The Safety Institute‘s OHS Professional magazine for December 2009 included an article (originally published in an OHS newsletter from Piper Alderman for those non-SIA members) about the application of legal professional privilege using a New South Wales Industrial Relations Commission decision as its basis (Nicholson v Waco KwikForm Limited). The case received considerable attention by OHS law firms. Continue reading “Legal professional privilege and safety management”
Category: evidence
John Holland prosecution
The John Holland Group has featured several times in the SafetyAtWorkBlog in 2009. Any organisation as large as this Australian conglomerate who promotes their commitment to safety and whose Board Chair, Janet Holmes a Court, has such a high profile is going to draw media scrutiny. In fact, the evolution of the John Holland safety culture and the struggle to maintain such a culture as a company grows in profitability and complexity would make a fascinating case study.
On 18 December 2009, Comcare released details of its latest successful prosecution of John Holland. This time the company was fined $A180,000 over the death of a worker, Mark McCallum, at the Dalrymple Bay Coal Terminal in Queensland in May 2008. According to the media statement:
“Justice Collier stated that “It is clear that, despite the efforts taken by the respondent to implement a safe working environment, the operation involving the transportation unit was flawed in its original conception. The dangers were obvious from the start, relatively simple to avoid, but unrecognised and unaddressed in a manner which raises the objective gravity of the offence in these proceedings towards the higher end of the scale.” [emphasis added]
When a judge determines that the process was flawed from the very start, one’s expertise in managing an established practice safely should be critically reviewed. Such fundamental failures in a safety management system should cause any company to realise something is wrong in the way it is addressing safety needs, particularly in an economic climate that is bursting with new infrastructure projects for which one is competing.
The circumstances of the fatality are that
“A team of five John Holland workers were involved in moving large precast concrete decks to the end of a jetty under construction. The precast concrete decks were being transported on two jinkers that were being pushed by a front end loader. During this procedure, a worker’s foot became trapped under wooden scaffolding planks on the jetty, and he was fatally injured when he was run over by the wheels of the jinker.”
The Federal Court judgement listed the safety deficiencies that John Holland acknowledged
“The respondent acknowledges that:
(a) its work method statement did not adequately identify the risks associated with the relevant work process, and did not adequately identify suitable control measures to remove or minimise those risks; and
(b) it did not carry out a plant hazard assessment with respect to the front and rear jinkers, which may have identified a requirement for a remote braking system or other controls on the jinkers for use by spotters and others; and
(c) it did not have in place a formal system whereby employees were certified as being competent in the use of jinkers; and
(d) it did not have in place a formal protocol or procedure for the use of radios to ensure that the transmitter of a radio message was able to be informed that the message had been received by its intended recipient and understood; and
(e) it did not have sufficient communication mechanisms in place to ensure that employees working out of sight of the loader operator and the rear spotter were able to communicate directly with spotters and the loader operator; and
(f) it did not ensure that an observer of a trainee jinker operator was also issued with a radio to directly communicate with the other members of the transportation crew responsible for the propulsion of the load; and
(g) it did not provide workers who were working out of sight of the loader operator or rear spotter with any form of alarm or safety device, other than a radio to alert other workers of the occurrence of an emergency situation; and
(h) it did not ensure that the clearance of obstacles in the path of the loader was done in a timely or effective manner, thereby requiring the front jinker operator to perform that duty during the progress of the transportation unit and whilst out of the line of sight of the loader operator.”
Mark McCallum’s death gained even greater media attention when unions challenged John Holland’s nomination for a safety award shortly after McCallum’s death.
Quad bike safety sensitivities
The quad bike safety issue is hotting up on a range of fronts in Australia with the trade unions taking an active interest, meetings between bike manufacturers and safety designers, and the SafetyAtWorkBlog email box filling up with background content and opinion.
One of these emails reminded me of some court action that was taken in 2005 by Honda against the Victorian State Coroner, Graeme Johnstone. Johnstone only recently retired from the position after many years and over that time there were fewer more ardent safety advocates, particularly not any that had the same broad audience and media attention.
In 2005 Johnstone was conducting an inquest into several quad-bike related deaths. At one point he approached a witness outside of the Coronial process to seek their assistance in a training course. Representatives from Honda took exception to this and began court action in the Supreme Court of Victoria to have him dismissed from conducting the inquests.
Justice Tim Smith found Johnstone remained open-minded and impartial throughout the inquest but the unreported judgement available online illustrates some of the tensions of the time and continue to exist to this day.
The judgement mentions the purpose of the inquest:
“The major disputed issues in the inquest relevant to the present application were the following:
- whether the lack of roll-over structures on their ATVs caused the death of Mr Crole and Dr Shephard
- whether roll-over structures should be installed on ATVs
- whether the question of the provision of roll-over structures for ATVs should be investigated further.”
