workplace existed in South Australia in 2004;
- I would have thought;
- I certainly would have thought that such a ‘strategic intervention’ would have been taken very soon after Mr Madeley’s death;
- However, it was not until more than 6 years after Mr Madeley’s death that the ‘strategic interventions’ section of SafeWork SA finally commenced a compliance project.
What does this astonishment represent? I reckon it expresses a studied coronial politeness – no irony intended – to invoke sympathy for his recommendations so they can actually achieve some improvements. And that’s a good thing.
It just cannot be the case that someone in such an important position would not know that such disgustingly dangerous machines, such poor work practices, pressure to get on with the job and not complain about H&S standards, intimidation and fear of job loss if a worker mentions unease with an H&S matter are all around us. I have found life-threatening conditions in some 80% of workplaces I’ve inspected. Workers have been killed because of missing machine guards or poor guarding methods during the very period the coroner talks of, 3 in NSW alone in recent times. Workers have lost arms in circumstances where machine guards were missing or there were no adequate guarding methods. Read about the most recent one in Hobart and the horrendous injuries that worker suffered.
So far as the speed of response by regulators. What can I say? I agree. I’ve been on the back of some state regulators, including in Victoria, for months now about the hazards of riding quad bikes without crush protection devices and their “proneness to rollover” (as coroner Olle wrote a couple of years back). I’ve been suggesting to them in writing that they need to move quickly, that we need to meet and do something, and that there are some things that could be done. No practical interest. And, tragically, in the last two weeks there have been 4 deaths and a very serious injury (Victoria and Tasmania) as a result of riding quad bikes.
So why is coroner Johns surprised? Nah! I don’t believe it, he is surely being diplomatic and polite.
Dr Yossi Berger
National OHS Co-ordinator
Australian Workers’ Union
I\’ve sat in more than a couple of prosection matters now when the defence argued the employee did something he ought not to have been doing. In not one of these matters was there any kind of safe system of work present. Obviously the Crown would not lay charges if there were – it seems to me they go after the \’safe bet\’ so in that context, they have their ducks in a row and can show that the company failed its duty of care.
I can recall 2 matters where no charges were laid and I have had the opportunity to view the file.
One of these I spoke about in great detail at the recent Select Committee hearing into the deaths at the Adelaide Desalination Plant. There was so much to cover there – so many things that didn\’t make sense. In this matter SafeWork SA deemed the fatality non work related and quoted several times that the company had adequate systems in place.
Honestly, it can be a real eye opener to look deeper into these matters. It\’s actually really frightening to think a dead workers reputation can be treated with so little respect.
The other matter I came across was when a man was buried alive in a trench. Again we have a leading hand here. There appeared to have been some issues with the all important measuring equipment that day. The job was under pressure – Telstra wanted the work completed. The deceased worker\’s partner talked about the phone calls he was getting – the abuse … things were just not moving along fast enough.
Yep, we can only assume he became frustrated. He was the supervisor, it was him that the boss would rip into because the job was behind schedule. I would suggest a little like the truck driver that pushes himself to get the delivery done on time. Sometimes a worker will \’call it\’ because his back is up against a wall … and that \’call\’ may cost him his life.
I have met the families of many dead employees by now and I can honestly say, without prejudice, not one of these dead workers were naive or silly. Heck if anything they were highly regarded and worked harder, longer hours than the average.
Defence lawyers have a HUGE and unfair advantage. The best witness in these matters are dead. It doesn\’t matter how many people he/she talks to about the unsafe work or pressure to get the job done – it\’s not admissible – it\’s nothing more than hearsay. And the workmates that saw it all unfold? There\’s a rock and there\’s the hard place – very few are prepared to risk their livlihood and speak out against their employer.
No matter what the laws says it is the people in the workplace – empoyers and workers – who have the basic responsibility to protect themselves and each other. The law is a construct but good old \’looking after your mate\’ is something that can make a real difference. The decline in unionism (just 1 in 5 workers in MaY 2010 – ABS ) removes a large element of people who had some level of OS training and oversight and who could step in and help workers at risk. Commercial and other pressures is making many workplaces less safe but so does human nature and our inclination to take short cuts. Employers can encouage this by design or neglect while people keen to get the job done or knock off early do it too. Anyone who denies this, denis reality. People will do dopey things that are not in their interests and will do it for a long time until someone says no or something bad happens.
What is the point of OHS inspectors if they don\’t understand the industry they are inspecting? Might as well have no OHS laws and just prosecute for criminal charges – GBH, manslaughter, reckless endangerment etc. Criminal conviction would kickstart many managements into ensuring they have a safe environment.
Thanks Ken and Yossi,
My role is more focused on the aftermath of irresponsible employers lack of compliance with even the most basic of requirements in many cases and the long term issues facing injured workers. If I am more strident than most it is because I really do live in the middle of the workplace injury disaster.
I welcome any move that brings real and measurable results in the reduction of injury rates in the work place and you are right, the Victorians are in a better place than most others but still a long way to go.
More power our arms in the good fight.
Hi Tony.
It is often said two safety professionals never agree however I do agree SA law has been ineffective. However let me explain why I think this way.
I am in Victoria, in the business of making sustainable changes in the workplace. I am convinced that prescriptive legislation does not cut it when you want to improve safety, as Lord Robens recognised. All you get are thicker law books and people less willing to read them. In most businesses I consult to, they have a problem and the problem is quite simple. They have excellent systems but nobody is implementing or enforcing them; or the employees are just not following them. In many cases they have an eager OHS Manager with perfect sets of graphs and records; he or she is busily tracking failure. What they can\’t do is drive a culture change……….
