Category: business

Barry Sherriff talks about the Work Health and Safety Act

Boardroom Radio often has interesting speakers on topical issues.  On 11 December 2009,  they interviewed Barry Sherriff who recently joined the Australian law firm, Deacons.  The interview is of general interest and reflects many of the issues raised by Australian labour lawyers elsewhere.

Barry is an OHS law expert and was a member of the panel that reviewed Australia’s OHS legislation in 2008/09 in order to steer the development of  a model OHS law.  That process was completed in mid-2009 and the Government took on most of the recommendations.  Effectively the Government started a second separate process – the development of legislation based on a range of information, advice and public submissions.

Many recent submissions to the Government in this second phase harked back to earlier findings.  Many issues raised in the Model OHS Act Review, such as the issue of “suitably qualified” OHS advisers, are dead.  As Barry’s interview shows, contemporary thinking provides forward momentum and it is up to all of us to keep our state of OHS knowledge current.

Kevin Jones

Unique company response to confined space penalty

In 2007, according to the ABC news site,

“42-year-old Geoffrey Johnson [died after he] inhaled toxic fumes from paint stripper when he was cleaning the inside of a large chemical tank”.

On 16 December 2009, his employer, Depot Vic P/L, was fined half a million dollars over this breach of the OHS legislation.

Initial reports say that the company is no longer in business but it

“told the court is had put aside money to pay the fine.”

Wow.  What happened to phoenix companies?  – the business scourge that closes down to avoid paying outstanding debts and, often the costs associated with a worker’s death, and then starts up again under a different structure.

That a company will pay a fine for an OHS breach years after ceasing business seems a remarkable and admirable act.

Hyde Park Tank Depot’s assets were purchased by the Scott Corporation several months after Mr Johnson’s death, according to information SafetyAtWorkBlog obtained from Scott Corporation.  The current business and website listing was not operating at the time of Mr Johnson’s death.

WorkSafe Victoria provided background to Mr Johnson’s death in a prosecution summary in April 2009.  The full summary gives a clear indication why the fine was so high.

“Depot Vic Pty Limited (formerly known as Hyde Park Tank Depot Pty Ltd) undertakes cleaning, repair and maintenance of ISO containers for the chemical industry.  ISO containers are confined spaces, being portable tanks used to transport chemicals.  The tanks are usually cleaned purely by hydro-blasting, but on occasion the tanks were required to be cleaned more thoroughly.

The system of work was such that when this situation occurred, the cleaning of the tank required 2 stages. The first stage involved the application of a cleaning agent, usually a product known as ‘Selleys Renovators Choice’ stripper (which is not a dangerous good).

The second stage then involved the use of hydro-blasting on the internal walls to remove the stripper and clean the wall.  The company’s work instructions required that a confined space permit be issued and that appropriate PPE be worn.

On 16 August 2007, an employee of Depot Vic Pty Limited died whilst attempting to remove latex from the internal walls of a 25,500 litre ISO tank.  The deceased had entered the tank and instead of using the ‘Selleys Renovators Choice’ stripper, had used a product known as ‘Paint Stripper Gel GS 125’ that was suited to clean external components only (and not the inside of the tank).  The label of this product contained safety directions such as “do not breathe vapour” and “use only in a well ventilated area”.  This product is a dangerous good ‘class 6.1 (toxic substance) of packing group 111’.  It is also a hazardous substance according to the criteria of the Australian Safety and Compensation Council.

The deceased was located in the tank in an unconcious (sic) state, and when retrieved from the tank did not regain conciousness. An expert analysis of the atmosphere inside the tank concluded that that (sic) there was a lethal concentration in all or part of the tank (10 litres of the dangerous good was used).  At the time of the incident a confined space permit was not issued, the deceased was not wearing respiratory protection, gloves or a harness, and there was no ‘spotter’ in place to supervise the latex removal works.

Further, there was a lack of training and supervision of employees in relation to the work procedures for confined space entry.”

Kevin Jones

Director accountability for OHS reinforced by NZ penalty

On April 5 2008, a cool store in New Zealand exploded killing one firefighter and injuring 7 others.  Icepak Coolstore Ltd, according to the fire services investigation report

“[had] very large quantities of combustible material contained in the expanded polystyrene construction panels and also in the foodstuffs stored.

“There were no compliant fire detection or protection systems or hydrants, and very limited firefighting water.”

In July 2008, the New Zealand Department of Labour (DoL) issued a media statement and fact sheet concerning the explosive potential of flammable hydrocarbon refrigerants.

Language warning on the video below

On 15 December 2009, a New Zealand Court penalised two companies and a director with fines totalling over $NZ390,000.  The DoL has issued a media statement about the prosecution results.

The many reports and inquiries into the explosion and fire are very informative but one element that the DoL wants to focus on is the penalty applied to the Director of Icepak Coolstore, Wayne Grattan.  He was

“fined $30,000 on one charge that he acquiesced in the failure of the company to take all practicable steps to ensure the safety of its employees while at work.”

