business – Page 234 – SafetyAtWorkBlog

Who manages safety – employers or inspectors?

Over the last few days at the Tasmanian inquest into the death of Larry Knight, several geotechnical consultants and experts have been going through their reports to Beaconsfield Mine management. These assessment reports were undertaken before the collapse that caused Larry Knight’s death. The impression from media reports is that mine management listened to, or read, the recommendations and made a decision. That decision seems to have not given the technical advice the weight that hindsight now shows was insufficient but hindsight does that and Coroners understand this.

Also safety decisions are made by the employer in consultation with their workforce and external experts, where necessary. Beaconsfield Mine management did this. The decision to mine on that fateful day obviously proved wrong but perhaps the decision was understandable.

The Australian on 12 August 2008 reported that senior technical consultant Frans Basson admitted that the mine was technically “in breach of his written recommendation to management”. I found this extraordinary as “breach” is a term more often applied to when a rule is broken. It seems that the mine management chose not take on the recommendation of a consultant. That happens all the time but to give the decision more significance than this is, perhaps, a little unfair. Let’s hope this was lawyer’s hyperbole.

How to describe the comments by former Mt Lyell engineering supervisor and ex-parliamentarian, Peter Schulze is more of a challenge. Inaccurate is probably the most generous term. At a Tasmanian Legislative Council committee on 13 August 2008, Peter Schulze criticised “all these experts who pontificate with the benefit of hindsight” about mine accidents. Okay, the wording is extreme but he makes a similar point to mine above.

He also echoes some of the recent criticisms of the OHS regulator in Tasmania, Workplace Standards. By inverting some of his comments reported in The Advocate on 14 August 2008, he believes that current inspectors are under-skilled in the mining sector and under-paid and that there are not enough. I would support him in his calls for additional enforcement resources but he is confused over the role of the inspectorate.

The primary responsibility for safety in a workplace is held by the employer – the controller of the workplace and main beneficiary of its productivity. Peter Schulze says that

“The inspectorate tends to isolate itself from accidents and comes in to blame the company … rather than being a party (to safety procedures and checks) and accepting some responsibility.”

Why on earth should a government department accept any responsibility for the operations of a privately-run business when there is legislation that states the responsibility rests with the employer?

Peter sees the system as being adversarial. There are clear roles for the differing elements in a workplace but conflict is resolved through negotiation, consultation and resolution. An adversarial climate in a workplace indicates a dysfunctional workplace but this does not mean the regulatory system is at fault. Safety management systems are a systematic management of a workplace with the aim of improving safety. Management is the key and this rests with the employer.

What New South Wales unions need to give up for harmony’s sake

Gerard Phillips, a partner in the Middletons law firm, wrote in the 7 August 2008 edition of the Australian Financial Review about the belligerence of the trade union movement in New South Wales in relation to the harmonisation of OHS Laws in Australia.

He addresses two legal barriers to harmonisation that he believes should end. In New South Wales unions have the legislative right to prosecute safety breaches. Gerard argues that harmonisation won’t be achieved without the unions relinquishing this right.

It has been clear for months that New South Wales will have to give up some elements of its OHS legislation in order to allow harmony. If it needs to save face, it would be lobbying now for enough resources at a national level to mount rigorous OHS enforcement.

As the Victorian OHS law is the front runner for a national OHS legal model, unions can take some solace from the extension of Victoria’s right of entry provisions that, prior to 1984, were tipped to generate industrial warfare In Victorian worksites. There were, at the time, many lawyers touting for business by recommending a tightening of paperwork, vetting all credentials before letting “them” on your site and accompanying “them” wherever they go.

Business achieved some important concessions with the registration of ARREOS (Authorised Representatives of Registered Employee Organisations) and a legal comeback if the ARREOS breach their authority, but an ARREO visit can still be daunting as WorkSafe found in February 2008.

WorkSafe advises that

An ARREO may enter a workplace during working hours to enquire into a suspected contravention of the OHS Act or regulations. The suspected contravention must relate to or affect the work being carried out by people who are:
• members of the registered employee organisation;
• subject to a certified agreement which binds the registered employee organisation; or
• eligible to be members of the registered employee organisation and are not subject to a certified agreement.

Gerard Phillips also can’t see why a union should have prosecutorial powers that no one else, other than the OHS regulator, has. Although he acknowledges that for enforcement to work any prosecutor must be “appropriately funded”. If the New South Wales government decided to reduce WorkCover NSW costs by sharing responsibility, I don’t think the economic benefit outweighed the political damage.

