Workplace Safety at Board Level

In May 2008, the Safety Institute of Australia held a conference where, for one day, CEOs and senior executives talked about their experiences with workplace safety and how they manage OHS in their workplaces and with their boards of management. The presentations were of variable interest but those that were good were very good.  The…

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OHS uniformity is looking unlikely

Michael Tooma, a lawyer with Australian law firm Deacons, has stated

“Despite the enthusiastic manner in which the harmonisation agenda has been pursued, and the appearance of progress in that regard, it is likely that the quest for uniformity in OHS laws across Australia will remain elusive.”

His reasons for this statement in a recent edition of Safety Solutions magazine (August/September 2008) are

  • The National OHS Review was set up to develop model legislation for implementation in each State jurisdiction;
  • Duty of Care is absolute in two States, Queensland and New South Wales;
  • “Reasonable practicable” is not applied in each State to the same extent;
  • The New South Wales right for unions to undertake prosecutions for OHS breaches;
  • Not each State has a legal forum dedicated to handling OHS prosecutions;
  • The level of enforcement of OHS law is inconsistent between States; and
  • The level of maximum penalty available.

Tooma is worth listening to for lots of reasons but principally he seems to be less wrapped up in political baggage compared with other OHS legal commentators.

Tooma seems to favour an industrial or OHS court because of the substantial jurisprudence that has been achieved through the New South Wales Industrial Commission.  I support the expansion of this type of court as NSW decisions, regardless of legislative differences, can be particularly useful is clarifying the most suitable OHS interventiosn for particular hazards.

He also says that enforcement must be consistent.  This is true or else, if given the chance, an employer could undertake certain hazardous tasks in the jurisdiction where enforcement or prosecution is less effective and active.

This relates, in a way, to Tooma’s last point on penalties.  An OHS offence in Victoria could lead to jail but in Tasmania, not.  A monetary fine of over $1 million could apply in some States with only $180,000 in another.

It seems that the fantasy of one OHS law for Australia will remain a fantasy.  The trick will be whether, after months of government review and hundreds of submissions, there will be sufficient consistency across the States.  The likelihood is that we will be slightly better off but still with State variations.  We have a little less red tape but red tape nonetheless. 

My question will be, was it worth it?

The safety context of sick leave entitlements

If I have a cold that could spread to my work colleagues, I take the day off.  I use my entitlement of sick leave to achieve two aims – to get myself well and to avoid infecting my workmates.  Both these aims are within the context of occupational health, safety and wellness.

The Australian newspaper today provided an outline of a new absentee-management  IT system that would provide good support for sick leave management.  You ring in sick and a qualified nurse will estimate the necessary period off work and notify your supervisor.  There are several flaws that I can see in the system:

  • What if a worker produces a medical certificate that contradicts the determination of the nurse?
  • Can diagnosis really be undertaken over the phone?
  • This service only seems to relate to health matters. What about stress?
  • Some companies allow for “doona days” where time off is allowed to “chill out” and to minimise stress.  Are these classified as a sick day?  They certainly provide health benefits.

The article’s focus is on the IT system but given that the article is written by the newspaper’s Human Resources writer, it is a little dismissive of the role of sick leave entitlements. 

“Mondayitis” may be a glib throwaway term but there is also an implication that taking Monday’s off repeatedly is a sign of abuse of the system.  Repeated regular absences may be an important symptom of a workplace matter that needs addressing and not just disciplining.  For instance, if your boss repeatedly embarasses you in the Monday-morning staff meeting, you may feel this is a good reason to avoid Mondays.  The better path would be to address the cause of the absence, should your employer provide such opportunities.

What does the government mean by “flexibility”?

Australian governments have all missed the solid, positive support that workplace safety can provide in pushing through useful OHS, and industrial, initiatives.  It would be a courageous employer who argued against any initiative that is intended to imporve the level of safety in any workplaces. 

The Deputy Prime Minister and IR Minister, Julia Gillard, reminded me of this when she spoke about the intoriduction of the government’s Fair Work Australia authority.  I have written elsewhere that the time is right for the Minister to also announce a “Safe Work Australia” authority which can arise out of ashes of the Australian Safety & Compensation Council. I would suggest that Safe Work Australia could also use the structure of the Workplace Ombudsman, have Comcare for the paperwork, establish a dedicated OHS stream in the justice system and use the moral authority of a new independent OHS Ombudsman.  This would be my mix for a strong, fair, independent and national OHS process for Australia.

In Gillard’s speech on Fair Work Australia though, she provided little hope of such an achievement.  This government continues to consider OHS as a separate discipline (or perhaps a subset) to Industrial Relations except when business accuses the unions of gaining IR advantage through OHS actions.  OHS could be legtitimately used to present consultation and consensus in a united IR strategy but there is little indication of that, indeed the gulf is widening. 

