executives – Page 70 – SafetyAtWorkBlog

Upcoming OHS Videos

At the end of March 2009, the Safety Institute of Australia (Victoria Division) is conducting its annual Safety In Action conference. In order to help promote the conference the SIA organised for several conference speakers to be filmed.

The filming occurred in early-February 2009 and the short 10-minutevideos will be available at the Safety In Action website in a couple of week’s time. The subjects of the videos are:

Jill MCabe of WorkSafe Victoria who talks about the research WorkSafe has undertaken in order to establish a better profile of their clients so as to improve assistance and advice. Jill has long experience in industrial relations and now focuses on health and safety.

Helen Marshall was appointed Australia’s Federal Safety Commissioner in August 2008. Helen discusses her experiences in dealing with a national system for safety on building and construction sites and reveals her first ever “real” job.

Dr Martyn Newman explains what he means by describing some leaders as “emotional capitalists”. He sees that as a good thing to be but isn’t ego an emotion and greed an emotion? And aren’t those the emotions that that have generated a lot of our social and financial heartbreak? Is there is such a thing as an “emotional socialist”? Dr Newman’s presentation at the conference will be popular but it’s application may be obscure or challenging.

John Merritt, the CEO of WorkSafe, is genuinely passionate about improving society and seems to feel that OHS is a valuable way to improve the quality of people’s lives. [I first spoke with John in the early 1990s while he was in the ACTU. The only thing I knew about him was that he had written a book about shearers. I spoke next with him while he was CEO of the National Safety Council and now (twice) while he is at WorkSafe. If our paths continue to cross, he owes me a beer and two hours of unrecorded conversation in a comfortable bar.]

Barry Sherriff, a lawyer with Freehills, has just come off nine months of serving on the National OHS Review panel and is hamstrung in what he can say as the government is yet to release the final report. His presentation was measured and cautious.

The videos provide an interesting cross-section of OHS approaches in Australia, several overlap and some are “out there” but the best that can be said is that one learns. This makes for a terrific Safety In Action conference.

Kevin Jones

Analysis of First Report of the National Model OHS Law Review

As more Australian OHS professional return to work after their Summer break, it will take several days to get through emails. Some of those emails are likely to include a mention of Australia’s review panel reports of model OHS law. The First Report has been out for over a month and the final report is due at the end of this month.

Other than a couple of statements by labour lawyers, the analysis has been relatively quiet, which makes the analysis by Professor Richard Johnstone a good way to remind us of the issues raised and the timetables for the review process.

In December 2008 The National Research Centre for OHS Regulation of the Australian National University released a Working Paper by Professor Johnstone entitled “Harmonising Occupational Health and Safety Regulation in Australia: the First Report of the National OHS Review”. Johnstone identified several important changes suggested by the review panel

“…..These two recommendations are operationalised by arguably the most important proposals in the First Report. These are the recommendations that the model Act impose a “primary” general duty upon a “person conducting a business or an undertaking” and owed to “workers” broadly defined and “others”; and that beneath this primary duty sits a series of specific classes of duty holders with more detailed duties which “flesh out” the primary duty of care, without excluding or limiting the primary duty. ” (page 17)

This concept has originated from Queensland and New South Wales but expanded by the panel and sets up a structure that underpins other elements, such as the duties of “corporate officers”.

In discussing the duties of officers, Professor Johnstone writes

“I urge the Panel to ensure that the definition of “corporate officers” is broad enough to include “shadow directors”, so that responsibility for contraventions by corporations of the general duties in the model Act can be sheeted home to entities such as holding companies and franchisors.” (page 32)

It has to be remembered that the review panel is focusing on law and not necessarily the practical safety management that operates from the legal obligations and is structured on compliance.

In terms of prosecutions Professor Johnstone identifies the following as one of the most important elements of the panel’s First Report

“There should be three categories of offences for each type of duty of care

a)      Category 1 for the most serious breaches, where there was a high level of risk of serious harm and the duty holder was reckless or grossly negligent;

b)      Category 2 for circumstances where there was a high level of risk of serious harm but without recklessness or gross negligence; and

c)       Category 3 for a breach of the duty without the aggravating factors present in the first two categories with maximum penalties that:

d)      relate to the seriousness of the breach in terms of risk and the offender’s culpability;

e)      strengthen the deterrent effect of the offences; and

f)       allow the courts to impose more meaningful penalties, where that is appropriate.”

