Duty of Care – Page 88 – SafetyAtWorkBlog

Eliminate the hazards

The first control measure on the “hierarchy of controls” is to eliminate the hazard. OHS consultants and professionals should always consider ways to achieve this. It may prove to be impractical, or politically unpopular, but it should always be discussed or recommended. Reports and submissions that do not consider this control measure can be considered invalid.

In late-January 2009, the organic farmers in Australia reminded the media that its farming members are developing a safer industry for the customer and the producer. This industry has boomed in Australia since the 1970’s in as a result of a desire and commitment to “eliminate the hazard”.

Interviews conducted by Biological Farmers of Australia (BFA) to help discover why producers ‘go organic’ reveal a high number of farmers consider the switch for the health of themselves and their families.

Rob Bauer (Bauers Organic Farm, Qld), one of Australia’s largest organic horticultural growers, says he turned to organic farming 27 ago after farmers in his area became ill with cancer.

He says he wanted to decrease health risks associated with synthetic farm chemicals.

“I started thinking about farming differently after growing up in the Lockyer Valley (Qld) where friends and family passed away in their fifties after years of intensive agrichemical production.”

He says neurological problems, tumours, and cancer were among the chronic diseases he watched take their toll on his local farming community.

“I wasn’t comfortable with producing food using harsh farm chemicals for consumers,” he says.

Steve Skopilianos, commercial lettuce producer from Ladybird Organics in Keilor (Vic) looked into organics when he started a family.

“We had been applying pesticide blends with no understanding of their effect on people and employees. There were times prior to organic conversion where I would not take my own produce home for my family to eat.”

Biodynamic producers of macadamias are happy to avoid high levels of agrichemicals typically used on the nuts.

“Working without a high exposure to synthetic chemical farm products is a weight off your mind,” says Marco Bobbert, from Wodonga Park Fruit and Nuts macadamia plantation (Qld), certified biodynamic since 1987.

He says direct chemical exposure could easily occur on conventional farms from accidents in production. “All it takes is a broken spray pipe.”

He says it is not just organic farmers who are concerned – “All farmers try to minimise their contact with chemicals on-farm. But organic production actively works toward negating that risk”.

Research has shown there is good reason for producers’ concern – a high exposure to some farm chemicals can lead to major health problems.

Particularly problematic substances include organophosphate insecticides and pesticides, which have been connected to several types of cancer, sterility and cognitive deficits (1).

The agrichemical endosulfan is one example of a highly toxic organochlorine cyclodiene) insecticide still in use in Australia.

1. (1) Ciesielski, S, Loomis, D, Rupp Mims, S, Auer, A, Pesticide Exposures, Cholinesterase Depression, and Symptoms among North Carolina Migrant Farmworkers; American Journal of Public Health, 1994.

Management failures and a rape of a five-month-old baby

Earlier this year, SafetyAtWorkBlog reported on the attack on a nurse in the Torres Strait Islands north of Australia, the investigation of the issue by Queensland Health and the mechanisms introduced to get the working conditions and accommodation up to a safe level. In this case there was a clear link between occupational health and safety and the security of a worker.

OHS law in Australia obliges workers and those in control of a workplace to ensure the safety of people on their premises. Last week the Northern Territory government received a report (081128vol1-f9c6d46d-75d5-4a5e-95e7-7c040ae6600c1) into the security measures at the Royal Darwin Hospital. This hospital has undertaken fantastic medical work in the past, most noticeably, on a large scale following the bombings in Bali in October 2002.

However it failed to prevent the rape of a five month old female infant on 30th March 2006, while the indigenous baby was an inpatient.

Carolyn Richards, the Health & Community Services Complaints Commissioner, said in her report

As a result of a complaint reported to the Health & Community Services Complaints Commission an investigation was undertaken by the Director of Investigations, Mrs Julie Carlsen, who is employed as the Director of Investigations (DI) Health & Community Services Complaints Commission.

This report highlights that the Department of Health & Community Services (DHCS) needs to implement effective risk control mechanisms to minimise the risk of an assault on a vulnerable inpatient in the Royal Darwin Hospital (RDH). The investigation has led to the conclusion that DHCS (DHF) and RDH have not complied with the applicable Australian Standard. It has also revealed that crucial information has been withheld from an expert engaged by RDH to review security arrangements and from the DHCS (DHF) Security Manager based at RDH. This report also details inadequacies and failings by those responsible for managing RDH who have failed for over two years to implement and maintain better security for patients in the Paediatric Ward. It is published with the hope that it will cause DHCS (DHF) and RDH to give higher priority to improving its risk management and security procedures.

The Commissioner’s conclusions are worth including here so that OHS professionals and security officers can establish appropriate procedures for their workplaces.

1. On 30th March 2006:

There were no arrangements in place on the Paediatric Ward to ensure the safety and inviolability of vulnerable patients.

