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.

sexual-harassment-cop2008-cover

Mining fatalities and accountability

The 11 November 2008 edition of The Australian includes a page 2 story where the previous manager of the Beaconsfield Mine has been called on to be held responsible for the management failures that led to the death of Larry Knight in 2006.  The call was made by counsel for Larry Knight’s family and the Australian Workers’ Union in a submission to the Tasmanian inquest into the fatality.

According to the media report, the wrong decision was made in trying to stabilise the working area of the mine and that the risk assessment process was inadequate.  The latter comment should be of considerable interest to OHS regulators and safety professionals.

The importance of the Tasmanian Coroner’s findings are illustrated by comments in the submission by the counsel for the mine.  The media report says that 

“…Dr Neal tells the Coroner the mine had done all it reasonably could to guard against the risk of rockfall and to manage the mine’s notorious seismicity.” [emphasis added]

This is particularly important when considering the introduction of “reasonably practicable” into the OHS legislation throughout the Australian States being considered by the National OHS Law Review.

It is regrettable that the to-ing and fro-ing in the inquest is not getting as much media attention in the non-mining states, as there have been many risk management and accountability issues raised.  The media is likely to wait until the findings of the Coroner, Rod Chandler, and focus on the result rather than the journey.

There was a similar experience in New South Wales with the inquiry that followed the drowning of four mine workers at the Gretley mine in November 1996.  The information did not resonate to the rest of Australia except through the mining sector, yet there were important lessons from the inquiry.  Most OHS professionals, if at all, would recollect the prosecution of Gretley mine managers on matters of culpability, rather than the death of the four workers.

When the Tasmanian Coroner hands down his findings in the near future, it will be very useful to consider them in the light of the earlier reports, assessments and papers, among many others, listed below. 

SafetyAtWorkBlog is a strong advocate of learning new OHS management practices by looking beyond one’s field of expertise.  OHS professionals, safety managers and risk managers need to watch the action in Tasmania and other jurisdictions for themselves and not rely on a small group of OHS lawyers to bring matters to their attention and advise them how to avoid their responsibilities.  Accountability is a moral and legal responsibility.

Holding Corporate Leaders Responsible by Andrew Hopkins

The Impact of the Gretley Prosecutions by Andrew Hopkins

Mine Safety – Law, Regulation, Policy by Neil Gunningham

A submission by the Tasmanian Minerals Council on CRIMINAL LIABILITY OF ORGANISATIONS – ISSUES PAPER NO 9, JUNE 2005 to the Tasmanian Law Reform Institute

N Gunningham, ‘Prosecution for OHS offences: deterrent or disincentive?’ (2007) Sydney Law Review, 29 (3), pp 359-390.

R Guthrie and E Waldeck, ‘The liability of corporations, company directors and officers for OSH breaches: a review of the Australian landscape’ (2008) Policy and Practice in Health and Safety 6(1),
pp 31-54. 

N Foster, ‘Mining, maps and mindfulness: the Gretley appeal to the Full Bench of the Industrial Court of NSW’ (2008) Journal of Occupational Health and Safety – Australia and New Zealand 24(2),
pp 113-129.

Statements on Australia’s OHS review report

According to today’s The Australian, Australian trade unions has “panned” the first report by the National OHS Law Review.  Here is what the ACTU Assistant Secretary Geoff Fary said,

Geoff Fary
Geoff Fary

 

“We are pleased that the Panel Report has recognised that breaches of OH&S laws are criminal rather than civil matters. These recommendations are a step in the right direction, but need to go much further to protect working people by tightening up the rules on employers’ duty of care to their workforce.

“There is a real need to address the carnage that is taking place in workplaces by increasing fines and tightening up employers’ duty of care, but we are concerned that in NSW and QLD injured workers and their families will lose out because they already have laws that squarely put the onus of proof on employers when they allegedly breach the law.”