In describing the context of Johnstone’s contact with the witness, Dr Raphael Grzebieta, the judgement hints at the Coroner’s inquest findings (which are not available online)
“In addition, notwithstanding Dr Grzebieta’s conclusion that Dr Shepherd and Mr Crole [the deceased] would have been saved by the fitting of the roll bars and that this would be sufficient to justify a recommendation that they be fitted, the coroner expressed a provisional view that:
“My view at the moment is that it does not give me enough to recommend roll-over protection.””
The Victorian Coroner continues to be active in investigating quad-bike related deaths as seen in this newspaper article from earlier in 2009. A related article quotes John Merritt, WorkSafe’s executive director as saying:
“This inquest came about as a result of a terrible spate of fatalities in the past two years… WorkSafe’s position on this is clear. It believes that a quad bike is like any piece of farming equipment and those who use them need the appropriate training to be able to use them safely.”
If a quad bike is like any other piece of farming equipment, the equipment designers would be reviewing their designs to minimise the risk of injury as the field bin and silo manufacturers have, or the milk vat designers have or the windmill manufacturers have or, indeed , as have the tractor manufacturers who actively promote the safety features of their new tractors.
The unreported Supreme Court judgement provides a good indication of the major players in the quad bike safety discussion, particularly the expert witnesses for and against.
Many of the issues are resurfacing because safety and work practices continue to change and the only satisfactory resolution is when hazards are controlled and harm is reduced and, hopefully, eliminated. 2010 in Australia looks set to be a year when quad bike safety gets a good going over once more.
Formaldehyde upgraded to human carcinogen
On 4 November 2009, the United States’ National Toxicology Program (NTP) upgraded formaldehyde to a “known human carcinogen”. This widely used chemical, principally in wood products, has been suspected of being carcinogenic for some time.
The suspicion was a major reason why, in Australia, Comcare issued a cautionary safety alert on using some shipping containers as converted accommodation. But the Comcare advice was based, and reasonably so, on a manufacturers’ material safety data sheet (MSDS).
One such MSDS selected at random from the Australian internet sites has this to say about formaldehyde:
Reported fatal dose for humans: 60-90 mL
Oral LD50 (rat): 800 mg/kg
Inhalation LC50 (rat): 590 mg/m3
Low concentrations of formaldehyde may cause sensitisation by skin contact. Formaldehyde vapour is irritant to mucous membranes and respiratory tract. Asthma like symptoms have occasionally been reported following inhalation.
Animal studies have shown formaldehyde to cause carcinogenic effects. In particular, chronic inhalation studies in rats have shown the development of nasal cavity carcinomas at 6 and 15 ppm. These cancers developed at concentrations which produced chronic tissues irritation and would not be voluntarily tolerated by humans. [IPCS Environmental Health Criteria 89, Formaldehyde, World Health Organisation [WHO], Geneva, 1989.]
Some positive mutagenic effects have been reported for formaldehyde. Available animal data do not show embryotoxic or teratogenic effects following exposure to formaldehyde.
The NTP notes that formaldehyde effects have now been identified as having a role in leukaemia and not just localised inhalation-related cancers.
The MSDS is dated 2004 and Australian OHS legislation only requires MSDS to be updated at five-yearly intervals. Of course they can be updated more frequently should the employer chose or, perhaps if the manufacturer advises them of a reclassification.
It is interesting that a 2004 MSDS still refers to WHO data that is fifteen years old and that the reference is to a non-Australian criterion. It is accepted that chemical reclassification and research are long processes but what should the updating timeline be now that the US has made this significant re-categorisation?
Perhaps the Australia classifications will gain speed given that the more compatible European re-categorisation of formaldehyde, and other chemicals, was announced overnight. The EU-OSHA website states
“Formaldehyde was confirmed as carcinogenic to humans. There is sufficient evidence in humans of an increased incidence of nasopharyngeal.”
However the human leukaemia issue was discusses in the evaluation summaries:
“The Working Group was almost evenly split on the evaluation of formaldehyde causing leukaemias in humans, with the majority viewing the evidence as sufficient for carcinogenicity and the minority viewing the evidence as limited. Particularly relevant to the discussions regarding sufficient evidence was a recent study accepted for publication which, for the first time, reported aneuploidy in blood of exposed workers characteristic of myeloid leukaemia and myelodysplastic syndromes with supporting information suggesting a decrease in the major circulating blood cell types and in circulating haematological precursor cells. The authors and Working Group felt this study needed to be replicated.”
