Category: Duty of Care

A shaky start leads to a terrific book on incident investigation by Michael Tooma

There is one word that should not be used as an adjective in relation to workplace fatalities – impacted. Workers fall from roofs and the concrete floor has an impact on them. Workers hit by mobile plant or crushed in machines die from the impact. An impact results from the transfer of energy and this transfer of energy in workplaces can kill.

“Impacted” is used by those who do not feel comfortable differentiating between “affect” and “effect” and it is surprising to find the term used in the opening chapter of Michael Tooma’s latest book, Due Diligence: Incident Notification, Management and Investigation.

“Unless you have been involved in a serious incident, you don’t really appreciate how an incident will affect you. For every worker killed at work, there is a grieving mother, father, spouse and/or child. Their co-workers are impacted. Their friends are impacted. Management, guilt-ridden as they are in the aftermath of an incident, sometimes for good reason, sometimes not, are also personally and emotionally impacted. The tragedy touches everyone. In the midst of it all, a group of people are tasked with managing through the chaos and trying to get answers for all those impacted by the tragedy. This book is for them.”

The sentiment is correct and true but read the paragraph aloud and it sounds absurd. And why the overuse of “impacted” when a perfectly suitable word, “affect”, was used in the first sentence?

And this clumsy opening does the book a disservice. Tooma has repeatedly stated that this is a safety book written by a lawyer and not a legal book written about safety. This is a major change from a major Australian OHS publisher. It is a recognition that the readership is not lawyers feeding on lawyers but people wanting to understand workplace safety. Continue reading “A shaky start leads to a terrific book on incident investigation by Michael Tooma”

Safety culture change through a regulatory-based market mechanism

In late August 2012 at a breakfast seminar, the Director of Construction Code Compliance, Nigel Hadgkiss outlined the 1999 Victorian Code of Practice for the Building and Construction Industry, which complements a 1997 National Code, and recently released implementation guidelines being imposed on many Victorian construction companies by the Liberal Government. The Code and implementation guidelines are ostensibly about industrial relations or, as Australia is increasingly calling them, workplace relations but do contain some interesting safety elements.

An intriguing element of the Code and guidelines is the introduction of a workplace culture through contract obligations and how this may affect workplace safety.

Hadgkiss stated, according to a copy of his presentation, that

“Where a party tenders for public work called for after 1 July 2012, the party is required to comply on any subsequent privately funded work.”

This quote means that any company that applies for a Victorian Government contract, of specific costs and other criteria, must comply with the Code.  Any client is entitled to impose their own contractual conditions. The obligation that  “the party is required to comply on any subsequent privately funded work” means that even if the contractor or party fails to win the contract it tendered for its management of  any subsequent project, even one from non-government funding, must also comply with the Code.

One of the four priority elements of the Code is occupational health and safety, so OHS requirements will spread from principal contractor, or tenderer, to contractor, sub-contractors and sub-sub-contractors like a virus or an “ITI”, an industry-transmitted infection.   Continue reading “Safety culture change through a regulatory-based market mechanism”

Principled pragmatism – Human Rights included in OHS Due Diligence

On 16 August 2012, Australia’s Workplace Relations Minister, Bill Shorten, said in Parliament, in relation to new asbestos management initiatives, that”

“On 14 March this year, in my first ministerial statement on workplace health and safety in this place, I said that every Australian who goes to work should return home safely. I know both sides of the House endorse this universal human right and today I reaffirm our commitment to this principle…” (page 13, Hansard. emphasis added)

It is very common to hear safety professionals and company executives echo the statement that workers should return home in an uninjured state.  But few would be aware or, perhaps, agree that this is a human rights statement.

Following an earlier blog post, one reader has pointed us to the United Nations Guiding Principles for Business and Human Rights that were released in 2011. According to the author, John Ruggie, these principles:

“… highlight what steps States should take to foster business respect for human rights; provide a blueprint for companies to know and show that they respect human rights, and reduce the risk of causing or contributing to human rights harm; and constitute a set of benchmarks for stakeholders to assess business respect for human rights. Continue reading “Principled pragmatism – Human Rights included in OHS Due Diligence”

Extraordinary duty of care prosecution over a near miss

Near miss events, or “close calls”, are important opportunities to review safety and work processes.  In fact they can be the best opportunities as the participants and witnesses are still alive and can provide detailed information on the mistakes, breakages or oversights.  But rarely are companies prosecuted for near misses.

In Western Australia, a company has been found guilty of breaching its duty of care after two of its workers were lost for almost a whole day, and was fined over $A50,000, the highest fine of this type.  The near miss is almost comical and at least one newspaper has described it as a “comedy of errors“, except that it could easily have resulted in tragedy.  WorkSafeWA’s (long) media release, provides the details:

“MAXNetwork was contracted to the Department of Education, Employment and Workplace Relations to consult with disadvantaged job seekers, in this case through their office in Kalgoorlie.