“Unions believe that the ability to fine companies a percentage of the turnover would be a better deterrent, because even a $3 million fine is a drop in the ocean for some big corporations. At the moment employers can get fined more for breaching trade practices law than for being found guilty of contributing to employees being killed or maimed in their workplace.

“The courts should also be encouraged to use the maximum penalties. At the moment they don’t.

“Unions will continue to campaign for laws that put an unqualified duty of care on employers to provide a healthy and safe workplace.”

For balance, below are the relevant statements from Mr Scott Barklamb, Director of Workplace Policy
with the Australian Chamber of Commerce & Industry:

“Whilst there is significant detail to be analysed across the report’s 75 separate recommendations, the review panel appears to have taken a sound approach on critical issues such as ensuring that the core safety obligation on employers is limited to doing that which is reasonably practicable, and that the prosecutor must bear the onus of proving any breach of OHS law beyond reasonable doubt.”

Michael Tooma, a partner with Australian law firm Deacons, was commenting on a survey that his firm undertook which indicated that the respondents would prefer a “clean sheet” approach to OHS regulations in this country rather than trying to reconcile laws from nine jurisdictions.  

At this point in the review process, any change in direction is highly unlikely and may not fit with the Review Panel’s terms of reference.  The risk in doubts about the process is that an unstable OHS legislative structure could be imposed on Australia that nobody will be happy with and, of course, longevity and continuing relevance is an important consideration in legislative development.

The cautious comments by Scott Barklamb are wise in that the really contentious elements of reform are due in the second report on broader OHS matters due in early 2008.

Safety professionals should be the “child in the crowd”

One of Hans Christian Anderson’s most popular tales is The Emperor’s New Clothes.  For those unfamiliar with the story an English translation is available.

But in summary, an emperor hires two swindlers to make him the finest clothes.  The swindlers pretend to create a gown from the best material and tell their client that it happens to be invisible to fools.  The emperor parades through the town in his new outfit an a young child yells out that the emperor is, in fact, naked.  The townsfolk see through the swindle.

It is the job of OHS professionals and advisors to be the ones to point out the obvious to business or to burst the preconceptions that are hampering safety improvements.  Interestingly, there are no repercussions for the child in the tale and, once shown the fallacy of his beliefs, the emperor continues with the parade.

It is also worth bearing the many lessons of the Emperor’s New Clothes in relation to the purchase of personal protective equipment, project briefs, verification of qualifications and the sycophancy of colleagues.

It is helpful to think that once back at the palace, he revoked the contract with the swindling tailors but that is outside the original tale.

National OHS Law Review – First Report released

The first report of the National OHS Law Review panel was presented to the Australian Government yesterday. The best initial assessment of the report can be found at a safety blog operated by Deacons law firm.  In that report by Michael Tooma and Alena Titterton, the following points are made:

  • there should be a general duty of care for health and safety
  • “worker” is defined more broadly as ‘person who works in a business or undertaking’
  • “the Report recommends that a defined ‘reasonably practicable’ be built into the offence in the model OHS Act which reflects the current approach taken in all jurisdictions except New South Wales and Queensland.”
  • The prosecution will bear the onus of proof beyond reasonable doubt on all elements of an offence”
  • Offences could be indictable and heard in front of a Judge and jury. 
  • Increased penalties in line with those for environmental breaches – Corporation = $3 million,  Individual = $600,000 Imprisonment – up to five years  
  • An appeals process where cases could be taken to the High Court of Australia

“Reasonably practicable” remains a concept with a floating meaning for most business owners and OHS professionals.  For a type of legislation that is intended to be readily understood by a layman, this legalese is disappointing however it is likely that clarification will come from the OHS regulators as it has already in some States.  The review panel supports this type of clarification.

Interestingly, the report says on “the primary duty of care” that it “should not include express reference to control” and that 

‘Control’ should not be included in the definition of reasonably practicable.

The panel says that “control” will be discussed in the second report as will the definition of a “workplace”.

