The “suitably qualified” challenge on OHS

A quick survey of some of the public submissions on the development of Australia’s model OHS Act illustrates the challenges facing the government after it decided not to include a requirement for only people who are “suitably qualified” in OHS to provide advice to business on workplace safety.

Organisations across the political spectrum have spoken in favour of including “suitably qualified” but “suitably qualified” is in the eye of the beholder.  Several labour and trade union organisations believe that health and safety representatives (HSRs) are “suitably qualified” or “suitable qualified” people should assist HSRs in their work.

The Queensland Council of Unions says

“The WRMC [Workplace Relations Ministers Council] committed itself to a Model Act of the highest possible standards. In order to achieve this, the appointment of suitably qualified persons based on the Queensland model should be reconsidered and the recommendations of the Review implemented.”

Queensland’s OHS legislation had a system of Workplace Health and Safety Officers who were required by every company that had over 30 employees.

The Australian Council of Trade Unions said a PCBU [person conducting a business or undertaking] should

“…employ or engage persons who are suitably qualified in relation to occupational health and safety to provide advice to the PCBU concerning the health and safety of workers of the PCBU.”

The Australasian Meat Industry Employees Union says there should be an “employer obligation to engage a suitably qualified person to assist in H&S”.

Others see “suitably qualified” as a criterion that limits who would qualify for an OHS Entry Permit and what their powers can be.  Wesfarmers Industrial Safety wrote:

“We contend that OHS Permit Holders must be competent to provide OHS advice and must provide a valid reason to justify entry, the only valid entry criteria being to assist the resolution of a reasonably suspected, specified contravention of the Health and Safety Act.   To be effective they must comply with and support site/organisational procedures to enhance site health and safety outcomes and must not intentionally and unreasonably hinder or obstruct any business/undertaking or intentionally intimidate or threaten any business/undertaking or employee.

Suitably qualified in this context must also contemplate that they must not disclose information obtained in accordance with the OHS permit for any purpose other than to assist the resolution of the suspected contravention and must not take copies of documents: if serious concerns exist the Regulator can be requested to attend the site, they will request copies of relevant documents if required.

Additionally, the OHS permit holder and any organisation they represent must be held accountable for the actions taken by the OHS Permit holder.”

There are several challenges for the Australian Government on this issue of “suitably qualified”.  Firstly, it needs to decide whether it can reverse its decision not to include a “suitably qualified” element into the legislation.  To do this it would need to acknowledge that the reasons for exclusion do not match the sensitivities of the community.  This could be embarrassing but also indicate a flexibility and capacity to respond to community concerns.

The government also needs to determine where “suitably qualified” fits.  Should and HSR be suitably qualified or should this only reflect the OHS professionals?  In both cases it puts the governmental up against the commercial training organisations and the university educators (the OHS professional associations have far less clout).

Some academics see the lack of the inclusion of “suitably qualified” as providing a lower level of workplace safety.  Many of these submissions see “suitably qualified” as existing well above the level of HSRs to the professional level.

Professor Mike Capra of the University of Queensland, and other tertiary educators made the following plea:

“We the undersigned Professors of Occupational Health and Safety strongly recommend that the words “suitably qualified”* be inserted as appropriate in the model legislation in relation to the acquisition of advice regarding the health and safety of workers.

Our recommendation is based on the continuing high cost to the community in dollar terms and human suffering in relation to both work place (sic) injury and workplace induced illness which often has long latency and serious medical consequences.

Addressing such serious issues requires properly qualified professionals. The professional practice of OHS management requires skilled professionals with a sound foundation in the physical and health sciences as well as a strong knowledge base in the core OHS areas of health, safety, ergonomics, law, hygiene and toxicology and OHS management systems.

The universities across the country are offering professional entry programs at undergraduate and post graduate levels that are developing the OHS workforce. To sustain this workforce and ensure continued reduction in the societal cost of workplace injury, illness and death there must be recognition of the professional basis of OHS practice and it is imperative that this recognition is reflected in the harmonised legislation.

* Suitably qualified to be determined, as in other professions, by the relevant professional association and industry standards.”

