business – Page 234 – SafetyAtWorkBlog

“Pilgrim’s Plague” and workplace absenteeism

Last year, Sydney Australia hosted World Youth Day (WYD). In some ways Australia had not seen such a large influx of people from so many countries for a single event before. The Sydney Olympics had a high proportion of locals attending and the 1956 Melbourne Olympics never had the infrastructure to provide so many overseas visitors.

For several months after the 2008 World Youth Day, it was rumoured that the level of absenteeism in workplaces was very high. At the time of WYD there were several reports of quarantined pilgrims and the risk to public health of the Sydney population was assessed. (Peter Curson, professor of population and security in the Centre for International Security Studies at the University of Sydney wrote a discussion piece on this)

There were reports of influenza and viral gastroenteritis amongst pilgrims who were required to be quarantined.

The Medical Journal of Australia has released a report into the impact of World Youth Day on the emergency departments of hospitals (MJA 2008; 189 (11/12): 630-632). This study found minimal impact in this sector of the hospital care.

However, SafetyAtWorkBlog is not aware of any research having been done on the impact of World Youth Day on workplace absenteeism. The EMJA study correlates World Youth Day with hospital admissions but it would be useful to see a comparative study of workplace absenteeism in the weeks after WYD, during the incubation period of influenza in particular.

World Youth Day did seem to overlap with the existing flu season in Australia’s winter but those statistical peaks are well-established and it would be interesting to see if those peaks had increased just after World Youth Day.

If there were a correlation, cost estimates for hosting the event may need adjusting to include the reduced productivity due to the “pilgrim’s plague”.

The insidiousness of “reasonably practicable”

WorkSafe Victoria recently released a guideline, or clarification, on what it considers to be the issues surrounding “employing or engaging suitably qualified persons to provide health and safety advice“.

SafetyAtWorkBlog remains to be convinced that such a process will lead to better safety outcomes in the small to medium-sized enterprises at which this program is aimed. The OHS legislation clearly states that the employer is the ultimate decider on which control measures to implement to address a workplace hazard. This is echoed in the WorkSafe guideline

“It is important to note that employing or engaging a suitably qualified person to provide OHS advice does not discharge the employer from their legal responsibilities to ensure health and safety as required under Part 3 of the OHS Act. This duty cannot be delegated.”

A business manager will weigh up the advice sought or given from a variety of sources and make a decision. A good business manager will take responsibility for the good or bad results of their decision. But they need to have a clear understanding of their obligations and Victoria’s legislation could be confusing.

The guideline says that

“Employers are expected to take a proactive approach to identify and control hazards in the workplace before they cause an incident, injury, illness or disease.”

This reitereates one of the safety principles in the 2004 OHS Act

“Employers and self-employed persons should be proactive, and take all reasonably practicable measures, to ensure health and safety at workplaces and in the conduct of undertakings.”

But the principles are not legislative obligations. As Michael Tooma writes in his “Annotated Occupational Health and Safety Act 2004”

“… it is the intention of the Parliament that the principles be taken into account in the administration of the Act.”

The principles are there for judicial colour and community reassurance but with no real impact.

The obligations on an employer, the section that determines the actions and plans of the business owner or managers, are, as well as general duties:

“Duties of employers to employees

(1) An employer must, so far as is reasonably practicable, provide and maintain for employees of the employer a working environment that is safe and without risks to health……..

(2) Without limiting sub-section (1), an employer contravenes that sub-section if the employer fails to do any of the following-

(a) provide or maintain plant or systems of work that are, so far as is reasonably practicable, safe and without risks to health;

(b) make arrangements for ensuring, so far as is reasonably practicable, safety and the absence of risks to health in connection with the use, handling, storage or transport of plant or substances;

(c) maintain, so far as is reasonably practicable, each workplace under the employer’s management and control in a condition that is safe and without risks to health;

(d) provide, so far as is reasonably practicable, adequate facilities for the welfare of employees at any workplace under the management and control of the employer;

(e) provide such information, instruction, training or supervision to employees of the employer as is necessary to enable those persons to perform their work in a way that is safe and without risks to health. “

The “as far as is reasonably practicable” insertions allow business considerable flexibility in arguing the validity of their decisions after an incident but hamper the employer in being “pro-active” – (a hateful and lazy piece of business jargon).

