contractor – Page 17 – SafetyAtWorkBlog

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

Finger injury causes hefty new safety agenda for John Holland Rail

Comcare has instigated a hefty list of enforceable undertakings (EU) against John Holland Rail (JHR) after a contractor, Jack Wilmot, needed a finger amputated after a workplace injury.

According to the report on the Comcare website

“…an apprentice boilermaker was involved in an incident which resulted in crush injuries to his left index finger at a JHR facility located at Kewdale, Western Australia.”

Comcare’s investigation report

“found that JHR failed to ensure the apprentice, had received adequate training, supervision and instructions in the task he was undertaking when injured.”

Stephen Sasse, Director of John Holland Rail, signed off on the enforceable undertaking at the end of August 2009.

Below are some of the mandatory safety improvements

maintain the new supervisory structure implemented at the Kewdale facility shortly after the incident

implement and adapt the safer systems of work across JHR workplaces within two months of signing the EU

conduct a risk assessment of all major activities undertaken by JHR to determine and identify those which should be classified as ‘high risk activities’ (HRAs) within six months of signing the EU

eliminate where reasonably practicable to do so, all HRAs and otherwise apply appropriate control measures to the balance of the HRAs, within six months of signing the EU

provide training regarding safer systems of work to all JHR employees who undertake rail plant maintenance activities as part of their duties within eight months of signing the EU

commence implementation of the Rail Safety Business Plan 2009 at all JHR workplaces by 31 September 2009 including commencing work on each of the 28 strategic initiatives within the stated timeframes.

Some of these tasks would be impossible to undertake from scratch. A response from John Holland Rail and/or John Holland Group is being sought.

Enforceable undertakings are a feature of financial and OHS legal processes. In Queensland and Victoria an EU is

“… a legal agreement in which a person or organisation undertakes to carry out specific activities to improve worker health and safety and deliver benefits to industry and the broader community.”

John Holland Group has been proud of its OHS record for many years and has had the benefit of Janet Holmes a Court as a safety champion within and outside the company. Holmes a Court spoke of her commitment to safety at the 2009 Safety In Action Conference which was hosted by the Safety Institute of Australia (SIA) of which John Holland is a Diamond Corporate Partner ($A25,000 minimum donation).

Only last week the SIA, proudly announced a Diamond Corporate Partnership with John Holland Group which commits the company to, amongst other commitments,

“Act and work responsibly and competently at all times to improve health and safety in workplaces and ensure they do no harm.

Give priority to the health, safety and welfare of employees, employers and other workplace health and safety stakeholders in accordance with accepted standards of moral and legal behaviour during the performance of their duties.

Ensure the health, safety and welfare of employees, employers and other workplace health and safety stakeholders takes precedence over the professional member’s responsibility to sectional or private interests.

Ensure work by people under their direction is competently performed and honestly and reliably reported.

Ensure they do not engage in any illegal or improper practices.”

It is suggested that for next year’s Safety In Action Conference, the SIA asks a JHG representative to discuss the above enforceable undertakings as a case study of inadequate safety management and the related organisational and financial costs.

Kevin Jones

[Note: Kevin Jones was involved in the promotion of Safety In Action 2009]

Charges laid on swing stage collapse

SafetyAtWorkBlog reported on a scaffolding incident in Queensland in mid-2008. Charges have now been laid but not manslaughter charges as were called for at the time by the unions.

The workers were fatally injured on 21 June 2008 when the swing stage scaffold they were using to carry out concrete patchwork on the Pegasus high-rise, then under construction at Broadbeach, failed and fell 26 levels to the ground.

According to Workplace Health and Safety Queensland

Allscaff Systems Pty Ltd, which erected the swing stage, is charged with failing to ensure the plant was erected in a way that ensured it was safe when used properly.

Ralph Michael Smith, director of Allscaff Systems Pty Ltd, is charged with failing to ensure the company complied with its obligations under the Act.

Karimbla Construction Services Pty Limited, which built the high-rise, is charged with breaching obligations as a person in control of a workplace and as project manager.

Pryme Constructions Pty Ltd, which undertook the concrete patching, is charged with breaching its obligations to ensure workplace health and safety.

SsfetyAtWorkBlog will be following this case over the next few months.

Should OHS regulators be involved in the competence of professionals?

WorkSafe and the Safety Institute of Australia are at the forefront of pushing for a defined level of competence for the safety professional. WorkSafe identified this need many years ago and has been working on establishing alliances with safety professions since then to achieve its aims.

Significantly similar issues have been discussed in the United Kingdom over a similar period however, in that process the WorkSafe equivalent, the Health & Safety Executive (HSE), have chosen not to participate. According to a recent article in HEALTH AND SAFETY AT WORK, the HSE has stated its position

“Speaking at IOSH’s recent conference, HSE chief executive Geoffrey Podger was adamant that the general description of competence in the Management of Health and Safety at Work Regulations 1999 (MHSW) Approved Code of Practice (ACoP) is sufficient. “I don’t think it helps the whole health and safety system if HSE tries to over-define the area,” he said, adding that there is still a “huge opportunity” for the professional bodies to work on their own definition.”

This position is considerably different from that in Australia where WorkSafe is now closely working (some would say too closely) with the SIA in developing standards and protocols that it and its partners want to operate nationally. Its aim seems to be similar to one the HSE and Health & Safety Commission established in 2007 – “Mapping Occupational Safety and Health (OSH) Professional Body Activities in Scotland”. It is worth looking at the page to see the list of safety professional bodies who are listed, the services offered and the membership databases.

A crucial HSE document is the “HSE statement to the external providers of health and safety assistance”. Its statement that competence should be a goal rather than a benchmark should worry the Australian competence lobbyists. In the Ponting article above, IOSH calls for more clarity but, as discussed elsewhere in SafetyAtWorkBlog, OHS legislation clearly states it is the employers’ ultimate responsibility to establish a safe and healthy work environment. They may choose assistance from competent people but why should it be the regulator that establishes this? The professional bodies such as IOSH and SIA have existed for decades. Have they not determined levels of competency for their own members by now?

Geoff Hooke of the British Safety Industry Federation says

“when you ask how you measure competence, the simple answer is: with great difficulty”.

In general, shouldn’t the response from OHS professional associations be along the lines of

“we believe that all members of the XXX Association are competent within their fields and we would not hesitate in recommending our professional members in providing competent advice to companies…”?

These organizations who are calling for a clear definition are often the same organizations that are in support of “as far as is reasonably practicable”, a vague management concept that can be defined and re-defined depending on which judge hears which OHS prosecution. – the antithesis to the prevention principles of OHS. One cannot call for certainty in one area while advocating flexibility in another.

The UK Works and Pensions Committee was right in saying that more control is required on external consultants and clearly lobbed the responsibility on the professional bodies.

Ponting’s article concludes that it is the job of the professional bodies to organize accreditation and the maintenance of that accreditation but acknowledges that it is politically fraught. That is not enough reason to look to the regulator to solve the problem as it only makes the regulator the target of criticism over the process and the results. The professional bodies themselves must work to a commonality of purpose and relinquish years of demarcation and, sometimes, schism.

The Australian safety professions would ultimately gain far more credibility for themselves and their professions if they too took it upon themselves to define accreditation, audit their members’ competencies and assist in the maintenance of skills. In that way Australia may gain a safety profession of which everyone can be proud.

Kevin Jones

Category: contractor

Who is advising John Holland?

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Perhaps a step too far on homes as workplaces

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Charges laid on swing stage collapse

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