James Hardie directors face the consequences of their poor decisions

SafetyAtWorkBlog has kept a watchful eye on the long saga involving the directors of James Hardie Industries and their mishandling of a compensation fund specifically established for victims of the company’s asbestos products.  The compensation fund story has been handled well by Gideon Haigh in his book on the company.

The saga has since evolved into one of the duties and actions of the board of directors, moreso than one of compensation.  Today, 20 August 2009, the previous directors will be told of the financial and professional penalties determined by the New South Wales Supreme Court.

The ABC News online has an article about the impending court decision but more relevantly to the OHS and compensation issues is the fact that the existing compensation fund runs out in 2011 and the company says that the current economic climate does not allow for any more funds.  For a company that has earned good profits from asbestos over many decades, two years of poor corporate performance does not seem to balance the scales.

Too many corporations are using the global financial crisis to mask their own management failings.  The United States and England have seen this more than most countries.

The ABC was able to interview the current CEO of James Hardie Industries, Louis Gries, who is not as damning of the past directors’ decisions as some might expect, and the reporter, Sue Lannin, asks many direct questions about the company’s responsibilities to victims of its products.  This interview deserves careful listening.

Company directors around Australia are watching how the court case ends and the size of penalties they may face if they make similar decisions.  The OHS element is oblique to the issue of directors’ responsibilities but it is the hot topic in Australia at the moment and many OHS professionals talk with these same directors.  It may be necessary to adjust one’s language or message when talking safety with them from tomorrow on.

Kevin Jones

Should OHS regulators be involved in the competence of professionals?

WorkSafe and the Safety Institute of Australia are at the forefront of pushing for a defined level of competence for the safety professional.  WorkSafe identified this need many years ago and has been working on establishing alliances with safety professions since then to achieve its aims.

Significantly similar issues have been discussed in the United Kingdom over a similar period however, in that process the WorkSafe equivalent, the Health & Safety Executive (HSE), have chosen not to participate.  According to a recent article in HEALTH AND SAFETY AT WORK, the HSE has stated its position

“Speaking at IOSH’s recent conference, HSE chief executive Geoffrey Podger was adamant that the general description of competence in the Management of Health and Safety at Work Regulations 1999 (MHSW) Approved Code of Practice (ACoP) is sufficient. “I don’t think it helps the whole health and safety system if HSE tries to over-define the area,” he said, adding that there is still a “huge opportunity” for the professional bodies to work on their own definition.”

This position is considerably different from that in Australia where WorkSafe is now closely working (some would say too closely) with the SIA in developing standards and protocols that it and its partners want to operate nationally. Its aim seems to be similar to one the HSE and Health & Safety Commission established in 2007 – “Mapping Occupational Safety and Health (OSH) Professional Body Activities in Scotland”.  It is worth looking at the page to see the list of safety professional bodies who are listed, the services offered and the membership databases.

Pages from externalproviders[1]A crucial HSE document is the “HSE statement to the external providers of health and safety assistance”.  Its statement that competence should be a goal rather than a benchmark should worry the Australian competence lobbyists.  In the Ponting article above, IOSH calls for more clarity but, as discussed elsewhere in SafetyAtWorkBlog, OHS legislation clearly states it is the employers’ ultimate responsibility to establish a safe and healthy work environment.  They may choose assistance from competent people but why should it be the regulator that establishes this?  The professional bodies such as IOSH and SIA have existed for decades.  Have they not determined levels of competency for their own members by now?

Geoff Hooke of the British Safety Industry Federation says

“when you ask how you measure competence, the simple answer is: with great difficulty”.

In general, shouldn’t the response from OHS professional associations be along the lines of

“we believe that all members of the XXX Association are competent within their fields and we would not hesitate in recommending our professional members in providing competent advice to companies…”?

These organizations who are calling for a clear definition are often the same organizations that are in support of “as far as is reasonably practicable”, a vague management concept that can be defined and re-defined depending on which judge hears which OHS prosecution. – the antithesis to the prevention principles of OHS.  One cannot call for certainty in one area while advocating flexibility in another.

The UK Works and Pensions Committee was right in saying that more control is required on external consultants and clearly lobbed the responsibility on the professional bodies.

