business – Page 220 – SafetyAtWorkBlog

Legal opinion on Australia’s model OHS laws

The comments on the Australian Government’s response to the report into Australia’s model OHS laws have been pretty muted. There were the obligatory compliments from those in favour and the obligatory criticisms from those against but both types of response were in the immediate aftermath of the Workplace Relations Ministers’ Council meeting in mid-May 2009.

Going from the institutional and media quiet, there must be few changes that are expected to have any great impact. Law firm Blake Dawson released their take on the government’s response. Here is their advice to employers – pretty much “wait and see”:

Lessons for employers

The decisions made by the WRMC on the proposed national model OHS Act will bring changes to virtually all areas of OHS in all Australian jurisdictions.

All employers and other duty holders should carefully review the model OHS Act upon its release and consider whether changes need to be made in advance of the laws being enacted.

Particular areas of focus are likely to be:

ensuring all duty holders have a clear understanding of the nature and scope oftheir duties and obligations;

ensuring that officers of corporations are taking proactive steps to promote health and safety;

in respect of some Australian jurisdictions (eg NSW) preparation for the introduction of health and safety representatives and the role that HSRs may play in an organisation;

thorough preparation for regulator investigations.

It is strongly recommended that their full “alert” be read for interest.

Kevin Jones

Presenteeism and swine flu

Craig Donaldson interviewed Joydeep Hor, managing partner of Australian law firm Harmers on employment issues related to the swine flu outbreak. Joydeep rightly points out that HR and OHS processes should not differentiate between swine flu and other workplace illnesses. Hor briefly discusses the employers duty of care and how to question one’s traditional approaches to the “sniffles” at work.

Of course there is also the much under-enforced obligation of the employee not to put their work colleagues at risk – the major argument against presenteeism.

Kevin Jones

Guarding – last line of defence

Guards around power tools or over moving parts of equipment (e.g. covers over compressor pulleys) are there for seriously good reasons. Injuries and deaths from people getting cut or caught in machinery keep happening all the time.

It’s a common misunderstanding that bits of clothes caught in moving machinery can’t be that dangerous, after all cloth rips doesn’t it? Wrong.

A loose bit of overall sleeve caught in between a pulley and pulley belt is unlikely to rip. It will have an arm or hand mangled in a micro second. Nip points on equipment can catch skin. A de-gloved hand, where a pinch of skin is caught in machinery and the skin is ripped off the hand is as ugly as it sounds.

Do regular checks of things like angle grinders and moving parts of equipment to make sure the guards originally fitted are still in place and doing the job they have to. People will remove guards.

Have a policy that when guards are removed to do repair or maintenance work on equipment the guards are refitted as soon as those sort of jobs are done.

Monitor use of power tools in the workshop. Stop any work being done with power tools when the guard has been removed.

Don’t consider that a guard isn’t necessary if an operator is using some other sort of personal protective gear (e.g. using protective eye gear with a bench grinder that has no fitted shield in front of the grinder wheel). Treat safety as a thing that works best in layers. Murphy’s Law never rests. One level of safety protection will always fail at the wrong time.

Do regular checks on all guards on tools and equipment. Make it a specific check. Include an evaluation of whether equipment that can catch clothes or part of a body is properly guarded. Modern equipment designers are generally pretty good at making sure guards are fitted where they need to be, older gear is not so well designed. If it seems entirely possible for a person to get caught by a moving bit of equipment look at having a guard made and fitted: use a specialist to do that.

Readers are at liberty to use this stuff as they see fit, but acknowledgement of the author and the source (i.e. SafetyatWorkBlog) is expected. Contact Kevin Jones first if ya wanna use it. Cheers.

Col Finnie
c ol@finiohs.com
www.finiohs.com

The latest OHS advice on managing swine flu

Some time ago SafetyAtWorkBlog was critical of OHS regulators releasing swine flu information because the advice was not being easily translated in the workplace, and some of the advice was just silly.

Much better advice is available from the New South Wales government however, curiously, the Workplace Guide to Managing Influenza Pandemic has been issued by the Department of Commerce. The department’s Office of Industrial Relations has released the document which makes more sense however the release seems to be contrary to WorkCover New South Wales who defers to the NSW Health Department, surely the most logical central point for communication on this public health issue.

