Barry Sherriff talks about the Work Health and Safety Act

Boardroom Radio often has interesting speakers on topical issues.  On 11 December 2009,  they interviewed Barry Sherriff who recently joined the Australian law firm, Deacons.  The interview is of general interest and reflects many of the issues raised by Australian labour lawyers elsewhere.

Barry is an OHS law expert and was a member of the panel that reviewed Australia’s OHS legislation in 2008/09 in order to steer the development of  a model OHS law.  That process was completed in mid-2009 and the Government took on most of the recommendations.  Effectively the Government started a second separate process – the development of legislation based on a range of information, advice and public submissions.

Many recent submissions to the Government in this second phase harked back to earlier findings.  Many issues raised in the Model OHS Act Review, such as the issue of “suitably qualified” OHS advisers, are dead.  As Barry’s interview shows, contemporary thinking provides forward momentum and it is up to all of us to keep our state of OHS knowledge current.

Kevin Jones

Unique company response to confined space penalty

In 2007, according to the ABC news site,

“42-year-old Geoffrey Johnson [died after he] inhaled toxic fumes from paint stripper when he was cleaning the inside of a large chemical tank”.

On 16 December 2009, his employer, Depot Vic P/L, was fined half a million dollars over this breach of the OHS legislation.

Initial reports say that the company is no longer in business but it

“told the court is had put aside money to pay the fine.”

Wow.  What happened to phoenix companies?  – the business scourge that closes down to avoid paying outstanding debts and, often the costs associated with a worker’s death, and then starts up again under a different structure.

That a company will pay a fine for an OHS breach years after ceasing business seems a remarkable and admirable act.

Hyde Park Tank Depot’s assets were purchased by the Scott Corporation several months after Mr Johnson’s death, according to information SafetyAtWorkBlog obtained from Scott Corporation.  The current business and website listing was not operating at the time of Mr Johnson’s death.

WorkSafe Victoria provided background to Mr Johnson’s death in a prosecution summary in April 2009.  The full summary gives a clear indication why the fine was so high.

“Depot Vic Pty Limited (formerly known as Hyde Park Tank Depot Pty Ltd) undertakes cleaning, repair and maintenance of ISO containers for the chemical industry.  ISO containers are confined spaces, being portable tanks used to transport chemicals.  The tanks are usually cleaned purely by hydro-blasting, but on occasion the tanks were required to be cleaned more thoroughly.

The system of work was such that when this situation occurred, the cleaning of the tank required 2 stages. The first stage involved the application of a cleaning agent, usually a product known as ‘Selleys Renovators Choice’ stripper (which is not a dangerous good).

The second stage then involved the use of hydro-blasting on the internal walls to remove the stripper and clean the wall.  The company’s work instructions required that a confined space permit be issued and that appropriate PPE be worn.

On 16 August 2007, an employee of Depot Vic Pty Limited died whilst attempting to remove latex from the internal walls of a 25,500 litre ISO tank.  The deceased had entered the tank and instead of using the ‘Selleys Renovators Choice’ stripper, had used a product known as ‘Paint Stripper Gel GS 125’ that was suited to clean external components only (and not the inside of the tank).  The label of this product contained safety directions such as “do not breathe vapour” and “use only in a well ventilated area”.  This product is a dangerous good ‘class 6.1 (toxic substance) of packing group 111’.  It is also a hazardous substance according to the criteria of the Australian Safety and Compensation Council.

The deceased was located in the tank in an unconcious (sic) state, and when retrieved from the tank did not regain conciousness. An expert analysis of the atmosphere inside the tank concluded that that (sic) there was a lethal concentration in all or part of the tank (10 litres of the dangerous good was used).  At the time of the incident a confined space permit was not issued, the deceased was not wearing respiratory protection, gloves or a harness, and there was no ‘spotter’ in place to supervise the latex removal works.

Further, there was a lack of training and supervision of employees in relation to the work procedures for confined space entry.”

Kevin Jones

Director accountability for OHS reinforced by NZ penalty

On April 5 2008, a cool store in New Zealand exploded killing one firefighter and injuring 7 others.  Icepak Coolstore Ltd, according to the fire services investigation report

“[had] very large quantities of combustible material contained in the expanded polystyrene construction panels and also in the foodstuffs stored.

“There were no compliant fire detection or protection systems or hydrants, and very limited firefighting water.”

In July 2008, the New Zealand Department of Labour (DoL) issued a media statement and fact sheet concerning the explosive potential of flammable hydrocarbon refrigerants.

Language warning on the video below

On 15 December 2009, a New Zealand Court penalised two companies and a director with fines totalling over $NZ390,000.  The DoL has issued a media statement about the prosecution results.

The many reports and inquiries into the explosion and fire are very informative but one element that the DoL wants to focus on is the penalty applied to the Director of Icepak Coolstore, Wayne Grattan.  He was

“fined $30,000 on one charge that he acquiesced in the failure of the company to take all practicable steps to ensure the safety of its employees while at work.”