The panel, or the government, will need to be careful in proposing this categorisation as there are already in Australia OHS professionals advocating a three-stage categorisation of personal damage. As George Robotham has listed the classes, developed by Geoff MacDonald :

“CLASS 1-Damage that permanently alters a persons life e.g. death, paraplegia, amputation of a leg, severe psychological damage.

CLASS 2- Damage that temporarily alters a person’s life e.g. fractured leg that repairs with no lasting impediment, deep laceration that has no underlying tissue damage and repairs without significant scarring

CLASS 3 – Inconveniences a person’s life.”

These are categorisations in very different contexts but may unnecessarily confuse the management of safety depending on which way the review panel goes and how the government responds to these concepts.

Johnstone’s paper is the best analysis currently available and should whet the appetites of safety professionals who should probably gird themselves for the more expansive Second Report due shortly.

Kevin Jones

Leading from the top on impairment

Advocates of safety culture regularly profess that it must be lead from the top of the corporate structure down. This applies a false definition of leadership. Leadership is innovation, understanding and support regardless of one’s position on the corporate ladder.

It is true that professing leadership and corporate goals should be supported by the appropriate actions but that is often the avoidance of hypocrisy rather than seeking active change. It must be acknowledged that leadership can also come from below – in the mail rooms, the cellars, the janitors and from the shopfloors.

Workers in many industries are subjected to random drug and alcohol tests. Often these apply to those workers who operate machinery or drive transport vehicles. And rightly so. These workers must undertake their tasks without any impairment of their cognitive functions. Impairment is a concept that the Australian union movement has struggled with for well over a decade mainly because in the industrial relations world this is close to being “fit for work” and how does one define that? It also has some relationship to “blaming the worker”. In occupational health and safety, it is seen as looking after one’s self whilst looking after others and the obligation to do this has existed for decades in OHS legislation.

Impairment is commonly discussed now in terms of driving while drunk or stoned or while using a mobile phone. But long before this there was “impaired judgement”. As well as being fit-for-work, people needed to be fit-to-think.

On 4 December 2008, the New South Wales Health Minister (and former Industrial Relations Minister) John Della Bosca rejected a proposal from the Rail, Bus & Tram Union (RTBU) to “to make breath-test kits available on a voluntary basis to MPs wanting to check their blood alcohol levels before they turn up for late night votes.”

It is reported that the RTBU secretary Nick Lewocki has said

“All rail workers are subjected to random drug and alcohol tests, an infringement on their personal lives that they are told is necessary due to the safety critical nature of their work. But driving the state is every bit as safety critical, and decisions our politicians make on issues as diverse as health, education and transport policy do affect public lives.”

Ignoring the political devilment of the RTBU, the comment focuses on being unimpaired when making decisions, regardless of the occupation, work task or corporate position. The Minister has been put in a difficult position where he can’t be seen as responding to union naughtiness but there is merit in leading from the top and making breath-test kits available. They are not suggesting random testing or mandatory testing but it is reasonable to expect important decision-makers to be fit-to-think and fit-to-decide.

Perhaps drug testing in the workplace would not be seen as the contentious issue it is if it had already been introduced in the boardroom. The gesture would not be as empty as the corporate leaders may think particularly leading into the season when sauce and ganders were traditionally eaten.

The insidiousness of “reasonably practicable”

WorkSafe Victoria recently released a guideline, or clarification, on what it considers to be the issues surrounding “employing or engaging suitably qualified persons to provide health and safety advice“.