There are too many “experts” on the workplace impact of swine flu influenza and pandemics. SafetyAtWorkBlog has kept out of this issue as we share the position of WorkCover NSW – defer to the State or National authorities.

However, some companies feel obliged to be seen to be doing something, anything, about swine flu and their half-cocked measures are discrediting their overall process of safety management.

One national company recently issued a new policy advice to all staff on swine flu. The policy was little more than a cut and paste from an official fact sheet. It added little to the employees’ knowledge of the hazard and in no way answered staff questions such as

If my child’s school is closed due to a swine flu threat, what type of leave am I entitled to take?

The company has provided annual influenza vaccinations. Will I need re-vaccinating in the event of swine flu and will the company cover this cost?

In what circumstances can my employer send me home?

Not only was it next to useless, the company had the cheek to include its own corporate logo on the policy. Public health and OHS information is usually flexible in its reuse but somebody in the company looks like they are empire-building rather than managing their staff.

People want advice on how swine flu will disrupt their lives and working lives, not information on swine flu itself. Employers should leave the health information to the health authorities and concentrate on the management of the disruption and potential health threats within their area of expertise, their own workplaces.

If employers raise expectations by issuing policies in areas outside of their expertise, they begin a spiral of the demand for information that it may be impossible to satisfy.

Kevin Jones

A slap on the wrist – Varanus prosecution

The West Australian government has finally decided to prosecute Apache Energy over the Varanus Island explosion in 2008. Many people are asking if the effort is worth the bother as the maximum penalty possible is a measly $A50,000.

Comparing the disruption to the state’s gas supply to the Esso-Longford explosion, which generated a Royal Commission in Victoria, it illustrates the difference in having an explosion in an isolated area, that does not kill or injure, and that allows a government to ensure domestic gas supplies. One could argue that a major difference was also that WA did not rely solely on a single gas source.

According to one media report

Apache spokesman David Parker said it would vigorously defend the matter. “The explosion was an unfortunate and unforeseen event”.

Explosions often are unfortunate and usually unforeseen but adequate maintenance requirements of pipelines are foreseeable, just not often profitable.

Apache Energy, a subsidiary of the US energy giant Apache, has not been the most transparent and helpful corporate citizen as it has taken Federal Court action that impedes the government’s investigations.

Kevin Jones

More on the Varanus pipeline can be read by searching for “Varanus” in the search function to the right of this blog page

Swine Flu – isolation – a personal view

Australia’s swine flu numbers are increasing and the government is introducing new measures regularly in response. I write this post from self-imposed isolation from the swine flu outbreak in my son’s high school. There are some interesting decisions that have been made which provide me with optimism but also illustrate some useful personnel management actions.

I heard about a confirmed case of swine flu at the high school at my son’s soccer match last Sunday. I was asked by a soccer mum whether my son knew a boy at his high school who was a confirmed swine flu case. He did and we had not heard.

When I returned home there was no message from the school on my answering machine and nothing on my mobile. I looked on the internet and the case was reported but more importantly the school was to be closed for a week. I confirmed the media report by looking at the local health department website. The case and control measure was mentioned.

However, what does it mean in the broader context when a school is closed? Is my son in “isolation”? Are the other family members? The websites could not help with this so I rang the helpline listed on the website. Yes, my son should have no contact with people outside the house and we should monitor his health, and that of others in the household, for symptoms.

I knew my employer had issued an email from Human Resources in late April advising what to do in the case of an outbreak of swine flu. However, this is not much help for the days prior to symptoms or confirmation of the infection. As I am not in isolation I could be going to work as normal and potentially and innocently infecting work colleagues – not a good risk control. (I have written elsewhere on the matter of presenteeism, here was a preventative opportunity)

I put some risk management questions to the employer even though my advice would be to have me work from home. Within 12 hours, my employer had set me up to work from home for the rest of the week. The IT adviser emailed me a procedure entitled “Flu Pandemic Remote Access”. I commented that I was a little surprised that the company was this prepared. The IT adviser said it was only new and I was the first user.

My wife’s employer is still assessing the situation but we are of the same opinion that if work can be done from home, we should be located at home for the remainder of the isolation period. We are lucky that our occupations afford us this option.

On Monday morning the school rang me to answer any questions about swine flu. I didn’t ask any as we had done our homework and arranged to go to school to collect some of my son’s schoolwork for his time in isolation.

