Author: Kevin Jones

Civil liability and work-related diseases

On 4 October 2009, Queensland’s Attorney-General Cameron Dick released details of his intentions to increase the compensation available for individuals and their relatives through his  Civil Liability and Other Legislation Amendment Bill.  Below is a table which shows the level of the  increase.

It needs to be pointed out that this is not workers’ compensation but OHS legislation is blurring the demarcation between workers compensation and civil liability in the context of safety management.  New Australian legislation is placing OHS obligations on workers and employers for the off-site effects of workplace activities.

The Attorney-General, who is also the Minister for Workplace Relations had this to say about the importance and breadth of the draft Bill:

“This legislation will increase the maximum caps, for the first time in six years, on general damages available under the Civil Liability Act 2003 for personal injuries,” Mr Dick said…. “These amendments will afford injured persons the monetary compensation they need to help them get on with their lives.  The amendments also ensure a de facto partner of an injured person is now able to claim for loss of earnings.”

Dick goes on to discuss the good news concerning dust-related diseases as the amendments will also abolish the statutory limitation period for dust-related disease claims including asbestosis, mesothelioma and silicosis.  It is unclear whether workers’ compensation insurance has similar limitations.

“The removal of the statutory limitation period for dust-relates (sic) diseases will deliver significant benefits to sufferers, by improving their access to justice and reducing the costs and stress associated with pursuing a claim,” Mr Dick said.  “This amendment will have retrospective effect to ensure it captures current cases of dust-related disease originating from exposure during the 1950s, 1960s and 1970s.”

Dick said the amendments also ensure that the caps will be annually indexed to average weekly earnings.

These changes raise the possibility that a workplace may have an event that directly injures workers and also affects people outside the worksite. This could generate two processes for compensation – the workers and members of the public.  The business operator would be involved in both processes, of course.

But Australian OHS legislation is moving towards one OHS “Act” that would involve the management of a hazard and its potential off-site effects.  Why then split the compensation  mechanisms?  Would it not be easier for the business owner to manage the environmental, public and worker impacts of the one event in an integrated fashion?

The model OHS legislation deals with multiple parties affected by work processes surely the government should be looking at a single compensation process that also addresses multiple parties?

The workers’ compensation harmonisation review is still a couple of years away but potential changes should be anticipated.  The table below perhaps should be compared to the Table of Maims used in workers’ compensation in the spirit of harmonisation to determine a broader social justice.

Perhaps in this period of public comment on draft OHS model legislation, the government and stakeholders should anticipate the social consequences of the OHS management obligations it is currently considering.  If environmental legislation and management imposes a “cradle-to-grave” context, why should safety management legislation not?

Kevin Jones

Injury Injury Scale Value Currently worth Maximum from 1 July 2010 will be worth
Serious Facial Injury 14 to 25 $16,600 to $35,000 $19,550 to $41,220
Loss of one eye 26 to 30 $37,000 to $45,000 $43,560 to $53,000
Loss of one testicle 2 to 10 $2000 to $11,000 $2360 to $12,950
Loss of both kidneys 56 to 75 $110,360 to $166,400 $130,000 to $196,000
Loss of one arm from the shoulder 50 to 65 $93,800 to $136,100 $110,500 to $160,300
Loss of one hand 35-60 $56,000 to $121,400 $65,950 to $143,000
Loss of a finger 5 to 20 $5000 to $26,000 $5900 to $30,600
Loss of one leg above the knee 35 to 50 $56,000 to $93,800 $65,950 to $110,500
Loss of one foot 20 to 35 $26,000 to $56,000 $30,600 to $65,950
Total loss of hair on head 11 to 15 $12,400 to $18,000 $14,600 to $21,200

NSW contractor representative talks bluntly about the politics of OHS laws

Ken Phillips, executive director of Independent Contractors of Australia, wrote an opinion piece in The Australian on 6 October 2009 that demands attention.

Phillips supports the Federal Government’s program of harmonisation of OHS laws in that it will remove what he sees as the injustices of the OHS legislation in New South Wales.

“The situation is different in NSW, which has OHS laws unlike any other in Australia.  OHS prosecutions elsewhere are criminal matters, but in NSW prosecutions are conducted in industrial relations courts, not criminal courts, with no right to a jury or to appeals……

This has led to the layering of gross injustices on top of workplace tragedies in NSW. Take one example.  A NSW plumber has a criminal conviction against him after a hot water valve he installed in an aged nursing home failed. An elderly woman was scalded and tragically died.  The court found the plumber had properly installed and maintained the valve.  The valve failed because of a microscopic fracture in an internal sealed component. Yet NSW OHS law required that the plumber be declared guilty.”

