government – Page 253 – SafetyAtWorkBlog

Government report into plastics and chemicals

Australia’s Productivity Commission has released a report into the national regulation of plastics and chemicals. The supplementary report has additional topicality as it is released a week before the Review Panel into Model OHS Law presents its report to the government. The key points of the Productivity Commission report are

“The Productivity Commission has recently completed a research report on the regulation of chemicals and plastics in Australia. In most cases, national approaches to regulation were found to deliver significant benefits compared with each state and territory pursuing its own approach. This supplementary paper provides a more detailed examination of some of the features of these national arrangements.
National approaches to regulation should draw on the strengths of each level of government:
- Commonwealth, state and territory governments acting together through Ministerial Councils or other forums can provide leadership and policy frameworks for national issues.
- The Australian Government may be best placed to play a role in policy coordination, and to undertake national risk assessments.
- State and territory governments are often best placed to enforce regulations and respond to the needs of sub-national constituencies.
Improvements in national consistency can be achieved through a range of mechanisms, including through jurisdictions:
- adopting uniform regulations
- harmonising key elements of their regulatory frameworks
- mutually recognising other jurisdictions’ regulations.
In chemicals and plastics, the most common legislative mechanisms for achieving national consistency have been to use template or model legislation, regulations and codes of practice. The template and model approaches can be effective, but both have their weaknesses.
Because the process of developing and implementing nationally-consistent regulations can be costly and drawn out, reform should only be pursued where there are prospects of material net benefits.
In the past, the Commonwealth has provided incentives for state and territory governments to forgo some sovereignty so as to achieve the benefits of national consistency. This approach was effective in encouraging and enabling the reform process.”

The report recommends that national intergovernmental bodies set policy, the national government coordinates policy and the States enforce it.

The three mechanisms for consistency will be familiar to safety professionals and OHS advocates.

“adopting uniform regulations” – already being investigated through the national review panel
“harmonising key elements of their regulatory frameworks” – this was flagged almost two decades ago by the National OHS Commission and work in some industrial and regulatory areas has been completed on this
“mutually recognising other jurisdictions’ regulations” – the east coast states have already achieved this with some of their licencing. OHS regulators in New South Wales are already co-producing and co-badging OHS guidelines

Although the development and implementation of legislation should not be dictated to by economics, the review panel came about through a push to reduce red tape and business costs so it is unlikely that any suggestion that may increase cost to business will appear, particularly as the Prime Minister is reiterating the hard financial challenges we all face.

The risk in an approach where

“reform should only be pursued where there are prospects of material net benefits”

is that important long-term improvements can be ignored or, worse, dismissed.

The last point above seems to support the recent statements by the Minister for Workplace Relations, Julia Gillard, on achieving trade-offs, some would say pay-offs, at state level in order to achieve change through the intergovernmental consultative structures.

It is important to note that the Productivity Commission’s report is not about OHS but industrial regulation. The release of the Commission’s report is likely to be a coincidence but, for some sectors, it can be seen as preparatory for the OHS Law Review Panel’s final report.

Kevin Jones

Gillard’s plans for new OHS agency – response

It was predictable for the Opposition party to accuse Julia Gillard of arrogance for bypassing the Parliamentary process. Senator Eric Abetz wrote to the letters page of AFR on 21 January 2009, the text of the letter is below (although there were slight changes in the published version)

“It is highly arrogant and misleading for Workplace Relations Minister Julia Gillard to blame the so-called “intransigent” Senate and the Opposition for the delay in implementing harmonised OH&S laws (‘Gillard defies Senate on work safety”, 20th January 2009).

As the Shadow Minister who dealt with the issue in the Senate, I know that the facts of the matter are that what you might regard as an unlikely alliance of the Coalition, Family First, the Greens, Senator Xenophon, the ACCI and the ACTU (yes, even the ACTU) all agreed that the amendments proposed and passed by the Senate were necessary.

Unfortunately, our offer to meet with Ms Gillard to negotiate a way forward on this matter was rejected by a Minister who apparently thinks “it’s my way or the highway”. It is indicative of the disregard that the Rudd Government shows for the Parliament and the Senate is that it is now seeking to circumvent it on this important matter.”

The risk from the Gillard strategy is that once the process is completed the regulatory agency will forever be accused of being illegitimate, or a political ideological construct, having not undergone due process through Parliament. The Labor government needs to look beyond political expediency to construct a national OHS regulatory body of which noone can object.

Comment continues to be sought from the labour movement and opposition political parties.

Kevin Jones

Workplace health – international response

Rory O’Neil, editor of Hazards magazine has written in response the SafetyAtWorkBlog posting on workhealth initiatives. His response was posted on one of the many safety-related Internet discussion forums and was brought to my attention by Andrew Cutz and others.

