Category: business

National OHS Review – initial comments

Several OHS colleagues on an international discussion forum have expressed some opinions on the final report of the Australia’s National Model OHS Law review.

Safety Alerts

One asked that better and more frequent safety alerts be published by the regulators and that those reports be based on fatalities, injuries and near misses.  

There is an inconsistency of  incident reporting in Australia.  For instance, emergency service departments have different ways of notifying the media of incidents.  Most rely on regular (multiple times each day) visits to their websites.  This option doesn’t work unless one has tracking software or are doing nothing else.  Several distribute email bulletins on a daily basis.  Most of the bulletins deal with traffic incidents, floods or bushfires, but several also report on emergency incidents to individuals and, although not explicit, many occur in workplaces.

Incident alerts from emergency services are good because it is a service that OHS regulators and enforcers also receive and act upon.

For many years, various Australia safety organisations have published OHS solutions databases or, initially, folders.  The maintenance of these have fluctuated over the years in relation to technological change and political interest.  It is pointless trying to establish a fixed-point or hard-copy library when the Internet is now the primary resource tool.

It should be added that considerable information can be garnered from court reports of OHS prosecutions however, the Magistrates’ Courts do not provide publicly accessible court reports so any matters heard at that level are rarely reported, except by someone who is sitting in the court.  To gain a proper understanding of the OHS legislative process, coverage of all levels of legal action should be encouraged.

Risk Management

Another colleague expressed concern about the use of “risk” throughout the report.  Below is a section of the report that explains the review panel’s approach:

“In Chapter 30, we discuss the role of the risk management  process in the model Act.  As we noted in our first report, risk  management is essential to achieving a safe and healthy work  environment. We found that risk management is implicit in the  definition of reasonably practicable, and as such, need not be  expressly required to be applied as part of the qualifier of
 the duties of care.  Further, as we discuss in this report, risks  can be successfully managed without mandating hazard  identification and risk assessment in all cases, particularly  where the hazards are well known and have universally  accepted controls.

 Therefore we recommend that the model Act should not  include a specific process of hazard identification and risk  assessment, or mandate a hierarchy of controls, but that the  regulation-making power in the model Act should allow for the  process to be established via regulation, with further guidance  provided in a code of practice, as is contemporary practice.
 The application of risk management process should however be  encouraged…” (page xviii)

Throughout the review process the Victorian OHS Act was the most influential piece of legislation and that Act removed the previous requirement to assess workplace risks to determine the most appropriate control measure.  WorkSafe Victoria had, for years, advocated in its publications and guidelines to “Find-Assess-Fix”.  The “Assess” was dropped in many instances as the suitable control measure had been well-established just not widely applied.  

The WorkSafe position was in response to those business operators who may say “I don’t care how hazardous the bloody thing is just fix it!”  It was hoped that this would save time and “unnecessary” paperwork, and that other State jurisdictions would take the same approach.  None did, and the removal of “Assess” confused businesses and safety professionals as it is a major inconsistency with the Australian Standard on Risk Management.

WorkSafe tried to calm the confusion by saying that they still though assessing risks was a good idea for many new and developing hazards, just that assessment could be done away with as a legislative requirements in most instances.

It seems like the National Review Panel supports the Victorian approach to risk assessment.  Not so long ago, the New South Wales government subsidised a lot of training for farmers and others in the agricultural sector on risk assessment.  Now it will have to re-explain.

The other concern with the panel’s approach to risk assessment is that it sees risk management as fitting within “reasonably practicable”, a concept that SafetyAtWorkBlog is not convinced helps in managing safety.  “Reasonably practicable” is a concept that is defined and refined through prosecutions and court processes, therefore, it can change and it is best interpreted by lawyers.  OHS legislation was designed to be readily understood by the layman for where the responsibility for safety sits with the employer and, to a lesser extent, the employee.  As soon as law firms are brought into the process, information is locked away under lawyer-client privilege, the cost of safety skyrockets and any safety management lessons are delayed until the court case is heard (or not heard) years later.

It should be remembered that the National OHS Model Law was about the law relating to workplace safety not the implementation of safety management.  It is this differentiation that needs to be constantly pushed to the government to avoid workplace safety becoming a management task that cannot be undertaken without a lawyer watching intently over one’s shoulder all the time.

Kevin Jones

Australia’s final report of OHS Model Law Review released

The final report of the review into Model OHS Law in Australia has been released.  As usual Deacons law firm is the first to provide an analysis of the major recommendations of the report.

Over the next week there will be a flurry of activity from, particularly, the labour law firms but the rush is unnecessary.  The timetable for when change becomes a reality is well over 12 months away and the global financial crisis has thrown political timetables to the winds. 

