contractor – Page 16 – SafetyAtWorkBlog

Gov’t responds to insulation installer’s death

Recently SafetyAtWorkBlog reported of the death of a worker installing insulation in a domestic home. A staple for the foil insulation apparently pierced an electrical cable and electrocuted the worker.

The Queensland Government has introduced mandatory provisions to avoid the hazard in the future. In a media release on 1 November 2009, the Industrial Relation Minister, Cameron Dick,

“… issued a ministerial notice under the Electrical Safety Act 2002 to prohibit the use of metal fastenings for ceiling insulation.”

The ban is effective from 1 November 2009.

It may already be the case, elsewhere in the world, that non-conductive fasteners are used for installing metallic insulation. If not, the rules introduced by the government should prove useful references.

“The ministerial notice means that installers will have to use nylon or plastic fasteners (which are already in use within the industry), glue or tape to fix foil insulation in ceilings.

As well as banning metal fasteners, the notice also:

forces insulation installers to comply with the Wiring Rules with respect to the placement of any type of insulation near recessed downlights

makes electrical safety risk assessment training mandatory for all installers

forces installers to document their on-site electrical safety risk assessments and keep a record f or five years.”

Such a mandatory rule is clearly a necessary short-term fix but it does little to address the concerns of the Master Electricians Association. Training and enforcement are the long-term solutions but policymakers must also anticipate the applications of their policies more closely. New policies should not be announced in an industry that does not have the resources to meet the policy’s aims.

Kevin Jones

Unintended consequences of inadequate preparation

The Australian Government instigated a rebate scheme for ceiling insulation for domestic homes in order to the climatic impacts of heating one’s home. The rebates effectively make insulation free and, as a result, there is a boom in insulation installation.

As with any boom in any industry, there is an influx of new workers. The Australian newspaper reports the death of an installer in Brisbane in mid-October 2009 and the shortcomings this death illustrates.

The article says that the rebate scheme has been so popular that fibreglass batts are not available so installers are using foil-based reflective insulation.

“Master Electricians Association president Malcolm Richards said the foil-based products should be banned in established homes because untrained installers were stapling foil on to live electricity wires. He said the practice was the cause of last week’s tragedy in Brisbane and electricians were being increasingly called on to repair dodgy work.”

Firstly, electricians are always being called on to repair the botched electrical work of others. Secondly, it’s not the fault of the foil suppliers so it seems unfair to ban a legitimate insulation product.

The Master Electricians Association is facing the problem that others face every day, unqualified workers doing the work normally undertaken by qualified workers.

The political opportunism by some in this article is regrettable.

The Australian Government should have learnt from its computers-in-schools initiative/debacle that there are ancillary costs with any government program and that these costs should be considered in the policy development and/or have relevant organisations consulted so that the necessary support services are prepared for the plan’s launch and operation.

The computers-in-schools program did not consider the software costs to use on the free computer for ever secondary school student. The LPG conversion rebate did not consider the scale of demand. The solar panel rebate scheme was cancelled even though the demand was great. The home insulation scheme has drawn inexperienced installers into the industry. All good intentions harmed through poor planning and some of that harm can be the death of workers.

Kevin Jones

Prosecution results from fall through roof

On 22 October 2007, a commercial premise in Southbank, Victoria, was to undergo renovations which included replacing the asbestos roof with an iron roof. Two men were employed as project managers and during the roof replacement, according to WorkSafe Victoria.

“…the dogman fell [through an unguarded shaft] a total distance of 8 metres and as a result he broke 3 bones of his right wrist and a fractured scapula as well as sustaining bruising to the body and serious lacerations to the head.”

On 16 October 2009, the Magistrates’ Court fined the specialist roofing company contracted for the task $A15,000. The prosecution summary says that as the company specialised in roofing, the hazards of working on an asbestos roof, and unprotected edges, would have been well-known.

The two project managers were fined $A7,500 each as they were not sufficiently experienced for their project management roles. The lack of fall protection for those working on the roof was of particular note according to the Prosecution Summary from WorkSafe Victoria.

More details on the prosecution are available from the WorkSafe hyperlinks in this article.

It would be interesting to run this prosecution summary as a hypothetical under the proposed National OHS Model law to provide a contrast between the old and new laws particularly on the following matters, although many more could be considered if further details were available:

who controls the workplace
competence
suitably qualified
role and enforcement of JSA’s
contractor management

Kevin Jones

Who is advising John Holland?