Mike is very committed to improving health and safety of the Australian workforce and it is clear that the moral imperative is king.  But it must also be noted that education thrives on the recognition of qualifications and a legislative requirement for suitably qualified OHS professionals would strengthen the case for the viability of tertiary OHS courses which, according to some sources, are in a perilous state.

One submission questioned the sense or practicality of having an HSR trained in safety beyond the skills of the PCBU.  Shaw Idea wrote

“….the Model Act should require PCBUs to obtain advice from suitably qualified advisers. It is inconsistent to require HSRs to be trained, but not require PCBUs to either be trained or be advised by those with competence in relevant areas. The OHS consequences of incompetent or ill-informed actions by employers are far greater than the consequences of HSR actions.”

The OHS training industry has done themselves a disservice for decades by not having a formal OHS management course for safety or business managers.  There is a big difference between training an HSR to manage upward to the employer and training a manager to manage the safety of a workforce.  Leaving executive training to the tertiary sector has exposed a large vocational hole in business management of workplace safety.

It must also be stated that the editor of SafetyAtWorkBlog also made a submission to the Australian Government in which “suitably qualified” was discussed.  Below is the relevant section:

“Many safety professionals are concerned that “suitably qualified” has been omitted for the proposed legislation.  I think the reason given for its omission is poor but I do not support those who advocate the inclusion of the concept.  The push has been particularly strong from Victoria and through a couple of OHS professional associations.  No evidence has been made publicly available for the need for such a concept.  It is something Victoria has had and it is loathe (sic) to relinquish. Good OHS advice is available from good OHS advisers and caveat emptor should apply on OHS advice as with any other.

The “suitably qualified” advocates like to compare themselves to other professions like medicine yet it is recommended even from within the medical profession that second opinions be sought.  The safety profession does not advocate this very sensible suggestion.”

Kevin Jones

WorkSafe Victoria Awards winners

On 29 October 2009, WorkSafe Victoria held its WorkSafe Awards event at  the Palladium Room at Melbourne’s Crown Casino.  SafetyAtWorkBlog attended as a guest.  All the winners were deserved and there are short profiles of some of the winners below.

WorkSafe Awards 2009 004The first award was for the Health & Safety Representative of the Year, won by Phyl Hilton.  Hilton was clearly honoured by the award and in his acceptance speech acknowledged that good OHS laws are “socially progressive” – a position that is rarely heard outside of the union movement or from non-blue-collar workers.  It is an element missing from many of the submission currently being received by Australian Government in its OHS law review.

Hilton presented as genuine and his commitment to the safety of his colleagues was undeniable.  Significantly, he thanked several WorkSafe inspectors for their support and assistance.  WorkSafe would have been chuffed but the comment which reinforced safety as a partnership.

WorkSafe Awards 2009 001The Best Solution to a Health and Safety Risk was given to Bendigo TAFE for a machine guarding solution.  Guards have become an unfashionable hazard control solution and often now seem to rely on new technology.  The chuck key guard was as hi-tech as an interlock device but one that the users of the lathes, almost all young workers, would not need any involvement with.  If chuck key remains in the place, the guard is out of position and the machine cannot start.  Simple is always the best.

The combination of beer and safety is a heady mix for Australians so the keg handler had a cultural edge on the other award finalists in the  category, Best Solution to Prevent Musculoskeletal Injuries.  The keg mover and the keg stacker seemed to be two different devices WorkSafe Awards 2009 002and it would have been great to have a single device but the stacking option was particularly interesting.  Many pub cellars are cramped and being able to stack beer kegs in a  stable fashion is attractive, and sensible.  The cross-support that is placed on top of each keg was, perhaps, the standout feature.  One can almost see the staring at the top of the keg by the designers and the creative cogs turning.  The best solutions always seem to be those where one asks “why didn’t I think of that?”

WorkSafe has placed a lot of attention on safety in the horse racing industry, particularly, as injuries received by jockeys and the killing of injured racehorses are in public view and therefore are highly newsworthy.

WorkSafe Awards 2009 003The attraction of this winner of Best Design for Workplace Safety is that the inventor has looked beyond PPE for jockeys to what a jockey is likely to hit when falling of a racehorse at speed.