Phillips sees the union movement’s response to harmonisation as short-sighted.  He describes the union advocacy of the  NSW laws in terms of class, a concept rarely voiced in Australia outside academic sociological circles or the basements of  Trades & Labour Councils.

“It’s a law and process based on old-fashioned political notions that employers always put profits above worker safety and that employers must be threatened with harsh legal retribution to make them heed safety regulations.  This is class obsessed, hate-filled labour at its worst, embedding its hatred in law.  It selectively destroys the application of criminal justice to achieve its tribal ends.”

The language is inflammatory but reflects the level of concern felt by many business operators in New South Wales who are fearful of OHS rather than engaged in positive safety management.  The absolute level of safety demanded by the OHS law is indicative of what can happen when an aspirational concept is realised.

It is not so long ago that one employer association director in New South Wales stated on national television that OHS laws are not needed because employers do the right thing.

The harmonisation process, as SafetyAtWorkBlog has said previously, is intended to be a process of negotiation towards a common goal of safer workplaces.  The union movement is undoubtedly in the ascendant having helped the Australian Labor Party (ALP) break the conservative governments of the 1990s, and believes that the ALP owes it.

Trevor Cook, writing in The Australian, estimates that the union campaign in the 2007 election generated a 2% swing to the Labor Party.  He succinctly describes the achievement after years of the Left’s political parties placating the business sector:

“They treated unions as just another interest group.  Against that background, the 2007 election in Australia was a rare and remarkable event.  It had been decades since a social democratic party anywhere in the world had fought and won an election where industrial relations was a leading issue.”

From the union perspective, the Minister for Workplace Relations, Julia Gillard, needs to “pay the piper” after the unions rid the country of the conservative rats.  The substantial challenge for Gillard is to avoid the second phase of the Hamelin story, before the entire union movement rescinds its support and takes her “children” – the future industrial relations structure.

Kevin Jones

Executive resigns over work-related suicides

According to various media reports, a senior executive of France Telecome has resigned due to the mismanagement of the organisational restructure of the company which has been happening for almost two years and that, some say, has led to suicides.

One report says:

“France Telecom’s deputy chief executive Louis-Piere Wenes had faced calls to resign from employees who say management policies are responsible for the firm’s so called “spiral of death”.”

A UK newspaper includes a quote from M. Wenes:

“Despite the hard edge of the technological and economic fight, especially in our business, nothing can justify men and women putting an end to their lives. Today, like before, I cannot accept it.”

France Telecome’s media statement reads:

“Louis-Pierre Wenes, the current Deputy CEO in charge of Operations in France, has asked Didier Lombard, Chairman and CEO of France Telecom, to relieve him of his responsibilities. Didier Lombard has accepted this request and thanks Louis-Pierre for all that he has accomplished since December 2002 and for the significant contribution that he has made to the turnaround and the performance of the Group.

As of today, Stephane Richard is appointed Deputy CEO in charge of Operations in France.”

UPDATE: 7 October 2009

Additional information and links available HERE

Harmonised OHS laws – winners and losers

Andrew Douglas, an Australian OHS and employment relations lawyer, has followed up some his points made in a podcast on 2 October 2009 in an article available on his firm’s website.

Part of the article says

So what is different about the Model Act and how will it be interpreted? When interpreting an Act you always turn to the objects of the Act. Courts look at the provisions in dispute through the lens of the objects. For example, the Victorian OHS Act merely looks towards providing a safe place of work for workers and the public and makes it clear that interpretation should be directed by the principles of OH&S. It includes an object to work together without specific mention of the unions. Contrast this with the Model Act (MA). The objects include:

  • The primacy of a safety management system
  • Consultation including unions
  • Rather than being compliance focussed the objects are expansively drafted to include:

“The principle that workers…should be given the highest level of protection.”

As a result – all interpretations of the MA should be considered “aspirationally” rather than “compliance focused”.

The third dot point will be manna for those “best practice” advocates but clearly it will be very difficult to “comply” with this legislation.  That raises the question of whether one of the major political aims of the harmonisation processes – to cut red tape and thereby reduce compliance costs – can really be achieved.  Or is the compliance cost being made easier for the corporate few at the cost of the small business “many”?

A small but significant omission in the MA aims is “to eliminate hazards, at the source…”  This aim in the Victorian Act was extremely useful in advising companies to keep analysing risks in order to get to the core contributory factors on incident and hazards.  This motivation disappears in the MA with its focus on “reasonably practicable”.