Ponting’s article concludes that it is the job of the professional bodies to organize accreditation and the maintenance of that accreditation but acknowledges that it is politically fraught.  That is not enough reason to look to the regulator to solve the problem as it only makes the regulator the target of criticism over the process and the results.  The professional bodies themselves must work to a commonality of purpose and relinquish years of demarcation and, sometimes, schism.

The Australian safety professions would ultimately gain far more credibility for themselves and their professions if they too took it upon themselves to define accreditation, audit their members’ competencies and assist in the maintenance of skills.  In that way Australia may gain a safety profession of which everyone can be proud.

Kevin Jones

The tenuousness of safety culture

Only a few days ago, SafetyAtWorkBlog questioned the usefulness of vision statements.  A leaked internal memorandum from the structural mechanical process division of John Holland reported in the Australian media on 27 April 2009 shows just how tenuous such statements can be.

According to an article in the Australian Financial Review (not available online, page 3), the divisional general manager, Brendan Petersen, listed 81 injuries to subcontractors and employees and 51 near-misses in 2008.  The memo acknowledges that the situation is “unsatisfactory and unacceptable” and Petersen makes a commitment to “do something about it”.

The trade unions have jumped on this memo as an indication that John Holland is not living up to its principles, although there is a lot of irrelevant and mischievous industrial relations baggage behind any of the current union statements about John Holland’s operations.

Petersen’s memo admits that, as well as his division’s performance being unacceptable

“we also have sites that consistently allow work activities to be undertaken in an uncontrolled or unsafe manner, sites that don’t take employee concerns about unsafe workplace conditions seriously and sites that don’t report near misses so as to learn from them and ensure the situations never re-occur again.”

That such an established company with such an active program of safety management acknowledges these deficiencies is of great concern.

On being asked about the memo, Stephen Sasse, John Holland’s general manager for HR, spoke of optimism and the safety efforts introduced since the 6 April memo however, behind his words is an acknowledgement that the safety culture has not been supported.

“To an extent [the memo] is an exhortation to middle management and supervision, and to an extent it is a warning that we cannot tolerate staff who do not share the John Holland values around safety…”

The John Holland values are listed on their website as 

  • “Commit to the successful completion of a wide variety of construction, mining, services and engineering projects through our specialist and regional construction businesses 
  • Commit to continuous improvement in all we do 
  • Understand our clients’ businesses
  • Achieve our vision of “No Harm” through safe and responsible work practices 
  • Build and maintain open lines of communication with our people’ our partners and our clients
  • Provide excellent returns to our stakeholders
  • Create an environment where our people are challenged, motivated and satisfied
  • Conduct business ethically, honestly and with diligence at all times”

The No Harm value is expanded upon through it’s “Passport to Safety” program.

In the AFR article, it is noted that Comcare currently has four federal court prosecutions occurring against members of the John Holland Group.

It seems trendy to broadcast the values of a company’s safety management system as if they are new and unique to their companies when, in fact, many of the values reflect legislative obligations under OHS law.  The trap that many companies are facing is that reality does not match the ideal, and may never do so.

A strong argument can be made to be a quiet achiever on workplace safety – to just get down and get managing – without trumpeting the values that can become an embarrassment when the real world pierces the academic fog of the MBA.  Perhaps true safety leadership comes from those who do it on the shop floor rather than than those who advocate it in the boardroom.

Kevin Jones

OHS and Corporate Responsibility in Asia

In 2000, Melody Kemp was interviewed for Safety At Work magazine about her experience monitoring Western corporations’ workplace safety in Asia. Below is an extract of that interview.

In 2000, Melody Kemp was interviewed for Safety At Work magazine about her experience monitoring Western corporations’ workplace safety in Asia.  Below is an extract of that interview.

The full interview is available by clicking the HERE.pages-from-2i5-melody-kemp-interview

Recently you were part of an international OHS inspection team in Indonesia. Can you tell us about that?

I guess the reason I became part of the team was that I was known to the social research group that we were working with.  First, Reebok, who we were working for, put the job out for tender, which was actually quite unusual.  Normally the other shoe companies tend to elect an international consulting accounting firm like Price Waterhouse or Ernst Young.  