WorkHealth initiatives – it’s about the workers, isn’t it?

The Victorian system is not garnering the necessary support because it is lifestyle focussed and has not answered concerns raised by unions, who want the programme to also address conditions caused or exacerbated by work. Business is annoyed because unions had the audacity to require that workers have a say in measures relating to their health (the poor little things are supposed to be passive recipients, apparently, taking the medicine and behaving like good little children). Below is my little news summary from 1 November.

There’s a rash of these lifestyle related interventions around the industrialised world. The EU is pushing fruit into some workers’ mouths, for example, as part of the ISAFRUIT project. However, two apples a day don’t make a worker as happy and healthy as a pay rise or some constructive participation in decisions about how work is organised, how satisfying that work might be and at what pace and for what reward. Or wage levels that allow healthy dietary choices for the whole family, at home and at work.

The lifestyle-focussed projects tend to be couched in language about making the worker healthier but are frequently more concerned with reducing sickness absence costs and winnowing out all but the superdrones that can work long hours in bad jobs without complaint. If employers cared so much, sickness absence procedures would not include punitive elements and health and safety whistleblowers wouldn’t be an endangered species. The unionisation campaign at Smithfield is a pretty clear case in point – bad jobs, bad pay, runaway strains and injuries and victimisation for those would stood up against it.

I’ve nothing against been given free fruit, free gym membership or anything free for that. But the time to use the gym, eat the fruit and have a life both inside and outside work that is meaningful and fulfilling might make it easier to swallow. This issue is about good jobs, with good conditions of employment and good remuneration. If workplace health policy ignores these factors, then it is an irresponsible diversion.

This is my latest measured contribution on the issue:

You big fat liars [Hazards 104, October-December 2008]
Oh, they say it’s because they care. They’ll weigh us, keep tabs on our bad habits and ask questions when we are sick. And when we fall short of perfection, they label us shirkers, sickos and slobs. Hazards editor Rory O’Neill questions whether all this attention from employers is really for our own good. more
More on this theme: www.hazards.org/workandhealth

If ACOEM is developing policy, then it should consider how work factors dominate our working days and frames the comfort and health of our working lives and beyond. That means integrating better work into any health model and making sure workers are allowed to participate fully in – and influence the design and operation of – any workplace health system.

Rory also points to the Trade Unions Congress posting that quotes the Victorian union response to the WorkHealth program and says this about the major employer group’s position:

The employers’ group, meanwhile, is adamant it will not accept the changes under any circumstances. David Gregory, the head of workplace relations at the Victorian Employers Chamber of Commerce and Industry, said it amounted to making the programme an ‘industrial weapon.’

Workplace health initiatives in unstable economic times

All through the Presidency of George W Bush, safety professionals have been critical of the lack of action on workplace safety. As with many issues related to a new Democrat President in Barack Obama, organisations are beginning to publish their wishlists. The latest is the American College of Occupational and Environmental Medicine (ACOEM).

On 9 January 2009, ACOEM released a media statement which began

“American College of Occupational and Environmental Medicine (ACOEM) calls on the Health and Human Services Secretary-designee Tom Daschle to address the critical link between the health, safety, and productivity of America’s workers and the long-term stability of its health care system and economy as he begins work on the Obama administration’s health care agenda.”

The requested changes could be interpreted as a criticism of what the situation has been under George W Bush. ACOEM says the next government

“must put a greater emphasis on ensuring the health of the workforce in order to meet the twin challenges of an aging population and the rise of chronic disease…”

ACOEM President Robert R. Orford, MD goes into specifics

“…calling on Daschle to focus on preventive health measures aimed at workers that could range from screening and early detection programs to health education, nutritional support, and immunizations.”

The ACOEM reform program is based on the following

“investing in preventive health programs for workers;
creating new linkages between the workplace, homes and communities to reinforce good health;
providing financial incentives to promote preventive health behaviors among workers; and
taking steps to ensure that more health professionals are trained in preventive health strategies that can be applied in the workplace.”

Accepting that one Australian State, Victoria, is considerably smaller than the US (Victoria has a population of around 5,200,000, the US had 301,621,157 in 2007), it is interesting to remember what the Victorian Government proposed (or promised) just on 12 months ago concerning its WorkHealth initiative.

“Over time the program is expected to free up $60 million per year in health costs, as well as:

Cut the proportion of workers at risk of developing chronic disease by 10 per cent;

Cut workplace injuries and disease by 5 per cent, putting downward pressure on premiums;

Cut absenteeism by 10 per cent; and

Boost productivity by $44 million a year.”