Given that wood products that contain formaldehyde are used frequently in cabinet-making it is fair to expect MSDSs and OHS guidances on hazardous substances and wood dusts would be reissued and databases updated fairly quickly. Just as important is the fact that particle boards are commonly sold in hardware and timber outlets in Australia and that Spring and Summer is often the DIY peak.
It is not hard to picture an unscrupulous media outlet generating a panic about the presence of formaldehyde in these products regardless of how the chemical is bound or whether inhalation risks are minimised.
Contradictions on endosulfan in fish hatchery
Earlier in 2009, SafetyAtWorkBlog reported on concerns over a possible cancer cluster near a fish hatchery in Queensland.
The final report of the Queensland Government’s inquiry, Noosa Fish Health Investigation Taskforce, is not due until February 2010 but the Federal Government’s Australian Pesticides and Veterinary Medicines Authority has released a statement entitled “Endosulfan Ruled out as a Potential Cause of Noosa Fish Health Issues”. In that article APVMA states
“The Noosa Fish Health Investigation Taskforce has at this point eliminated endosulfan as a potential cause of deaths and deformities at a commercial fish hatchery at Noosa in the six events being investigated. Endosulfan was not used by the neighbouring macadamia property during the period under investigation. There was also some suggestion that because the commercial hatchery uses river water and fish from the river in its operations, pesticides in the Noosa River may have been involved in the incidents reported. However, environmental monitoring of water from the Noosa River and its feeder lakes has not indicated that endosulfan is present at concentrations that would be harmful to aquatic life.”
The ABC reports on 7 December 2009 that
“…aquaculture veterinarian Associate Professor Matt Landos says there is new evidence that endosulphan may be a factor.
“The early reports from the task force did not identify endosulphan in any residue testing and as such it was considered a less likely potential cause,” he said. “However, recent testing has identified the break-down product of endosulphan in the middle of Lake Cootharaba – in the middle of the Noosa system.”
Matt Landos is a member of the Queensland Government’s taskforce.
Safety awareness ≠ safety (always)
Workplace fatalities have markedly increased in Victoria over the last couple of months. According to WorkSafe Victoria information nine people have died within the last two months bringing the current total to 27 for 2009.
Victoria has a high awareness of the need for safety in the workplace, principally due to the advertising campaigns of WorkSafe which began, in one form or another, in the 1980s when Andrew Lindberg was WorkSafe’s CEO. But clearly awareness of the need for safety is not being translated into action.
WorkSafe Victoria has become alarmed at the recent surge in deaths and issued a media release asking for things to settle down. John Merritt, executive director, has said
“With many industries now reaching their peak activity the risks are extreme as people rush to get work completed and begin to think about what Christmas, holidays and the New Year has to offer.
“The construction and manufacturing sectors are aiming to complete projects before a summer shutdown, while transport, warehousing and retailing are ramping-up to Christmas.
“With just a few weeks before Christmas and the spectre of nine deaths in two months behind us, employers and workers must lift their game and reject the urge to take shortcuts or become complacent.”
But there is nothing unique about this time of year as the same activities, the same work pressures exist each year at this time. More analysis is required of why this October and November 2009 have been particularly bad. This analysis needs to be much deeper than the market research and attitudinal studies that OHS regulators frequently undertake.
Dead men tell no tales but survivors do and perhaps it is time to investigate the circumstances of an incident in a way that is outside of the legal/prosecution motivation. Everyone has a different perspective on a workplace incident and many are less than truthful or honest in order to not incriminate themselves or because a lawyer has advised against unsupervised cooperation. Could it be possible to offer a special consideration to the witnesses of an incident, prior to the Court experience, so as to encourage accurate data of an incident that can then be issued as a safety alert?
The media releases of OHS regulators often refer to incidents that have occurred months or years ago when the circumstances are only remembered by the Courts, the company and the family of the deceased. Surely there must be some way of issuing an interim alert that does not jeopardise the prosecution? The preventative benefit would be so much more if the alert relates to an event that has occurred within the last week, for example, or while the tragedy is still being reported in the media.
In various venues throughout Victoria, John Merritt, has been showing a graph of the number of fatalities in the State in line with the National OHS Strategy leading to 2012. Earlier this year, the fatality rate was above the benchmark. Now, WorkSafe must be realising that the 2012 target is likely to be impossible.
Australia is not renowned for its OHS research. What occurs is way below that of other similar economies and the funding is abominable. It may be time to pull back on advertising expenditure and start researching the causes of the fatalities for a quick turn around of, at least interim, results. Until this occurs, regardless of regular pleas from OHS regulators it is likely that we will still be hearing of incidents like these from Victoria:
“…a 42-year-old man fell from a roof and died while installing cables for a television antenna on a house in Tullamarine.”
