Duty of Care – Page 86 – SafetyAtWorkBlog

Peanut allergy fatality saga to continue

Safety management in the education sector seems to be one of the hardest management challenges. There are overlapping safety obligations through OHS legislation, education department guidelines, public health matters and meeting the demands of parents and students.

A decision in the Federal Court of Australia on 30 June 2009 illustrates the challenges.

A 13 year old boy from Scotch College, in Melbourne, Nathan Francis, died after eating from a ration pack of beef satay on a Defence Forces camp. The school, which was supervising the camp, were aware of the boy’s severe allergy to peanuts.

The Australian Department of Defence was fined over $A200,000.

The full judgement of the court raises several issues that are relevant to the management of safety of people in one’s care. The judge has recommended a State coronial inquest to determine the roles and responsibilities of Scotch College in Nathan’s death.

Justice for Nathan and his family is likely to have many more months to go. [ SafetyAtWorkBlog will follow the issue.]

A fantastic audio report on the decision is available at the ABC website. The payment of the fine back to the government is not dealt with in this blog.

The first section of the judgement (below) indicates what the judge believes are the failures that need to be addressed through an appropriate safety process:

Communication;
Instruction;
Provision of appropriate supplies;
The importance of labelling; and
Following procedures and guidelines

Some readers may find that this prosecution could make an interesting case study for safety management.

Kevin Jones

Justice North found that the Federal OHS Act was breached by the Commonwealth government through the Chief of Army. The respondent

(a) supplied Cadet Nathan Fazal Francis, Cadet Nivae Anandaganeshan and Cadet Gene van den Broek with one-man combat ration packs (CRP’s) containing a satay beef food pouch which contained peanuts or peanut protein for their consumption despite having been informed that the said cadets were allergic to peanuts;
and, in so doing, it failed to:

(b) warn parents of the [Australian Army Cadets] AAC cadets about the contents of the CRP’s;

(c) warn AAC cadets about the contents of CRP’s;

(d) warn AAC cadets with pre-existing food allergies of the contents of CRP’s;

(e) make appropriate use of information provided by AAC cadets and parents of AAC cadets regarding pre-existing or known allergic conditions and correlate that information with the potential risk of being exposed to allergies through the supply of food contained in CRP’s;

(f) ensure that the contents of CRP’s allocated to AAC cadets did not include food products or allergens that may have triggered allergic responses by removing or requiring the removal of peanut-based food products from CRP’s;

(g) prevent distribution or provision of peanut-based food products to AAC cadets with pre-existing allergic reactions by:

i. inspecting the contents of CRP’s to be allocated to those individual AAC cadets who had given notice of allergic conditions;

ii. isolating cadets with pre-existing medical conditions and/or notified food allergies at the time of distribution of CRP’s and issuing them with CRP’s that did not contain peanut products or other food allergens;

iii. removing all CRP’s known to contain peanut protein or other food allergens from circulation amongst AAC cadets;

iv. requiring all AAC cadets with notified allergic conditions to provide their own food supplies;

(h) issue any or any adequate instructions or provide adequate supervision regarding distribution of CRP’s;

(i) issue any adequate instructions or provide adequate supervision regarding consumption of contents of CRP’s;

(j) prevent the consumption of CRP’s containing food allergens by AAC cadets with food allergies;

(k) distribute CRP’s after consulting or considering pre-existing medical conditions; and

(l) take into consideration the findings of a report dated 22 November 1996 by the Australian National Audit Office entitled ‘Management of Food Provisioning in the Australian Defence Force’.

Latest guidance on working alone

Western Australia’s WorkSafe has just released its latest guidance on working alone and it is the most practical look at the hazard from any OHS regulator in Australia.

Importantly, it differentiates between “alone” and “remote”. In 1995, when the Victorian First Aid Code of Practice raised the issue of isolation, there was considerable confusion. How can someone in the metropolitan area be isolated or remote?

Undertaking an assessment of first aid needs of a multi-storey building which has cleaners or nightshift working at 2am.
Working alone in a petrol station in an outer suburb.
(Sadly) showing a potential client a new property in a new real estate development on the fringes of the city.
Security guard walking the perimeter of an industrial site
Delivering pizzas at 3am
Home visits from medical specialists

The WA definition of “alone” is very useful and needs to be kept front-of-mind in OHS policy and procedure production. It could be used in the review process of existing policies and prores to ensure their applicability.

