Duty of Care – Page 80 – SafetyAtWorkBlog

OHS harmonisation may be dead, so who will pick up the pieces?

One of the best summaries of the current status of the new Australian Work Health and Safety laws was published in The Australian newspaper on 27 January 2012 (not available without a subscription). Lawyers from Norton Rose, Michael Tooma, Alena Titterton and Melissa Cornell, express doubts that harmonisation of national safety laws is possible. They write:

“At this point in time, it looks unlikely that harmonisation will be achieved at any time during 2012, if it is ever achieved at all.”

The question needs to be asked whether the whole harmonisation process has been waste of time of whether some good has resulted from all the effort. Prior to Christmas 2011, some legal commentators were satisfied that the harmonisation process had “lifted” several States’ OHS laws to a contemporary standard but the aim of harmonisation, indeed the “promise” of harmonisation was so much more.

Australian businesses that operate over multiple jurisdictions are justified in pointing the finger of blame at the ultra-conservative business groups, lobbyists and alarmists for stifling a very promising reform. The administrative process could have been handled much better but each government had signed commitments to reform from which many are now weaseling out of. Regardless of subsequent changes of government, these commitments should have been upheld.

Tooma, Titterton and Cornell summarise by writing:

“For legislative reform that was meant to be about providing clarity to a complex area with differing standards across multiple jurisdictions, after four years of significant effort, it appears we may have been merely gifted more confusion and simply a different set of differences. Continue reading “OHS harmonisation may be dead, so who will pick up the pieces?”

The “head scratcher” in due diligence

I’ve been having a “hmmm(?!)” moments with a wee bit of the due diligence stuff in clause 27 of the Work Health Safety Bill (WHS). I’m interested to hear what you people reckon about it.

Here’s the rub: I don’t think it’s possible to get a clear idea of what it means to comply with the due diligence obligation as set out in clause 27(5)(a); in turn, this means the obligation is, for all practical purposes, unenforceable.

Below is a slab of the preliminary words and the provision, with a bit after it for context:

“(5) In this section, due diligence includes taking reasonable step

(a) to acquire and keep up-to-date knowledge of work health and safety matters; and

(b) to gain an understanding of the nature of the operations of the business or undertaking…”. [emphasis added]

In the process of going through the WHS stuff to see what changes I need to look at for a client’s SMS (well in advance of the Victorian move over to the national laws) I decided to look at the due diligence stuff first.

A quick read of sub-clause (5) shows there is a whole bunch of stuff on the sort of things you’d expect a “mindful” organisation to be doing to keep senior managers up-to-speed. There isn’t an issue with paragraphs (b) through to (e); they deal with good mindfulness stuff for their business and undertaking. It’s para (a) that has quizzical compliance issues.

It’s pretty obvious that a safety management system ain’t gunna work properly if senior managers don’t have “an understanding of the nature of the operations”, don’t have the resources and processes to manage safety, etc. Continue reading “The “head scratcher” in due diligence”

Business leader embarrasses himself over PPE

On 7 December 2011, the Adelaide Advertiser newspaper included an article entitled “Hotel chief attacks our nanny state” in which the President of the Australian Hotels Association in South Australia (AHA/SA), Peter Hurley, seems to have been inspired by the same lunacy and misunderstandings as Jeremy Clarkson on matters of occupational health and safety.

The article reports that

“HOTELS Association chief Peter Hurley addressed Premier Jay Weatherill wearing a high-visibility vest yesterday in a provocative protest against a culture of over-regulation.

“It’s the decade of the rise and rise of the fluoro high-vis jacket,” he said, targeting State Government SafeWork SA. “An audit visit from Work Safe SA (sic) is the only thing that makes you wish you were at the dentist having root canal work.”

He said he had been told drive-in bottle shop staff had to wear high-visibility vests.

“Then the guy delivering bread started arriving in high vis. What took the cake recently was the bloke who tops up the condom vending machine arrives, gets out with his case of rubbery delights, resplendent in a high-vis vest. Maybe the topless waitress is next?””

As the opportunity for the comments was the AHA/SA Christmas function and the association developed its influence through alcohol, one could excuse Hurley’s comments as inspired by the event but he produced a fluorescent vest as a prop so his comments appear premeditated. Continue reading “Business leader embarrasses himself over PPE”

Quad bike manufacturers withdraw from the safety campaign

The Weekly Times newspaper can feel justifiably chuffed that it has played a significant role in changing some of the attitudes on the safe operation of quad bikes.