The timetable for Australia’s emissions trading scheme are becoming vague, state elections are perhaps being brought forward, where they can, and, most importantly, the business sector will be protesting long and hard on any regulation that may increase their costs.  If ever there was a time for safety professionals and associations to be campaigning on the truth that safety decreases operating costs in the long term, that time is now.

Judge leaders by how they react in a crisis not in the easy times.

Upcoming OHS Videos

At the end of March 2009, the Safety Institute of Australia (Victoria Division) is conducting its annual Safety In Action conference.  In order to help promote the conference the SIA organised for several conference speakers to be filmed.

The filming occurred in early-February 2009 and the short 10-minutesia-filming-2009-01videos will be available at the Safety In Action website in a couple of week’s time.  The subjects of the videos are:

Jill MCabe of WorkSafe Victoria who talks about the research WorkSafe has undertaken in order to establish a better profile of their clients so as to improve assistance and advice.  Jill has long experience in industrial relations and now focuses on health and safety.

Helen Marshall was appointed Australia’s Federal Safety Commissioner in August 2008.  Helen discusses her experiences in dealing with a national system for safety on building and construction sites and reveals her first ever “real” job.

Dr Martyn Newman explains what he means by describing some leaders as “emotional capitalists”.  He sees that as a good thing to be but isn’t ego an emotion and greed an emotion?  And aren’t those the emotions that that have generated a lot of our social and financial heartbreak?  Is there is such a thing as an “emotional socialist”?  Dr Newman’s  presentation at the conference will be popular but it’s application may be obscure or challenging.

John Merritt, the CEO of WorkSafe, is genuinely passionate about improving society and seems to feel that OHS is a valuable way to improve the quality of people’s lives. [I first spoke with John in the early 1990s while he was in the ACTU.  The only thing I knew about him was that he had written a book about shearers.  I spoke next with him while he was CEO of the  National Safety Council and now (twice) while he is at WorkSafe.  If our paths continue to cross, he owes me a beer and two hours of unrecorded conversation in a comfortable bar.]

Barry Sherriff, a lawyer with Freehills, has just come off nine months of serving on the National OHS Review panel and is hamstrung in what he can say as the government is yet to release the final report.  His presentation was measured and cautious.

The videos provide an interesting cross-section of OHS approaches in Australia, several overlap and some are “out there” but the best that can be said is that one learns.  This makes for a terrific Safety In Action conference.

Kevin Jones


Union influence on OHS – interview with Professor Michael Quinlan

Professor Michael Quinlan of the University of New South Wales believes that the influence of Australian trade unions in improving OHS conditions should not be underestimated or past achievements, forgotten.  

In talking with Kevin Jones in a recent podcast, Quinlan said that the persistent accusation of unions using OHS as an industrial relations tool is “largely an ideological beat-up”.  Although he does believe that Australian trade unions have not pursued workplace hazards to the extent they should have, even with the impeding launch of a campaign on cancers. 

Professor Quinlan mentioned that

“most health and safety management systems are, in fact, largely management safety systems.  They not deal a lot with health….. Their KPIs [Key Performance Indicators] are always expressed in terms of zero-injuries or zero-harm.”

 He also emphasised that that more Australian workers are killed as a result of occupational disease than injury.

He also addresses the growing demand for occupational health and safety regulation to move from industrial relations to the area of health.  Quinlan believes this will never happen because matters to do with employment, organisational restructuring and others have an OHS impact.  He says that running OHS as “an entirely separate agenda…is intellectually and factually flawed.”

Quinlan acknowledges the argument that Robens-style legislation was relevant for the time and where union-presence persists but he said

“where you don’t have effective or worker input, you will have serious problems with health and safety”.

He reminded us that Roben’s also advocated self-regulation, a concept of which there is now great suspicion in a range of business areas.

Quinlan spoke highly of some of the initiatives of OHS regulation, for instance, the adaptation of the inspectorate to duty-of-care matters and a broader operational brief. He also said that the current OHS legislation in Australia “is the best we’ve ever had” and believes some of the recent criticism needs to be supported by evidence.  Also none of the critics have proposed a viable alternative.

Professor Quinlan is a keynote speaker on Day 3 of the Safety In Action conference.

Kevin Jones

Note: the author assists the Safety Institute in the promotion of the Safety in Action conferences.

Eliminate the hazards

The first control measure on the “hierarchy of controls” is to eliminate the hazard.  OHS consultants and professionals should always consider ways to achieve this.  It may prove to be impractical, or politically unpopular, but it should always be discussed or recommended.  Reports and submissions that do not consider this control measure can be considered invalid.

