On November 12 2014, the Safety Institute of Australia (SIA) conducted its first large seminar on the certification of occupational health and safety (OHS) professionals. The seminar had an odd mix of some audience members who were suspicious, others who were enthusiastic and presenters who were a little wary. There were few who seemed to object to certification but, as the SIA admitted, the process is a long way from complete.
Justification for Certification
Certification works when it is either mandated by government, usually through legislation, or in response to a community/business/market need. Australia does not seem to have either. The SIA explained that there is a “legal requirement” for OHS certification by placing it as part of the OHS due diligence obligations of Australian businesses, that Safe Work Australia (SWA) sort-of refers to it it in its National OHS Strategy and that the “Recommendation 161” of an unspecified international law:
“….calls for organisations to have access to “sufficient and appropriate expertise” as a basic right of all workers.”
There is no such Recommendation but there is an Occupational Health Services Convention, 1985 (No. 161)
Convention concerning Occupational Health Services (Entry into force: 17 Feb 1988) – a International Labour Organisation Convention that Australia has not ratified.
The SWA strategy repeatedly mentions the important of “health and safety capabilities” as a “national Action Area”. It specifies this action area as:
- “Everyone in a workplace has the work health and safety capabilities they require.
- Those providing work health and safety education, training and advice have the appropriate capabilities.
- Inspectors and other staff of work health and safety regulators have the work health and safety capabilities to effectively perform their role.
- Work health and safety skills development is integrated effectively into relevant education and training programs.” (page 9)
In the strategy’s chapter on Health and Safety Capabilities, SWA says:
“In a decade many existing workplace hazards will still be present and new ones will have appeared. It is particularly important that education and training enable those who provide professional or practical advice to competently deal with old and new hazards. Those who provide advice need to know when to refer the matter to others with appropriate expertise.” (page 12)
There is no mention of certification in the SWA strategy but the SWA is sympathetic to certification. Continue reading “Should Australian safety professionals be certified?”
Twelve months ago, some Australia media, including this blog, began reporting on safety concerns raised by the Working At Heights Association (WAHA) about the reliability and suitability of anchor points. Australia is currently in the middle of Safe Work Australia Month and there seems to have been little progress on the issue. A reader of SafetyAtWorkBlog provided the following summary and update of the situation:
Who checks the true safety of equipment designed to save the lives of Australian workers? Nobody in particular, it seems.
Last September, the Working At Heights Association, an industry body staffed by volunteers, revealed many of the most commonly-used roof anchors failed to meet basic safety standards. Almost a year later, the association is still battling to see rooftops made safe, despite repeated appeals for action from the OHS regulators and the absence of the Australian Competition and Consumer Commission (ACCC).
An estimated 800,000 Australians work at height and routinely clip their harnesses onto safety anchors. A worker falls to his or her death every 12 days and WAHA chairman Michael Biddle said authorities should be concerned. Biddle told Industry Update magazine
“It’s the third highest cause of death in the workplace after motor vehicle accidents and being hit by moving objects. In most cases, regulators are more concerned in taking a reactive approach after an accident has happened. There is a great need for an enhanced level of enforcement. If we had an increase in penalties and stronger enforcement of standards I’m sure we would see a higher level of compliance by industry.”
Little of the recent commentary on the findings of the Royal Commission into the Home Insulation Program (HIP) have mentioned the opinion of the Royal Commissioner Ian Hanger that the Australian Government acted in a “grossly negligent” manner. Such a comment deserves considerable analysis by a specialist lawyer but it remains a remarkable criticism in terms of obligations under OHS/WHS laws.
Commissioner Hanger wrote:
“To encourage inexperienced young people to work in an environment where there was a risk of defective electrical wiring, and allow them to install conductive material was, in my opinion, grossly negligent. It is no answer for the Australian Government to say that it was the responsibility of those young people’s employers to protect them.” (para 5.2.20, emphasis added)
Gross negligence has been equated to the term “reckless endangerment” included in Australia’s Work Health and Safety laws. One legal website site says that:
“Reckless endangerment is the offense of engaging in activity that has a disregard for risks with foreseeably dangerous consequences.”
Commissioner Hanger’s comments certainly seem to fit reckless endangerment as the risks, not only of electrocution but simply from working in domestic roof spaces, were well known.
SafetyAtWorkBlog has written previously about the evidence of Margaret Coaldrake to the Royal Commission into the Home Insulation Program (HIP) given at the public hearings and also the occupational health and safety role of risk management and risk registers. The release of the Royal Commission’s final report on 1 September 2014 provides further details on a risk management process that is common to all large projects.
Commissioner Ian Hanger spent considerable time on the issue of the risk register as this was one of the crucial elements in the project’s whole decision-making process up to Ministerial level.
Commissioner Hanger was scathing of the risk management process that not only ignored the risk of worker fatalities but purposely dropped this risk from the register. He was unforgiving in his criticism of Margaret Coaldrake. He criticised her judgement. In working with her Minter Ellison colleague Eric Chalmers:
“it was up to [Coaldrake] to make sure that she and the people working with her were qualified to provide the service that Minter Ellison consultants had been retained to do.” (para 7.11.15)
The purpose of OHS Moot Courts is to provide a taste of the Court experience in the context of a prosecution for occupational health and safety (OHS). Moot Courts and Mock Trials [for the purposes of this article the concepts are interchangeable] have specific meanings in law schools and overseas but in Australia there is an increasing trend to tweak the moot/mock format to motivate OHS change by showing the consequences of an OHS breach and resultant prosecution. This application of the concept still needs refining both in structure and purpose but may have had its time.
SafetyAtWorkBlog has attended around half a dozen such events since a cold rainy night at Monash University law faculty over 30 years ago. That Moot Court, conducted by the Australian Human Resources Institute, had a genuine sense of occasion and fear. Prosecutors went in hard as is the potential for any court case. A more recent OHS Moot Court was almost jovial and failed to communicate the import of the court process and, therefore, the significance of the potential consequences of the court’s decision. Continue reading “Have Moot Courts had their day for OHS purposes?”