SafetyAtWorkBlog remains to be convinced that such a process will lead to better safety outcomes in the small to medium-sized enterprises at which this program is aimed. The OHS legislation clearly states that the employer is the ultimate decider on which control measures to implement to address a workplace hazard. This is echoed in the WorkSafe guideline

“It is important to note that employing or engaging a suitably qualified person to provide OHS advice does not discharge the employer from their legal responsibilities to ensure health and safety as required under Part 3 of the OHS Act. This duty cannot be delegated.”

A business manager will weigh up the advice sought or given from a variety of sources and make a decision. A good business manager will take responsibility for the good or bad results of their decision. But they need to have a clear understanding of their obligations and Victoria’s legislation could be confusing.

The guideline says that

“Employers are expected to take a proactive approach to identify and control hazards in the workplace before they cause an incident, injury, illness or disease.”

This reitereates one of the safety principles in the 2004 OHS Act

“Employers and self-employed persons should be proactive, and take all reasonably practicable measures, to ensure health and safety at workplaces and in the conduct of undertakings.”

But the principles are not legislative obligations. As Michael Tooma writes in his “Annotated Occupational Health and Safety Act 2004”

“… it is the intention of the Parliament that the principles be taken into account in the administration of the Act.”

The principles are there for judicial colour and community reassurance but with no real impact.

The obligations on an employer, the section that determines the actions and plans of the business owner or managers, are, as well as general duties:

“Duties of employers to employees

(1) An employer must, so far as is reasonably practicable, provide and maintain for employees of the employer a working environment that is safe and without risks to health……..

(2) Without limiting sub-section (1), an employer contravenes that sub-section if the employer fails to do any of the following-

(a) provide or maintain plant or systems of work that are, so far as is reasonably practicable, safe and without risks to health;

(b) make arrangements for ensuring, so far as is reasonably practicable, safety and the absence of risks to health in connection with the use, handling, storage or transport of plant or substances;

(c) maintain, so far as is reasonably practicable, each workplace under the employer’s management and control in a condition that is safe and without risks to health;

(d) provide, so far as is reasonably practicable, adequate facilities for the welfare of employees at any workplace under the management and control of the employer;

(e) provide such information, instruction, training or supervision to employees of the employer as is necessary to enable those persons to perform their work in a way that is safe and without risks to health. “

The “as far as is reasonably practicable” insertions allow business considerable flexibility in arguing the validity of their decisions after an incident but hamper the employer in being “pro-active” – (a hateful and lazy piece of business jargon).

The impediments to “pro-activity” can be seen in the general duties of Section 20 where

“to avoid doubt, a duty imposed on a person…to ensure, as far is reasonably practicable, health and safety requires the person –

(a) to eliminate risks to health and safety so far as is reasonably practicable:…..”

This contrasts with the objects of the, same, Act which states that one of the aims is

“to eliminate, at the source, risks to the health, safety and welfare of employees and other persons at work:…”

It is strongly suspected that a crucial element of OHS legislation and management will likely disappear and this is to eliminate hazards “at the source”. Outside of the objects of the Act this aim is not mentioned anywhere else in the legislation. “Reasonably practicable” will erase this important social and moral clause.

Eliminating something “at the source” encourages research into new ways of eliminating hazards by placing an obligation on us to determine the source. “Reasonably practicable” encourages us to research control measures until it is practicable to do so no more. That is a half-quest that solves nothing. What if Frodo was asked to dispose of the ring in Mordor only if “reasonably practicable”? The story would have been a novella instead of a classic trilogy.

Employer associations are lobbying for increased workplace flexibility. That has nothing to do with the health and safety benefits of the employees but rather the health and safety of the balance sheet. “Reasonably practicable” similarly focuses on business management and not safety management.

The battle against this insidious weakening of the OHS profession is not lost. Heart should be taken from the preparedness of governments to roll-back unpopular legislation such as some industrial relations initiatives. Hindsight can be an important motivator for change.

Recent fatalities data may sway some in government that OHS regulators are achieving their social and operational targets but OHS professionals know that fatality rates are not an accurate indication of the success of safety initiatives. New workplace hazards are appearing regularly and many of the new ones don’t result in death but lead instead to misery and an incapacity to live a healthy life or to work again in a chosen profession.

