The bad news and the good news of New Zealand agricultural safety

On 8 October 2009, New Zealand’s Department of Labour issued a press release that stated

“New research confirms the importance of work in agriculture safety and health. The research by Otago University’s Injury Prevention Research Unit found that the rate of serious injuries and fatalities on New Zealand farms has remained high in contrast to declines in other industries over the past two decades.”

The release states that DoL continues to place a high importance on preventative action in the agriculture sector, an undeniably important economic sector for New Zealand.

OR72 coverHowever, what was most noticeable was that

“the rate of serious injuries and fatalities on New Zealand farms has remained high in contrast to declines in other industries over the past two decades.”

Surely this is not a good news story.  Twenty years of preventative interventions in the agriculture sector have not been as successful as those in other industries.

SafetyAtWorkBlog contacted DoL for clarification.  The commitment of DoL to the agriculture sector was re-emphasized.  DoL responded very promptly to our enquiries and provided links to additional information including the original research report.

Part of the Otago University project was a literature review in the sector from 2000 to 2008.  The major findings were

  • “The most common mechanisms for serious non-fatal injury and fatal injury include agricultural machinery (including vehicles –tractors, ATVs), livestock and falls for all age groups, in all three regions under review.
  • The exposures and risks of disease in the agricultural sector currently being researched and where researchers agree there is a need for further research include:
    • exposure to dust and organic materials and the relation to respiratory disorders;
    • exposure to pesticides, herbicides and insecticides and associations with various cancers including: non-Hodgkin’s lymphoma; prostate cancer, breast and ovarian cancer, leukaemia, multiple myeloma and brain cancers;
    • environmentally associated cancers (for example, skin cancer and cancer of the lip) and their association with production practice.
  • Occupational fatalities in agriculture remain high, despite decreases in occupational fatality rates for other industry groups, in all three regions over the last decade. The research demonstrates that there are various groups that are particularly at risk, these include:
    • men in all age groups;
    • older workers/farmers;
    • migrant and seasonal workers;
    • youths (particularly those aged between 11-15 years and male)
    • Children (particularly male children)
    • Farm-owners and managers, with respect to intentional fatal self harm injury) again predominantly men.”

Several other surveys were undertaken, one by telephone.  Those results are also telling.  Amongst the results was this paragraph concerning injuries:

“With respect to injury, thirteen percent (13%) of farmers from the AgriBase™ sample had had an injury, in the three months prior to interview, which had restricted their activity for a half a day or more and/or which required medical treatment from a health professional.  Generally these injuries were reasonably serious and respondents reported work capacity was poor following injury.  For two-thirds of those injured it was over a week before they could resume normal farming duties; yet only a third of these respondents made a claim to the Accident Compensation Corporation.”

Key findings of the report for governments include

“….there is no long term prevention strategy for injury and disease that specifically addresses the agricultural sector.”

“The dominant stereotype of the farmer as being rugged, independent and self-sufficient (and masculine) is also largely uncritically accepted by many stakeholders. These and associated stereotypes about the nature of rural life and notions of rural isolation are problematic and potentially can undermine effective health interventions in this sector.”

“…there is a tendency for initiatives to be ad-hoc and for there to be a lack of co-ordination and coherence, and in some instances, where there are some questions around the efficacy of various interventions, an unwillingness to accept that there are problems.”

There are many others that discuss a lack of resources, dubious targeting, a lack of coordination and inter-organisational politics.

For farmers and other individuals, some of the findings include:

“In connection to this evident stoicism was a vocational identification to the work they do; most could not imagine not farming, it was not just a job.  The implications here are that they would often keep on working with an injury (such as a back condition), as doing the work was more important, not just economically, but also in terms of their identity, and an underlying belief that it would heal itself if they just kept on going.”

“Many said they were too tired at the end of a working day to read about injury and disease or to go onto the internet to learn about it either.  When they opened the paper they wanted to know about local and international news, not health matters.  This presents some real challenges for the sector in terms of disseminating information.”

The University of Otago also issued a media release on the research project.  This release reflects the tone and results of the research project much more accurately.

The whole report reflects the current status of safety in the agricultural sector in New Zealand.  It reports on good intentions in the wrong areas, a need to look beyond the stereotypes and the need for sustained intervention.