The woman who took over the human rights job used to work for the Asian Foundation and she had a totally different set of beliefs.  She had a background in social activism and human rights, so she was interested in a different approach.  Being as independent as they could be they decided to take this opportunity. They subcontracted to a prominent social research group who have worked for World Bank and have a lot of status.

Also, they were all Indonesians while I was the only foreigner on the team but I also speak Indonesian.  A major factor was that we were all familiar with the language and culture.  They needed an OHS person, they preferred to work with a woman, and I was the only woman they could find in Indonesia with that mix of skills. 

Morality in business

A good safety manager is one who is aware of the social context of the job and the social consequences of injury on employees.  The manager also needs to consider the operational parameters of the company.  This is a difficult balancing act that many spend their careers trying to attain.  But what if morality or legislative obligation was removed from the workplace, or was never there in the first place.  How would employees be treated then?

GHOSTS is a movie, ostensibly, about one person, Ai Qin, who travelled illegally from China to England in order to earn a living, a living that she believed she could not achieve in China.  As the opening scenes of the film show, she, and many others, are drowning in Morecambe Bay when the tide comes in rapidly while they are picking cockles.  The reality behind this fictional film radically changed England’s approach to gangmasters and resulted in prosecutions of the operators of the cocklepicking business.  Those operators were found responsible for the deaths of 23 cocklepickers in 2004.

ghosts-19to-the-beach-close-low

As with many memorable films, the story of a single individual can fascinate and shame us at the same time.  GHOSTS is not an enjoyable film as the hardship and the choices faced are uncomfortable to watch but it is an important film for many reasons. One is that gangmasters, and immoral companies, do not exist in a vacuum.  Minor bribery, institutional ignorance, laziness and a disregard for human life are shown by various characters throughout the film.  There are combinations of these elements which push Ai Qin into certain decisions where others would be provided with options.

Another is that we need to be reminded of these events.  Often workplace tragedies fade as quickly as the media’s interest in them.  People often follow events only as long as they are on the telly but this habit provides an extremely skewed view of reality.  People are not expected to follow all issues, or be passionate about all the issues.  That way lies madness, confusion and inaction.  It is necessary to filter our ideological passions while retaining an interest in other related matters.  We categorise our priorities in relation to our resources, emotions and circumstances at one particular time.

But investigations take time and the truth often appears years later, sometimes when the heat in an issue has diminished, or we have had to reprioritize, or the media is looking elsewhere.  Outrage is always more attractive to the media than reason but we need to follow issues to their conclusion.  This is why families revisit the heartache of a fatality by sitting through coronial inquests or prosecutions.  They need to know the truth and find some answer to why the world has turned out as it has.

The conditions for trafficking, illegal migration and unregulated work continue in England today, just as they do in most countries.  GHOSTS is not a film about sex trafficking.  But whether people are being trafficked for sex, fruit picking, working in supermarkets or in take-away kitchens, is irrelevant.  Trafficking is inhumane and must be actively discouraged.

The issue will grow in its economic, human rights and political significance.

It may be heresy to apply the hierarchy of controls outside the workplace safety domain but if safety professionals investigated the contributory factors behind trafficking, it would be hard to argue against the elimination of the hazard for a lower order control measure.  If all physical journeys begin with a single step, then cultural change can begin with a single thought.

Kevin Jones

Victim support fund – http://www.ghosts.uk.com/

Sex trafficking and brothels

Every employee has the right to a safe and healthy work environment.  It was this statement and belief that pushed me to providing OHS advice to the legal brothel industry in Victoria.  The industry is frowned upon by most but used by many, and yet the OHS support for the industry is far less than that provided for many other legal businesses.

Over the years sex trafficking, or slavery, has gained a lot of attention, more so, in my opinion, than other examples of illegal migration and worker  exploitation.  Articles in The Age newspaper today report on approaches to brothel owners and managers from people who have women for sale.  Regardless of the industry in which this occurs, this practice is abhorrent and the full weight of the law should be focused on these slave traders.

But a point that is getting lost in the wilderness is that not all women working in brothels are illegal.  Almost all choose to work there for the same reasons anyone works anywhere.  Many academics, and Australia has some of the most rabid, see all sex work as exploitation, as slavery and degrading to women.