“Reasonably practicable” allows business operators to consult on whether the control measure reaches what stakeholders feel is adequate and then stop.  “Close enough is good enough and, if not, WorkSafe will tell us.  If it is way off, WorkSafe may prosecute.”  This is lazy safety management.

Looking for the source of the hazard to eliminate it keeps business improving its state of knowledge on safety, looking for new solutions for difficult hazards.

Douglas identifies the winners and losers with this new proposed legislation:

Winners

  • “Business that crosses borders will have one regime to comply with. That is simpler, cheaper knowledge and easier to train operational staff/increased flexibility.
  • Unions – expanded rights of entry, locked into consultative mechanisms and cheaper to train in OH&S – across Australia flexibility.
  • Regulators – shared knowledge, resources, and training.

Losers

  • Small to middle size businesses who cannot afford the new documentation boom that follows duty compliance and whose officers will lack the knowledge and time to positively comply.”

It will be interesting to see the submissions from the small business sector, if available, over the next few weeks.  Similarly, the employer and industry associations will need to show how they represent the range of business interest of all their members and not just the multi-state companies.

The recent stats quoted by SafetyAtWorkBlog that showed a high degree of ignorance on harmonisation changes by most businesses are understandable because if you operate in only one State, why would harmonisation bother you?  Now the MA is out, the state impacts of the national program are becoming clearer and more worrisome.

Kevin Jones

[Please note that in this article WorkSafe is used as a generic term representing OHS regulators across Australia]

New Australian Embassy in Laos creating traffic safety issues.

The new Australian embassy located on Route Thadeua, the major arterial through Vientiane, is set in a high security compound, somewhat out of keeping with the slow pace of Laos.  Some say that the PDR after Laos comes from Please Don’t Rush.

When the Japanese upgraded Route Thadeua, the major route out of the city to Thailand, they put in a central median strip without turn lanes so any turning traffic forces the traffic behind to swing into what is now unofficially the motor bike lane closest to the curb.  Motor bikes vastly outnumber cars in Laos, one of the worlds least developed countries and governed by a hard line and corrupt Government.

Openings in the strip are irregular, but inevitably one is always situated outside embassies.

The traffic engineers installed concrete blocks around 75 centimetres long along the edge of the road which means that off street parking is virtually impossible.  Some businesses have subsequently demolished the blocks.

Footpaths were not part of the Japanese aid package

The Australian Embassy has a nice strip of suburban lawn outside the high walls but have chosen to retain the concrete blocks, meaning that the lines of cars outside while their owners are meeting or making entreaties to the Embassy staff, ostensibly block one of the two available lanes.  The Please Don’t rush adage only stands when a person is working and not mounted on a machine.  Laos are largely inept drivers with no idea of consequence. They are like a nation of probationary drivers.

Impatient and opportunistic and accidents are put down to supernatural forces such as in Luang Prabang, the World Heritage city where a spate of fatal accidents was said to be caused by a ghost women motorcycle rider.

Of course, the opening in the island is right outside the embassy.  Late last week the traffic was backed up at the beginning of peak hour and motor cycle riders were being inched off by impatient drivers trying to squeeze through between a line of U-turning traffic and the cars parked outside the embassy.  Other motor cycle riders were risking their lives and cheap Chinese motor bikes by dodging through any narrow spaces in front of cars that had just got through and accelerating out.

It would take very little for the embassy to create a car park outside.

The grass is nice but safety would be better.  The excuse may inevitably be security and the blocks do deter any potential car bomber.  But this is Laos not Iraq, and it seems to be an act of stupidity to pass on risk to the Lao public on a permanent basis for a risk that may or may not arise.

Vientiane is a land locked and hot city and getting hotter.  It has few swimming pools that aren’t in private hands. On top of the decision to close the Australian Recreation Club pool and sports facilities to the general public, a move that was wildly unpopular, and left this great facility for the sole use of a few (7-9) embassy staff, the cocktail party chat is not flattering.

By an Asian reporter

Queensland take on Model OHS laws

Cooper Grace Ward is another Australian law firm who has issued a brief alert on the proposed OHS model laws in Australia. As a Queensland-based firm it has a slightly different take on the draft Safe Work Act

Duty of Care

Cooper Grace Ward see the introduction of “reasonably practicable” as a new duty of care for employers, although the concept is well-established in other States. It describes “reasonable practicable” below

“What is reasonably practicable will be determined by taking into account and giving appropriate weight to:

  • the likelihood of the hazard or risk occurring;
  • the degree of the harm that might result from the hazard or risk;
  • what the person concerned knows, or ought reasonably to know about the hazard and the risk and ways of eliminating or minimising the hazard or the risk;
  • the availability and sustainability of ways to eliminate or minimise the hazard or risk; and
  • the cost of eliminating or minimising the risk.”