What seems to be needed is a creative and effective response from the Government that acknowledges that past strategies have failed, or at least that some of them have.  All the existing strategies need reviewing to determine which have shown promise and could succeed if appropriate resources were allocated.  Inspiration needs to be sought from within the region and from around the world.  If this has already been sought and found wanting, the sad reality will be that it falls to New Zealand to make the change.

New Zealand’s DoL may already be facing this bleak reality.  In their media statement, the Department’s Chief Adviser, Safety and Health, Dr Geraint Emrys said:

“The Department will use the findings of the research to inform policy decisions and to better target operational interventions to make them more effective in reducing the injury and death toll in agriculture.”

New Zealand could lead the world in this important area.

Kevin Jones

HWCA could be influential in Australia’s workers’ compensation reforms

Australia and New Zealand have a small strategic organisation called the Heads of Workers’ Compensation Authorities (HWCA, pronounced “howca” by those in the know).  It is a regular meeting (some say “love-in”, others say “coven”) of the CEOs of the various workers’ compensation bodies in Australia and New Zealand.  Over the next five years, as the Australian Government begins to harmonise/reform the workers’ compensation system, HWCA will be important to watch.

In early October 2009, HWCA met and endorsed a coordination strategy, that has yet to be publicly released.  The main objectives of the strategy were noted in a media release (also not yet publicly available) to mark the latest meeting.

  • “To deliver best practice services to injured workers and employers to assist recovery: and
  • to build sustainable workers’ compensation schemes.”

The terminology of the first objective may provide a good indication of the type of organisation HWCA seems to be.  “Best practice services”???  “Best practice” is one of the worst corporate jargons being used at the moment.  This article at Wikipedia outlines the context of the phrase well.

“As the term has become more popular, some organizations have begun using the term “best practices” to refer to what are in fact merely ‘rules’….”

In other words, HWCA has a strategy to do what its member organisations should have been doing all along – enforcing the rules of good customer service and providing the best level of service to injured workers.

Perhaps it is the second strategic objective that best illustrates the aims of HWCA – to make sure that the workers’ compensation schemes do not lose money.

According to the communique that is released after every meeting (top points for open communication)

“HWCA agreed the Bio-psychosocial Rehabilitation Working Group would develop a national action plan regarding prevention of long-term disability and work loss, which will support the strategy.”

Prevention is the role of the OHS authorities in Australia and the Department of Labour in New Zealand.  Clearly HWCA will be discussing these strategic aims with those in charge of preventing injuries and illnesses.  But can the various WorkCovers and WorkSafes cope with biopsychosocial hazards?  Surely HWCA will also be talking with all the NGOs who lobby on depression, anxiety, fatigue, stress, wellness, happiness ………….. (Get ready for even more influence for BeyondBlue)

Consultation will also be needed with the various government departments involved with health promotion, public and occupational.  Not to mention the unions, employer associations and health professional bodies.

A strategy of such magnitude would require considerable resources and horse-trading through government ranks in all jurisdictions.  It is hard to see this being achieved through a meeting of Chief Executive Officers, and should such a strategy be pushed through individual workers’ compensation bodies anyway?

To achieve true reform of workers’ compensation and to resist the substantial pressure that is likely to come from the Australian and international insurance companies, the Australian government is going to need considerable negotiating skills.  Because of the involvement with the financially influential insurance companies, it is doubtful the intended reforms will be achieved. (HWCA already has discussions with the “Heads of Compulsory Third Party Insurers” according to the communique)

Almost as a post-script, it is noted that Greg Tweedly, CEO of WorkSafe Victoria, takes over the chairmanship of HWCA from the CEO of WorkCover NSW, Jon Blackwell.  Tweedly is a very busy CEO and will become more so, if the rumour proves true that he will be joining the National Board of the Safety Institute of Australia.

As the chairmanship moves from New South Wales, so will HWCA’s administrative support.  The next HWCA meeting is scheduled for 5 February 2010 and will be coordinated through the Victorian Workcover Authority or Comcare.

Kevin Jones

GHS is coming to the United States

On 30 September 2009 the Occupational Safety and Health Administration in the United States said in a media statement:

A proposed rule to align the Occupational Safety and Health Administration’s Hazard Communication Standard (HCS) with provisions of the United Nations Globally Harmonized System of Classification and Labelling of Chemicals (GHS) will be published in the September 30 Federal Register.