It’s front page article on 23 November 2011 reports on a considerable backdown by quad bike manufacturers in Australia on the issue of rollover protection structures (ROPS) or crush protection devices (CPDs). (The cartoon is very funny also) Motorcycle manufacturers have been supporting a campaign and website through the Federal Chamber of Automotive Industries (FCAI) but even recent media releases (FCAI MOVES TO DE-BUNK ATV ROLL-OVER PROTECTION MYTHS ) have been removed from the FCAI website and the FCAI spokesperson has been “directed by ATV makers not to discuss the issue” according to the Weekly Times. FCAI’s 2010 position paper on quad bike safety continues to be accessible.

New CEO

SafetyAtWorkBlog has been told that there is industry speculation that the sudden change in policy direction is due to the September 2011 appointment of a new CEO, Ian Chalmers. Continue reading “Quad bike manufacturers withdraw from the safety campaign”

Work-related suicide gains some fresh media recognition

On 4 November 2011, Victoria’s 7.30 program broadcast a heart-rending story about the suicide of a woman who, her mother believes, took this action after suffering chronic pain due a work-related incident and being given insufficient support from her employer and workers’ compensation bodies. The story of Rebecca Wallis (spelling uncertain) apparently generated sufficient communication to the Australian Broadcast Corporation for 7.30 to undertake a follow-up and more broad look at the relationship between workers compensation and suicide.

One of the people interviewed in the 11 November 2011 program was John Bottomley of the Creative Ministries Network. Bottomley has published several research reports on work-related deaths and suicides. The figures he mentions in the report, that around 30% of the work-related suicides identified in his research had a “work injury or work-related mental illness” as a contributory factor, are included in the online publication from 2002, “Work Factors in Suicide“. What is not mentioned is another statistic in his report:

“Nine people (8%) were on workers’ compensation when they committed suicide.” (page iii) Continue reading “Work-related suicide gains some fresh media recognition”

Australia risks OHS ridicule in the media

The Sunday Herald-Sun ran an article that would not have been out-of-place in the English tabloid newspapers. The article, “Safety regulations taking the fun out of schools”, indicates many of the confused lines of responsibility that English articles include.

In Victoria, the safety requirements of government schools are determined by the Department of Education and Early Childhood Development (DEECD). The OHS regulator, WorkSafe, has some influence but far less that DEECD. (The only really school-related OHS document from WorkSafe Victoria was released in 2008)

The Sunday Herald-Sun article states, in some pictures not in the online version, that the Victorian Principals Association has been told of OHS regulations that require teachers to “put on mask, surgical gloves to apply a band-aid”. Continue reading “Australia risks OHS ridicule in the media”

Social obligation is lost on some

In response to the Weekly Times’ articles on quad bike safety and the mandatory use of helmets, one letter writer in this week’s edition of the newspaper wrote:

“More state lunacy… Accidents happen, legislation cannot stop this. Free people have the right to decide such things for themselves.”

The letter writer has a strong belief that accidents happen and that nothing can be done to stop the harm, particularly through the application of legislation. This view is in the minority but is still spoken in some social circles, although the volume of such statements may have reduced over time.

The statement shows a misunderstanding of the cause of accidents and there is always a cause, or several. It is no longer socially acceptable to concede a workplace death as an Act of God or “shit happens”, although only recently in an expensive rail safety seminar, “shit happens” was said repeatedly. The letter writer’s statement is one of hopelessness, the antithesis of the values of the safety profession and OHS regulators.

Philosophers can argue the point more effectively but if one is to concede that “accidents happen”, that “shit happens”, then one should also not expect to be covered by workers’ compensation or compensated if injured in a public footpath or seek financial restitution if assaulted at a crowded nightclub or in a dark alley. What outrage would be felt if one was to lodge a workers’ compensation claim and the insurer’s response was “accidents happen, good luck with your disability”.

The “nanny state” epithet is short hand for lazy thinking, social ignorance and selfishness.

Safety often involves investigation, perhaps even “CSI:Safety” – Grissom in a fluoro vest. We must seek the root cause, in loss prevention terms, or contributory factors in the modern OHS and risk management context. From analysis comes insight and from insight comes prevention.

It is hard to imagine that anyone who may have lost a loved one in an industrial, or agricultural, incident could have written this letter to the Weekly Times. It is slightly easier to imagine that there are people in society who just do not care about the welfare of others and they write occasionally to the Weekly Times about the “nanny state”.

Kevin Jones

Category: Duty of Care

OHS harmonisation may be dead, so who will pick up the pieces?

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The “head scratcher” in due diligence

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Business leader embarrasses himself over PPE

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Quad bike manufacturers withdraw from the safety campaign

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Work-related suicide gains some fresh media recognition

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Australia risks OHS ridicule in the media

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Social obligation is lost on some

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