In Gillard’s speech on industrial relations she mentions “promoting workplace flexibility” as an important part of the platform.  This appears a couple of lines after a mention of “business flexibility”.  These are not interchangeable terms and seem to be included to soften the message, as there is no further mention, or expansion, of these concepts.

In HR and OHS terms we are looking at flexible work structures that can reduce workplace hazards, improve staff retention, increase career longevity and provide sustainable productivity.  Whether this is workplace flexibility or business flexibility seems to depend on which end of the management structure you come from but there should be no ambiguity in government statements on the issue of flexibility.  Then again maybe staff health, safety and welfare is only a distraction.

Mandatory reporting of stress-related injuries

An OHS colleague of mine, Col Finnie, has posted a comment to a recent SafetyAtWorkBlog article on depression.  As I work out the technicalities of having Col as a regular contributor to this blog, I felt that his comment warranted a little more prominence.  The original comment can be viewed HERE)

I find the whole issue of what is being done about work stress intriguing. Last time I looked stress claims outstripped manual handling injuries in the UK (if I recall right, that was about a year ago). You’d imagine that trend will also happen here in time.

I wonder if it might be worth considering getting doctors to report to their local OH&S agency when they have evidence that a particular business appears to be the source of an unusual number of stress related patients?

If it’s legitimate for the police or emergency wards to be a source of reports of info on apparent work related physical injuries, why shouldn’t that be legitimate for other types of injuries?

There is no reason for this idea to be considered a “witch-hunt”. I’d consider it an opportunity for a regulator to pitch in on getting a business on-track with how it’s dealing (or not dealing) with managing stress stuff. Clearly, the reporting approach would have to be handled carefully. It’s quite likely it wouldn’t work as a mandatory requirement. But guidance and an info program could be worked up to make sure the complex issue of stress is dealt with sensibly.”

When a safety campaign is not a safety campaign

Last Friday the Australian Jockeys Association issued a media release in support of their safety campaign for increased compensation.  The campaign was surprising on a number of points.

The safety campaign is aimed to “help jockeys manage the risks inherent in their work”.  Over the last few years there has been a marked increase in safety work in this area.  In December 2005 media reported the following

“Safety helmet to be demonstrated in Melbourne
The prototype of a full face jockeys’ helmet designed to minimise head and facial injuries will be demonstrated at the Moonee Valley meeting in Melbourne on Friday.
Sydney riders got a look at helmet at Rosehill last Saturday and several adjustments have since been made. The helmet, which has been developed by Mark Bryant of Safety Helmet Systems, gives 40 per cent more protection and has a rear locking device enabling it to be removed easily in the case of suspected neck injury.”

This developed from the work undertaken by John Saxon and the National Jockey Safety Review Steering Committee established in early 2005.

WorkSafe Victoria supported a research project in March 2006 (which included the Victorian Jockeys Association) that made recommendations on the following OHS areas


In June 2007 WorkSafe Victoria published a guide on HORSE STABLES AND TRACK RIDING SAFETY, which includes a section specifically related to horse riding and track safety.

The media release makes no mention of workers’ compensation yet compensation seems to be what they were requesting.

AJA CEP Paul Innes says, in the release,

“Under our plan, one per cent of race money would be directed to the AJA. This money would be used to: cover jockeys’ compulsory Public Liability premiums; fund a national Personal Accident Scheme for jockeys; support jockeys and their families in financial hardship due to death, illness and injury through the National Jockeys’ Trust; and fund other welfare programs”

The AJA website acknowledges that jockeys do receive workers compensation.  It says

“As Workers Compensation entitlements for jockeys depend on specific state and territory legislation, a jockeys entitlements to benefits in respect to a workplace injury, differs quite considerably throughout Australia.
The AJA has been recently in the process of making representations to the Principal Racing Authorities in those states that have inadequate compensation entitlements.”

So what the recent campaign is about is not necessarily reducing the risk to jockeys but an expression of dissatisfaction with current workers compensation arrangements.  If this is the case, why is this not explained in the media release and why not redirect the protest resources to the national reviews of OHS and workers compensation to which the current Federal government is committed?

In the AJA campaign booklet, Paul Innes emphasises on page 2 that

“… the overwhelming majority of jockeys aren’t highly paid. Quite the opposite, with a survey of our members showing that 50 percent gross no more than $50,000 per annum. That’s before paying for their equipment, transport costs, public liability and other insurance, as well as GST and income tax.
Disturbingly, surveys of our membership reveal many jockeys experience periods of financial hardship.”