Jordan Barab, acting Assistant Secretary of Labor for OSHA said

“The proposal to align the hazard communication standard with the GHS will improve the consistency and effectiveness of hazard communications and reduce chemical-related injuries, illnesses and fatalities…… Following the GHS approach will increase workplace safety, facilitate international trade in chemicals, and generate cost savings from production efficiencies for firms that manufacture and use hazardous chemicals.”

Pages from DraftApprovedCriteriaOn 6 October 2009, Safe Work Australia released the draft  “Australian Criteria for the Classification Hazardous Chemicals”.

The closing date for comments is 18 December 2009.

Safe Work Australia stresses what the draft is not and the web page on the issue is very important to read.

Safe Work Australia says it

“…will be preparing guidance material for different audiences on the GHS and introducing two training courses (as basic and an expert one) to understand GHS classification.”

It should also be noted that the draft Classification Criteria is being revised in the context of the OHS harmonisation program of the Federal Government.

Kevin Jones

OHS law debate and Law Society position

Boardroom Radio has hosted a very interesting podcast between two labour lawyers, Andrew Douglas and Michael Tooma, with the participation of Barry Silburn, the National President of the Safety Institute of Australia.

Andrew Douglas speaking at one of his firm's regular breakfast seminars
Andrew Douglas speaking at one of his firm's regular breakfast seminars

The SIA National President’s contributions were quite narrow, dominated by the issue of “suitably qualified” in the new model OHS laws (but he did struggle to get a word in edge ways).

It will be disappointing if the SIA’s submission to the Federal Government on the new laws focusses on this single and, to most, secondary issue, when the institute could achieve better results through other mechanisms and more creative thinking.

The only expansive comment from Silburn was the fact that harmonised plant regulations that were introduced over 10 years ago still resulted in different legislation in each State even though they reflected a common core.  The high likelihood of this happening to the general OHS legislation was supported by the over panel members.

It is possible that the argy-bargy occurring now and at least for the next 6 weeks of public comment, will not achieve harmonisation as it was initially intended, and tried in a half-hearted way in the early 1990’s.  The Federal Government could still end the debate by applying its powers under the Corporations Act, as it has in industrial relations.  Some lawyers believe that this is the ace up the sleeve of the Federal Government.

The Law Council of Australia issued an interesting media statement on 30 September 2009.  Below are the comments from that statement by John Corcoran, the Council’s President:

“The model laws strike the correct balance and adhere to fundamental criminal law principles.  Governments must set aside jurisdictional differences and enact a uniform model OH&S law.”

“Despite the substantial differences in OH&S legislation across Australia, there is little evidence to suggest that the imposition of harsher penalties and evidentiary burdens in some jurisdictions has improved workplace safety performance.  Nor has it been improved by the extension of prosecution powers to unions or other organisations.”

“There are undeniable benefits, both to workers and employers, in a uniform national OH&S system, but there is no evidence that workers in any jurisdiction will be worse off if a model law is adopted uniformly.”

These quotes give one of the clearest indications that the OHS harmonisation process about law and not safety management.

It could also be asked that if there is “little evidence to suggest that the imposition of harsher penalties and evidentiary burdens in some jurisdictions has improved workplace safety performance” what alternative strategies and penalties would the Council suggest for consideration?  We will need to wait for their submission to the government for that.

Johnstone book 001Richard Johnstone, a leading academic and researcher into OHS law and enforcement polices argued in his 2003 book, “Occupational Heath and Safety, Courts and Crime

“…that the court is an institution which, while appearing to dispense justice, is actually part of a broader process which decontextualises social issues.  Courts, inspectors, prosecutors and defence counsel are involved in filtering or reshaping OHS issues during the prosecution process, both pre-trial and in court.”

Johnstone says that the process leads to a focus on the “event” rather than the broader context which includes the workplace management systems.

Johnstone succinctly lists the five key principles of effective OHS management, based on his work and that of his colleagues:

  • “demonstrated senior management commitment to OHS;
  • the integration of OHS management into core management and work activities;
  • the adoption of a systems approach to OHS management, involving risk assessment processes and an audit system to identify all risks and to determine which require urgent attention;
  • the ability of the OHS management system to accommodate to change, particularly changes to work methods, systems and processes, changes to substances, plant and equipment, and changes to the workforce; and
  • valuing worker input to the OHS management system.”

This is the context in which the new draft Model OHS laws should be considered.  If the law does not support these principles than the law is being written for the lawyers and not for the improvement of safety for workers in Australia.