The person, Sir John Holland, died in May 2009. The company, John Holland Group (JHG), is in danger of a shortened life if it continues to make bizarre decisions.

John Holland Group has been widely criticized by the union movement, principally for its decision to jump out of State OHS jurisdictions to the Commonwealth (Comcare) structure. This was seen as a purely financial response to a politically sensitive opportunity that was presented by the Liberal government of then-Prime Minister John Howard. Comcare was seen as the insurer of the defence forces and public servants and, unions claimed, enforcement of OHS to an acceptable level was beyond the skills and resources of the administrative agency.

Due to union pressure, John Holland Rail was dropped from the finalists for a national safety award in early 2009. JHG probably came in for more criticism than other companies who also jumped because it is in the highly-unionised construction sector and their construction work is so public.

One of the advantages of moving to the Federal OHS scheme was that any prosecutions would occur in that jurisdiction and JHG has been prosecuted there. JHG had several OHS breaches in 2005 and 2006. It came under the Federal OHS law in March 2007. In September 2008, Worksafe Victoria charged the company over one of the 2006 breaches.

According to a report in The Age on 14 October 2009, JHG

“issued a High Court challenge, claiming the charges were ”incompetent” because it was not liable for conviction under Victorian workplace law for offences committed before it came under the Commonwealth jurisdiction.”

High Court challenges are not cheap and the wisdom of the decision to contest the State actions was always questionable, doubly so now the High Court unanimously decided against JHG’s arguments.

The High Court challenge confirmed for many the impression that John Holland Group will try to avoid safety obligations, if possible, and that the move to a “softer” regulatory scheme was one of the reasons behind the move to the Comcare scheme. The legal action undermines all of the positive safety culture messages that the corporation has issued.

JHG is involved with many new infrastructure and construction projects. Harmonised OHS laws are set for 2011 which include the federal OHS laws under which Comcare operates. Within a decade of taking up an opportunity for a “softer” regulatory regime, the advantage may be gone and the John Holland Group Board should ask themselves “was it worth it?”

Kevin Jones

Perhaps a step too far on homes as workplaces

According to an AAP report released on 8 October 2009, Australian homeowners could be liable for the injuries of workmen on their premises. According to Michael Tooma of Deacons law firm, the breadth of the proposed OHS model laws could cause big legal problems for homeowners (as if interest rate rises and balcony collapses were not enough).

“..if I call out a tradesperson to do some work at my home, my home is their workplace and I would be a person at their workplace. As such, I would have a duty to take reasonable care for my own safety and the safety of others and to cooperate with their reasonable instructions in my own home. If I breach that duty I could be liable for a criminal offence.”

The duty of care applied regardless of whether the worker was injured or not, Mr Tooma said. “If the person is exposed to risk, then potentially you’ve committed a criminal offence. Previously, there were clear boundaries around a home that really made it sacrosanct.”

The crux of Tooma’s argument is that

“The definition of a workplace in the legislation is so broad that any place where a worker works is deemed a workplace”.

Many corporations have struggled with their OHS obligations for staff who telecommute. Home-based businesses have a clearer legislative responsibility even if many of them are unaware of the responsibility.

The Model Safe Work Provisions Exposure Draft’s defines a workplace as follows

“(1) A workplace is a place where work is carried out for a business or undertaking and includes any place where a worker goes, or is likely to be, while at work.
(2) In this section, place includes:

(a) vehicle, ship, boat, aircraft or other mobile structure; and
(b) any installation on land, on the bed of any waters or floating on any waters.”

In the Discussion Paper there is an example provided of what is not a business

“A householder hiring an electrician to repair a faulty electrical socket in their home (however the electrician will either be a worker for a business or undertaking or a business or undertaking in their own right if they are self employed).”

Tooma’s point would be what if the electrician was undertaking the work in a home office (if designated) or the whole house/workplace.

Of all the “modern working arrangements” listed in the Discussion Paper, working from home is not listed. If it had been, Tooma’s comments would have seemed less alarmist, probably because their would have been more general alarm as perhaps hinted at in the AAP article.

In that article, Tooma also says

“We’re talking about the Occupational Health and Safety Act intruding on the family home and imposing criminal liability on individual home owners under legislation that is supposedly aimed at safety in the workplace.