The firm says this may be “a more sensible approach than the current Queensland standard.”

Lawyers tend to like “reasonably practicable” because it is a difficult concept to define in practice and often OHS lawyers are asked for opinion. Employer associations like it because it can provide some larger business operators with the flexibility to minimise safety costs by tweaking the OHS management so that after an incident “what we thought was reasonably practicable, obviously isn’t, and we sincerely apologise” – not a lot of comfort to the grieving widow or widower.

The concept is also contrary to the dominant (if flawed) attitude of the small- to medium-sized business owner who wants simply to know if they comply. Most businesses in this sector just want to avoid the unnecessary complication and cost that a workplace injury would cause or a visit from an OHS inspector could cause. “Reasonably practicable” removes certainty from the business operator and leaves a large grey area of OHS compliance. This can lead to increased OHS costs by needing to go outside to a lawyer or OHS professional where, before, there was enough skill in-house to achieve a safe level of compliance (if such a think ever existed).

Cost to employers

Cooper Grace Ward should be congratulated for thinking ahead to how the new rules will affect businesses rather than just legal opportunities.

Employer’s will have new OHS obligations “for example, imposing a positive obligation on all employers to engage employees in a consultation process when implementing and monitoring any risks within the workplace.”

“Contrary to the Government’s claims this process may result in a decrease in business efficiencies as more time is spent negotiating methods of improving safety than actually doing so, and by reducing employee efficiency as more work time is spent assisting and negotiating the manner in which workplace health and safety systems will be improved instead of conducting their usual duties.

Costs will also be incurred to business as employers will be expected to provide those employee representatives who are acting in safety roles with adequate facilities and external training to adequately perform their role. Whilst employee representatives currently exist in Queensland, the proposed scope of their powers will be increased by the proposed Act.”

Cooper Grace Ward’s article also discusses union right of entry.

The public comment phase is only one week old, with another five to go. The legal fraternity has various approaches to the proposed OHS law that most often reflect their client base. The first law firms discussing the draft laws were those with a National coverage, understandably. Many Victoria-based law firms have come out sounding a little smug as it is largely the Victorian OHS Act which has been used as the skeleton for the National legislations.

Cooper Grace Ward is an example of a smaller, more localised firm that, in some ways, is closer to its clients or, at least, clients in the smaller business sector which, OHS regulators agree, is the sector where OHS incidents can cause greater proportional damage and where the greater business risks are taken.

Kevin Jones

Freshening an OHS career

OHS professionals, as with any profession, can easily become out-of-touch with what their profession is all about.  This is to improve the safety of people through a professional and competent approach.

Some professionals lose touch because they may be dealing with corporate OHS policies all day,  they may never get away from head office and the endless round of meetings, they don’t get to go to events outside their own professional network or they are simply comfortable with  the “academic” role and not miss getting their hands dirty on the shop floor.

In each of these scenarios the OHS professional is doing themselves, and their profession, no favours.  Their career may progress but their thinking does not.  Some OHS professional associations are at the same plateau.

There are some small things one can do if one wants to break the cycle and obtain a better quality of work.

  • Test the validity of the corporate polices by arranging for an internal audit by someone else and participate as an observer.
  • Take one’s skills out of head office and offer to mentor some of your contractor’s OHS people.
  • Establish a pro-bono service for the smaller businesses nearby.
  • If one’s company is in an industrial estate, start-up an Estate OHS group where business owners can meet to share or create solutions.
  • Offer one’s OHS services to a not-for-profit organization, if your company offers “volunteer” leave.
  • Offer to assist students at all levels with their OHS assignments.
  • Take a sabbatical to majority world sectors, such as Asia, and offer one’s OHS skills to OHS and labour advocates in that region.*

The biggest threat to one’s safety skills is stagnation.  If one’s professional safety organisation does not have the programs available to freshen up your skills and approach, go outside the safety field.  It is surprising how one’s skills in one area can be applied in others, such a public health, environmental safety, transport or maritime safety.

Kevin Jones

* A particularly useful organisation that is worth contacting is ANROAV – the Asian Network for the Rights of Occupational Accident Victims

A colleague in Asia recently told SafetyAtWorkBlog that ANROAV is in need of variety of educational materials.  Many of these are basic tools such as jigsaws that can be used to identify hazards or safe work options.

$A10,000 would be a great help in establishing a basic education fund which could access a suite of OHS comics and short films that can be used for education on fire risk, cancer, mine safety, electronics, solvents etc..

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