The impediments to “pro-activity” can be seen in the general duties of Section 20 where

“to avoid doubt, a duty imposed on a person…to ensure, as far is reasonably practicable, health and safety requires the person –

(a) to eliminate risks to health and safety so far as is reasonably practicable:…..”

This contrasts with the objects of the, same, Act which states that one of the aims is

“to eliminate, at the source, risks to the health, safety and welfare of employees and other persons at work:…”

It is strongly suspected that a crucial element of OHS legislation and management will likely disappear and this is to eliminate hazards “at the source”. Outside of the objects of the Act this aim is not mentioned anywhere else in the legislation. “Reasonably practicable” will erase this important social and moral clause.

Eliminating something “at the source” encourages research into new ways of eliminating hazards by placing an obligation on us to determine the source. “Reasonably practicable” encourages us to research control measures until it is practicable to do so no more. That is a half-quest that solves nothing. What if Frodo was asked to dispose of the ring in Mordor only if “reasonably practicable”? The story would have been a novella instead of a classic trilogy.

Employer associations are lobbying for increased workplace flexibility. That has nothing to do with the health and safety benefits of the employees but rather the health and safety of the balance sheet. “Reasonably practicable” similarly focuses on business management and not safety management.

The battle against this insidious weakening of the OHS profession is not lost. Heart should be taken from the preparedness of governments to roll-back unpopular legislation such as some industrial relations initiatives. Hindsight can be an important motivator for change.

Recent fatalities data may sway some in government that OHS regulators are achieving their social and operational targets but OHS professionals know that fatality rates are not an accurate indication of the success of safety initiatives. New workplace hazards are appearing regularly and many of the new ones don’t result in death but lead instead to misery and an incapacity to live a healthy life or to work again in a chosen profession.

“Reasonably practicable” allows businesses to try, in differing degrees, to eliminate the hazards, such as psychosocial hazards, of its workforce and then shift them to social security and disability benefits. And why not? It seems that corporations can serve their clients and stakeholders “as far as is reasonably practicable” and then expect a bailout from government over their mismanagement. Immorality applies to much more than economics.

Economic cost of Varanus Island pipeline explosion

According to the Australian Treasurer, Wayne Swan, has said, on 3 December 2008, that the Varanus Island explosion

“is estimated to have subtracted around a quarter of a percentage point from [Gross Domestic Product] in the September quarter.”

This follows earlier estimates from the Reserve Bank of Australia that the disruption from the explosion would cause a negative blip of $2.5 billion in GDP.

The Senate Economics Committee report to the government yesterday said that the real economic impact will never be known because it occurred amongst other economic confusion.

Business cases for the importance of occupational safety management are notoriously difficult to quantify, although some OHS colleagues disagree. OHS has a far stronger argument through the moral imperatives than economics but economics is the language of the business world. The Senate Committee report includes a lot of macro- and micro-economic data for those who want it.

The fallout from the Varanus Island investigations continue in Western Australia but it may be possible to say that for the wont of regular assessments and maintenance on a pipe in a remote location, Australia has lost billions of dollars in revenue, in a time of economic difficulties.

Management failures and a rape of a five-month-old baby

Earlier this year, SafetyAtWorkBlog reported on the attack on a nurse in the Torres Strait Islands north of Australia, the investigation of the issue by Queensland Health and the mechanisms introduced to get the working conditions and accommodation up to a safe level. In this case there was a clear link between occupational health and safety and the security of a worker.

OHS law in Australia obliges workers and those in control of a workplace to ensure the safety of people on their premises. Last week the Northern Territory government received a report (081128vol1-f9c6d46d-75d5-4a5e-95e7-7c040ae6600c1) into the security measures at the Royal Darwin Hospital. This hospital has undertaken fantastic medical work in the past, most noticeably, on a large scale following the bombings in Bali in October 2002.

