government – Page 266 – SafetyAtWorkBlog

Federal IR Minister speaks on OHS laws

Julia Gillard, Deputy Prime Minister and Minister for Workplace Relations, received a dorothy-dix question on 16 October 2008 (pages 52-53) concerning OHS harmonisation and the creation of SafeWork Australia. Sadly, the good points the Minister made were overshadowed by political point-scoring at the Opposition Leader, Malcolm Turnbull. It is still early days for the Labor Government in Parliament and Minister Gillard is one of the top parliamentary performers. It is disappointing she did not use her full six minutes to give the issue the prominence it deserved or needed.

The nuggets of information she provided, prior to party politics interfering, were

harmonisation will help “39,000 businesses that operate across state boundaries”;
“300 Australians are killed at work each year”;
“over 140,000 Australians are injured at work each year”;
these deaths and injuries are “costing the economy $34 billion” (presumably) each year.

The report of the inquiry into model OHS laws is due to release its interim report in October 2008 with the final report being presented to government in late-January or early-February 2009.

Insurance for OHS penalties

OHS law is generally structured in a positive way and based on the logic that people will act appropriately if there is a deterrent for doing the wrong thing. This logic applies to many levels of public administration, commerce and psychology.

Some years ago, this logic was challenged during some consultation I undertook for a prison workshop. It was necessary to assess the guarding of a machine not just for the “accidental” injuries but for malicious and purposeful injuries. This established a lower common denominator than in the majority of workplaces.

In this work environment to some inmates, the penalty for harming oneself and others was worth the risk. It did not deter everyone.

Recently, an allegation has come to the attention of SafetyAtWorkBlog that a company providing OHS compliance advice to small businesses in Australia is also offering insurance coverage for OHS penalties. Should a business proprietor be financially penalized by the OHS regulator for a breach of the legislation, the business proprietor would pay an excess of around $2000 and the (unnamed) insurance company would pay the balance.

Such a service places a $2,000 cap on OHS penalties and would remove a major reason behind penalties for unsafe practices and workplaces.

This is of concern to OHS professionals as we “trade” on the importance of OHS having a strong business case as well as a social benefit.

SafetyAtWorkBlog would be interested to hear from anyone who may have come across such insurance options elsewhere or have an opinion on such an option.

Australian Greens Senator speaks on OHS legislation

Senator Rachel Siewert spoke on Australia’s review of OHS law on 13 October 2008.The Senator summarised the statistical reason for OHS legislation (included here as statistics is a popular issue at SafetyAtWorkBlog), as well as the societal context.

Australian Greens Senator for Western Australia Rachel Siewert

“The importance of occupational health and safety is obvious from looking at even just a few key statistics. In 2004 Access Economics estimated that there were 4,900 work related deaths each year in Australia. The ABS calculated that 690,000 employees suffered from a work related injury or illness in 2006. The Productivity Commission found that, in 2004, workplace deaths, injuries and illnesses cost the economy over $30 billion a year. These figures go to the economic and, importantly, the personal and social costs of workplace injuries and deaths. Behind each of those numbers is a person with a family, workmates, friends and a community.”

Senator Siewert reiterates the timetable for the initial report of the National Review into Model Occupational Health and Safety Laws is due by the end of this month but also identified a plethora of inquiries, agreements and discussions that will also inform the Australian government’s ultimate decision on OHS law. She supports the concept of tripartism:

“We believe that building on best practice in OH&S in this country and around the world is to implement genuine tripartism and independence. On these criteria, this legislation is too skewed in favour of governments and to the detriment of other key stakeholders in OH&S regulation-that is, employees and employers. [The Robens report in the 1970s]. It went on to recommend that statutory recognition of joint consultative practices-including government, employees and employers-need to underpin the new approach.”

