Category: death

John Holland prosecution

The John Holland Group has featured several times in the SafetyAtWorkBlog in 2009.  Any organisation as large as this Australian conglomerate who promotes their commitment to safety and whose Board Chair, Janet Holmes a Court, has such a high profile is going to draw media scrutiny.  In fact, the evolution of the John Holland safety culture and the struggle to maintain such a culture as a company grows in profitability and complexity would make a fascinating case study.

On 18 December 2009, Comcare released details of its latest successful prosecution of John Holland.  This time the company was fined $A180,000 over the death of a worker, Mark McCallum, at the Dalrymple Bay Coal Terminal in Queensland in May 2008.  According to the media statement:

“Justice Collier stated that “It is clear that, despite the efforts taken by the respondent to implement a safe working environment, the operation involving the transportation unit was flawed in its original conception. The dangers were obvious from the start, relatively simple to avoid, but unrecognised and unaddressed in a manner which raises the objective gravity of the offence in these proceedings towards the higher end of the scale.” [emphasis added]

When a judge determines that the process was flawed from the very start, one’s expertise in managing an established practice safely should be critically reviewed.  Such fundamental failures in a safety management system should cause any company to realise something is wrong in the way it is addressing safety needs, particularly in an economic climate that is bursting with new infrastructure projects for which one is competing.

The circumstances of the fatality are that

“A team of five John Holland workers were involved in moving large precast concrete decks to the end of a jetty under construction.  The precast concrete decks were being transported on two jinkers that were being pushed by a front end loader.  During this procedure, a worker’s foot became trapped under wooden scaffolding planks on the jetty, and he was fatally injured when he was run over by the wheels of the jinker.”

The Federal Court judgement listed the safety deficiencies that John Holland acknowledged

“The respondent acknowledges that:

(a) its work method statement did not adequately identify the risks associated with the relevant work process, and did not adequately identify suitable control measures to remove or minimise those risks; and

(b) it did not carry out a plant hazard assessment with respect to the front and rear jinkers, which may have identified a requirement for a remote braking system or other controls on the jinkers for use by spotters and others; and

(c) it did not have in place a formal system whereby employees were certified as being competent in the use of jinkers; and

(d) it did not have in place a formal protocol or procedure for the use of radios to ensure that the transmitter of a radio message was able to be informed that the message had been received by its intended recipient and understood; and

(e) it did not have sufficient communication mechanisms in place to ensure that employees working out of sight of the loader operator and the rear spotter were able to communicate directly with spotters and the loader operator; and

(f) it did not ensure that an observer of a trainee jinker operator was also issued with a radio to directly communicate with the other members of the transportation crew responsible for the propulsion of the load; and

(g) it did not provide workers who were working out of sight of the loader operator or rear spotter with any form of alarm or safety device, other than a radio to alert other workers of the occurrence of an emergency situation; and

(h) it did not ensure that the clearance of obstacles in the path of the loader was done in a timely or effective manner, thereby requiring the front jinker operator to perform that duty during the progress of the transportation unit and whilst out of the line of sight of the loader operator.”

Mark McCallum’s death gained even greater media attention when unions challenged John Holland’s nomination for a safety award shortly after McCallum’s death.

Kevin Jones

Boiler death puts OHS spotlight on New Zealand Education Department

Reports are coming out of New Zealand that representatives of the Education Department are uncomfortable with being charged under the country’s OHS legislation following a fatal boiler explosion at Orewa College.

On 24 June 2009, a boiler exploded at Orewa College in Northland, New Zealand. Initial media reports said that the boiler was being repaired the day after a malfunction. Rough phone video taken by one of the students during the evacuation is available online.

Richard Louis Nel received burns to 90 per cent of his body and later died.  A contractor, Robin Tubman, suffered a fractured skull and a shattered face.

The Department of Labour indicated shortly after the event that an investigation had begun but the Board of Trustees chairman Phil Pickford has questioned the delay in the prosecution.  According to one media report, Pickford said:

“On December 24 it will be six months since the tragedy and here we are at the 21st… They have to prosecute within six months and they have left it to the last minute.  Why?  I could surmise why, but I’m sure there’s another way they could have done it.”