Phillips also sees no great difficulty in the onus of proof being held by the prosecutor. This authority is already in the legislation of Victoria and Western Australia with no complaints from the union movement that safety standards have declined as a result. The unions will need to give ground on having the onus rest with the business owner, and the employer groups will dance a gig when they do.

I remember Australia’s Royal Commission into the building industry where employer groups asserted, with little proof, that OHS is used by unions for purposes of industrial action. Terence Cole in his final report illustrated the accusations well.

“….employers have raised concerns about the unions raising industrial concerns under the guise of safety issues, and the adoption of the role of safety policemen by unions to the exclusion of the statutory inspectorates. The issue of safety is a constant source of friction in the workplace, either because it is not being appropriately addressed, monitored, enforced, or is being abused.”

This may or may not be true, however unions in New South Wales risk providing the truth that employer associations have long desired if they continue in holding onto a strong poker hand when the other players have changed to playing whist.

Irrational decision-making

Occupational health and safety often gets sidetracked from the main issue of preventing injury and illness at work. I often hear employers, particularly in small business, complaining that their workers continue to do the wrong thing even though the employers have done everything they can think of.

Sometimes an approach is offered that seems like a quick-fix to all the safety problems. The one that always annoys me is behavioural-based safety. BBS is like the Hydra and reappears regularly in different guises and with different jargon.

A podcast crossed my desktop this morning that provides a different perspective on “why rational people make irrational decisions”.

The podcast illustrates the conflicts in trying to make the right decision by discussing the decision of a pilot in the Canary Islands who caused a major crash. The pilot was also the head of safety at KLM Airlines.

The podcast does not focus on workplace safety but the discussion is probably the better for it.

Foster’s unforgiveable fatality

Foster’s Brewing has received one of the largest fines for a health and safety infringement in Victoria’s history, $1.125 million. In 2006 Cuu Huynh was jammed by the neck between the doors of a de-palletiser and a handrail and died as a consequence. The same circumstances injured another worker in 2002.

A major reason for the large fine is because, as WorkSafe’s John Merritt put it

“The problem had been identified, someone had been hurt previously, the solution was known and it wasn’t fixed until after a man had died. The opportunities to make improvements were repeatedly deferred.”

Foster’s chose to upgrade the de-palletiser involved in the 2002 incident but neglected the other de-palletisers in the same plant. This is where stupidity or laziness enters the equation. The OHS Plant Regulations allow for the risk assessment and findings on one type of machine to be applied to the same machines without revisiting the assessment process. Foster’s chose not to learn from a mistake.

It seems what is “reasonably practicable” for one machine is not so for another.

Readers would be aware that I support companies who choose to keep with the status quo through a risk assessment process, as long as they own up to when that decision may be proven wrong; in the case of Foster’s fatally wrong.

There is no indication that Foster’s will appeal the fine. This is to be applauded as, on top of the fine, the company has had to spend almost $4 million in plant safety upgrades. This is a substantial cost that probably would have been cheaper in 2002, or even earlier, but it remains little comfort to Cuu Huynh’s family.

Below are some of the points that WorkSafe is making in relation to Foster’s handling of safety on their depalletisers.

An employee was hurt in similar circumstances on another machine in 2002. While safety was improved on that machine, improvements were not made to the machine which killed the man in 2006.
Operators were required to enter the operating area of their machines to remove broken bottles and plastic binding tape and ensure sensor lights worked. Workers estimated they would do this up to 20 times per shift.
There was no adequate visual and no audible warning of the opening of the pneumatic doors, unguarded chain sprockets created hazards, while safety devices were easily over-ridden to prevent sudden stoppage of the machine which caused bottles to fall over and break;.
Written standard operating procedures (SOP’s) for operating the depalletisers and cleaning them during breaks in production had been produced, but they did not deal with clearing jams during production. A specific SOP covering this was produced after the workers’ death.
Various operators told WorkSafe they were unfamiliar with the SOP’s and did not have sufficient English to read them. Much training was done ‘on the job’.
Workers were allowed to leave work an hour earlier on the last shift of the week if they had completed cleaning the machine. As a result they would clean the machine while production continued. The man who died was on this position.

This is a litany of poor safety management that any company should be ashamed of. Of particular concern, and should be noted by other companies and OHS regulators, is that written instructions for the machine were inadequate and in a format that could not be easily understood by the machine operators.