But also makes the pitch for broader representation:

“If you agree with this approach-and all of Australia’s OH&S laws are based on this concept-then you also have to acknowledge the importance of genuine participation of employers and employees through a representative structure. The NOHS Commission did recognise this and was established as a statutory corporation with a membership structure incorporating employee and employer representatives. Its functions included formulating policies and strategies relating to OH&S matters, reviewing and making recommendations for the making of laws relating to OH&S matters, researching OH&S matters and conducting inquiries into OH&S matters.”

My recollection of NOHSC was that representation remained the domain of employer associations, trade unions and the government. Independent OHS specialist were few and far between. Given the dreadfully poor rate of union membership in Australia, it would have been more progressive for the Senator to nominate independent OHS specialists and to propose a 25% ratio of represntation for each of the representative groups so that (hopefully) apolitical opinion could be provided on a subject that should be apolitical. (And I still think an OHS Ombudsman is a practical and useful concept.)

In 2004, in its report into national workers compensation and occupational health and safety frameworks, the Productivity Commission made a number of recommendations relevant to the National Occupational Health and Safety Commission, including having a specific objective of achieving national uniform OH&S regulation and joint funding from the states. We note that this bill does implement these recommendations. The Howard government, however, instead of implementing those recommendations, once it got its chance by taking control of the Senate, abolished the commission. Prior to being able to abolish the commission, the previous government had already reduced its funding significantly. Between 1996 and 2005 the then government slashed the budget by over $4 million. We believe OH&S was never much of a priority for the Howard government.

The Senator places the proposed Safe Work Australia authority in a particularly awkward position:

“Safe Work Australia fits somewhere in the middle of the NOHSC and the ASCC. It continues the practice of being tripartite-although inexplicably downgrading the representation of employee and employer representatives-and, while more independent of government than the ASCC, is significantly less independent than the NOHSC.”

Other Greens’ concerns are:

reduced representation
vague definitions on ‘authorising body” or those associations who become represnetatives
excessive and unnecessary ministerial control, including veto
two-thirds majority decisions
insufficient funding for research

It would be interesting to hear the thoughts of other minor parties although the position of Family First may change in line with varying economic situations.

Varanus Island Report released

On 10 October 2008, the Western Australian Mines and Petroleum Minister, Norman Moore, released the final report into the Varanus Island pipeline explosion. Sadly due to legislative restrictions the report is not being made available in an electronic edition accessible through the internet. However, hard copies can be requested from the government.

Recent media statements indicate that “the immediate physical cause of the gas explosion at the island’s gas production facility operated by Apache Energy Ltd was the rupture of the 12-inch gas sales pipeline.”

Some media reports mention the dreaded n-word – negligence. Apache Energy has stated that investigations into the

Varanus Island explosion were premature and based on an incomplete investigation

Contrary to most incident investigation techniques known to SafetyAtWorkBlog, Apache Energy says that it will continue to investigate in order to determine the “root cause”.

Since the incident, there has been a change to a conservative State government so the statements contain a political edge. The current Minister says that the terms of reference were too narrow and did not allow for investigation into “regulatory oversight” however deficiencies in this area were illustrated through media reports in the weeks following the incident.

The Minister has not ruled out ordering a “a full and independent investigation into this issue… at a later date” but I suspect only if there were political benefits rather than safety benefits. There are a considerable number of voices supporting a broader inquiry from unions and industry groups

The report is said to identify the following three contributing factors:

ineffective anti-corrosion coating at the beach crossing section of a 12-inch sales gas pipeline, due to damage and/or dis-bondment from the pipeline;

ineffective cathodic protection of the wet-dry transition zone of the beach crossing section of a 12-inch sales gas pipeline on Varanus Island; and

ineffective inspection and monitoring by Apache Energy of the beach crossing and shallow water section of the pipeline.

Mr Moore stated that

“Under the safety case regime, the operator is required to identify hazards and assess risks to health and safety and to implement control measures to reduce those risks. The ongoing inspection, monitoring and maintenance of control measures are associated with those risks and the management regime. The report has indicated that Apache and its co-licensees may have committed offences under two pipeline Acts.”