SafetyAtWorkBlog contacted the NZ Department of Labour on 21 December 2009 for further information about the prosecution.   All the spokesperson would say is that “the outcome of the investigation is still being finalized”.

The belief that schools are not covered by OHS legislation is a common misperception in Australia and, from what one NZ SafetyAtWorkBlog reader says, New Zealand also.  Partly this is because the education of children is seen as the principal focus by teachers and educators, to the exclusion of all else. Modern businesses and institutions have slowly learnt that this is not the case and that there are a wealth of obligations, legislative and social, that apply. Educational institutions are often slow to acknowledge this reality.

Another reason, which may stem from the first, is that government departments have been very hesitant to prosecute each other. This may also be supported by the political conflicts that could arise by one politician’s department taking action against another politician’s department. Politicians should not take the credit for departmental achievements and then not be held accountability for failings (although this seems to happen frequently).

In August 2007, The Education Department in Victoria was fined $A8,000 for ignoring the directions of a WorkSafe inspector.   The media statement on the case illustrates a dismissive attitude to OHS issues.

Of more significance were issues at Merrilands College where “a Victorian principal accused of bullying has been removed from school and given a job in the Education Department after years of complaints by staff” according to The Age in July 2004.  The issues at Merrilands had been occurring for some time:

“It was also revealed that the Education Department – which confirmed there had been “Worksafe (sic) issues” at the school in the past – had known about the allegations since 2000, when 12 teachers wrote to the department after a staff member died of a heart attack that some believed was linked to workplace stress.”

According to the same media report

“WorkCover recently issued an improvement notice against the department following allegations of bullying and harassment at two other schools in the northern suburbs.”

To some extent the Orewa College explosion is a more straightforward prosecution because the incident came from an equipment failure and did not relate to the teaching staff or students.   The administrative staff are likely to be asked about maintenance schedules, particularly after other schools in the area had their boilers inspected with several found to be less than perfect.  It is likely that the  prosecution by NZ DoL will illuminate the plant maintenance procedures of secondary colleges but, perhaps of more long-lasting significance will be the attitudes of the education department and school representatives on show in court.

Kevin Jones

Unique company response to confined space penalty

In 2007, according to the ABC news site,

“42-year-old Geoffrey Johnson [died after he] inhaled toxic fumes from paint stripper when he was cleaning the inside of a large chemical tank”.

On 16 December 2009, his employer, Depot Vic P/L, was fined half a million dollars over this breach of the OHS legislation.

Initial reports say that the company is no longer in business but it

“told the court is had put aside money to pay the fine.”

Wow.  What happened to phoenix companies?  – the business scourge that closes down to avoid paying outstanding debts and, often the costs associated with a worker’s death, and then starts up again under a different structure.

That a company will pay a fine for an OHS breach years after ceasing business seems a remarkable and admirable act.

Hyde Park Tank Depot’s assets were purchased by the Scott Corporation several months after Mr Johnson’s death, according to information SafetyAtWorkBlog obtained from Scott Corporation.  The current business and website listing was not operating at the time of Mr Johnson’s death.

WorkSafe Victoria provided background to Mr Johnson’s death in a prosecution summary in April 2009.  The full summary gives a clear indication why the fine was so high.

“Depot Vic Pty Limited (formerly known as Hyde Park Tank Depot Pty Ltd) undertakes cleaning, repair and maintenance of ISO containers for the chemical industry.  ISO containers are confined spaces, being portable tanks used to transport chemicals.  The tanks are usually cleaned purely by hydro-blasting, but on occasion the tanks were required to be cleaned more thoroughly.

The system of work was such that when this situation occurred, the cleaning of the tank required 2 stages. The first stage involved the application of a cleaning agent, usually a product known as ‘Selleys Renovators Choice’ stripper (which is not a dangerous good).

The second stage then involved the use of hydro-blasting on the internal walls to remove the stripper and clean the wall.  The company’s work instructions required that a confined space permit be issued and that appropriate PPE be worn.