The rest of Ken\’s long and useful comment is available as a separate SafetyAtWorkBlog article
Thoughtful comments by Ken and Tony, comments that demonstrate the tensions in achieving change. Also comments that suggest that there is no single magic bullet. But think of this:
Three of the issues I’m working on at present are: asbestos, quad bikes and missing or poor machine guards or guarding systems. The risks I observe in most workplaces where these hazards are present are hair rising. Definitely some workers will be killed or maimed by them.
In many of these workplaces inspectors have been through, and often missed the point, or the hazard entirely. The suggestions made for improvement are either punitive moves or advisory moves. Keep in mind that the majority of workplaces will be small to medium, will not have an OHS specialist (or will have one who does training, H&S, rehab, compensation and often HR as well… and cannot possibly do well in all), will not have an OHS policy, managers will not have been trained in OHS, they’ll not even know the major catastrophes in their own industry. It will be unusual if they have a copy of the OHS Act, and stunning if anyone will have read it. If they are asked basic questions like, “What’s the very worst chemical on site?” they are not likely to know.
Any specifics in relation to asbestos, quad bikes or guarding will be very poorly received. They don’t want to know because it means more trouble for them, and they neither have the time nor interest (until a catastrophe happens).
Now. In this kind of OHS climate – which I witness nearly every day – how do you think heavy handedness or a considered advisory act will really help? I used to think putting someone in jail would do it, not sure anymore. Though in some cases…………
I have read Ken\’s comment with great care and while I empathise with his thoughts on a gentle and guiding hand for business in an attempt to improve safety in the work place, the reality is, three decades of this approach doesn\’t seem to have advanced matters very much at all.
South Australia has not really been very effective in the management of safety requirements in the workplace, given the number of workplace deaths and serious injuries that have occurred and to add insult to injury, the lack of any real penalty for those employers who have transgressed and been proven to be at fault is nothing short of an insult to the community that sends its loved ones off to work each day, with a reasonable expectation that they will return home safe in mind and body.
Unless employers are clearly focused on their responsibilities and understand that they \”will\” be held to account individually and at great expense to them if not complying via expiation or prosecution, Then I fear the \”hand wringing\” will continue and safety in the workplace will not have advanced by any measurable amount.
For the huge increase in OH&S specific employment, one would have reasonably expected we would have seen a significant reduction in both the number of workplace injuries, their severity and associated costs. Not so it would seem.
When it comes to holding individuals to account for their lack of responsibility that directly causes an accident, or failure to comply with workplace safety legislation that can cause injury, it shows there is a great need for a constant and ever present inspectorate with real teeth. No business operator should fear an inspector visiting their premises if they are genuinely trying to comply with their obligations and a well trained inspectorate will certainly be certainly recognise this and act accordingly. There is no other way that I can think of to root out the transgressors with absolute certainty.
I know Andrea Madeley (Daniel\’s Mum) personally, having met her in 2006 at a Parliamentary discussion about Workplace death chaired by Hon Nick Xenophon. Out of that meeting came VOID (Voice of Industrial Death) . This one meeting in particular drives me on in my work. The impact on Andrea and Daniel\’s girlfriend and others also affected by workplace death who spoke at the meeting has been life changing in the greatest sense of the phrase. I speak with Andrea from time to time and seven years on the pain is still very much there.
South Australian business has got a great deal to do before the new harmonised laws come in. Yossi is correct when he states there are many factories with primitive guarding in every state and that there are many other risks taken, with worker safety being the gambling chip. The previous laws in SA basically allowed a company to risk manage safety. Cost of fix being x and cost of fine being y. If x was greater than y then often the problem was not fixed. The company officers knew that no individual had been personally attacked under previous law for failing to fix a safety problem. I know this because I consulted briefly in SA and was amazed at the laissez faire attitude of many small businesses.
The mere fact that individual directors and senior managers in SA now become accountable in a way they never have previously is a start. So are the increases in penalties for companies. It seems incomprehensible that a fine of $60,000 was seen as \”heavy\”. Companies are routinely fined multiples of that for serious injury or near hit in NSW and Victoria and that is appropriate.
Finally, if as Yossi suggests, the coroner needs to get a reality check, then maybe he could visit some factories. He would quickly understand that safety is not as well resourced in private enterprise as it is in a Government Department. Melrose Park and Edwardstown; also dairy and grain farms, spring to mind when I think of massive risks with worker safety, particularly with chemicals and machinery issues.
I do not agree it is the role of Safework SA to come down heavily on companies, with flying squads raiding small businesses, as the coroner seems to suggest. SA safety does not need a heavy handed regulator with a parking inspector mentality. The massive changes coming need a bit more understanding than that. It needs a regulator in the mould of WorkSafe Vic that actively seeks to assist companies with problems and they encourage communication. Their gentler and preventatively minded approach is probably why Victoria has comparatively low rates of workplace fatality per man hour (although even one is too many). Not because they are heavy handed, but because businesses are generally not frightened to ring for advice or have an inspector in their workplace.
Great article Yossi. The sad thing is that there are still thousands of potential killer machines in regular use without guards so what do we do about that ???????????
There were several OHS prosecutions by SafeWorkSA related to the death of Daniel Madeley which are worthwhile noting.
http://www.safework.sa.gov.au/uploaded_files/290906_eagts.pdf
http://www.safework.sa.gov.au/uploaded_files/DiemouldPenalty.pdf
A February 2011 media report on the Coroner\’s comments is also available.