Much of the podcast discussion was about how one deals with what went wrong rather than providing guidance of how to manage to avoid the risk in the first place – the perpetual dichotomy between lawyers and safety professionals.

Kevin Jones

Deacons are first with harmonised OHS law comments

Michael Tooma speaking at the Safety Conference in Sydney in 2008
Michael Tooma speaking at the Safety Conference in Sydney in 2008

Michael Tooma, of the Australian law firm Deacons, is often the first labour lawyer to comment on Australia OHS Law matters and this week was no different.  While many of us are continuing to digest the draft OHS Act, Tooma has identified several issues of interest.  Some are discussed below.

[Tooma’s full legal update is available  HERE]

An expanded duty of care that may extend beyond workplace safety and OHS

The duty of care will include

  • “providing and maintaining a safe and healthy work environment;
  • providing and maintaining safe plant and structures;
  • providing and maintaining safe systems of work;
  • ensuring safe use, handling, storage and transport of plant, structures and substances;
  • providing adequate facilities for the welfare of workers carrying out work for the business or undertaking;
  • providing any information, training, instruction or supervision that is necessary; and
  • ensuring the health of workers and conditions at the workplace are monitored for the purpose of preventing illness or injury of workers.”

Most of these will be familiar to Australian OHS professionals and there is little that is controversial here but Tooma says

“This expanded duty has the capacity to broaden the existing duties significantly, extending their reach to any activities that may impact health and safety.   The extent of the duty as drafted in the model provisions arguably includes public safety matters…..  In addition to public safety, arguably the provisions are capable of applying to product safety matters.”

Tooma expands on this slightly in an article in SmartCompany in terms of an alternative to public liability.

“Tooma says this means duty of care will now extend to issues of public safety, including visitors, passers by and even trespassers, which could open businesses up to civil litigation claims from people who aren’t even employees of a business.

Tooma says the laws allow a member of the public to sue a workplace based on a breach of statutory duty, rather than a negligence claim, which often carries a higher penalty and is more difficult to defend in court.”

The extension of workplace safety obligations to include the impact of work processes on those outside the worksite has existed for some time but the draft legislation has the capacity to highlight this “opportunity” to some.  The integration of work and non-work exposures has some logic to it when one considers the growing push for integration of work health and public health management such as reducing cardio-vascular health risks through work-based initiatives.  It also broadens the social integration of OHS  and environmental management which larger companies are already managed through an integrated structure.

Union Right of Entry

There have been some frightful cases of union intervention, particularly in the construction industry, over the last few years.  Depending on one’s politics the union reps or organisers are either doing the right thing by their members or disrupting the workplace for their own secret agenda.  This situation does not reflect the vast majority of workplace consultations on OHS matters.

Prior to the introduction of the Victorian OHS Act which established an authorisation process for union organisers, SafetyAtWorkBlog remembers one prominent OHS lawyer, warning that “the sky will fall” over this issue.  It never did in Victoria and there is no reason to suspect that new right-of-entry provisions will be controversial in any workplaces other than those that already have fractious relationships between unions and management, and often on matters unrelated to safety.

However, Tooma says that

“The union right of entry provisions contained within the Model OHS Laws involve a far greater expansion of the rights of unions than those which exist in current OHS legislation throughout the jurisdictions, particularly in New South Wales, South Australia, Tasmania and the Commonwealth.  The Model OHS Laws give unions not only the power to investigate incidents but also to advise workers in relation to OHS matters.”

There was always going to be some changes in some jurisdictions due to the harmonisation process following the Victorian OHS Act 2004.  SafetyAtWorkBlog has faith in the authorities implementing sufficient safeguards that union right-of-entry will not be the hotbed of anxiety that some are suggesting.

More legal commentary on the draft OHS Law documents is likely to be released over the next few weeks as the drafts get digested and the six-week public comment phase kicks in.  It is sure to be the hot talking point as Australia moves into a bunch of OHS activities, conferences and awards events in October 2009 leading to Safe Work Australia Week.

Kevin Jones

Harmonisation documents available but path is far from settled

On 25 September 2009, Australia’s Workplace Relations Ministers Council
(WRMC) agreed to release the draft legislation for public comment.

According to one media report, the New South Wales Finance Minister, Joe Tripodi,

“…moved at the [WRMC] meeting to have union prosecutions included in the new laws and was defeated by eight votes to one.”

Pages from Discussionpaper_ExposureDraft_ModelActforOHS_PDFThe documents are now available for download HERE.