On 16 August 2007, an employee of Depot Vic Pty Limited died whilst attempting to remove latex from the internal walls of a 25,500 litre ISO tank.  The deceased had entered the tank and instead of using the ‘Selleys Renovators Choice’ stripper, had used a product known as ‘Paint Stripper Gel GS 125’ that was suited to clean external components only (and not the inside of the tank).  The label of this product contained safety directions such as “do not breathe vapour” and “use only in a well ventilated area”.  This product is a dangerous good ‘class 6.1 (toxic substance) of packing group 111’.  It is also a hazardous substance according to the criteria of the Australian Safety and Compensation Council.

The deceased was located in the tank in an unconcious (sic) state, and when retrieved from the tank did not regain conciousness. An expert analysis of the atmosphere inside the tank concluded that that (sic) there was a lethal concentration in all or part of the tank (10 litres of the dangerous good was used).  At the time of the incident a confined space permit was not issued, the deceased was not wearing respiratory protection, gloves or a harness, and there was no ‘spotter’ in place to supervise the latex removal works.

Further, there was a lack of training and supervision of employees in relation to the work procedures for confined space entry.”

Kevin Jones

Director accountability for OHS reinforced by NZ penalty

On April 5 2008, a cool store in New Zealand exploded killing one firefighter and injuring 7 others.  Icepak Coolstore Ltd, according to the fire services investigation report

“[had] very large quantities of combustible material contained in the expanded polystyrene construction panels and also in the foodstuffs stored.

“There were no compliant fire detection or protection systems or hydrants, and very limited firefighting water.”

In July 2008, the New Zealand Department of Labour (DoL) issued a media statement and fact sheet concerning the explosive potential of flammable hydrocarbon refrigerants.

Language warning on the video below

On 15 December 2009, a New Zealand Court penalised two companies and a director with fines totalling over $NZ390,000.  The DoL has issued a media statement about the prosecution results.

The many reports and inquiries into the explosion and fire are very informative but one element that the DoL wants to focus on is the penalty applied to the Director of Icepak Coolstore, Wayne Grattan.  He was

“fined $30,000 on one charge that he acquiesced in the failure of the company to take all practicable steps to ensure the safety of its employees while at work.”

The Department of Labour’s Chief Adviser for Workplace Health and Safety, Dr Geraint Emrys said (click HERE for audio):

“The prosecution against the director of Icepak should serve as a reminder to officers, agents and directors of organisations that they can be held personally accountable for the failures of their organisation.

“Mr Grattan was charged with acquiescing in Icepak’s failure in respect of obligations to its employees.  The outcome of the case against Mr Grattan reinforces the requirements of directors to be proactive in health and safety matters.”

As many Commonwealth countries have a strong commonality of law, the Icepak Coolstore case should be an important case study in many jurisdictions.

Kevin Jones

OHS law and safety management

Regular readers will be aware that SafetyAtWorkBlog holds the belief that OHS legislation is not the same as managing workplace safety.  Safety can be managed without recourse to law (this is what many mean when they say that “safety is just common sense”) but legislation provides some parameters in which that management occurs.

The Australian Council of Trade Unions has issued a call for tougher OHS laws and used workplace fatality statistics as the basis.  Tying the two issues together serves a political purpose but avoids the fact that a range of economic, political, social and even environmental issues can affect how workplaces manage safety.

The media statement issued on 11 December 2009 says:

“A sharp rise in work-related fatalities last year shows that proposed new workplace health and safety laws need to be strengthened, not watered down, say unions.

There were 177 fatal injuries in workplaces in 2008-9, according to newly released statistics from the national regulatory body, Safe Work Australia. This is an 18% increase from the previous year…. [hyperlink added]

ACTU Secretary Jeff Lawrence said the increase in fatalities was disturbing at a time when proposed changes to Australian workplace safety laws would result in a weakening of protections and rights.

“A double-digit increase in workplace fatalities in one year is shocking,” Mr Lawrence said. “Each of these victims is someone’s partner, parent, son, daughter or friend.  The Federal, state and territory governments will make significant decisions about new national health and safety laws today.  If any evidence was needed that requirements for employers to provide a safe workplace need to be toughened, this is it. We urge the federal and state governments to make workers’ safety their highest priority.”