No risk assessment had been conducted.

The arrangements in place did not comply in any aspect with the Australian Standard which sets the benchmark for proper security.

There was no control on access to the Ward or to the patients.

The staff had not received adequate training, and possibly none at all, about the risks arising from lack of security arrangements.

In 2002 RDH had commissioned and received an expert consultant’s assessment and report on security arrangements at RDH. The Terms of Reference did not require 5B to be assessed. By 30 March 2006 the recommendations in the report had not been implemented in Ward 5B. This failure can only be described as shameful.

Following the rape of the infant police were not notified for about 2 hours.

2. Action taken by RDH after the rape to improve security was: (a) slow (b) inadequate, and (c) has not been adequately evaluated or reviewed to determine its effectiveness

3. RDH has a Security Manager on site as well as an NT Police member stationed at the hospital. Neither has been asked to evaluate the security on the Paediatric Ward either before or after the rape of the infant.

4. Staff working on the Paediatric Ward have not been trained at their induction on the elements of security arrangements to reduce the risk to vulnerable patients nor has there been adequate ongoing training of staff before or after the 30th March 2006 incident.

5. In 2007 the same expert safety and security consultant, as in 2002, was engaged to assess security arrangements at RDH. He was not informed of the rape of the infant in March 2006 nor was he asked to report specifically on arrangements in the Paediatric Ward.

6. On 21 November 2007 two investigation officers from the Health and Community Services Complaints Commission visited the Paediatric Ward by prior arrangement. They were able to enter the Ward and wander around, have entry to every part of it and stand at the nurse’s station, for about 25 minutes without anyone asking who they were and why they were there.

7. Management’s lack of commitment to the proactive identification of risks and to taking appropriate action has not created a culture where each member of staff takes responsibility for identifying and reporting risks and developing safe practices.

8. A security review of RDH was carried out by an expert hospital safety and security consultant who issued a report in 2007. The Security Manager of DHCS (DHF) was not given a copy even though he requested it. HCSCC enquired of RDH management why he was not given a copy and RDH have offered no explanation. On 31 October after this report was published to RDH and DHF the CEO of DHF advised this Commission that he had finally been given a copy and that he had seen a draft copy.

9. RDH Maternal and Child Health Clinical Risk Management Committee considered security in the Paediatric Ward following the incident. The Committee met on 16th May 2006, 2.5 months after the rape of the infant. It met a further 4 times. It submitted an action plan to the General Manager of RDH in July 2006. At its last recorded meeting on 5 September 2006 there had been no response from the General Manager on the recommendations, particularly with respect to installing CCTV cameras with recording facilities on the Paediatric Ward. There were still no recording cameras on the Paediatric Ward as at June 2008 although a CCTV system had been installed in the kitchen area to deter the pilfering of food. Dr David Ashbridge on 31 October 2008 advised, when responding to a draft of this report, that CCTV cameras were installed in Paediatrics on 25 August 2008.

10. The surveyors from the Australian Council of Health Standards which accredits RDH probably did not receive all relevant information about the incident of 30 March 2006 and what action RDH were taking. Those surveyors on 13 October 2006 were informed by RDH that the patient information pamphlet and admission interview are being reworded to reflect the changes to ward access. There was no verification throughout the investigation that any action had been taken by RDH to implement the recommendations of the review. Neither the report of ACHS nor records of information given to ACHS have been provided to the HCSCC. DHCS (DHF) was invited to provide me with those relevant documents in response to this draft. No response was received on this issue from DHF or RDH. According to the published information of ACHS the accreditation survey commences with a self assessment by the hospital concerned. This Commission specifically requested details and copies of the information provided to the ACHS surveyors but no response was received from either the CEO of the Department or the General Manager of RDH.

11. The governance arrangements at RDH do not promote adequate transparent accountability of the General Manager and the Department of Health and Families for the operation of the hospital. Control of all aspects of the day to day management of RDH rests in the hands of three individuals. This includes staff recruiting, training, security, nursing and medical services, procurement, record keeping, financial accountability and risk management. Such specialist management groups as exist are subordinate to the General Manager’s authority. The General Manager reports to the Director of Acute Services who reports to the CEO of the Department. I have been unable to find out what role the Royal Darwin Hospital Board has since its last annual report to 30 June 2006.

It is well worth obtaining the complete report to understand how such an individual tragedy occurred. As one media commentator has posited

“One wonders what the reaction would have been if a non-indigenous infant was raped.”

Sexual harassment and politicians

Bernard Keane, political columnist with Crikey.com, wrote on 20 November 2008 about the unacceptable conduct of Australian politicians. He wrote:

We’re not talking here about ordinary poor behaviour. There are boors and fools and thugs in workplaces across the country. It’s the sense of entitlement that seems to motivate many MPs to treat other people — whether they are staff, or waiters, or anyone who happens to cross them — with contempt. It’s a sense of entitlement encouraged by the job — one with a large salary, expenses, vehicles, travel and public profile. Most MPs manage to prevent it from going to their heads. But a lot don’t, and they make other people’s lives hell. Particularly because MPs aren’t under the same workplace laws as everyone else.