The booklet further stresses that “jockeys are leaving the industry in large and unsustainable numbers. In the past nine years, jockey numbers have declined 43 percent” with the implication that it is financial pressures and not risks to health that are the more important concerns.

The campaign is entitled “Racing for Our Lives – A Plan to Protect Australian Jockeys”.  It is described by the AJA as a “safety campaign” – IT IS NOT.  This campaign is about income.  To label it as anything to do with safety is misleading and the Australian Jockey’s Association should be roundly criticised for misrepresenting this campaign.

Note: I tried to contact Paul Innes today for clarification.  He was unavailable but his staff said that he will contact me in a few days.  I will publish his response.

“Negligence” and salvation

SafeWork SA recently released details about the successful prosecution of MCK Pacific P/L (trading as Plexicor) over two injuries in a carpet manufacturing plant in South Australia that occurred in January 2006 and July 2007.

The company was fined a total of over $40,000.  The new management has been congratulated on its new OHS management program (to such an extent that it won a Safe Work Award in 2006) and for achieving a positive safety culture.

It’s a shame that the prosecution didn’t focus on the lack of a safety culture that had lead up to two injuries on the same machine at the same MCK Pacific plant both involving the trapping of a worker’s foot in exactly the same nip point.

Risk Assessment

According to the report from the SA Industrial Relations Tribunal a risk assessment had been undertaken after the first incident but the control measures were not undertaken:

“The recommendations involved re-wiring the machine and ensuring safe work practices were put in place. …… The defendant failed to act on the identified risk. Further there was no hazard identification or risk assessment done with respect to the particular issue of cleaning and maintaining the foaming press being the function Wilson was performing at the time he was injured.”

There are several issues raised in this prosecution that need discussing.  The first is that the company was able to save over $10,000 by “early guilty pleas, cooperation and contrition” assumably by the new management.  In other words, once you are caught, get an easy 25% deduction on the penalty by realising you’ve been caught and saying sorry.

What has happened to the previous management who allowed for a second injury from an unguarded machine 18 month’s after a serious incident?  Are those directors and executives excluded from managing a company unless they have had safety training?  Have they acknowledged that they were negligent?

Regardless of the argy-bargy over an executive’s personal accountability and what is a company’s “controlling mind”, this case seems to be a good example of business owners not being held accountable for their (in)action.  Once may be a mistake but twice is negligent.

It is also clear from the Tribunal findings that basic safety procedures were not followed and that workers were unaware of interlock devices.

“There was an isolation key but this was not common knowledge to all employees. Wilson and the other employees working on the machine at the time of the incident indicated that they were not aware of any lockout procedure. There was no documented lock out procedure with respect to the cleaning and maintenance of the machine.”

Following the second incident the company made substantial improvement:

Following the [second] incident … a lockout and isolation procedure was developed together with training for employees in relation to that procedure. Safe work practices were developed for all of the processes involved with respect to the foaming press. A space entry permit was required to be completed and signed prior to the entry of personnel into the press. Audible alarms were fitted. Hoses on the tool die were relocated to the front of the die which eliminated anyone standing behind the die and potentially out of sight of employees at the control panel.

Supplier Obligations

There is also a movement in OHS for contractors to meet the OHS standards of the commissioning company.  Plexicor lists the following companies as its clients – Chep Australia, Ford Australia, Holden, JC Decaux, Mitsubishi, Pacific Center Cyber Works, and Telstra.

In 2004, before the injuries mentioned above, Holden made this statement in its 2004 Community and Workplace Report:

“Supplier Management
GM’s Worldwide Purchasing Policy includes a number of practices that guide its suppliers in purchasing activities throughout the world. Suppliers and any goods or services supplied must comply with all applicable regulations or standards of the country of destination, including those relating to environmental matters, wages, hours, conditions of employment, subcontractor selection, discrimination, occupational health and safety and motor vehicle safety.” (my emphasis)

Holden doesn’t seem to have pushed this obligation with Plexicor.

Holden sets out its current expectations for its suppliers on its website.  One of the criteria, which seems a little contrary to well-resourced OHS management systems, is “Lean Manufacturing” – “the production of durable goods with a minimum consumption of capital investment, floor space, labour, materials, time and distance”.  Holden states that

“For Holden to be successful a a low cost producer of quality vehicles, Holden suppliers also must be committed to the lean ethic.”

Similar obligations are imposed by Ford Motor Company through its joint venture with Futuris Automotive (the new owners of Plexicor and the defendant in the SA IR Tribunal case).

The Magistrate was certainly optimistic about the safety future of Plexicor under the tutelage of Futuris.  If only Futuris had bought Plexicor earlier.

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