The ACTU is doing what it should by serving the needs of its members but the push for union prosecutions of OHS breaches is only one part of its social charter.  The aim of improving safety can be best achieved by motivating union members and establishing a dialogue with the general community, which includes business, small and large.

Is the day far off when we may see joint statements from unions and employer groups on the issue of workplace safety?  Can politics be put aside for the benefit of improving safety?  Comments welcome.

Kevin Jones

Self development course contributes to a workplace suicide

What would you do if a work colleague strips, screams, acts “like a child having a tantrum”, starts to sing and then jumps out of a window to her death?  That is the situation that was faced by staff at the Sydney office of the Royal Australasian College of Physicians in December 2005.

Only days earlier, 34-year-old Rebekah Lawrence, had participated in a self-development course called “The Turning Point” conducted by Zoeros P/L trading as People KnowHow.  The course, according to one media report, the course included a session called “The Inner Child”

“in which those taking part were encouraged to develop a dialogue between their child and adult selves.”

Lawrence’s actions just before her death mirrored some of the course teaching.

PeopleKnowHow’s website has closed down with an announcement that all of its courses are under review.  Other organisations that provide similar courses are running for cover.  Transformational Learning Australia has said it

“…no longer has a professional relationship, affiliation or any other connection with People Knowhow.” [emphasis added]

TLA also says any relationship ended in 2005.  That the company has felt it necessary to make a media statement about the end of the relationship shows the extent of the effect of Rebekah Lawrence’s death on this industry sector.

TLA goes on to say that

Our organisation does not accept participants who have a recent history of chronic mental illness, participants under the care of a treating professional who have not obtained that professional’s consent to participate, or people who demonstrate a propensity towards psychological fragility or a significant lack of cohesion during the introductory sessions of the program.”

The New South Wales Coroner found that in the absence of any history of psychosis in Rebekah Lawrence that,

The evidence is overwhelming that the act of stepping out of a window to her death was the tragic culmination of a developing psychosis that had its origins in a self-development course known as ‘The Turning Point’ conducted by Zoeros Pty. Ltd, trading under the name of ‘People Know-How” on the 14, 16, 17 and 18 December 2005.

The full coronial findings are difficult to read due to the personal details of Lawrence’s life, her relationship with her husband David and the general picture of her personality that comes through.   An upsetting and enlightening interview with David Booth is available online from earlier in the investigation process.

The findings also provide considerable detail to the components of the course that Lawrence undertook.  There is a greater level of detail than would be expected to be known by someone signing up for such a course and this is where the lessons can be learnt for the OHS professional and safety manager.

It has become common in many corporations who are trying to improve or introduce a positive workplace culture, to supplement their own efforts with “self-help” or “self-awareness” courses.  Lawrence’s death has highlighted the lack of regulation or accountability in some sectors of this industry.  This also highlights the need for people managers to thoroughly investigate such courses to ensure that good intentions are not likely to increase the risk of harm or damage to the employees who participate.

An audio report on the Coroner’s findings is available online.

Counselling Services

Many workplaces often provide access to counselling services through schemes such as Employment Assistance Programs.  The Coroner’s recommendations have some direct bearing on the issue of “counsellors”.

“The Executive Director of the Australian Psychological Society, Professor Lynne Littlefield pointed out that there are no legal restrictions in Australia for practising under the title ‘psychotherapist’ or under the title ‘counsellor’ and therefore no public safeguards against untrained or incompetent practitioners in this field.

Professor Littlefield pointed out that although there were many skilled counsellors and psychotherapists, there were also many whose competence is questionable and without any regulating mechanisms to stipulate the required training and levels of competence, there was no way of protecting the public from these poorly trained practitioners.”

Rebekah Lawrence’s death is receiving considerable media coverage in Australia at the moment and the New South Wales Government is carefully considering the Coroner’s recommendations concerning the regulation of some areas of the self-development industry.  Employers and safety professionals are going to have a very different set of criteria shortly from which such workplace-related courses need to be evaluated.