A Senate inquiry is looking into the economic impact of the Western Australian gas crisis and the State Government’s response to the incident.

Is technology the solution to everything?

Today, I received a media statement by the Acting Chairman of the National Transportation Safety Board (NTSB), Mark V. Rosenker. He said that new technologies have the potential to substantially reduce rail incidents. Rosenker is quoted as saying

“Just think how far computer and GPS technology has developed in the past 10 years.”

He urged the delegates at the International Railroad Safety Conference in Denver, Colorado on 6 October 2008 to

“… be forward thinking. Work closely with the highway industry to develop useful, intelligent transportation safety systems that can prevent accidents at grade crossings.”

In mid-September 2008, the a Metrolink commuter train and a Union Pacific freight train collided in Chatsworth, California, killing 25 people. The engineer of the Metrolink train was using new technology – he was texting on his mobile phone instead of paying attention.

I can’t see how the new technologies that Mark Rosenker discusses:

electronically controlled pneumatic (ECP) braking, acoustic bearing detectors, wheel impact detectors, … truck performance detectors [and] intelligent transportation systems (ITS)…”

would have stopped the deaths of 25 people in Chatsworth?

I realise that the NTSB investigation into the Chatsworth collision has a way to go but I will be listening for some non-technological control measures to be proposed as well. The NTSB is going to need to keep up its “qualification, training and oversight of employees” that it has implemented in the last decade or so becasue clearly in the case of the Metrolink engineer, Robert Sanchez, these techniques failed.

Corporate accountability – Lessons from Lehmans

Yesterday,the CEO of Lehman Brothers, Richard Fuld Jr, faced an inquisition at the House Oversight and Government Reform Committee. It was uncomfortable to watch but fascinating.

Video of the hearings shows the questions focused on Fuld’s accumulation of wealth in the good times and the retention of wealth in the bad times. There are parallels with the non-financial accountability of corporate leaders on matters such as workplace safety and corporate social responsibility.

The chair of the committee, Henry Waxman, spoke of company documents that

“portray a company in which there was no accountability for failure”.

Waxman said he was troubled by the attitude of Fuld where Fuld would not acknowledge any wrongdoing. Fuld did accept responsibility for the failure of the company but would not accept that his behaviour or the behaviour of the company he lead, contributed to the failure. In other words, Fuld would not accept that his company had a culture that may have contributed to the bankruptcy.

There will be more of this type of inquiry and in many countries other than the United States. OHS managers should not sit back and watch the chief financial officer squirm with discomfit and anxiety for the way that the financiers handle this crisis, as there are important lessons about their own accountability, responsibility and disaster planning.

Is consultation really a “two-way exchange”?

Talking about safety in the workplace is, by far, the best way to introduce and foster a healthy OHS environment. OHS regulators in Australia have been pushing this for sometime.

A colleague of mine has pointed out an apparent anomaly in relation to consultation posted by WorkSafe Victoria on their website earlier this week. In relation to Provisional Improvement Notices, WorkSafe says

“Consultation can still be said to have occurred even if:

* the duty holder does not respond to the HSR [Health and Safety Representative] in a reasonable time or at all. In this case, the HSR can take the failure to respond into account before deciding to issue the PIN. There does not have to be a two-way exchange – only the opportunity for this to occur;”

This sounds odd to me and I hope that one of the SafetyAtWorkBlog readers may be able to explain.

My colleague posed this question on the issue of consultation:

“If the duty holder generated an OHS issue and the HSR did not respond, would there still only need to be an ‘opportunity for this to occur’?”

It seems a far question when workplace consultation is supposed to be a “two-way exchange”.

Category: government

Federal IR Minister speaks on OHS laws

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Insurance for OHS penalties

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Australian Greens Senator speaks on OHS legislation

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Varanus Island Report released

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Is technology the solution to everything?

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Corporate accountability – Lessons from Lehmans

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Is consultation really a “two-way exchange”?

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