A number of employment consultants work at the Kalgoorlie office, and they regularly travel to remote areas – some accessible only by dirt roads and narrow tracks – to work with job seekers.

In December 2009, two of the company’s Kalgoorlie area employment consultants were instructed to do an “outreach visit” to the remote community of Tjuntjuntjara, around 600km north-east of Kalgoorlie in the Great Victoria Desert.

The two consultants departed Kalgoorlie in a Toyota Prado leased by MAXNetwork at around 6.00am on a journey estimated to take nine to ten hours on a road with no signs that was a narrow track in some places.

The women were not provided with a map, GPS or any other navigational aid, and consequently they became lost. They had received no training or instruction on travelling in remote areas, and so did not know what to do in the event of becoming lost.

The satellite telephone provided to the consultants did not work, and management was aware of this prior to the trip. In addition, there was no schedule for regular contact with workers in remote locations so no-one realised the women were overdue. Continue reading “Extraordinary duty of care prosecution over a near miss”

OHS – the missing element in productivity debate

On 7 August 2012, the Victorian Premier, Ted Baillieu, verbally attacked the Federal Government over its COAG program and lack of support for  productivity initiatives.  The criticism of productivity sounded odd as the Victorian Government has dropped out of the reform program for occupational health and safety laws yet OHS is understood to have a positive effect on productivity. More clarification was needed on this understanding.

In April 2012 the Productivity Commission, an organisation favoured by Premier Baillieu, discussed OHS reforms in Australia.  that

“Improved health and safety outcomes achieved in practice would then lead to benefits for businesses (such as increased worker productivity, reduced worker replacement costs and reduced workers’ compensation costs), workers (increased participation, reduced medical costs among others) and society more generally (though reduced public expenses on health, welfare and legal systems).” (page 170)

For years there has been a debate about safety versus productivity.  Partly this stemmed from the taking of shortcuts on safety in order to satisfy production.  In the short-term, it was perceived that safety could be an impediment to production – take the guard of a machine, run the line speed faster than recommended, “don’t worry about the faceshield, just get it done”.  But safety professionals have been arguing that this risky behaviour masks the real problem of  not integrating safety management into the business operations and seeing safety as an optional add-on, or something applied when the boss is watching.

The recently released OHS Body of Knowledge provides some relevant insights on the productivity benefits of safety management that deserve better and broader communication. Continue reading “OHS – the missing element in productivity debate”

Woodchipper decision could set a worrying safety precedent

The development of Australia’s new Work Health and Safety laws relies on potential prosecutions and Court rulings to clarify various elements and definitions.  Some labour lawyers have forecast this clarification to take several years however last week The Warrnambool Standard reported on a decision by the Victorian Civil and Administrative Tribunal (VCAT) that provides a worrying clarification on the contentious definition of “as far as is reasonably practicable” from outside the anticipated Court structure.

WorkSafe Victoria placed an improvement notice on a woodchipper owned by the Warrnambool City Council following an incident in September 2011 where a worker, David Johnstone, had both hands removed by the blades of the woodchipper.  The improvement notice stated that additional guarding in the form of a “bump bar” be installed on woodchippers.  The Council requested a review of the notices through WorkSafe’s review processes.  The directions stood and the Council appealed to VCAT, as per the normal process.  VCAT found that the engineering controls demanded by WorkSafe were not required as the administrative controls advocated by the Council were found to have “reduced risk “so far as is reasonably practicable”.

The VCAT decision is concerning because it seems to conflict with the application of the Hierarchy of Controls for risk in which machine guarding, an engineering control, is considered a more effective control measure that administrative controls such as those favoured by the Council Continue reading “Woodchipper decision could set a worrying safety precedent”

Performance Management may be key to building a safe workplace culture

Occupational safety advice and incident investigations are peppered with the need to have an improved workplace culture.  In some ways, workplace culture is another, and broader, way of saying of “system of work”, a concept that has existed in Australian OHS laws for a long time but never received the prominence of clarity it deserved.  But how does one develop an improved workplace culture and system of work?  Performance Management seems to be one option.

Performance management is well established in the human resources (HR) discipline but the OHS implications are just being acknowledged in the safety discipline.  The concept has been mentioned several times in the public hearings of Australia’s inquiry into workplace bullying as a positive and potential negative.

According to Associate Professor Robin Kramar (now Professor of Human Resource Management at the Australian Catholic University) of  in the 2004/2005 edition of CCH’s Australian Master Human Resources Guide, performance management is

“..a way of encouraging behaviour that supports organisational objectives.” (page 19)

This is particularly relevant to the management and removal of psychosocial hazards that safety professionals are increasingly being called on to address or to assist with. Continue reading “Performance Management may be key to building a safe workplace culture”

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