One media report has indicated the start of the ramifications of this unfortunate death:

“The NSW Health Minister, Carmel Tebbutt, said she had asked her department for ”urgent advice” on the case and would consider the coroner’s recommendations. A code of conduct for counsellors and psychologists had already been implemented and the Health Care Complaints Commission now monitored practitioners.

The Royal Australian and New Zealand College of Psychiatrists called for closer monitoring and accountability of self-help and psychotherapeutic courses.”

Kevin Jones

How much does poor safety management cost?

In late November 2009, the Victorian State Emergency Services (SES) was convicted of OHS breaches over the death of one of its volunteers and was fined $A75,000.  The SES has chosen to allocate $A150,000 to a review of its safety management after strong criticism from the Mildura Magistrate, Peter Couzens.

In answer to the title of this article, a minimum of $A225,000 and one person’s life.

In May 2007, a volunteer with the SES a, 54-year-old Ron Hopkins drowned on a training exercise in the Murray River.  WorkSafe Victoria provides the following scenario:

“A boat took the four volunteers doing the [swimming] test out into the river and they got in to the water but Mr. Hopkins soon got into difficulty.

An oar was extended to him from the safety boat but he soon disappeared below the water.

Despite the efforts of the SES personnel to find him, his body was recovered the next morning by NSW police divers.

WorkSafe’s investigation found the safety boat had life jackets for the two assessors who were in the boat, but there were no other buoyancy devices which could be used in an emergency.

Some other participants involved in the swim test also experienced difficulties in the cold water and after swimming to the centre pylon of the George Chaffey Bridge, they held on to bolt heads extending from a rubber buffer attached to the pylons at water level. They were later picked up by the safety boat.

At the time of Mr Hopkins’ death the SES had no rule against carrying out swim tests in water where there was limited visibility or where a rescue could be difficult to carry out if someone got into trouble.

As a result, lakes and rivers were sometimes used as well as local swimming pools.

At the time of this incident there were a number of swimming pools with the facilities to help anyone one (sic) who got into difficulties in the Mildura area that could have been used for the test.”

Hopkins had been a member of the SES for seven years and had participated in searches associated with drownings previously, according to one AAP report.  The SES expressed regret and sympathy at the time of the incident in a media statement.   A short report of Hopkins funeral is available online.

As the Murray River runs on the boundary between Victoria and New South Wales a NSW coronial inquest was planned until the Victorian prosecution was announced.

At the committal hearing in June 2009, the magistrate allowed Hopkins’ widow, Meryl, some input in the Court procedures.  And in the November 2009 hearing, Mrs Hopkins’ victim impact statement is reported to have said that:

“… since the incident Mrs Hopkins had felt her life had lost meaning and she sometimes wished she had drowned with him.  The court heard she had experienced mental and physical health issues, including post traumatic stress, panic attacks, exhaustion and sleep disturbance.”

In 2003/04 Chris Maxwell undertook a review of the Victorian OHS Act and was critical of the special treatment provided to government authorities at that time and advocated that any organisation that breaches OHS law should be treated equally.  Maxwell told the Central Safety Group in 2004:

“I have to address a meeting next week of the Heads of Department to talk to them about the chapter entitled “The Public Sector As An Exemplar”.   They need it explained a little more fully. It is good that the Public Sector wants to grapple with the issue “what does that mean for us?”   It is a theme of the Report that the public sector should be treated exactly the same as the private.  It shouldn’t be otherwise but the history of prosecutions tends to make you wonder about that. I know John Merritt, the Executive Director is absolutely committed to that principle. It is interesting to note that the Education Department has recently received an Improvement Notice.”
In his actual report he advocated that government departments should not only be treated the same but that they should become OHS role models.  When comparing the Victorian situation with a UK review he wrote:
“I would go further, however, and suggest that government (as employer and duty holder, and as policy maker) can, and should, be an exemplar of OHS best practice.  By taking the lead in the systematic management of occupational health and safety, government can influence the behaviour of individuals and firms upon whom duties are imposed by the OHS legislation.”
If this had been embraced by the OHS regulator and government departments agencies imagine the state of OHS compliance on matters of workplace stress and manual handling in health care and other public service hazards.  And maybe, the SES OHS program would have been further advanced than it was in 2007 when Ronald Hopkins died.
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