The Department of Labour’s Chief Adviser for Workplace Health and Safety, Dr Geraint Emrys said (click HERE for audio):

“The prosecution against the director of Icepak should serve as a reminder to officers, agents and directors of organisations that they can be held personally accountable for the failures of their organisation.

“Mr Grattan was charged with acquiescing in Icepak’s failure in respect of obligations to its employees.  The outcome of the case against Mr Grattan reinforces the requirements of directors to be proactive in health and safety matters.”

As many Commonwealth countries have a strong commonality of law, the Icepak Coolstore case should be an important case study in many jurisdictions.

Kevin Jones

The future of the School of Risk & Safety Science

It was good to hear the President of the Safety Institute of Australia (SIA), Barry Silburn on the radio on 7 December 2009. The SIA has traditionally been very hesitant about going public on safety issues but clearly the potential disappearance of the School of Risk & Safety Science from the University of New South Wales is important to the SIA.

The closure of this school seems absurd, particularly, when the fact of its profitability is shown.

The university’s decision appears wrong and, from the evidence of the radio interview, it seems that the decision has occurred recently.  Dropping a school, regardless of the prominence claimed by the SIA, which has a problem with prominence of its own, is a harsh decision if there has not already been a consultative process or a strategic program for improvement and increased relevance.

It is not as if the school does not have access to top talent.  Names familiar to Australian OHS professionals, researchers and regulators include

Professor Chris Winder

Dr Anne Wyatt

Dr Jean Cross

Michael Tooma

In the University of New South Wales’ Australian School of Business, there are several other prominent OHS academics.  Most familiar to SafetyAtWorkBlog are

Professor Michael Quinlan

Professor Stephen Frenkel

Barry Silburn (a video of Barry Silburn talking about the SIA is available online) accuses the University of New South Wales of sacrificing the safety profession for short-term gain:

“They’re not looking at the overall picture of OHS within Australia they’re looking at very short-term money considerations on their courses that they’re conducting within the university”.

This seems an odd accusation when compared with the fact that the school has made a profit two years running.

It seems to SafetyAtWorkBlog that the limitations of the University’s review are clear in the statement of Deputy Vice Chancellor, Richard Henry:

We had an external review of the Faculty of Science by a committee of internationally respected scientists and their recommendations to the university were that the Faculty of Science should concentrate on its strengths; areas such as maths, physics, chemistry, psychology, biology.

The university wants to focus on pure science rather than applied science after a  review undertaken by “a committee of internationally respected scientists”.   HMMMM?

OHS academics are often less dependent on government funding than other schools and departments because the skills and knowledge can be more readily applied in a practical way and they live closer to the economic realities of business and workplace safety.

Silburn’s accusations of greed are too narrow.  The safety profession can continue without the School of Risk & Safety Science.  There are many sources of OHS graduates still in Australia and, from the activity of the University of Queensland, these opportunities are increasing.

It seems that the university may have been too narrow in its selection of the review panel for the Faculty of Science.  But if we take the panel’s recommendations seriously, Richard Henry does not see the School of Risk & Safety Sciences as fitting in the Faculty of Science.  Surely it could fit in the university’s School of Organisation and Management.  Going from this School’s profile in the website:

“The School of Organisation and Management is a multi-disciplinary unit comprising 32 full-time academics.  Our mission in the School of Organisation and Management (O&M) is to conduct high quality applied research and to prepare students for employment in diverse organisational settings.  Our main areas of research and teaching include: Organisational Behaviour, International Business, Human Resource Management, Industrial Relations, and social and psychological aspects of Management.”

Anne Wyatt researches the psychosocial issue of workplace bullying.  Chris Winder researches occupational toxicology and his most recent academic paper is “Managing hazards in the workplace using organisational safety management systems: A safe place, safe person, safe systems approach.”

If the University of New South Wales cannot see the continuing relevance of its profitable School of Risk & Safety Science, it should perhaps get examined at its own School of Optometry and Vision Science.

Kevin Jones

The School of Organisation and Management is a multi-disciplinary unit comprising 32 full-time academics. Our mission in the School of Organisation and Management (O&M) is to conduct high quality applied research and to prepare students for employment in diverse organisational settings. Our main areas of research and teaching include: Organisational Behaviour, International Business, Human Resource Management, Industrial Relations, and social and psychological aspects of Management.

Legal advice and safety management

The legal commentaries have begun to appear following the release of Australia’s draft Work Health & Safety Act.

One of the first, as usual, is a response from law firm Deacons.  It should be noted before discussing the suggestions that in the last couple of months Australia’s OHS legal brains are now concentrated in this law firm since Barry Sherriff jumped ship from Freehills.  A month or two earlier, Sherriff’s protegé, Penny Stephens, left the firm and took several others with her to Hall & Willcox.  This brain drain sets Freehills’ OHS practice back considerably.

