Duty of Care – Page 76 – SafetyAtWorkBlog

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”

John Darley’s delay on Work Health and Safety laws is unproductive

South Australia still has not passed the Work Health and Safety legislation that would bring it into line with most of the other States of Australia. A major obstacle to the Bill’s progress in the South Australian Parliament is the “dithering” of Independent MP John Darley.

On 28 June 2012, Darley spoke to the WHS Bill in the Legislative Council (page 1641). Darley reviews the status of WHS laws in Australian States, mentions Victoria’s flawed PricewaterhouseCoopers costings report but without expressing an opinion on it and acknowledges the support from major industrial and employer associations for the laws, but he seems very sympathetic to minority views on workplace safety.

Darley refers to the views of the Housing Industry (HIA) and Master Builders’ Associations (MBA) on “control”, two groups he acknowledges are “the most vocal opponents” of the Bill, and states

“Any person who does not have direct control of a risk should not have responsibility for eliminating or minimising the risk”.

Consider this position in relation to workplace psychosocial hazards. A bully would be breaching OHS laws by bullying another worker but those executives who establish the culture of a workplace that condones the bully’s actions would not be facing any penalty. This scenario seems to contradict a dominant safety principle that compliance and respect stems from the active example shown by an organisation’s leader. How will the legislative obligation for a “positive duty of care” in workplaces apply with in-direct control? Continue reading “John Darley’s delay on Work Health and Safety laws is unproductive”

Why all the arguing over a workplace bullying definition?

There have been many calls in Australia for a national definition of workplace bullying. Apparently the definition below that has applied in OHS legislation for over ten years in Victoria is insufficient:

“Repeated unreasonable behaviour directed toward a worker or group of workers that creates a risk to health and safety.”

The definition above was the one used in the first draft Code of Practice on Preventing and Responding to Workplace Bullying produced by Safe Work Australia in September 2011.

The definition was questioned by Moira Rayner, as a representative of the Law Institute of Victoria, at recent public hearings into workplace bullying. Researchers said that a lack of a national definition is a major reason that research in workplace bullying has been so thin.

A quick survey of workplace bullying definitions in Australia is listed below:

“Unreasonable and inappropriate workplace behaviour includes bullying, which comprises behaviour which Continue reading “Why all the arguing over a workplace bullying definition?”

Workplace bullying in the police force illustrates the challenges of change management

There are two newspaper reports in Australia on 21 June 2012 about the Victorian Police Force that illustrate a fractious safety culture and a major organisational and ideological impediment to reducing workplace bullying.

The Australian article ” OPI concedes failure against force’s culture” (only available to subscribers) states that:

‘The Office of Police Integrity has conceded it and other corruption fighting measures have failed to root out the entrenched culture of reprisals and mateship in pockets of the Victoria Police that seriously harms the force….”

“The OPI says current law fails to deal with why whistleblowers are targeted. ‘‘The legislated protections against retaliation do not address the root cause of reprisal — a workplace culture of misguided loyalty,’’ it argues. “The protections are individualistic and short-term, tending to ‘look after’ victims and potential victims of reprisal rather than address why reprisal occurs.’’

“Despite the subsequent formation of the OPI and the beefing up of the Ombudsman’s powers, police still struggled to break free of the shackles of loyalty and the so-called brotherhood.’

The Age article, “A fifth of police bullied at work“, reports on a government survey circulated to 14,000 people.

‘The figures, provided to The Age, mean about 1250 of the 4200 police staff who completed the survey have seen bullying behaviour, while nearly 900 say they have been bullied.’ Continue reading “Workplace bullying in the police force illustrates the challenges of change management”

Category: Duty of Care

Extraordinary duty of care prosecution over a near miss

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OHS – the missing element in productivity debate

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Woodchipper decision could set a worrying safety precedent

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Performance Management may be key to building a safe workplace culture

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John Darley’s delay on Work Health and Safety laws is unproductive

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Why all the arguing over a workplace bullying definition?

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Workplace bullying in the police force illustrates the challenges of change management

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