However it failed to prevent the rape of a five month old female infant on 30th March 2006, while the indigenous baby was an inpatient.

Carolyn Richards, the Health & Community Services Complaints Commissioner, said in her report

As a result of a complaint reported to the Health & Community Services Complaints Commission an investigation was undertaken by the Director of Investigations, Mrs Julie Carlsen, who is employed as the Director of Investigations (DI) Health & Community Services Complaints Commission.

This report highlights that the Department of Health & Community Services (DHCS) needs to implement effective risk control mechanisms to minimise the risk of an assault on a vulnerable inpatient in the Royal Darwin Hospital (RDH). The investigation has led to the conclusion that DHCS (DHF) and RDH have not complied with the applicable Australian Standard. It has also revealed that crucial information has been withheld from an expert engaged by RDH to review security arrangements and from the DHCS (DHF) Security Manager based at RDH. This report also details inadequacies and failings by those responsible for managing RDH who have failed for over two years to implement and maintain better security for patients in the Paediatric Ward. It is published with the hope that it will cause DHCS (DHF) and RDH to give higher priority to improving its risk management and security procedures.

The Commissioner’s conclusions are worth including here so that OHS professionals and security officers can establish appropriate procedures for their workplaces.

1. On 30th March 2006:

There were no arrangements in place on the Paediatric Ward to ensure the safety and inviolability of vulnerable patients.

No risk assessment had been conducted.

The arrangements in place did not comply in any aspect with the Australian Standard which sets the benchmark for proper security.

There was no control on access to the Ward or to the patients.

The staff had not received adequate training, and possibly none at all, about the risks arising from lack of security arrangements.

In 2002 RDH had commissioned and received an expert consultant’s assessment and report on security arrangements at RDH. The Terms of Reference did not require 5B to be assessed. By 30 March 2006 the recommendations in the report had not been implemented in Ward 5B. This failure can only be described as shameful.

Following the rape of the infant police were not notified for about 2 hours.

2. Action taken by RDH after the rape to improve security was: (a) slow (b) inadequate, and (c) has not been adequately evaluated or reviewed to determine its effectiveness

3. RDH has a Security Manager on site as well as an NT Police member stationed at the hospital. Neither has been asked to evaluate the security on the Paediatric Ward either before or after the rape of the infant.

4. Staff working on the Paediatric Ward have not been trained at their induction on the elements of security arrangements to reduce the risk to vulnerable patients nor has there been adequate ongoing training of staff before or after the 30th March 2006 incident.

5. In 2007 the same expert safety and security consultant, as in 2002, was engaged to assess security arrangements at RDH. He was not informed of the rape of the infant in March 2006 nor was he asked to report specifically on arrangements in the Paediatric Ward.

6. On 21 November 2007 two investigation officers from the Health and Community Services Complaints Commission visited the Paediatric Ward by prior arrangement. They were able to enter the Ward and wander around, have entry to every part of it and stand at the nurse’s station, for about 25 minutes without anyone asking who they were and why they were there.

7. Management’s lack of commitment to the proactive identification of risks and to taking appropriate action has not created a culture where each member of staff takes responsibility for identifying and reporting risks and developing safe practices.

8. A security review of RDH was carried out by an expert hospital safety and security consultant who issued a report in 2007. The Security Manager of DHCS (DHF) was not given a copy even though he requested it. HCSCC enquired of RDH management why he was not given a copy and RDH have offered no explanation. On 31 October after this report was published to RDH and DHF the CEO of DHF advised this Commission that he had finally been given a copy and that he had seen a draft copy.

9. RDH Maternal and Child Health Clinical Risk Management Committee considered security in the Paediatric Ward following the incident. The Committee met on 16th May 2006, 2.5 months after the rape of the infant. It met a further 4 times. It submitted an action plan to the General Manager of RDH in July 2006. At its last recorded meeting on 5 September 2006 there had been no response from the General Manager on the recommendations, particularly with respect to installing CCTV cameras with recording facilities on the Paediatric Ward. There were still no recording cameras on the Paediatric Ward as at June 2008 although a CCTV system had been installed in the kitchen area to deter the pilfering of food. Dr David Ashbridge on 31 October 2008 advised, when responding to a draft of this report, that CCTV cameras were installed in Paediatrics on 25 August 2008.