“…another 42-year-old man is being treated for serious burns at the Alfred Hospital after fuel ignited as he prepared to refill a generator…”
“A man has died at Werribee after being run over by the trailer of a reversing tractor”
“…a farm worker was run over by a tractor on another Werribee South vegetable farm. He suffered serious injuries to his pelvis and was flown to hospital for surgery…”
“A Lower Templestowe man, 47, died from crushing injuries after a tractor he was driving became entangled in a steel wire supporting poles for a canopy over a Wandin North orchard.”
“A 45-year-old dairy farmer died near Portland when he was hit by his tractor and an implement and suffered fatal crushing injuries.”
“A man’s head was crushed between an industrial chipper and a truck at Warrandyte North”
“A man aged in his 50s died at Bannockburn near Geelong while operating a boom lift. He was found crushed between the machine’s bucket and the roof of a building in which he was working”
What we can be sure of is that 27 Victorian families will not be celebrating this Christmas.
Leadership – research, mental health and what true leadership is.
Scandinavia produces some of the best research into OHS issues. However, due to the social structure of Scandinavian countries, the research has little direct and practical application outside the region. The research is best taken conceptually as it will need to be evaluated closely to determine local applicability.
(TIP: whenever an OHS researcher says “recent Scandinavian studies show….” remind the researcher which country they are in and ask them to explain the practical application in the local context)
In early 2009, there was a bit of media attention about research that found, according to researcher Anna Nyberg
“Enhancing managers’ skills – regarding providing employees with information, support, power in relation to responsibilities, clarity in expectations, and feedback – could have important stress-reducing effects on employees and enhance the health at workplaces.”
In October 2009 Anna Nyberg’s thesis on the issue was released. According to the abstract to her thesis
“The overall aim of this thesis was to explore the relationship between managerial leadership on the one hand and stress, health, and other health related outcomes among employees on the other.”
Nyberg’s thesis details the needs for some adjustments in the research to allow for “staff category, labour market sector, job insecurity, marital status, satisfaction with life in general, and biological risk factors for cardiovascular disease.” These adjustments are important to remember when reading any of the media statements about Nyberg’s research.
There were five studies within the thesis and, according to the abstract, they found the following:
“Attentive managerial leadership was found to be significantly related to the employees’ perceived stress, age-adjusted self-rated health and sickness absence due to overstrain or fatigue in a multi-national company.”
“Autocratic and Malevolent leadership [in Sweden, Poland, and Italy] aggregated to the organizational level were found to be related to poorer individual ratings of vitality…. Self-centred leadership … was related to poor employee mental health, vitality, and behavioural stress after these adjustments.”
“… significant associations in the expected directions between Inspirational leadership, Autocratic leadership, Integrity, and Team-integrating leadership on the one hand and self-reported sickness absence among employees on the other in SLOSH, a nationally representative sample of the Swedish working population.”
“… significant associations were found between Dictatorial leadership and lack of Positive leadership on the one hand, and long-lasting stress, emotional exhaustion, deteriorated SRH [self-reported general health], and the risk of leaving the workplace due to poor health or for unemployment on the other hand.”
“In the fifth study…a dose-response relationship between positive aspects of managerial leadership and a lower incidence of hard end-point ischemic heart disease among employees was observed.”
But what can be done about the negative affects of poor leadership on health, safety and wellbeing? The thesis is unclear on this, other than identifying pathways for further research in this area.
The SafetyAtWorkBlog recommendations, based on our experience, are below
- Carefully assess any training provider or business adviser who offers leadership training.
- Ask for evidence of successful results in the improvement of worker health and wellbeing, not just a list of client recommendations.
- Look beyond the MBA in selecting senior executives. If you expect executives to establish and foster a positive workplace culture, they need to have to be able to understand people as well as balance sheets.
- Remember that the issue of leadership as a management skill is still being investigated, researched and refined. It is not a mature science and may never be, so do not rely solely on these skills.
- Some say that leadership cannot be taught and cannot be learned. Some say that leadership, as spruiked currently, is not leadership, only good management. Leadership only appears in times of crisis and manifests in response to critical need, not in response to day-to-day matters.
This last point needs a reference – page xiii of “Seventh Journey” by Earl de Blonville
“… leadership cannot be taught. If it is being taught, it may just be management, rebadged at a higher price. The second discovery was that leadership is not about the leader, which will confound those with a needy ego. There were two more things that revealed themselves to me: leadership is all about paradox, which is why it resists attempts to tame it into a curriculum, and at its core leadership is lonely, requiring the strength that could only come from a grasp of its intrinsic paradox.”