It could be asked why the school waited 24 hours to notify me? How does any company or organisation contact up to 700 people on the weekend? These are issues that are currently also being discussed in a Royal Commission into Victorian Bushfires in Melbourne. The school had all of its staff and teachers on the phones after a meeting at 9.00am that morning. The school’s website did not get an update until Monday morning but not everyone turns on their PC on a Sunday. In the context of the slow encroachment of swine flu in Australia, I think this was reasonable.

It should be noted that although my son was friends with the infected boy only the immediate classmates were provided with Tamiflu and that this occurred on the Sunday – a fair response.

Anticipating the family being at home for a week, I purchased some supplies including a thermometer as a useful way of identifying at least one of the swine flu symptoms.

Two days into isolation and there are no symptoms.

From a professional OHS perspective, communication has been acceptable. Available online information was okay and company support reassuring. At this early stage of the outbreak in Australia, we are optimistic and not worrying ourselves over issues over which we have no control.

Kevin Jones

Working alone – a poorly understood work hazard

Working alone is an established workplace hazard in many industries. The control measure most applied is “don’t work alone” that is, undertake as many work tasks in isolated location with someone supervising or in close contact.

Modern technology has often been applied as a possible control measure – “deadman switch”, GPS tracking, mobile phone use. Many of these control measures are second nature to workers in this century and are so commonplace that their safety role is ignored.

Regardless of the many zookeeper attacks that have gained media headlines over recent years, many workers are assaulted and killed while working alone. Industries that do not have a strong history of safety management most often get caught out by having a staff member injured or killed. Bosses or industry associations often express wonder at how such an incident could occur. Safety professionals would have seen the hazard instantly.

The risk of violence from working alone has been a hot topic in Australia since a Victorian female real estate agent was murdered while showing a prospective “client” an isolated property.

WorkSafe Victoria has just released a further publication concerning this matter. The alert is okay in its context but is doing a disservice by being restricted to real estate agents. Worksafe has more generic guidance but focus on real estate agents? Why not produce similarly detailed guidance guidance that is more broadly applicable to workers in isolation – pizza deliverers, night shift workers, street cleaners, office cleaners a whole raft of occupations that operate alone?

WorkSafe has said previously that real estate agents gain priority because such guidances are developed in conjunction with industry associations. A legitimate question can be asked, why is a government authority producing guidance for a sector that already has an industry body who can do this? Shouldn’t an OHS regulator be focusing on those areas that don’t have industry support?

Below are some of the recommended control measures in the latest publication. SafetyAtWorkBlog’s more generic control measures are in red.

having a new client stop by the office and complete a personal identification form before viewing a property to verify details

Have a detailed list of staff work locations and a contact name and (after hours) number for a supervisor at each location

inspecting properties during the day. If night inspections are necessary, ensure the agent is accompanied. Identify exit points in case a quick escape is needed

Work with a colleague wherever possible

inspecting the property before showing clients,to assess any existing risks or hazards

Consider the security measures of each work area – lighting, access/egress, phone coverage, camera surveillance, etc

making an excuse and leaving the site immediately if the client becomes aggressive or makes the agent feel uncomfortable

Cancel the work task at the first sign of hazard

calling the office with a pre-assigned emergency code phrase if the agent senses a dangerous situation

The “safe word” control measure is well established in the escort business. It can work but will only notify of a dangerous situation not eliminate it

regularly training staff on safety procedures, including instructions on dealing with potential offenders and incident reporting.

Develop safe work procedures in consultation with staff

When considering control measures in these situations it may be very useful to understand that prosecutions are likely to consider that employers have undertaken control measures “as far is reasonably practicable” – a movable feast of judgements. Ask yourself or your client the question, would they prefer to know that an employee is in danger, injured or killed, or would they prefer to have the employee safe and loose a potential client? The court may consider camera or other technical surveillance to be reasonably practicable but what would your employee who has lost an eye, limb and quality of life think?

Consider other control measures ONLY AFTER elimination has been seriously considered.

Kevin Jones

Other OHS guides concerning working alone are available below

Workplace Health & Safety Queensland

Category: business

Legal opinion on Australia’s model OHS laws

Lessons for employers

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Presenteeism and swine flu

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Guarding – last line of defence

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The latest OHS advice on managing swine flu

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A slap on the wrist – Varanus prosecution

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Swine Flu – isolation – a personal view

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Working alone – a poorly understood work hazard

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Lessons for employers

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