business – Page 205 – SafetyAtWorkBlog

CFMEU, IPA, Gretley Mine – political lessons

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.

On 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-210RETLEY On 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

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]

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

The bad news and the good news of New Zealand agricultural safety

On 8 October 2009, New Zealand’s Department of Labour issued a press release that stated

“New research confirms the importance of work in agriculture safety and health. The research by Otago University’s Injury Prevention Research Unit found that the rate of serious injuries and fatalities on New Zealand farms has remained high in contrast to declines in other industries over the past two decades.”

The release states that DoL continues to place a high importance on preventative action in the agriculture sector, an undeniably important economic sector for New Zealand.

However, what was most noticeable was that

“the rate of serious injuries and fatalities on New Zealand farms has remained high in contrast to declines in other industries over the past two decades.”

Surely this is not a good news story. Twenty years of preventative interventions in the agriculture sector have not been as successful as those in other industries.

SafetyAtWorkBlog contacted DoL for clarification. The commitment of DoL to the agriculture sector was re-emphasized. DoL responded very promptly to our enquiries and provided links to additional information including the original research report.

Part of the Otago University project was a literature review in the sector from 2000 to 2008. The major findings were

“The most common mechanisms for serious non-fatal injury and fatal injury include agricultural machinery (including vehicles –tractors, ATVs), livestock and falls for all age groups, in all three regions under review.

The exposures and risks of disease in the agricultural sector currently being researched and where researchers agree there is a need for further research include:

exposure to dust and organic materials and the relation to respiratory disorders;

exposure to pesticides, herbicides and insecticides and associations with various cancers including: non-Hodgkin’s lymphoma; prostate cancer, breast and ovarian cancer, leukaemia, multiple myeloma and brain cancers;

environmentally associated cancers (for example, skin cancer and cancer of the lip) and their association with production practice.

Occupational fatalities in agriculture remain high, despite decreases in occupational fatality rates for other industry groups, in all three regions over the last decade. The research demonstrates that there are various groups that are particularly at risk, these include:

men in all age groups;

older workers/farmers;

migrant and seasonal workers;

youths (particularly those aged between 11-15 years and male)

Children (particularly male children)

Farm-owners and managers, with respect to intentional fatal self harm injury) again predominantly men.”

Several other surveys were undertaken, one by telephone. Those results are also telling. Amongst the results was this paragraph concerning injuries:

“With respect to injury, thirteen percent (13%) of farmers from the AgriBase™ sample had had an injury, in the three months prior to interview, which had restricted their activity for a half a day or more and/or which required medical treatment from a health professional. Generally these injuries were reasonably serious and respondents reported work capacity was poor following injury. For two-thirds of those injured it was over a week before they could resume normal farming duties; yet only a third of these respondents made a claim to the Accident Compensation Corporation.”

Key findings of the report for governments include

“….there is no long term prevention strategy for injury and disease that specifically addresses the agricultural sector.”

“The dominant stereotype of the farmer as being rugged, independent and self-sufficient (and masculine) is also largely uncritically accepted by many stakeholders. These and associated stereotypes about the nature of rural life and notions of rural isolation are problematic and potentially can undermine effective health interventions in this sector.”

“…there is a tendency for initiatives to be ad-hoc and for there to be a lack of co-ordination and coherence, and in some instances, where there are some questions around the efficacy of various interventions, an unwillingness to accept that there are problems.”

There are many others that discuss a lack of resources, dubious targeting, a lack of coordination and inter-organisational politics.

For farmers and other individuals, some of the findings include:

“In connection to this evident stoicism was a vocational identification to the work they do; most could not imagine not farming, it was not just a job. The implications here are that they would often keep on working with an injury (such as a back condition), as doing the work was more important, not just economically, but also in terms of their identity, and an underlying belief that it would heal itself if they just kept on going.”

“Many said they were too tired at the end of a working day to read about injury and disease or to go onto the internet to learn about it either. When they opened the paper they wanted to know about local and international news, not health matters. This presents some real challenges for the sector in terms of disseminating information.”

The University of Otago also issued a media release on the research project. This release reflects the tone and results of the research project much more accurately.

The whole report reflects the current status of safety in the agricultural sector in New Zealand. It reports on good intentions in the wrong areas, a need to look beyond the stereotypes and the need for sustained intervention.

What seems to be needed is a creative and effective response from the Government that acknowledges that past strategies have failed, or at least that some of them have. All the existing strategies need reviewing to determine which have shown promise and could succeed if appropriate resources were allocated. Inspiration needs to be sought from within the region and from around the world. If this has already been sought and found wanting, the sad reality will be that it falls to New Zealand to make the change.

New Zealand’s DoL may already be facing this bleak reality. In their media statement, the Department’s Chief Adviser, Safety and Health, Dr Geraint Emrys said:

“The Department will use the findings of the research to inform policy decisions and to better target operational interventions to make them more effective in reducing the injury and death toll in agriculture.”

New Zealand could lead the world in this important area.

Kevin Jones

More on leave retention and mental health

The research statistics quoted in an earlier blog article have finally been located.

It is important to understand the limitations of the study. Firstly, these are not statistics from the Australian Bureau of Statistics so they do not have the same weight as the regularly issued Labour Force statistics. It would be great if the government began collating this useful economic and business information.