“Reasonably practicable” allows businesses to try, in differing degrees, to eliminate the hazards, such as psychosocial hazards, of its workforce and then shift them to social security and disability benefits. And why not? It seems that corporations can serve their clients and stakeholders “as far as is reasonably practicable” and then expect a bailout from government over their mismanagement. Immorality applies to much more than economics.

Mining fatalities and accountability

The 11 November 2008 edition of The Australian includes a page 2 story where the previous manager of the Beaconsfield Mine has been called on to be held responsible for the management failures that led to the death of Larry Knight in 2006. The call was made by counsel for Larry Knight’s family and the Australian Workers’ Union in a submission to the Tasmanian inquest into the fatality.

According to the media report, the wrong decision was made in trying to stabilise the working area of the mine and that the risk assessment process was inadequate. The latter comment should be of considerable interest to OHS regulators and safety professionals.

The importance of the Tasmanian Coroner’s findings are illustrated by comments in the submission by the counsel for the mine. The media report says that

“…Dr Neal tells the Coroner the mine had done all it reasonably could to guard against the risk of rockfall and to manage the mine’s notorious seismicity.” [emphasis added]

This is particularly important when considering the introduction of “reasonably practicable” into the OHS legislation throughout the Australian States being considered by the National OHS Law Review.

It is regrettable that the to-ing and fro-ing in the inquest is not getting as much media attention in the non-mining states, as there have been many risk management and accountability issues raised. The media is likely to wait until the findings of the Coroner, Rod Chandler, and focus on the result rather than the journey.

There was a similar experience in New South Wales with the inquiry that followed the drowning of four mine workers at the Gretley mine in November 1996. The information did not resonate to the rest of Australia except through the mining sector, yet there were important lessons from the inquiry. Most OHS professionals, if at all, would recollect the prosecution of Gretley mine managers on matters of culpability, rather than the death of the four workers.

When the Tasmanian Coroner hands down his findings in the near future, it will be very useful to consider them in the light of the earlier reports, assessments and papers, among many others, listed below.

SafetyAtWorkBlog is a strong advocate of learning new OHS management practices by looking beyond one’s field of expertise. OHS professionals, safety managers and risk managers need to watch the action in Tasmania and other jurisdictions for themselves and not rely on a small group of OHS lawyers to bring matters to their attention and advise them how to avoid their responsibilities. Accountability is a moral and legal responsibility.

Holding Corporate Leaders Responsible by Andrew Hopkins

The Impact of the Gretley Prosecutions by Andrew Hopkins

Mine Safety – Law, Regulation, Policy by Neil Gunningham

A submission by the Tasmanian Minerals Council on CRIMINAL LIABILITY OF ORGANISATIONS – ISSUES PAPER NO 9, JUNE 2005 to the Tasmanian Law Reform Institute

N Gunningham, ‘Prosecution for OHS offences: deterrent or disincentive?’ (2007) Sydney Law Review, 29 (3), pp 359-390.

R Guthrie and E Waldeck, ‘The liability of corporations, company directors and officers for OSH breaches: a review of the Australian landscape’ (2008) Policy and Practice in Health and Safety 6(1),
pp 31-54.

N Foster, ‘Mining, maps and mindfulness: the Gretley appeal to the Full Bench of the Industrial Court of NSW’ (2008) Journal of Occupational Health and Safety – Australia and New Zealand 24(2),
pp 113-129.

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.

“Suitably qualified” OHS professionals – who benefits?

For many years OHS regulators have been concerned about the quality of advice that OHS experts have been providing to businesses in Australia. Some States have a regulated profession, others do not. Certainly there is no regime in Australia that compares to the “closed-shop” of Singapore.

I have seen no evidence of bad OHS advice to business. Looking through legal databases doesn’t help, as cases are too difficult to find and the regulators say they have evidence but they usually don’t share.

For over thirty years, OHS legislation has stated that OHS management in a workplace is, principally, the responsibility of the employer. This also means that an employer is responsible for any OHS decisions made based on their own assessments, which may involve advice from an external adviser.