[It would be of little real benefit to simply multiple the Victorian commitments by the differential with the US population to compare monetary commitments, as there are too many variable but if the WorkHealth productivity was imposed on the US, there could be a $2.6 billion, not a lot considering the size of President Bush’s bailouts and Barack Obama’s mooted bailout package. However, in the current economic climate, in order to gain serious attention, any proposal should have costs estimated up front and, ideally, show how the initiative will have minimal impact on government tax revenues – an approach that would require.]

In each circumstance there is the logic that unhealthy people are less productive than healthy people. This sounds right but it depends very much on the type of work tasks being undertaken. It is an accepted fact [red flag for contrary comments. ED] that modern workloads are considerably more supported by technology than in previous labour-intensive decades. Perhaps there are better productivity gains through (further) increased automation than trying to reverse entrenched cultural activity.

In late 2008 an OHS expert said to a group of Australian safety professionals in late-2008 that WorkHealth

“is not well-supported by the stakeholders. The trade unions feel it is a diversion away from regulated compliance and that it is going to refocus the agenda on the health of the worker and the fitness of the worker as the primary agenda, which is not what the [OHS] Act is setup to focus on. The employers are basically unkeen to get involved on issues they think are outside their control.”

The expert supported the position of some in the trade union movement that WorkHealth was always a political enthusiasm, some may say folly.

This is going to be of great importance in Australia with the possibility of new OHS legislation to apply nationally but also muddies the strategic planning of any new government that needs to show that it is an active and effective agent of change, as Obama is starting to do. In the US, the public health system is not a paragon and the workplace safety regulatory system is variable, to be polite. Fixing the public health system would seem to have the greater social benefit in the long term, and a general productivity benefit.

(It has to be admitted that the packaging of health care in employment contracts in the US is attractive employment benefit and one that seems to be vital to those who have it. Australia does not have that workplace entitlement but those employers struggling to become employers-of-choice should serious consider it, particularly as a work/family benefit.)

Each country is trying to reduce the social security cost burden on government and it would seem that public health initiatives would have the broader application as it covers the whole population and not just employees, or just those employees who are unfit.

Work health proposals in both jurisdictions need to re-examine their focuses and to pitch to their strengths. Business has enough to worry about trying to claw its way out of recession (even if the US government is throwing buckets of money to reduce the incline from the pit). OHS professionals have enough work trying to cope with the traditional hazards and recent, more-challenging, psychosocial hazards. Workplace health advocates are muddying the funding pool, confusing government strategic policy aims, and blending competing or complementary approaches to individual health and safety in the public’s mind.

Kevin Jones

Update 16 January 2009

More information on this issue is available HERE

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

Safety challenges for English pantomime

Today, the UK Daily Mail published an example of the mish-mash of safety management problems that are confusing the public about what an OHS professional does.

An amateur Christmas pantomime is confused by the plethora of safetyand health obligations being placed on them by, it is assumed, a variety of regulators. Let me speculate on what may be behind some of the issues.

“scenery is free from sharp edges” – a good set designer, even an amateur one, should already have this aim as part of their skills. Backstage in theatrical productions is notoriously dark and often full of people, round the edges of scenery is not an unreasonable expectation.

The theatre company chairman says that the facility is not the best.

“Mr Smith, 59, a training manager, also claims that Brierley Hill Civic Hall’s backstage facilities are ‘poorer than Cinderella’s kitchen’ making it all the more difficult to meet the health and safety requirements.”

Ice cream and milk temperature is a matter of food safety. These can easily be managed by the facility manager providing suitable refrigeration. If the facility is a regular venue for theatrical productions it is not unreasonable to expect the venue to be fit-for-purpose. Graeme Smith says that the company has already solved the issue to some degree:

“The 100-strong am-dram group, which was first formed 60 years ago, has also bought a freezer because it does not trust the reliability of the venue’s, Mr Smith said”

Clearly, Mr Smith has as many problems with the venue as he does with the safety needs of his production.

Climbing a beanstalk with a harness – many theatrical productions have incorporated harness into aerial effects or revised their sets and direction to depict climbing without physically climbing 30 feet. This is a pantomime and it involves acting so act like you’re climbing a beanstalk.

Chaperoning children – mothers of stage children have been doing this for years. The nature of backstage may require supervision of children to reduce the hazards of dozens of excited children causing problems and creating hazards for other stage workers. Depending on the layout of the facility the dressing rooms may some way from the stage, perhaps through public areas, and supervision is not an unreasonable expectation.

“do not enter the props storage area” – all workplaces have areas that restrict unauthorised access for good reason. Supervision may be the best available control measure for the circumstances. The article refers to pyrotechnics. If these were to be used in this production and the pyrotechnics were stored in the props area, entry restriction would be more than reasonable.