The data released by Tourism Australia also does not include owner-operators or part-time employees. Part-time employees account for over 3 million Australians out of a total population of 22 million*. That seems a large number to leave out of the calculation.

Nor does the study include any annual leave that does not involve travel. So if one takes annual leave and recuperate in one’s backyard for four weeks or some quality time with the kids, this is not included.

These restrictions alone show that official statistics on leave use and retention are needed.

The Research Data has some comments specifically about the workplace

“There is a consistent and widespread perception that leave is harder to take than it used to be. Two separate shifts have contributed to this feeling: that it is harder to take time off from work and that it is more difficult to plan holidays.”

Whether it is harder to plan holidays is not relevant to SafetyAtWorkBlog but why is it harder to take time off from work? It is unclear if this is a perspective of the employee or the employer. What is easier to accept is that

“Organisations were no longer seen to factor leave-taking into employee workloads, but expected people to work 52 weeks per year.”

From an OHS perspective this is unforgivable, unhealthy and unsafe. Any companies that do this are breaching their OHS obligations of providing a safe and healthy working environment.

“People are shifting into ‘work addiction’ behaviour irrespective of how they feel about it. They’re working longer hours and are under pressure to perform. Despite a higher consciousness of the importance of work/life balance, many believe things are going in the other direction.

Rather than the onus of planning leave being on the organisation as in the past, it was viewed that this has shifted to the individual. Whereas many organisations used to have cover for people going on leave, it was seen that it is now the responsibility of individuals to organise their workloads if they want to take leave.”

Further research on what caused the change of attitude would be fascinating. It is suspected that the survey frenzy generated by the global financial crisis may be showing results soon on this issue.

What the research data indicates is that there may be “employers of choice” and one’s awareness of work/life balance is high but the reality is vastly different. There may be financial, organisational and career barriers to achieving some form of stability in mental health and productivity. What is undeniable is that having leave from work is as important for one’s mental wellbeing as sleep, and to neglect either is not healthy or productive.

What we need is hard and authoritative evidence so that those who motivate change can do so from a position of authority rather than from impressions.

Kevin Jones

*As with all statistical calculations in SafetyAtWorkBlog, please verify them from the original data. (Arts graduates can describe “alliteration” but can’t count very well) If wrong, please advise us immediately.

Working in heat – still contentious

Australians associate working in hot conditions as outside work although the occupational hazard of heat is just as relevant in bakeries and foundries. OHS regulators and safety lobbyists often try to include too much in their heat-related strategies – heat stress, skin cancer, hydration, dust, and a range of other hazard combinations related to specific industries.

What the community and many workers want is a defined unsafe temperature limit. Some will remember being allowed to take their school ties off when the temperature reached 38 degrees Celsius (100 degrees Fahrenheit). But OHS legislation, more often than note, focuses on the system of work and this allows for work in excessive temperatures as long as the system can ensure this is safe.

Legislatively, this position is understandable but it is not what people want or expect.

The issue was raised recently at the Trade Union Congress in September 2009 in England in a discussion on working temperatures. Pauline Nazir, representing the Bakers, Food and Allied Workers’ Union, said

“The question is why there is no maximum temperature and why has the Health and Safety Executive and the Government have consistently dodged calls for similar protection for those who work at the higher levels of temperature? It is a big question for a big organisation, but one that the Health and Safety Executive has failed to answer logically despite years of pressure. While they have failed to act, workers suffer the consequences, year in and year out.

It seems illogical that we have regulations that limit the temperatures at which cows and pigs can be transported around the country, but offers no protection other than the general health and safety legislative offerings. It is true that if you move livestock in Britain, there is a maximum level of 35 degrees Centigrade within the carrier, but poor old human beings can regularly carry out physical and strenuous work at temperatures that far exceed these levels. Why have we failed to get the Health and Safety Executive to act?”

The variety of factors contributing to excessive heat at work is probably the reason for lack of progress on the hazard. There are many organisations advocating prevention of harm from working in heat but they all have their own funding models, costs, agendas and “sub”hazards. Nazir’s call for the Health & Safety Executive to do something sounds unfair but the common activity she is referring to is working in heat so it is not unreasonable to expect an OHS regulator to coordinate resource and, perhaps, research.

Coordinated safety action is expected of business operators to ensure these hazards are controlled but that operator would need to read up to a dozen brochures, codes, guidances or policy statements to get close to achieving a situation that employees would consider safe.

It may never be appropriate for an OHS regulator to state a defined (un)safe temperature (the hygienists would argue safe working conditions) but what can be achieved is guidance that pulls together the multiple hazards and control measures so that achieving a safe workplace is as easy as can be.

WorkSafe Victoria has started along this path with a (thin) guidance and more generic terms of discomfort and illness but there is a need for a much more comprehensive guide.

Kevin Jones

UPDATE: 9 October 2009

A reader has pointed out a podcast by the Canadian Centre for Occupational Health and Safety from the July 2009 that explains some of the justification for not issuing a specific working in heat benchmark.

Category: business

CFMEU, IPA, Gretley Mine – political lessons

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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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OHS is becoming criminal law in a social context

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The bad news and the good news of New Zealand agricultural safety

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More on leave retention and mental health

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Working in heat – still contentious

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