The Department of Labour’s Chief Adviser for Workplace Health and Safety, Dr Geraint Emrys said (click HERE for audio):

“The prosecution against the director of Icepak should serve as a reminder to officers, agents and directors of organisations that they can be held personally accountable for the failures of their organisation.

“Mr Grattan was charged with acquiescing in Icepak’s failure in respect of obligations to its employees.  The outcome of the case against Mr Grattan reinforces the requirements of directors to be proactive in health and safety matters.”

As many Commonwealth countries have a strong commonality of law, the Icepak Coolstore case should be an important case study in many jurisdictions.

Kevin Jones

OHS debate is over, says Deputy PM

Deputy Prime minister and Workplace Relations Minister, Julia Gillard, has told the Australian Financial Review (only available online to subscribers) that the OHS law changes were finalised at the recent Workplace Relations Ministers’ Council.

Gillard again rejected the trade union movement’s concerns about weakened worker protection.  The Minister emphasised that substantial economic benefits would flow to business as a result of increased administrative efficiencies.

However, the likelihood of a nationally harmonised OHS system seems as far away as ever with the West Australian Government continuing to refuse to apply the new laws which it sees as too friendly to the unions.

Significantly, the Australian Government has backed down from its earlier threat to penalise any governments that do not support the changes.  This lets the WA Liberal Government off the hook and provides the New South Wales Liberal Party with an easy platform option for the 2010 State election.

The conservative forces in Australia can take heart but Minister Gillard’s position has the union movement facing difficult decisions.  It has strongly funded a campaign against elements of the OHS laws and branded the laws as “second-rate safety”.  It now needs to decide whether to give up the campaign totally as a lost cause or to pare it back so that, over time, the campaign fades away, as did the industrial manslaughter campaign of around five years ago.

The ACTU has expressed disappointment but must have realised, privately at least, that some union powers, considered to be extreme by business and industry groups and over which the business complaints have been load and long, were going to be sacrificed in any harmonisation process.

Former Prime Minister and ACTU President Bob Hawke achieved many industrial relations reforms in the early 1980’s by pushing “consensus”.  This negotiation process had strong similarities to the current OHS harmonisation however big C Consensus is now rarely spoken by the Australian trade union movement.  One of the few contemporary outings was when current ACTU Secretary Jeff Lawrence, who expressed the disappointment above, speaking about industrial relations said on 14 June 2007:

“I’m tough enough but I’m also a person who likes to work by consensus”.

To operate constructively at the big tripartite table of OHS, the unions will need to accept a defeat and gain whatever they can from the new rules.  This is doubly important in the lead-up to the planned harmonisation of workers compensation.  Australia will see some fiery union rhetoric when harmonisation threatens to reduce the income and entitlements of workers who are already injured.

Kevin Jones

“Suitably qualified” looks dead

In many submissions to the Australian Government’s development of a Model OHS Act, there was a request, sometimes passionately made, for the inclusion of a legislative provision for “suitably qualified” OHS advisers.

This week’s Communique from the Australian, State, Territory And New Zealand Workplace Relations Ministers’ Council (WRMC) included no mention of “suitably qualified”.  So where does this leave the safety professionals?  What is the future of the WorkSafe-promoted Health & Safety Professionals Association?

For those safety professionals who wish to pursue the “suitably qualified” matter below is a list of the members and attendees of the latest WRMC meeting  (taken from the Communique) for you to follow-up.  However, it may be quicker to accept the reality and plan for professional credibility with the legislative crutch.

Kevin Jones

Apologies:

Accident Comp changes put to Victorian Parliament

According to the WorkSafe Victoria website, changes to the Accident Compensation Act were introduced to the Victorian Parliament on 10 December 2009.

WorkSafe is very confident that the changes will be passed.  The summary only talks about “when” the bill is passed.  There is every likelihood it will be passed but the summary has a tinge of arrogance to it.

A summary of the proposed changes is available online.

It all sounds positive and most of it seems about financial improvements.  There are always concerns when a government move from prescriptive- to performance-based practices.  The summary describes the Return-To-Work benefit:

“Prescriptive return to work requirements will be reframed as performance based duties to improve flexibility.”

Usually this sort of change is a red flag for rorts and abuse.

The summary does say that enforcement activities will be increased:

“The Return to Work Inspectorate will have a wider range of tools to improve the effectiveness of compliance activities in relation to return to work obligations, maintaining a fair and consistent application of the law.”

However with the government’s recent spate of administrative mistakes, sloppiness and oversights exposed through the Auditor-General’s reports, accountability in this important area will need to be carefully watched.

The Minister for Workcover, Tim Holding‘s speech to the Bill’s second reading concluded (according to the draft Hansard):

“This bill providers (sic) fairer and better benefits to injured workers and their dependents, recognises that getting injured workers back to work is a central pillar of the scheme, and provides greater transparency for employers in their interactions with the scheme.  The benefit enhancements in this bill are financially responsible, affordable, and consolidate Victoria’s position as the leader in workers compensation in Australia.”