In late-January 2009, the organic farmers in Australia reminded the media that its farming members are developing a safer industry for the customer and the producer.  This industry has boomed in Australia since the 1970’s in as a result of a desire and commitment to “eliminate the hazard”.

Interviews conducted by Biological Farmers of Australia (BFA) to help  discover why producers ‘go organic’ reveal a high number of farmers consider the switch for the health of themselves and their families.

Rob Bauer (Bauers Organic Farm, Qld), one of Australia’s largest organic horticultural growers, says he turned to organic farming 27 ago after farmers in his area became ill with cancer.

He says he wanted to decrease health risks associated with synthetic farm chemicals.

“I started thinking about farming differently after growing up in the Lockyer Valley (Qld) where friends and family passed away in their fifties after years of intensive agrichemical production.”

He says neurological problems, tumours, and cancer were among the chronic diseases he watched take their toll on his local farming community.

“I wasn’t comfortable with producing food using harsh farm chemicals for consumers,” he says.

Steve Skopilianos, commercial lettuce producer from Ladybird Organics in Keilor (Vic) looked into organics when he started a family.

“We had been applying pesticide blends with no understanding of their effect on people and employees.  There were times prior to organic conversion where I would not take my own produce home for my family to eat.”

Biodynamic producers of macadamias are happy to avoid high levels of agrichemicals typically used on the nuts.

“Working without a high exposure to synthetic chemical farm products is a weight off your mind,” says Marco Bobbert, from Wodonga Park Fruit and Nuts macadamia plantation (Qld), certified biodynamic since 1987.

He says direct chemical exposure could easily occur on conventional farms from accidents in production. “All it takes is a broken spray pipe.”

He says it is not just organic farmers who are concerned – “All farmers try to minimise their contact with chemicals on-farm. But organic production actively works toward negating that risk”.

Research has shown there is good reason for producers’ concern – a high exposure to some farm chemicals can lead to major health problems.

Particularly problematic substances include organophosphate insecticides and pesticides, which have been connected to several types of cancer, sterility and cognitive deficits (1).

The agrichemical endosulfan is one example of a highly toxic  organochlorine cyclodiene) insecticide still in use in Australia.

1. (1) Ciesielski, S, Loomis, D, Rupp Mims, S, Auer, A, Pesticide Exposures, Cholinesterase Depression, and Symptoms among North Carolina Migrant Farmworkers; American Journal of Public Health, 1994.

Cass Sunstein, Risk, Cost-Benefit and OHS

On 26 January 2009, the Los Angeles Times reported on the appointment of Cass Sunstein as the “regulatory czar” under Barack Obama’s presidency.  He is to be appointed the head of The Office of Information and Regulatory Affairs.

In 2003 in the precursor to the SafetyAtWorkBlog, SafetyAtWork magazine, I reviewed Sunstein’s book – Risk & Reason, Safety, Law and the Environment.  Below is the first part of that review

SafetyAtWork magazine Vol 4 Issue 11 - 2003
SafetyAtWork magazine Vol 4 Issue 11 - 2003

So many safety professionals also have responsibility for the environment that Risk & Reason – Safety, Law, and the Environment seemed an attractive read.  This book is unashamedly North American and to some extent that is a discouragement but given that many innovations originated there, the book was worth a look.

From outside North America the issues of most relevance were those concerning risk perception and the role of experts.  Cass Sunstein states that

Before government acts, it should, if feasible, attempt to produce a cost benefit analysis, understood as a detailed accounting of the consequences of the alternative courses of action.  The cost benefit analysis should allow people to see if the problem at issue is small or large.  It should explore the expense of reducing the problem and explain who will bear that expense.  (p. ix)

He says that,

Some people think of cost benefit analysis as a form of cold, barely human calculation, treating health and life as mere commodities and envisioning government as some kind of huge maximizing machine.  On the contrary, I urge that cost-benefit analysis should be seen as a simple pragmatic tool, designed to promote a better appreciation of the consequences of regulation.  (p.ix)

I wondered whether what he considers cost -benefit analysis in the broadest sense.  His concepts fit with risk management and, of course, risk management is supported by various standards such as AS4360.

The trap with cost-benefit analysis is that decisions made are cold and barely human, which he acknowledges.  He uses the fuel economy standard as an example.