10. The surveyors from the Australian Council of Health Standards which accredits RDH probably did not receive all relevant information about the incident of 30 March 2006 and what action RDH were taking. Those surveyors on 13 October 2006 were informed by RDH that the patient information pamphlet and admission interview are being reworded to reflect the changes to ward access. There was no verification throughout the investigation that any action had been taken by RDH to implement the recommendations of the review. Neither the report of ACHS nor records of information given to ACHS have been provided to the HCSCC. DHCS (DHF) was invited to provide me with those relevant documents in response to this draft. No response was received on this issue from DHF or RDH. According to the published information of ACHS the accreditation survey commences with a self assessment by the hospital concerned. This Commission specifically requested details and copies of the information provided to the ACHS surveyors but no response was received from either the CEO of the Department or the General Manager of RDH.

11. The governance arrangements at RDH do not promote adequate transparent accountability of the General Manager and the Department of Health and Families for the operation of the hospital. Control of all aspects of the day to day management of RDH rests in the hands of three individuals. This includes staff recruiting, training, security, nursing and medical services, procurement, record keeping, financial accountability and risk management. Such specialist management groups as exist are subordinate to the General Manager’s authority. The General Manager reports to the Director of Acute Services who reports to the CEO of the Department. I have been unable to find out what role the Royal Darwin Hospital Board has since its last annual report to 30 June 2006.

It is well worth obtaining the complete report to understand how such an individual tragedy occurred. As one media commentator has posited

“One wonders what the reaction would have been if a non-indigenous infant was raped.”

Fair Work and OHS

Last week the Deputy Prime Minister and Minister for Workplace Relations, Julia Gillard, delivered on some of the government’s promises by presenting the Fair Work Australia Bill into the Australian Parliament. This does not present a revolution but is a solid rollback of some of the excesses of the previous (conservative) government. The responses from employer groups and trade unions were in the tones and on the topics that were expected.

The National Review into Model OHS Laws rolls on towards its January 2009 deadline. The OHS law review was not something urgent for the government, even though it was an election pledge, and it does not indicate a commitment by the government to improving the level of safety in Australia. The aim is to provide an easier way of managing safety across state borders in Australia with the hope that this will flow to benefit the safety of workers.

It is important to remember that this review came after years of concern about the perception(?) that OHS was part of the red tape of managing businesses, and therefore an unacceptable cost burden. The danger in this review is that the recommendations will reduce the business costs with no discernible improvement in safety.

There are many OHS professionals and organisations who are hoping for some grand review of workplace safety. It is a review of law and business bureaucracy, not safety. Those who will most benefit will be large companies that operate in multiple States. It will provide no change to small business. It will not increase safety in the vast majority of workplaces. It may improve the bottom line company results in 2009 when profit growth is declining but that just means that managerial bonuses are less than normal. It does not mean that the cost savings will be used to improve safety.

The Fair Work Australia Bill and the National OHS Law Review may change some of the ways in which corporates approach OHS but they will have little, if any, benefit to individual workers.

It is important to remember that any legal changes always benefit legal practitioners, as well. And OHS lawyers are almost always there after the incident in order to minimise company damage. Policies and procedures are largely determined without legal involvement. Machine guarding is not installed by lawyers. Abusive supervisors are not tempered by legal threats. Safety is the manager’s job in partnership with the employees, and it will always be so.

Safe Driving and OHS management impacts

SafetyAtWorkBlog has always been critical of those OHS professionals who try to explain OHS in comparison with driving. They are different processes in different environments with different purposes and different rules.

However, there is a section of overlap and this relates to those whose work environment is transport and driving.