The Deacon’s authors remind us that reports of this type are not automatically implemented by governments and that the review process has several months to run.

The report needs to be read carefully by OHS professionals as the recommendations will set the scene fro OHS law in Australia for, perhaps, decades.  Also, going beyond the list of recommendations allows readers to see which of the issues considered were contentious and which had uniform acceptance.

The trade union movement is yet to release public statements but according to one media report, Geoff Fary of the Australian Council of Trade Unions is

“disappointed that a qualified duty of care would continue to rest with the employer”.

That same report is headed “Prison time for unsafe bosses” raising the spectre of industrial manslaughter.  That does not seem to be case and may say more about the readership of The Australian or the politics of the sub-editors.  However, it will be interesting to see the responses of the employer associations over the coming days.

nationalreviewintomodelohslaws-cover1


Physical activity, mental health, alcohol consumption and productivity

The Victorian Government’s workplace health strategy may be “coughing up blood” but health promotion continues.  Last week, Australian health insurer, Medibank Private, released some statistics and cost estimates related to physical inactivity.

According to the media release, physical inactivity costing the Australian economy $13.8 billion a year. The findings are based on research conducted in conjunction with KPMG-Econtech which builds on Medibank’s 2007 research and “captures the healthcare costs, economy wide productivity costs, and the mortality costs of individuals passing away prematurely as a result of physical inactivity.”

Craig Bosworth of Medibank Private says, 

“Most Australians are aware of the benefits of physical activity but this latest round of Medibank research has revealed some alarming effects of physical inactivity. An estimated 16,179 people die prematurely each year due to conditions and diseases attributable to physical inactivity and that is frightening. And whilst the majority of these are from the older population there is also a large number of people dying under 74 years of age due to physical inactivity, particularly in the male population.”

Bosworth goes on to say:

“Like other health risk factors, physical inactivity can have an adverse effect on organisations as well as individuals. Specifically, physical inactivity can impact on employee productivity by causing increased absenteeism and presenteeism, which impose direct economic costs on employers. The Medibank research has found that productivity loss due to physical inactivity equates to 1.8 working days per worker per year.”

Three audio statements on this research are available – physical-inactivity-telephone-grabs-edit

The SuperFriend Industry Funds Forum Mental Health Foundation has also released statistics on mental health in the workplace. The survey also found that 50 per cent of Australians admit to often feeling stressed and a quarter often feel depressed. 

John Mendoza, Chair of SuperFriend’s Mental Health Reference Group, said, “There is increasing evidence of a link between stress in the workplace and mental illness. The cost of workplace stress to Australian business is potentially crippling.” Listen – workplace-mental-health-edit

The Superfriends survey found

StreetWise
StreetWise
  • One in two Australians believe that having a few drinks is a good way to maintain or improve their mental health;
  • 80 per cent of Australians believe watching TV has a positive impact on their mental health;
  • Australians are putting their bodies ahead of their brains, with three-quarters of Australians engaged in activity to maintain or improve their physical health, while only 50 per cent are actively engaging in activity to maintain or improve their mental health.
  • Older Australians are more likely to heed the call ‘use it or lose it’. While 57 per cent of all Australians feel they take good care of their mental health, 68 per cent of those over 50 feel they are looking after themselves emotionally.
  • Australians aged 40 to 49 are the unhappiest and unhealthiest. Those in this age group are more likely to feel stressed and depressed and less likely to look after their physical and mental health.

A good starting point in planning to manage stress is the StressWise publication by WorkSafe Victoria.

For many decades, perhaps centuries, unhappiness at work was countered, to varying degrees, through the consumption of alcohol.  According to the latest Australian Unity Wellbeing Index people who drink everyday are the happiest, whereas non-drinkers have a lower sense of wellbeing.

Amanda Hagan of Australian Unity summarises some of the research findings and supports the link between physical activity and positive wellbeing. Listen – australian-unity-wellbeing-index-aap-medianet-edit

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