If, for example, proposed fuel economy standards will significantly reduce greenhouse gases but also lead to smaller and less safe cars -and thus produce over a thousand extra deaths each year – officials and citizens should be aware of that fact.  (P. ix)

Here is a crucial question for the book – what is the more important, the needs of the many, or the needs of the few.  In his introduction, he surprisingly uses an example of the Hatfield rail crash in the United Kingdom.  Sunstein discusses how people now perceive rail transport as unsafe and began driving to work, a far more statistically dangerous activity.  This example is proceeding well until he stumbles.  He says that

After the crash, people undoubtedly spoke with one another about their fears, creating a kind of cascade of concern about train safety. We shall also see that cascade effects can lead people to large-scale errors about risks. But government regulation, my principal topic here, was not involved. (p 2)

It is clear that Sunstein is not as well informed on Hatfield as is necessary to use the example. Government regulation, or deregulation, of rail transport has never sat well with the English rail traveller.  Hatfield confirmed fears encouraging people to alternative transport methods, ones over which they have direct control.  With train travel, you place your trust in the driver and the system. In automobiles, you feel in more control.

Sunstein makes three recommendations to government on assessing regulation through cost-benefit analysis:

  • “…attempt to assess the magnitude of any problem that it is attempting to solve, through quantitative assessments to the extent possible.”
  • “…attempt to assess tradeoffs, by exploring the costs of regulation, also in quantitative terms if possible.”
  • ”   attempt to use tools that are effective and inexpensive.” (p.5)

This process would be familiar to all safety professionals. We recommend the same process to improve safety:

  • Identify
  • Assess
  • Control

This book shows that there are many parallels between environmental regulation and OHS regulation. Sunstein says

“Properly understood, a cost-benefit state attempts to make people’s lives better. The effort to quantify and to balance is designed not to assess everything in terms of money but to promote close attention to the actual consequences of what government does.” (p.8 )

Chapter 2 is very much about risk perception but suffers from not drawing more on the large amount of safety risk perception analysis and terminology. Sunstein reaches the issue of risk perception from a different point of origin. He asks,

‘What are ordinary people thinking? Can we discern some structure to their judgments? Three beliefs seem to be playing a large role. First, many people believe that risk is an “all or nothing” matter. Something is either safe or dangerous, and there is no middle ground. Second, many people are committed to a belief in the benevolence of nature. They think that the products of human beings, and human activities, are more likely to be dangerous than the products of natural processes. Third, many people subscribe to the “zero risk” mentality, at least in some domains. Such people believe that it is both possible and appropriate to abolish risk entirely, a belief that appears closely connected with the notion that risk is a matter of “all or nothing.”‘ (p.36)

Sunstein discusses Outrage without naming it and by missing this concept narrows the relevance of the book and the authority of his voice. If he had looked at any of Peter Sandman’s work on Outrage, had looked to other scholarly fields, his work would have been more authoritative. Given that Sandman’s works originated from environmental and planning issues it is very surprising that there is no reference to them, particularly given that Sandman is also a United States academic.

Sunstein says that “a possible conclusion is that, with respect to risks, vivid images and concrete pictures of disaster can ‘crowd out’ other kinds of thoughts, including the crucial thought that the probability of disaster is very small.” (p.46) How much more interesting would it have been if he had incorporated Sandman’s Outrage principle and expanded upon it?

The next part of this review will be posted tomorrow.

Safety promotion needs backup

vwa-billboard-2008-0022

WorkSafe Victoria has had considerable advertising success by focusing on the social impact of workplace injuries and death.  In the newspapers and television over Christmas 2008, WorkSafe ads, like the billboard above, were on high rotation but, after the high number of workplace fatalities in January 2009, the strategy must be needing a review.

In terms of OHS promotion generally, branding and awareness strategies are valid however, when the messages of the strategies continue to be ignored, alternatives need to be developed.  The fatality figures imply that family is “the most important reason for safety” but only for a short time or in limited circumstances.  When you return to work the work environment or your approach to the work tasks are worse than before Christmas.

The reality of advertising is that it is often cheaper to raise awareness than change the behaviour of clients, in terms of OHS, this would be both the workers and the employers.  Raising safety as a business priority requires considerably legwork by regulators on-site and through industry associations.  Few OHS authorities around the world seem to be applying hands-on approaches to the extent required.

Part of the reason is that trade unions used to be the shopfloor safety police, as anticipated by Robens in the early 1970s, but trade union membership is at record low levels.  The deficiency in the safety profile on the shopfloor or at the office watercooler is not being picked up by the employers.

Media campaigns are the public face of safety promotion but they should not be a veneer.  Regulators need to provide more information on the alternative strategies they already employ, or plan to introduce, so that promotion is not seen as an end in itself.  

Direct business and CEO visits have been used in the past but given up because these were short term initiatives.   In Victoria, high level visits by regulators to CEOs, board members and directors had a considerable impact in the 1990s but there was no follow-up strategy to maintain that profile.   Ten years on there are a new set of senior managers who could do with a bit of prodding.

Kevin Jones

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