The question for safety professionals and advocates is whether the nature of the work discounts the workers’, and employers’, access to legitimate safety advice?  Can the moral switch be flicked off, even for a short time, in order to provide workers in this industry with the same level of occupational health and safety as any other worker can rightfully demand?  Does the switch need turning off?

The statement at the start of this blog, that is reflected in OHS legislation around the world, is not selective, it applies to all.

The legal brothel industry has a long way to go in achieving the levels of OHS compliance that other small businesses have already gained.  The established hazards of manual handling, ergonomics, noise, etc are largely dealt with but consider those issues that have entered the occupational area over the last decade or so.  

Ask yourselves how would the owner of a legal brothel, a business where (predominantly) women have sex with multiple partners over their shift, deal with these contemporary hazards:

  • Stress
  • Bullying
  • Fatigue
  • Drugs and alcohol
  • Security

And then ask yourselves how the OHS profession and discipline would deal with these workplace issues?

  • Sexually transmitted infections
  • Sprains and strains
  • Hygiene
  • Personal protective equipment
  • Working in isolation

I judge the success of safety management systems in companies by the level of knowledge the most isolated worker has about safety in that workplace.   I ask the teleworkers, the night-shift workers, the security guards, the cleaners, the maintenance staff…  These employees, if a safety management system is working properly, should have the same level of safety knowledge, and the same level of access to OHS support, as those workers on day shift in a  head office.

I also judge the safety profession and the regulators on the success of their safety initiatives, the level of their safety commitment, by looking at how OHS is accepted and implemented at those industries on the fringes of society, like the brothel industry.  If the workers in these industries and the owners of these businesses are treated differently because of the nature of the work, we need to reassess our commitment to safety and the professional vows many of us took to ensure everyone has a safe and healthy work environment.

Kevin Jones

A March 2008 podcast on the issue of sex trafficking in Australia is available HERE 

 

 

A sport’s culture of excessive alcohol at work functions

Each November safety publications carry guidances and warnings about unacceptable conduct at company Christmas parties.  Often these warnings are around moderating alcohol consumption and showing due respect to others.  One of the most recent legal advisories was issued in late-2008 by Maria Saraceni of the Australian law firm, Deacons.

This week in Sydney the National Rugby League (NRL)  faced its latest controversy when Brett Stewart of the Manly club was charged with sexual assault at a work function.  The NRL today issued harsh penalties on both Stewart (five match ban) and the club ($100,000).  To understand the context of the penalties and the media hoo-hah surrounding this it would be necessary to look at the many instances of assault and abuse associated with rugby league, and other male-dominated sports, in Australia.

The issue has remained largely on the sports pages of the newspapers except in New South Wales.  The fact that a sporting club was involved and a sport with a sad history in this area has dominated reporting and the OHS, safety management and employer liability angle has been lost in the rush.

The NRL media statement (no direct link available), quoted in part by the ABC, shows that the NRL CEO, David Gallop, is well aware of the safety management issues.

“Brett could not have been in a more high profile position of trust for the game on the eve of a season than he was last week and we believe he should have recognized the honour that he was given and the responsibility that went with it,” NRL Chief Executive, Mr David Gallop, said today.  “By any estimation there was an abuse of alcohol in the aftermath of a club function that has led in some part to the game being placed under enormous pressure.

“The players and the clubs need to know that we are not going to accept that.

“The Manly club has today delivered its report into the function and the measures simply weren’t sufficient to stop drinking getting out of hand in the case of some of the players. Brett was both refused service of alcohol and asked leave the premises.”

Section 20 (2) of the NRL Code of Conduct which states:

“Every person bound by this Code shall, whether or not he is attending an official function arranged for the NRL, the NRL Competition, the Related Competitions, Representative Matches, the ARL Competitions or a Club, conduct himself at all times in public in a sober, courteous and professional manner.”

Peter Fitzsimmons explains why the general conduct of rugby players needs changing.

“They [rugby league clubs] must fix it because they are a powerful tribe within our community, and that community has had a gutful not just of the atrocities, but of the NRL promising to fix it, to educate them, to discipline them, blah, blah, blah, year after year, with no results.”

Kevin Jones