Worksafe Victoria has released a “Guide to safe work-related driving“. This is essential reading for fleet managers, in particular, but good fleet managers would already have OHS as part of their driving policies.

For those of us who have not known how to interpret OHS obligations for our company vehicles, WorkSafe has issued these clarifications:

purchasing and maintaining a safe and roadworthy feet
ensuring employees have the relevant appropriate driver licences
scheduling work to account for speed limits and managing fatigue
providing appropriate information and training on work related driving safety
monitoring and supervision of the work related driving safety program.

In this type of workplace, workers seem to have as many obligations as employers but WorkSafe has listed for following as employee duties:

holding a current, valid drivers licence
abiding by all road rules (eg speed limits)
refraining from driving if impaired by tiredness or medication
reporting any incidents required by the employer’s program
carrying out any routine vehicle checks required by the employer.

There are many areas of contemporary life where the OHS obligations can seem absurd but work-related driving has always been a neglected area of workplace safety. Every time SafetyAtWorkBlog receives notification of traffic incidents, the emergency services are asked whether the vehicle was being used for work purposes. Unless it is a bus or a chemical tanker, the question is rarely asked or the information recorded at the scene of the crash. As a result, the data on work-related driving incidents is scant and WorkSafe has done well in applying what there is.

The guide is terrific but it won’t raise the awareness of these necessary business and employee obligations until WorkSafe’s enforcement and investigative resources are included in traffic incidents and until a case law of OHS prosecutions for work-related driving is established.

The practice of having police and criminal prosecutions replacing OHS prosecutions for work-related incidents must end. A transport vehicle is a mobile workplace and should be treated as such by having prosecutions under the road transport legislation AND OHS laws. If not, we will be getting more airbags and less hazard elimination.

Sexual harassment and occupational health and safety

Some old-time safety professionals are struggling with the inclusion of psychosocial hazards in their safety management programs. Some deny the relevance of sexual harassment to their duties and hope that the issue can be contained within the human resources department, the “dark arts” of workplace safety.

Many of these same safety professionals are calling for more evidence-based decisions on workplace safety.

Evidence is now in on the social and work impact of sexual harassment. Australia’s Human Rights Commission has issued Effectively preventing and responding to sexual harassment: A Code of Practice for employers‘ which states on page 48

Employers have a common law duty to take reasonable care for the health and safety of their employees. This common law duty is reinforced by occupational health and safety legislation in all Australian jurisdictions.

An employer can be liable for foreseeable injuries which could have been prevented by taking the necessary precautions. As there is considerable evidence documenting the extent and effects of sexual harassment in the workplace, it has been argued that the duty to take reasonable care imposes a positive obligation on employers to reduce the risk of it occurring.

A work environment in which an employee is subject to unwanted sexual advances, unwelcome requests for sexual favours, other unwelcome conduct of a sexual nature, or forms of sex-based harassment, is not one in which an employer has taken reasonable care for the health and safety of its employees. A work environment or a system of work that gives rise to this type of conduct is not a healthy and safe work environment or system of work. An employer could be regarded as not having acted reasonably to prevent a foreseeable risk if practicable precautions are not taken to eliminate or minimize sexual harassment in the workplace.

Failure to fulfil the duty of care can amount to a breach of the employment contract as well as negligence on the part of the employer. This means that an employee who has been harmed could bring an action against their employer in contract or tort.

The guide can do with considerable translation to what businesses see as useful codes of practice in the application of safety management but perhaps that is for the private sector and State OHS regulators to work on.

There seems to be enough information available now on sexual harassment, fatigue, bullying, violence, fitness for work, shift work, depression and other matters, that the safety profession should be more embracing of these concepts in their own planning. Let’s hope that in this discipline we do not have to wait for generational change to achieve a change in approach.

Category: business

“Pilgrim’s Plague” and workplace absenteeism

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The insidiousness of “reasonably practicable”

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Economic cost of Varanus Island pipeline explosion

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Management failures and a rape of a five-month-old baby

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Fair Work and OHS

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Safe Driving and OHS management impacts

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Sexual harassment and occupational health and safety

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