“A person is alone at work when they are on their own, when they cannot be seen or heard by another person, and when they cannot expect a visit from another worker or member of the public for some time.”

The working alone guidance identifies four industry types that require special support for working alone:

Agriculture
Pastoral
Forestry
Mining

Although SafetyAtWorkBlog advocates low-tech control options as much as possible (usually because of increased reliability) thankfully this guidance discusses mobile phones, satellite communications, GPS locators and other communications devices.

Kevin Jones

OHS crime alert

In late June 2009, WorkSafe Victoria tried a new approach to raising the awareness of the criminal status of OHS breaches through producing a formatted media alert and placing an ad in the daily newspapers.

It is unclear how else the “flyer” will be distributed other than through the WorkSafe website. Indications are that a hard copy of the alert for distribution through WorkSafe offices is not planned.

The ad, pictured right, refers to the prosecution of Rapid Roller over the second serious lathe incident at that workplace in 12 months, the most recent resulting in a death.

Kevin Jones

Trained first aiders in “low risk” microbusinesses

WorkSafe contacted me today concerning some issues raised in a previous post concerning their first aid information. Some small tweaks have been made to that post but one point required elaboration. There is some dispute over whether low risk micro businesses require a trained first aider. Below is my position.

FIRST AID NEEDS ASSESSMENT

The First Aid Compliance Code discusses a first aid needs assessment. In our experience of assessing scores of workplaces, large and small, for first aid needs (including over 28 McDonald’s restaurants but that’s another story), we are convinced that a workplace that relies on others to provide an acceptable level of emergency first aid response would expose the employer to avoidable legal issues. Unless, of course, one relies on “as far as is reasonably practicable” after someone may have been seriously injured or died on your premises. It is doubtful that the relatives of the deceased would be so forgiving. (Consider the actions of concerned relatives following the Kerang court case decision.)

Ask yourself, is it better to have a trained first aider on site just in case, or rely on an ambulance being readily available and render no assistance?

Time is crucial in an emergency, with the risk of a person’s condition becoming more serious the longer treatment is delayed. Emergency ambulances, even in metropolitan areas, can be delayed and, in an emergency, waiting with an unconscious and/or non-breathing person will seem an eternity. Any delay in rendering appropriate first aid treatment will complicate proving that an appropriate duty of care was applied in the circumstance.

The Australian Resuscitation Council has made its guidelines available online. For those interested in establishing an appropriate level of first aid response for their workplaces, the guidelines are recommended to read. But more importantly is the need to have suitably trained first aiders on site, particularly after an assessment of the workplace’s first aid needs has been conducted. A first aid kit is next to useless if CPR is required.

Of course, the need for first aid is minimised if all the other OHS matters are dealt with first in an orderly safety management system.

Kevin Jones

Flawed first aid information

Some time ago WorkSafe Victoria issued Compliance Codes on a number of workplace safety issues. One was concerning First Aid. The Compliance Codes were intended to replace Codes of Practice which had been around for decades.

The previous major change to workplace first aid was in 1995 when the First Aid Code of Practice was reviewed in Victoria. Other Australian States vary between prescriptive and non-prescriptive first aid guidelines.

On 31 May 2009, WorkSafe released a factsheet on first aid for low risk micro businesses. A low risk micro business is explained in the factsheet as those that

employ fewer than 10 people

are located where medical assistance or ambulance services are readily available

are businesses that don’t expose employees to hazards that could result in serious injuries (eg serious head injury, de-gloving, scalping, electric shock, spinal injury) or illnesses that may require immediate medical treatment.

Some examples of low risk micro businesses were included in the factsheet – “retail shops and outlets, offices, libraries and art galleries” Why a one page information sheet for this sector was deemed to be needed is a mystery? I asked WorkSafe several questions about this factsheet

What was the rationale for the production of this guidance for this sector? Given that the Compliance Code is specifically referenced.
Is retail really a low-risk micro-business?
- What about the use of ladders?
- Young workers?
- Working alone or unsupervised?
- Occupational (customer) violence?
- Petrol stations?
- Convenience stores?
- Night shift security needs?
- Knife cuts from removing stock from boxes?
- Manual handling?
First aid kits are required but not first aid training. In the case of respiratory failure a first aid kit is next to useless for CPR.
Why is only St John Ambulance referenced on the guidance?