“It’s really a quirk of the way the definition works in that everywhere a worker goes, so goes the workplace.”

AAP does not treat the issue as “a quirk”. Not with a headline in The Canberra Times of “Home owners ‘could be liable'”.

Tooma may have raised a valid point but the AAP article shows how the media can “ice the cake” of an issue. It may have been better to present this quirk to the Government through the Public Comment process (and I am sure Tooma will) but it is also on all OHS advocates to bring the relevance of OHS matters to the attention of those who may not understand the risks they could be exposed to. This blog article could be considered an example of this.

The Public Comment phase on the draft documents is still young. If Tooma’s intention was to stir debate (and not alarm) he has raised an interesting issue that should be discussed. Whether the wider community of homeowners, home-based businesses and telecommuters take this perspective, we’re yet to see.

Kevin Jones

Contractor management in Australia’s new OHS laws

When reading the draft documents for Australia’s harmonised OHS laws, it is very useful to run various scenarios or hazards through one’s mind and see how these could be affected or managed. The most challenging hazards are the psychosocial hazards (or bio-psychosocial as they were referred to at the recent Comcare conference in Canberra) of stress, mental health and all their varieties. If the laws are truly to be for the modern world, they need to incorporate modern hazards and maybe suggest ways of managing them.

An older but often more persistent hazard involves the management of contractors on one’s site. Many hours are spent each year by companies on the selection of contractors, induction, monitoring, arguing and legal action (often in that order). Regardless of the quality of one’s experience, managing contractors can be challenging.

Will the new OHS laws proposed by the Australian Government make it easier to manage contractors?

According to Andrew Douglas, a workplace lawyer based in Melbourne, at the moment, the employer of contractors is directly responsible for the safety of the contractors. If the contractors work off-site, then that responsibility may extend to the principal.

Douglas believes that under the new national regime, based on the current draft papers, the relationship will be different. He says

“The key change is the imposition of broad, non-delegable and concurrent duties on persons who conduct a business or undertaking. The duty is owed to any persons or workers who the business or undertaking exercises control or influence over.

As a result, principals owe a primary duty to contractors and contractors’ employees working onsite. Further, directors and senior managers owe a positive duty to exercise due diligence to ensure the business complies with the OHS legislation.

By December 2011 , there will be no doubt that businesses will owe an identical duty to any worker on site as they does (sic) to their own employees.”

It may be well worth reading the draft document repeatedly with a different hazard group with each reading or, even better, use one’s colleagues or staff to read the drafts with a particular hazard in mind and then workshop the results.

Kevin Jones

Part of Andrew Douglas’ paper on contractor management is available HERE

Principal Contractor duties clarified in the High Court of Australia

Managing contract labour is almost always a pain. The extension of OHS obligations through the “supply chain” has not helped although it was intended to.

Companies have been expected to treat contractors as employees for the sake of OHS obligations. This was intended to generate a cultural change where a certain safety standard was extended through the links of project management. To some extent safety awareness in the small suppliers of services to large companies and projects has improved. But whether that safety awareness has changed to an active safety management or simply a belief that OHS is an unavoidable evil is debatable.

Regardless of the reality, the High Court of Australia recently provided some clarification on the duty of care of a principal contractor. According to a summary of the High Court decision, Australian law firm Allens Arthur Robinson report that

“The High Court’s decision means that a ‘principal contractor’ does not have a common law duty to train or supervise the employees of specialist subcontractors in the specifics of their work.”

The High Court acknowledged that this may not relate to the New South Wales legislative situation but it is an important decision for the harmonised future of Australian OHS Law.

What it also indicates is the length of time it can take for a legal concept to be clarified and, hopefully, defined. What does a company do in the meantime? This is important for businesses to consider as the OHS law moves into a new national regime where individual State jurisdictions are expected to provide clarity on the legislative vagaries of “reasonably practicable”. The government seems to be comfortable that the legal processes (cost and time) are worth the flexibility offered in OHS law. Some see flexibility, others may see confusion, complexity and the need to reeducate.

Kevin Jones

Category: contractor

Gov’t responds to insulation installer’s death

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Unintended consequences of inadequate preparation

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Prosecution results from fall through roof

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Who is advising John Holland?

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Perhaps a step too far on homes as workplaces

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