Be careful of the Precautionary Principle

The Precautionary Principle has appeared regularly in SafetyAtWorkBlog articles. There is a new publication from the American Industrial Hygiene Association (AIHA) in which this principle is succinctly explained in relation to COVID-19 but equally applicable to decisions on occupational health and safety (OHS).

The new publication “The Role of the Industrial Hygienist in a Pandemic, 2nd edition” includes a chapter on the Precautionary Principle. It is the first section of that chapter that is most relevant. It says:

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“no choice” = BS

Occupational health and safety (OHS) laws are increasingly applying to non-occupational situations. This “responsibility creep” may be part of the reason that public members are complaining about unfair restrictions on what they can do, on their choices, on the way they have done things for years. Many claim that they have no choice to do what they do, that the choice has been taken away from them, but there is always a choice, even if the consequences are uncomfortable.

The misrepresentation of OHS rules and obligations in the United Kingdom media led to a myth-busting program run by that country’s Health and Safety Executive. In many ways, the UK media was being mischievous by exploiting and exacerbating misunderstandings of OHS duties, but it had a significant cultural impact that lives on today. Traditionally OHS duties were easier to understand when they were contained in a workplace (or were seen to only apply to workplaces); when they jumped the fence, the social rules changed.

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We should give a fat RAT’s clacker about COVID-19 testing

Australia’s strategy for combatting the COVID-19 pandemic is almost entirely based on vaccinations. The supplementary control measures of increased ventilation, social distancing, mask-wearing and hygiene are still vitally important but have dropped off the radar a little in the rush to maximise the number of vaccinated citizens and workers. One of the measures not currently listed on the Safe Work Australia COVID-19 website (at the time of writing) is rapid antigen testing (RAT), even though this screening method is integral to reopening businesses in the United States.

RAT has started to appear in Australia. It is a valuable tool, but it is not a replacement for the medical PCR test, and there are administrative considerations that affect the occupational health and safety (OHS) management of COVID-19.

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“as far as politically practicable”

Last week WorkSafe Victoria announced that it was prosecuting the Department of Health over breaches of its occupational health and safety (OHS) duties with the management of Victoria’s Hotel Quarantine program. There is very little information available beyond what is included in the WorkSafe media release until the filing hearing at the Magistrates’ Court on October 22 2021.

Most of the current commentary adds little and usually builds on the existing campaigns to charge (Labor) Premier Dan Andrews with Industrial Manslaughter. Still, it is worth looking at WorkSafe’s media release and the thoughts of some others.

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Anonymous reporting in Victoria’s legal sector

Industry groups and employers should accept the reality of their occupational health and safety (OHS) duties, especially concerning sexual harassment. Recently the Victorian Legal Services Board (VLSB) launched an online complaints service for lawyers. According to the September 16, 2021, media release, the service:

“…enables both targets and witnesses of sexual harassment to report what happened, where, when and to whom. Reporters can provide as much or as little detail as they feel comfortable”

The attraction of this service is that one would expect such a service from a legal services board to be spot on with its legal and privacy, and human rights obligations. But then, that comes from a non-lawyer.

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Look at the verbs to identify leadership and commitment

On September 16 2021, the Prime Minister of Australia, Scott Morrison, said:

“The first major initiative of AUKUS will be to deliver a nuclear-powered submarine fleet for Australia. Over the next eighteen months we will work together to seek to determine the best way forward to achieve this…”

The second line of this quote includes a specific timeline but less specific commitments – a combination of words that reflects much of the corporate-speak that is often used with occupational health and safety (OHS) duties and other pledges and obligations.

Morrison gives a deadline against which progress will be measured. He commits to working with the United Kingdom and the United States to meet this deadline. But then, he says they will “seek to determine” – they are not sure what they are doing, but they will look for it. And “the best way forward” for whom? And to what ends? We hope it will be to building a fleet of nuclear-powered submarines, the current context.

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Avoiding COVID-19 distractions is essential

Recently Australian law firm Herbert Smith Freehills conducted a webinar on mandatory vaccinations. (2,000 attendees = hot topic) This workplace issue is moving quickly in each Australian jurisdiction and almost every day. There was some helpful advice in this seminar that was, thankfully, not reliant on case law and the avoidance of occupational health and safety (OHS) liability. Below is a discussion of some of the self-analysis and risk assessment that all employers should undertake to manage their workforce through COVID-19.

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