One of my safety colleagues has mentioned to me the absurdity that the first of WorkSafe’s new Compliance Codes is expected to be on workplace amenities. This workplace element rarely leads to death or injury and the release of a “minor” code does not auger well for the rest of the codes. It is understandable that Amenities may be one of the easier-to-produce codes but, to my mind, the most neglected guidance material in the last 20 years has been the provision of safety information in languages other than English – a workplace issue that WorkSafe has indicated was directly relevant to the death of Cuu Huynh.

For all of those corporations that say that safety is the first priority and that production will be suspended if a safety hazard is identified, Foster’s did not follow its own policies. According to its own HSE Policy

“We will work towards our goals through a process of continuous improvement and, in particular, fulfil these commitments by:

1. Meeting or exceeding all health, safety and environment regulations in each of our workplaces around the globe.”

Cuu Huynh’s death has shown, as mentioned by WorkSafe above and mentioned in media reports

“…the workplace culture encouraged the machine operators to maintain production by not stopping depalletisers when they were clearing jams or cleaning the machine.”

Production, at Foster’s, was more important than safety.

Stress and job mobility

In The Age newspaper for 31 July 2008, James Adonis wrote the article “Eight signs your workplace is crook”. One of those signs was stressed workers. He quoted a report by Watson Wyatt where employees listed stress as a major reason for leaving a job. Stress did not rank in the employers’ top five reasons for people leaving.

This disconnect illustrates a major misunderstanding about workplace stress by employers and, maybe, employees. The ultimate control measure for workplace stress is to leave a job and I recommend this to colleagues who do not see it as a viable hazard control option.

The challenge is to make sure that the next job is not, or does not become, a similarly stressful job.

The executive summary of the report says

“Forty-eight percent of organizations say that job-related stress — created by long hours and doing more with less — affects business performance. Although only 5 percent are taking strong action to address it…”

The focus on business performance may reflect the perspective of the report writers but as it is only available for purchase for $US49, I would ask for the report (2007/2008 Staying@Work Report: Building an Effective Health & Productivity Framework) at a library.

Closing of Don Smallgoods factory in Victoria

Manual Handling in the Food Industry - First Edition

Several years ago, I visited the Don Smallgoods food manufacturers in the west of Melbourne. I was visiting food manufacturers during the writing and design of the first edition of the WorkSafe Victoria guide on Manual Handling in the Food Industry. (The current edition is available HERE) Many photos in that first edition came from the Don factory.

Now its owners have decided to close the plant which has a workforce of 600 people. Many of the workers I spoke with had worked there for decades. Many of them had multiple relatives working alongside them and most of the workforce came from non-English speaking backgrounds.

The closure will have a heavy economic effect on those families and the economy of the western suburbs. My sympathy and best wishes go to those workers.

Bank influence on Beaconsfield Mine

It is all too easy to misread the headline on page 7 of today’s Australian newspaper:

MacBank ‘had input’ into goldmine

This seems to confirm the recent statements by miners to the coronial inquest into Larry Knight’s death at Beaconsfield Mine, and accusations by unions. The headline is based on the statements made by Michael Ryan who was the administrator to Allstate Explorations. Ryan said that the Macquarie Bank had representatives on the joint venture committee and those bank representatives asked questions about the mine. However Ryan could not recall if questions were raised by them about production levels.

Ryan said that Matthew Gill, the mine manager, had made several unsuccessful attempts to have government safety inspectors visit the mine. The article does not specify the reason for Gill’s attempts.

Michael Ryan said that he would approve any expenditure on safety at the mine.

The article says that in the month prior to the April 2006 rockfall, Ryan asked about safety in the mine.

“He said he asked Mr Gill on a number of occasions if the mine was safe, including in March 2006, after observing an unusual number of rocks caught in support mesh. “(Gill’s) answers were to the effect that it was (safe).”

Matthew Gill has spoken publicly several times about his experiences following the rockfall and is now on the professional speakers’ circuit. He was appointed the Managing Director of Monarch Gold Mining Company.

Category: business

Who manages safety – employers or inspectors?

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What New South Wales unions need to give up for harmony’s sake

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Irrational decision-making

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Foster’s unforgiveable fatality

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Stress and job mobility

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Closing of Don Smallgoods factory in Victoria

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Bank influence on Beaconsfield Mine

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