The factsheet misunderstands first aid by placing low risk microbusineses into the “paper-cut” sector. This is doing micro-businesses a dreadful disservice.

TRAINED FIRST AIDER

Shortly after the First Aid Compliance Code was released St John Ambulance broadcast an email about workplace first aid compliance. In that email St John wrote:

Low risk organisations (office, libraries, retail etc) should have at least one qualified First Aider for 10 to 50 employees…

The May 2009 fact sheet makes no mention of the need for a trained first aider but WorkSafe’s own Compliance Code states this as a compliance element.

A low-risk micro-business may not generate the potential hazards that WorkSafe lists in its definition above but employees in these businesses do have to respond to the injury needs of their customers. In these times of public liability and the expansion of OHS obligations to include customers, neighbours, and others who are affected by work processes.

WorkSafe itself describes an employee’s duty of care:

“All workers have a duty of care to ensure that they work in a manner that is not harmful to their own health and safety and the health and safety of others.”

The omission of a trained first aider is unforgivable. What would an employee do if a client collapses in the foyer of a convenience store with a heart attack or chokes on the food that they have just purchased? What would one do if a stab victim stumbles into the only open retail outlet, perhaps a petrol station, at 2.00am? How would that petrol station attendant treat someone who has had petrol accidentally splashed in their face?

These matters cannot be treated by a person who is untrained in basic first aid who only has a first aid kit available. Training for all workers who work alone or in isolation in micro-businesses is a basic element of compliance, one that WorkSafe fails to list in its latest workplace first aid factsheet.

EMERGENCY NUMBER

Almost as unforgivable is that the factsheet makes no reference to the Australian emergency number of 000. One of the first actions to be performed in a workplace where someone is seriously injured is to call for an emergency ambulance. While waiting for the medical authorities, and if safe to do so, first aid should be rendered. WorkSafe needs to remember that CPR requires training and that a first aid kit is next to useless in this type of situation.

ST JOHN AMBULANCE

It is curious that only St John Ambulance is listed on the factsheet for further information. There are many first aid equipment and training providers in Victoria. It would have been fairer to either recommend all providers or none at all.

[UPDATE: WorkSafe has advised SafetyAtWorkBlog that they will be addressing the St John Ambulance and 000 issues raised.]

COMPLIANCE CODES

On 18 September 2008, the WorkSafe website described the First Aid Compliance Code as covering

“…first aid arrangements including first aid needs assessment, first aid training, first aid kits and first aid facilities.”

In a media statement at the time on compliance codes generally WorkSafe Executive Director, John Merritt was quoted:

“The codes were developed after extensive consultation with industry, employers, employees, governmental agencies and the community to provide greater certainty about what constitutes compliance under the OHS Act.”

“The codes include practical guidance, tools and checklists to make it easier for duty-holders to fulfil their legal obligations.”

Mr Merritt added that: “These codes will provide Victorian employers, workers and Health and Safety Representatives with certainty and assistance in meeting their responsibilities.”

The Compliance Codes are aimed at the many dutyholders yet one of the rationales for the new single sheet guidance is that dutyholders (employers) do not read Compliance Codes. It seems that the Codes are now principally read by OHS professionals and advisers.

(This position may be one of the reasons WorkSafe is pushing so hard for a truly professional OHS structure through its HaSPA program – the establishment of an OHS middleman between the rules and their application in the real world.)

It is a considerable change to the readership the Compliance Codes were aimed at and is a substantial change from the Codes of Practice which, in the case of First Aid, were handed out to all first aid trainees, included in information kits for health & safety reps, and were read by dutyholders and integrated into their OHS management practices.

The significance of Compliance Codes and Codes of Practice at the moment is that these documents are to be part of the Federal Government’s move to harmonisation of OHS laws. (Some eastern States have already begun joint publication of guidances). Variations in these documents, often the most referred-to OHS documents in workplaces across the country, will undercut the aim of harmonisation – the reduction of business compliance costs through harmonised OHS requirements. If the practical application of laws are not harmonised, the aims will never be met and the process could be seen as seriously flawed.