“inform the audience before the performance if pyrotechnics are to be used.” It is peculiar that the audience is informed as pyrotechnics should be configured to operate with no risk to audience, actors, or stage staff. If the reason for this advice is fire safety, then this relates again to the suitability of the facility itself, to fireproofing, fire exits etc. Given the fires that have resulted from unsafe use indoors of pyrotechnics over the last few years, increased warnings seems appropriate.

I am not sure about the need to identify curtain users but the need to prevent people falling into the orchestra pit is obvious. It is implied that this would only occur outside of productions and rehearsals and, in that case, this would be the responsibility of the facility manager. Boarding up the pit may be an excessive control measure and alternative barriers may be appropriate. Again this also relates to the initial design of the facility.

There are enough hints in the article to show that the suitability of the Brierley Hill Civic Centre for theatrical productions needs to be reviewed. Many of the theatre company problems seem to be to accommodate design and layout deficiencies.

The Australian theatrical union issued safety guidelines for live theatre productions in 1999

The HSE and the Association of British Theatre Technicians has safety guidelines on pyrotechnics and a range of other publications related to theatrical productions.

Clearly there is no “idiot’s guide to amateur productions” but there may be a need for such a publication. The experience of the Brierley Hill Musical Theatre Company shows how one small event can be bombarded by attacks from all sides when all the company wants to do is put on a pantomime. Theatrical productions have always been big management challenges and health and safety has always been part of this process.

It was a fantasy sixty years ago when Judy Garland and Mickey Rooney could put an elaborate stage show together overnight in the movies. It remains a fantasy.

Kevin Jones

“Illegal” asbestos use in the Australian Navy

The defence forces operate with a different understanding of risk and safety. In the past there are many instances where soldiers lives have purposely been sacrificed for the greater good. This has been an integral part of many “heroic” battles.

The Australian federal OHS authority, Comcare, is at the forefront of a clash between occupational safety and armed services culture. The Age newspaper has revealed the Australian navy’s continued use of chrysotile asbestos in its ship and navy bases years after the substance was banned for use. The newspaper says that a risk assessment report has found

..”the risk to personnel was significant, exposure to asbestos was almost certain and the consequences were “potentially catastrophic”.”

OHS standard practice is to identify the control of hazards in line with the Hierarchy of Controls which seems to have been done as the newspaper reports

“A ban on the use of and import of asbestos-containing materials in Australia came into force on January 1, 2004. But the ADF [Australian Defence Force] requested and won an exemption [page 5 of the SRCC 2005-06 Annual Report] to continue using chrysotile asbestos parts until 2007 on two strict provisos: that the parts were “mission-critical” – meaning their absence would ground equipment and jeopardise a mission – and that no non-asbestos replacement parts could be found.”

So the hazard can’t be eliminated or substitutes found. That’s the first two levels of the hierarchy down. The report goes on to assert that the (in)action of the Navy could be illegal and says the exemptions were renewed for another three years (page 81 of the SRCC Annual Report 2007-08)

The remaining levels of the control hierarchy are not addressed in recent media reports or documents available through Comcare’s website but the continuing cases of asbestos-related diseases reported by the lobby groups would indicate that personal protective equipment may not have been used or used appropriately.

Most organisations are aware of the hazard of asbestos if not how the hazard relates to the specific circumstances. The Navy cannot claim this as it has specifically claimed exemptions for the hazard.

The current Defence Minister, Joel Fitzgibbon, took action on the defence force’s use of asbestos products almost 12 month’s ago and even though it was reported that he gave the Defence chiefs a “dressing down” over the issue, circumstances seem not to have improved.

“But Defence Minister Joel Fitzgibbon, who first accused the Defence Force of lethargy in its efforts to remove asbestos in 2007, when he was in opposition, said despite the massive cost of ridding the ADF of asbestos, its continued use was unacceptable.”

For those who habitually argue that worker safety is not affordable, the Minister’s quote above shows commitment. Sadly it is these types of comments that can come back and haunt politicians.

It is suspected that the Minister or the Navy is receiving letters about non-asbestos gaskets from keen equipment suppliers as you read this blog. But that raises the problem of the labyrinthine issues of defence equipment procurement. Perhaps the fact that anti-asbestos campaigner and former trade union leader, Greg Combet, is now the Parliamentary Secretary for Defence Procurement may fast-track the issue. It is hoped that on the issue of asbestos in the defence forces, Greg speaks up soon.

Kevin Jones

Category: government

Government report into plastics and chemicals

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Gillard’s plans for new OHS agency – response

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Workplace health – international response

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Workplace health initiatives in unstable economic times

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Analysis of First Report of the National Model OHS Law Review

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Safety challenges for English pantomime

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“Illegal” asbestos use in the Australian Navy

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