SafetyAtWorkBlog believes that, as the sexual harassment is occurring in workplaces, predominantly, that MP’s ARE “under the same workplace laws as everyone else”.

Keane refers to one case where a Minister who was sexually harassing a staff member was relocated to another ministry. The case recalls the Catholic Church’s risk control measure with paedophile priests.

Workplace safety regulators have been trying to emphasise for years that unacceptable behaviour in workplaces is more serious than a “bad day” or a “bad mood” and that this can be symptomatic of a sick workplace culture.

It is hoped that Crikey readers get to realise that inappropriate conduct at work can be criminal, a breach of OHS legislation or, even, a contravention of our Human Rights obligations. That the Australian political parties tolerate such behaviour is shameful

Sexual harassment and occupational health and safety

Some old-time safety professionals are struggling with the inclusion of psychosocial hazards in their safety management programs. Some deny the relevance of sexual harassment to their duties and hope that the issue can be contained within the human resources department, the “dark arts” of workplace safety.

Many of these same safety professionals are calling for more evidence-based decisions on workplace safety.

Evidence is now in on the social and work impact of sexual harassment. Australia’s Human Rights Commission has issued Effectively preventing and responding to sexual harassment: A Code of Practice for employers‘ which states on page 48

Employers have a common law duty to take reasonable care for the health and safety of their employees. This common law duty is reinforced by occupational health and safety legislation in all Australian jurisdictions.

An employer can be liable for foreseeable injuries which could have been prevented by taking the necessary precautions. As there is considerable evidence documenting the extent and effects of sexual harassment in the workplace, it has been argued that the duty to take reasonable care imposes a positive obligation on employers to reduce the risk of it occurring.

A work environment in which an employee is subject to unwanted sexual advances, unwelcome requests for sexual favours, other unwelcome conduct of a sexual nature, or forms of sex-based harassment, is not one in which an employer has taken reasonable care for the health and safety of its employees. A work environment or a system of work that gives rise to this type of conduct is not a healthy and safe work environment or system of work. An employer could be regarded as not having acted reasonably to prevent a foreseeable risk if practicable precautions are not taken to eliminate or minimize sexual harassment in the workplace.

Failure to fulfil the duty of care can amount to a breach of the employment contract as well as negligence on the part of the employer. This means that an employee who has been harmed could bring an action against their employer in contract or tort.

The guide can do with considerable translation to what businesses see as useful codes of practice in the application of safety management but perhaps that is for the private sector and State OHS regulators to work on.

There seems to be enough information available now on sexual harassment, fatigue, bullying, violence, fitness for work, shift work, depression and other matters, that the safety profession should be more embracing of these concepts in their own planning. Let’s hope that in this discipline we do not have to wait for generational change to achieve a change in approach.

National OHS Law Review – First Report released

The first report of the National OHS Law Review panel was presented to the Australian Government yesterday. The best initial assessment of the report can be found at a safety blog operated by Deacons law firm. In that report by Michael Tooma and Alena Titterton, the following points are made:

there should be a general duty of care for health and safety
“worker” is defined more broadly as ‘person who works in a business or undertaking’
“the Report recommends that a defined ‘reasonably practicable’ be built into the offence in the model OHS Act which reflects the current approach taken in all jurisdictions except New South Wales and Queensland.”
“The prosecution will bear the onus of proof beyond reasonable doubt on all elements of an offence”
Offences could be indictable and heard in front of a Judge and jury.
Increased penalties in line with those for environmental breaches – Corporation = $3 million, Individual = $600,000 Imprisonment – up to five years
An appeals process where cases could be taken to the High Court of Australia

“Reasonably practicable” remains a concept with a floating meaning for most business owners and OHS professionals. For a type of legislation that is intended to be readily understood by a layman, this legalese is disappointing however it is likely that clarification will come from the OHS regulators as it has already in some States. The review panel supports this type of clarification.

Interestingly, the report says on “the primary duty of care” that it “should not include express reference to control” and that

‘Control’ should not be included in the definition of reasonably practicable.

The panel says that “control” will be discussed in the second report as will the definition of a “workplace”.

The Deacon’s authors remind us that reports of this type are not automatically implemented by governments and that the review process has several months to run.

The report needs to be read carefully by OHS professionals as the recommendations will set the scene fro OHS law in Australia for, perhaps, decades. Also, going beyond the list of recommendations allows readers to see which of the issues considered were contentious and which had uniform acceptance.