Kevin Jones

BHP, swine flu and leave entitlements

Many OHS professionals and business gurus state that safety leadership must come from the top of the corporate tree. BHP Billiton received some rare positive press on 16 June 2009 concerning its OHS policies.

According to Mark Hawthorne, BHP CEO Marius Kloppers has revealed he is battling “pig flu”, in his words. This seems to have generated a flurry of OHS activity. Sadly the best OHS practice was not mentioned, which would be to send the infected CEO home.

Hawthorne’s article identifies several BHP swine flu actions:

non-essential trips have been cancelled;

executives who must fly are being provided with Tamiflu;

cleaning shifts have been increased;

telephones, keyboards, rest rooms and public areas are being disinfected more regularly; and

bottles of alcohol-based hand sanitisers have appeared.

SafetyAtWorkBlog is seeking clarification from BHP Billiton on a number of points.

It is hoped that these measures were not generated only by the CEO comments but were already in place, particularly, following previous incidents with SARS and even avian influenza.

Any measures should be supported by staff consultation that involves more than a notice on the board or an email in the intranet. Many of these measures generate as many questions as they hope to answer and there should be information sessions for those who wish more detail.

Indeed one of the basic employment issues that always comes up in discussions about pandemics is leave entitlements. The importance of brainstorming pandemic planning can be illustrated by an article in The Australian, also on 16 June 2009. The ACTU believes that unpaid leave should not be applied if a worker needs to be absent from work due to influenza, even if the worker themselves are not ill.

The ACTU has told SafetyAtWorkBlog that the following motion was passed at last week’s ACTU Congress

that Federal and State governments should bring together peak union and employer groups to establish guidelines for handling the pandemic. These would:

ensure workers and their families are not financially disadvantaged by the outbreak;

provide employers with useful information and procedures to deal with any suspected cases of swine flu in the workplace;

ensure persons who are in isolation as a consequence of swine flu are not discriminated against or disadvantaged in their employment; and,

educate the community about the disease to stop misinformation, panic and help in the overall strategy to slow down the spread of the disease during the winter months.

One of the criticisms that SafetyAtWorkBlog has expressed about many influenza advice sites is that control of the hazard at work is not being seen in the context of occupational health and safety. This was the case with www.fluthreat.com.

Sadly, influenza information from OHS regulators is of dubious value and application, in many instances, and the regulators have not been promoting their advice. Very little OHS traction has been gained on the pandemic, even when the unions make the point to the media, as the ACTU did with The Australian newspaper. The Australian’s article did not mention the following, and sensible, ACTU advice:

“Employers owe a duty of care to workers to provide healthy and safe workplaces as far as reasonably forseeable(sic) [and] the swine flu outbreak has been highly publicised and is reasonably forseeable.”

Let’s hope that the BHP Billiton control measures are part of an integrated OHS/pandemic plan and not a reflex action to please the boss.

Kevin Jones

Swine Flu and business continuity – video

On the evening of 2 June 2009, the ABC TV show “Lateline Business” ran a short item on the business continuity issues associated with Australia’s swine flu outbreak. Not much that was said was new but it proposed an interesting scenario for those people who manage aged care facilities where a potentially virulent illness could harm residents who it may be difficult to isolate or quarantine.

Michael Tooma of Australian law firm, Deacons, spoke briefly to remind viewers that health and safety were important legislative obligations that relate to illnesses, such as swine flu. Interestingly he provided a rule-of-thumb scenario on business continuity. He asked whether a business could continue to operate with 20% less staff, a 20% reduction in logistics services and 20% less customers, if the swine flu realises its potential.

Most of the speakers spoke from the current position that Australia is suffering from a “mild” case of this virus. The story would be considerably different if Australia suffered its first swine-flu fatality, as have other nations. One death and the terminology will change.

A video of the segment is available to view online.

Kevin Jones

Category: Duty of Care

Peanut allergy fatality saga to continue

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Latest guidance on working alone

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OHS crime alert

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Trained first aiders in “low risk” microbusinesses

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Flawed first aid information

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BHP, swine flu and leave entitlements

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Swine Flu and business continuity – video

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