However, Deacon’s first missive on the new OHS laws has been released, under the bylines of Sherriff & Tooma, and identifies several issues.  The first, and very useful to know, is the definition of due diligence that is now included in the Act under Duty of Officers:

“…due diligence means to take reasonable steps:

(a) to acquire and keep up to date knowledge of work health and safety matters; and

(b) to gain an understanding of the nature of the operations of the business or undertaking of the body and generally of the hazards and risks associated with those operations; and

(c) to ensure that the body has available for use, and uses, appropriate resources and processes to enable hazards associated with the operations of the business or undertaking of the body to be identified and risks associated with those hazards to be eliminated or minimised; and

(d) to ensure that the body has appropriate processes for receiving and considering information regarding incidents, hazards and risks and responding in a timely way to that information; and

(e) to ensure that the body has, and implements, processes for complying with any duty or obligation of the body under this Act; and

Examples

A body’s duties or obligations under this Act may include:

  • reporting notifiable incidents.
  • consulting with workers.
  • ensuring compliance with notices issued under this Act.
  • ensuring the provision of training and instruction to workers about work health and safety.
  • ensuring that health and safety representatives receive their entitlements to training.

(f) to verify the provision and use of the resources and processes referred to in paragraphs (c) to (e).”

This should provide more tips to OHS professional associations about where their services fit in general business obligations but it also sets the bar much higher for professionals in how they must upgrade their own OHS skills to match expectations.

Curiously, Deacons continues with issues of concern with the Act which have little to do with improving worker safety.  Several items hark back to the OHS Model Act Review Panel which has little more than historical interest nowadays but may reflect the fact that Barry Sherriff was a Review Panel member.  The list of concerns further supports SafetyAtWorkBlog’s position that safety law often masquerades as safety management.

Deacons concludes its update with the following “7 steps”:

“There are 7 steps that every business needs to undertake to prepare for this new era in Work Health and Safety regulation:

  • Legal risk analysis…
  • Review contracts …
  • Implement interface coordination plans …
  • Develop robust consultation processes …
  • Develop dispute resolution processes …
  • Develop processes on right of entry and regulatory rights and obligations …
  • Develop an OHS Corporate Governance Statement …”

Unsurprisingly, the first two involve assistance from one’s legal advisers.  SafetyAtWorkBlog recommends that businesses wait and see what support documentation is supplied by the OHS regulators first as it is they who determine the parameters for OHS compliance.

Businesses need to remember that the Work Health & Safety Act is not yet law and, in fact, has a long way to go before States introduces this law into their own jurisdictions.  Western Australia is still objecting to the law so it is unclear if this Act will ever be introduced without substantial change.  So until then keep following the local OHS legislation but keep both ears open in anticipation of the future.

OHS law and safety management

Regular readers will be aware that SafetyAtWorkBlog holds the belief that OHS legislation is not the same as managing workplace safety.  Safety can be managed without recourse to law (this is what many mean when they say that “safety is just common sense”) but legislation provides some parameters in which that management occurs.

The Australian Council of Trade Unions has issued a call for tougher OHS laws and used workplace fatality statistics as the basis.  Tying the two issues together serves a political purpose but avoids the fact that a range of economic, political, social and even environmental issues can affect how workplaces manage safety.

The media statement issued on 11 December 2009 says:

“A sharp rise in work-related fatalities last year shows that proposed new workplace health and safety laws need to be strengthened, not watered down, say unions.

There were 177 fatal injuries in workplaces in 2008-9, according to newly released statistics from the national regulatory body, Safe Work Australia. This is an 18% increase from the previous year…. [hyperlink added]

ACTU Secretary Jeff Lawrence said the increase in fatalities was disturbing at a time when proposed changes to Australian workplace safety laws would result in a weakening of protections and rights.

“A double-digit increase in workplace fatalities in one year is shocking,” Mr Lawrence said. “Each of these victims is someone’s partner, parent, son, daughter or friend.  The Federal, state and territory governments will make significant decisions about new national health and safety laws today.  If any evidence was needed that requirements for employers to provide a safe workplace need to be toughened, this is it. We urge the federal and state governments to make workers’ safety their highest priority.”

The ACTU is doing what it should by serving the needs of its members but the push for union prosecutions of OHS breaches is only one part of its social charter.  The aim of improving safety can be best achieved by motivating union members and establishing a dialogue with the general community, which includes business, small and large.

Is the day far off when we may see joint statements from unions and employer groups on the issue of workplace safety?  Can politics be put aside for the benefit of improving safety?  Comments welcome.

Kevin Jones

Tripartism and new/old politics

The future of Australian OHS legislation relies on tripatism, discussion and, hopefully, consensus.  In early December 2009, the most recent Liberal Party leader, Tony Abbott, appointed Eric Abetz to the opposition portfolio of workplace relations.  According to a media statement released on 8 December 2009,

“Employment is a vital social and economic portfolio area. Balancing the competing interests to ensure maximum employment levels with acceptable working conditions, is always the challenge”.

“The Coalition fully accepts the verdict of the Australian people at the last election that WorkChoices is dead.  However, in defeating WorkChoices, the Australian people did not vote to reinstate the extremism of some in the Union movement”.

“Labor has deliberately strengthened the hand of Trade Union officials as a clear payback for bank rolling Labor’s election campaign”.

Yes, Abetz and the Liberal Party are not in power at the moment and the political pundits say this may not occur for some years.  But the hard attitude toward the union movement is not likely to help the development of OHS legislative reforms whether in power or opposition.

Kevin Jones

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