The trade union movement is yet to release public statements but according to one media report, Geoff Fary of the Australian Council of Trade Unions is

“disappointed that a qualified duty of care would continue to rest with the employer”.

That same report is headed “Prison time for unsafe bosses” raising the spectre of industrial manslaughter. That does not seem to be case and may say more about the readership of The Australian or the politics of the sub-editors. However, it will be interesting to see the responses of the employer associations over the coming days.

Bullying, duty of care and compensation

The growth of attention to psychosocial hazards in Australia received a considerable boost from a stress survey undertaken by the ACTU some years ago. During the survey of union-members, it became clear that bullying was a major generator and perpetrator of workplace stress. The unions went to town on this data and set the agenda for some time in OHS. Their success was echoed and mirrored in the United Kingdom and Europe. (In fact, Europe seems to be the jurisdiction that has kept the momentum)

The survey and campaign got the attention of regulators and OHS professionals to the presence of, perhaps, the next generation of occupational health and safety activity.

Since that time psychosocial hazards have splintered into sub-groups of stress, occupational violence, workload, fatigue management, shift work, dignity at work and a range of other matters. However bullying persists as the front runner.

As with many elements of OHS, risk management and cultural studies the defence forces provide signposts to future civilian issues. Yesterday the Australian Defence Force agreed to pay ex-gratia payments to family members of defence personnel who had committed suicide as a result of bullying suffered at the hands of their colleagues. There are many significant signposts from these incidents but one of particular note was that the payments were not made to dependents but to other family members.

According to the ABC radio report by Karen Barlow:

“The suicides date back up to 12 years, when Lance-Corporal Nicholas Shiels killed himself after accidentally shooting his best friend dead during Army training.

Private John Satatas hanged himself at Holsworthy Barracks, in western Sydney, five years ago after being bullied and racially taunted.

Private David Hayward committed suicide four years ago after he was injured and had gone AWOL.”

The Defence Minister, Joel Fitzgibbon, was interviewed on this issue, and others, on Radio National on 23 October 2008 and has referred the matter to a general review of the defence forces. Fitzgibbon acknowledged that “shortcomings in the defence force system” contributed to the situation and could have been better handled after the event.

The day before the media attention the Australian Defence Force released the findings of its annual attitudinal survey of personnel. The 2007 survey found, according to a media statement:

“… a marked improvement in knowledge of mental health issues as well as members’ assessments of their own mental health. Since 1999, the data also shows an increasing proportion of personnel who believe that unacceptable behaviour is well managed.”

As Australia moves to a national OHS and workers compensation system, or at least a harmonised system, more attention should be given to some of the responses and OHS initiatives in Commonwealth departments as these will be just as influential on OHS law and management as any State initiative.

OHS uniformity is looking unlikely

Michael Tooma, a lawyer with Australian law firm Deacons, has stated

“Despite the enthusiastic manner in which the harmonisation agenda has been pursued, and the appearance of progress in that regard, it is likely that the quest for uniformity in OHS laws across Australia will remain elusive.”

His reasons for this statement in a recent edition of Safety Solutions magazine (August/September 2008) are

The National OHS Review was set up to develop model legislation for implementation in each State jurisdiction;
Duty of Care is absolute in two States, Queensland and New South Wales;
“Reasonable practicable” is not applied in each State to the same extent;
The New South Wales right for unions to undertake prosecutions for OHS breaches;
Not each State has a legal forum dedicated to handling OHS prosecutions;
The level of enforcement of OHS law is inconsistent between States; and
The level of maximum penalty available.

Tooma is worth listening to for lots of reasons but principally he seems to be less wrapped up in political baggage compared with other OHS legal commentators.

Tooma seems to favour an industrial or OHS court because of the substantial jurisprudence that has been achieved through the New South Wales Industrial Commission. I support the expansion of this type of court as NSW decisions, regardless of legislative differences, can be particularly useful is clarifying the most suitable OHS interventiosn for particular hazards.

He also says that enforcement must be consistent. This is true or else, if given the chance, an employer could undertake certain hazardous tasks in the jurisdiction where enforcement or prosecution is less effective and active.

This relates, in a way, to Tooma’s last point on penalties. An OHS offence in Victoria could lead to jail but in Tasmania, not. A monetary fine of over $1 million could apply in some States with only $180,000 in another.

It seems that the fantasy of one OHS law for Australia will remain a fantasy. The trick will be whether, after months of government review and hundreds of submissions, there will be sufficient consistency across the States. The likelihood is that we will be slightly better off but still with State variations. We have a little less red tape but red tape nonetheless.

My question will be, was it worth it?

Category: Duty of Care

Eliminate the hazards

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Management failures and a rape of a five-month-old baby

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Sexual harassment and politicians

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Sexual harassment and occupational health and safety

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National OHS Law Review – First Report released

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Bullying, duty of care and compensation

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OHS uniformity is looking unlikely

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