As an OHS consultant I provide the best advice I can. If the client needs advice in an area that I am not knowledgeable in, I contract a suitably knowledgeable colleague as part of servicing my client. Any advice I provide is clearly specified as coming from the information provided by the client and my observations on the day. What decision the client makes is up to them. This point is made in the WorkSafe Victoria paper mentioned below. The paper says

“It is important to note that employing or engaging a suitably qualified person to provide OHS advice does not discharge the employer from their legal responsibilities to ensure health and safety as required under Part 3 of the OHS Act. This duty cannot be delegated”

This week WorkSafe Victoria released a position paper to clarify a section of the OHS Act. According to the website

“This document sets out WorkSafe’s position on the meaning of section 22(2)(b) in the context of duty holders meeting their obligations under Part 3 of the Occupational Health and Safety Act 2004 (OHS Act).

Part 3 (sections 21 to 23) of the OHS Act places duties on employers to ensure health and safety.

Section 22(2)(b) provides that employers must, so far as is reasonably practicable, employ or engage persons who are suitably qualified in relation to occupational health and safety to provide advice to the employer concerning the health and safety of employees of the employer.”

My belief is that OHS consultants should be called in, primarily, for a second opinion. This opinion is provided after the employer and worker representatives have “had a go” at identifying hazards. In my experience, businesses have a fair idea of the workplace hazards present but are not sure how to prioritise the controls of those hazards, and may be unaware of new control measures. This is where the OHS consultant comes in.

Few OHS professional associations in Australia provide their members with information on how to do your job, or how to apply your knowledge in a commercial context. Until recently few tertiary institutions provided this service and I would like to hear of those OHS courses that now do teach business practices to graduates.

(I remember attending a Ergonomics Society conference in Sydney almost ten years ago. It was the first time anyone had spoken on the issue of professional ethics to the ergonomists. I would be surprised if other Australian professional associations have progressed this far)

According to the position paper, these are the elements that they consider “may” make a suitable qualified person:

Knowledge

Industry experience

Professional activity

Reputation

Professional association

Communication skills

Technical expertise

OHS legislative understanding:

Risk management strategies

From that basis, below is my plain English checklist for businesses to assess their OHS advisers. Comments are in brackets:

Knowledge: Does the professional have an educational qualification that is relevant for your needs? (I have never been asked to show my education qualifications by a client. Also, having an educational qualification does not equate to competence, in itself, no matter what the education evangelists say)
Industry experience: Do they know what they are talking about? (This is impossible to verify unless they have worked in an industry for a long time in a prominent role. One could ask for references but the references are always friendly to the adviser)
Professional activity: Can the person demonstrate recent professional activity in the relevant OHS field? (Activity does not mean that the quality of that activity was any good. A snake-oil salesman could have been in business for a decade but they still sell snake oil. This is also relevant to the educational evangelists – academic papers in peer-reviewed journals do not indicate competence in advising companies on the best hazard control measures)
Reputation: Have they been any good in the past? (This can be indicated by googling their full name. I recently found an OHS adviser with a criminal record and jail time for “failing to act honestly as a director of various companies”. However, an internet campaign can be used to unfairly discredit someone. The best way of checking their reputation is the talk with the adviser’s professional association, should they be in one and should that association know what it’s on about.)
Professional association: Do they belong to a relevant professional association? (This is a good move but many associations allow advisers to buy membership without any verification of their competence? The flaw in this criterion is the validity of the association, its disciplinary procedures and its criteria for membership. Do not over-emphasise this criterion)
Communication skills: Can they read and write?
Technical expertise: Do they know how to use their tools properly?
OHS legislative understanding: Do they know there is an OHS law? Have they read it? Do they understand it?
Risk management strategies: Does their advice control the hazard or simply reduce its impact?

But then, this could all be tosh. Seek a second opinion.

Category: executives

Upcoming OHS Videos

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Analysis of First Report of the National Model OHS Law Review

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Leading from the top on impairment

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The insidiousness of “reasonably practicable”

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Mining fatalities and accountability

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National OHS Law Review – First Report released

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“Suitably qualified” OHS professionals – who benefits?

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