Kevin Jones

“Best Practice…First Aid”? – not sure

First aid is one of the most neglected areas of workplace health and safety but, when required , vital.  The neglect comes from it rarely being integrated into the safety management system and on relying of the advice from first aid training and equipment suppliers.  “Why shouldn’t it be relied on?  They’re the experts.”

In a previous career I worked for a first aid equipment and training provider in various roles.  A major task was to visit workplaces and assist them in determining their first aid needs.  Over the years that I undertook this role I came to the general conclusion that first aid kits were almost always over stocked in comparison to what was needed. (Assessing the first aid needs of 28 McDonalds restaurants in 2 days was fun, at first)

In relation to first training, most companies had insufficient first aiders and those they had were trained fair beyond the needs of their workplaces.

Granted most of these workplaces were not high risk organisations or in isolated locations,  mostly they were in urbanised areas.  But it was also this fact that generated most of the oversupply of equipment.

I was reminded of my many years in that role in the 1990s when SafeWork SA announced the release of its “Approved Code of Practice for First Aid”. (The Code will be available on the SafeWork SA website in a couple of days, and I will review it then)  This Code comes into effect on 10 December 2010 which means a busy 12 months for most South Australian OHS professionals.

According to SafeWork SA’s media statement, the new Code:

  • provides a more contemporary and best-practice approach to first aid
  • gives workplaces more flexibility to tailor their first aid arrangements to suit their type of business
  • better aligns South Australia with provisions interstate.

SafeWork SA’s Executive Director, Michele Patterson, says

“An extensive two-year consultation by SafeWork SA revealed that existing workplace first aid kits were often too big, not relevant to the individual workplace needs, and resulted in considerable wastage……”Under the new Code, first aid kits can be smaller, will cover more types of injuries and should reduce wastage.”

The capacity for tailoring first aid kits to the needs of the workplace has been allowed in Victoria for almost twenty years.  New packaging and configurations were designed by suppliers,  – cloth pouches, wall-mounted plastic boxes, back packs…   But the contents and packaging was determined in relation to the manufacturers costs, more than the needs of the client.

Here is my first aid kit.  A pair of disposable gloves, a disposable resuscitation faceshield, a ziplock bag to keep them in and a mobile phone.  Everything else should be determined by need.

If you don’t remember that first aid is “emergency medical treatment”, you will be ripped off by equipment providers.

Of course it is possible to provide first aid without even this amount of equipment.  The above package is purely personal protective equipment to stop infectious liquid passing between the injured and the first aider.  There are plenty of cases of people who have no access to this PPE still saving lives.

Patterson says that a benefit of the Code is that it brings South Australia’s first aid training levels up to the standards of the other States.  This is relevant for some workplaces but most will wait to see what the national OHS harmonisation process produces and then apply that.

But Patterson says something that holds more wisdom than she expected.

“The more people trained in basic first aid who may be able to keep a person alive until an ambulance arrives – the safer both our workplace and communities will be.”

Here is the core of first aid.  The skills are basic, usually stop the bleeding and keep someone breathing.  I used to refer to this as “plug them and puff them”.  If a first aider achieves these two aims on an injured person until an ambulance arrives, they are fulfilling their tasks.

The other vital element is “until an ambulance arrives”.  Most workplaces are in urbanised locations with good emergency response.  Victoria has a targeted ambulance response time of around 15 minutes and over the last couple of decades the ambulance service has been supplemented by emergency medical services from the fire brigade.

Too many workplace first aid courses teach people how to immobilise a broken leg.  In most circumstances, a broken leg will be treated by ambulance officers.  Only yesterday a high school student attending an end-of-school function broke their nose.  The supervising teacher did the correct action and called an ambulance.  I am sure the boy’s parents also supported the decision.

Companies may consider the skills gained from a five-day first aid training course to be worthwhile for those employees who have children or bushwalk but in relation to workplace first aid, they were overtrained.  First aid courses have been trimmed from the standard workplace first aid course of fifteen years ago but as long as one signs up to an off-the-shelf training course, there will be training elements that are not required.

The last nugget of wisdom from Michele Patterson’s statement above is that the more people trained the better.  Imagine if everyone on one office floor were training in basic first aid.  There would always be a first aider present in the workplace, regardless of the hours of work.  No juggling of this level first aider and that level, or training additional people to cover the absences of the designated first aiders.  The emergency first aid response would the fastest possible and therefore the survival rate would be the best achievable.

Teach everyone in the workplace to “plug them and puff them” and you will be looking after your own health too.  For if you keel over and stop breathing, you will have at least one first aider at your side within a minute.  More likely you’ll have more than one and two-person CPR is very effective.  In this circumstance “reasonably practicable” may increase the level of first aid response rather than diminish OHS standards as it usually does.

It is also worth considering what provides the best first aid coverage in your workplace one first aider trained to a high level (who may be away on the day they’re most needed) or five first aiders trained only in CPR.  The cost would be about the same but which scenario provides the better emergency response and which scenario is more likely to provide compliance.

Kevin Jones

UPDATE – 11 December 2009

SafeWorkSA has identified the August 2009 First Aid Code of Practice on its website as the version which will apply from 10 December 2010.

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