According to Safe Work Australia’s media statement:

“The suite of documents available for public comment includes a model Act, administrative Regulations and consultation Regulation Impact Statement (RIS). The RIS will allow individuals and organisations to comment on the potential costs and benefits of the proposed Regulations. The RIS has been prepared by Access Economics.”

Curiously, it also says that Access Economics is

“…surveying businesses across a range of sizes, industries and regions in an effort to obtain primary data on compliance costs and safety benefits.”

It is odd that this has not been done earlier to, perhaps, substantiate the claims that the OHS law changes will reduce costs and “red tape”.

At the Comcare Conference in Canberra in late September 2009, Geoff Fary, illustrated very effectively the small sector of business that would be affected by the national laws.  Fary estimates that only around 1% of Australian businesses are likely to be liable to the “red tape” argument.  Many of these companies could be expected to already have some form of national OHS management systems, perhaps through Australian management standards.

Whether the percentage of affected 1% or 5% it is hoped that the Access Economics survey does not focus only on this sector.  Previous surveys have indicated a large ignorance or apathy about national harmonisation.  This is likely because the vast majority of Australian businesses operate within a single jurisdiction so the harmonisation is considered irrelevant.  The sad reality is that the OHS legislative structures in Australia for the next 10 to 20 years will be determined by the corporate sector, the regulators themselves, and the labour law firms and not necessarily by the small to medium-sized businesses for whom OHS can be the most burdensome.

SafetyAtWorkBlog had the chance to ask Geoff Fary, the assistant secretary of the ACTU, of his thoughts on the continuing opposition to harmonisation expressed by Troy Buswell, the Western Australia Treasurer.  Fary said that harmonisation

“…could occur without Western Australia being involved.  It couldn’t occur, I believe, without Victoria or New South Wales or Queensland being involved but because of the nature of the place and the geography of the place it could occur without Western Australia, and I think there is probably a strong possibility….that harmonisation will proceed in the absence of Western Australia.”

If this evenuates the harmonisation process becomes an academic exercise yet again.

Kevin Jones

New ISO risk management standard

I am old enough to remember the world of management before it had a risk management standard.  In fact I was studying risk management in OHS when the Australian Standard 4360 was released.  It substantially changed the way OHS was managed in Australia (and lined the pockets of the publishers).  It increased the significance of management standards beyond Quality and helped considerably in progressing an integrated approach to managing a broad range of workplace risks.

[The process also instilled in me a distrust of the standards development process when I sat through a seminar from one of the risk management standards committee members where he spruiked a PC-based management system that “anticipated” the new standard…….. at $30,000 setup fee???  Clearly in this case, and I have been told in almost all cases, the participants always have one eye on the commercial benefits of participation]

Grant Purdy recently discussed the new international risk management standard ISO 31000:2009.  At one of his presentations he said that the new standard has a definition of risk that “shifts the emphasis from “the event” to “the effect” and, in particular, the effect on objectives.”

The previous risk management standard overlapped with auditable elements in other management standards – OHS, environment, and quality.  This new definition may cause problems across these sectors.

Purdy said that risk is now not only perceived as a negative.

“Risk has in th past been regarded solely as a negative concept….[but] it is now recognised that risk is simply a fact of life that cannot be avoided or denied.”

He speaks of the traditional way of measuring risk as sometimes creating “phantom risks” due to an overstated likelihood.  This seems particularly relevant to OHS and may be part of the reason that some OHS issues are seen as excessive or, at worst, a joke.

Purdy stated that there are 11 statements of effective risk management. [Modern management writers love numbers.  I should write a book called “The hundredth time I have had to sit through a numbered list of strategies at conferences before walking out”]  The statements are that risk management

  • creates and protects value
  • is an integrated part of all organisational processes
  • is part of decision making
  • explicitly addresses uncertainty
  • is systematic, structure and timely
  • is based on the best available information
  • is tailored
  • takes human and cultural factors into account
  • is transparent and inclusive
  • is dynamic, iterative and responsive to change
  • facilitates continual improvement of the organisation.

The implementation of this standard and other international standards is going to be confusing, initially, for Australian managers but the choice is easy.  Why follow an Australian standard that needs explaining overseas when there is already an international standard that requires no explanation?  Go global and expand your auditing and accountability options.

[Please note that ISO31000 is not an auditable standard but I suspect you will not have to wait long for one.]

Kevin Jones


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