The OHS law drafters should take note that this innovation has come from looking at “eliminating a hazard, at the source”, an important terminology omitted from the last Australia OHS law draft.  Would there have been the same level of innovation if the racing industry had done what was “reasonably practicable”?  It is very doubtful.

This post has focussed on individual achievement and physical solutions to hazards.  The awards for OHS committee and safety management systems are not detailed here as they are more difficult to quantify but for completeness, the Safety Committee of the Year went to RMIT – School of Aerospace, Mechanical and Manufacturing Engineering, Bundoora East, the Best Strategy for Health and Safety Management went to the Youth Justice Custodial Services – Department of Human Services, Parkville for its program in Clinical Group Supervision.

Some of these solutions need to be viewed to fully understand their merit and it is hoped that SafetyAtWorkBlog will be able to post the videos of the winners and, more importantly, the other finalists, shortly.  Certainly the other finalists in the solutions categories deserve almost as much recognition.

Kevin Jones

WorkSafe Awards 2009 005

Health and Safety Representative of the Year

Recipient: Phyl Hilton – Toyota Motor Corporation, Altona

Phyl, who works as a toolmaker at Toyota’s Altona Plant, has been a health and safety representative for 10 years. Representing 27 members in the trades department within the Press shop, he takes a leading role in identifying opportunities for safety improvements in his workplace. Using a practical and collaborative approach, Phyl has played an integral part in many initiatives, including the design and construction of weld bay facilities, the procurement of portable fume extractors and the development of press plant policies in English and Japanese. Phyl was also part of the Traffic Management Control Working Party and the Working at Heights and Trades Hazard Mapping projects. He is committed to developing and driving safety knowledge among Toyota apprentices and actively mentors and coaches fellow health and safety representatives.

Best Design for Workplace Safety

Recipient: Bendigo Regional Institute of TAFE, Bendigo

Initiative: Lathe Chuck Guard

Bendigo Regional Institute of TAFE works with students and apprentices to prepare them for the workforce. An incident highlighted the risk of an operator forgetting to remove a key from the chuck on a lathe before turning it on. Working on lathes is a normal part of work in many businesses within the manufacturing industry. The chuck can spin at 1000rpm or more and this could cause the key to fly out from the machine with high force, creating a projectile that could result in serious injury to the operator or others close to the lathe. The Lathe Chuck Guard protects the operator by refusing to close if the key is left in the chuck. The guard is interlocked to ensure the lathe can only be started with the guard closed. Having a guard assists with providing a safe work environment within the TAFE workshop. The Lathe Chuck Guard is a simple, cheap, yet effective, way of reducing the risk of projectile keys. It is adaptable for a range of lathes across industries and will benefit other educational facilities and the wider manufacturing industry.

Best Solution for Preventing Musculoskeletal Injuries

Recipient: Cherry Constructions and Workright Safety Solutions, Seaford

Initiative: Keg Handling System

The Keg Handling System is a mechanical aid system to assist the hospitality industry. It consists of a keg lifter, trolley, ramp and stack safe crosses and is used for handling beer kegs. Keg handling has been a major issue in hospitality for several decades and is traditionally done by hand without the use of mechanical aids. The Keg Handling System seeks to improve the way kegs, which can weigh up to 67kg, are handled and reduce the risk of injury. The keg lifter can lift a keg, manoeuvre it into position and lower it to the floor or on top of another keg with minimal effort from the operator. The trolley can pick up a keg from any position so that it doesn’t have to be moved to meet the trolley. It has a locking device so the keg is fixed to the trolley. The stack safe crosses allow the kegs to ’nest‘ into each other, stopping them from toppling. The major risks associated with handling beer kegs are musculoskeletal injuries to the back, shoulders and arms, and crushing injuries. The automated and easy-to-manoeuvre system is readily used in small spaces and by a range of staff. This design can also be adapted for other industries to aid in lifting and transporting many items including gas bottles, oil drums and even large pot plants in nurseries.

Best Design for Workplace Safety

Recipient: Racing Victoria (Flemington), Dan Mawby and Delta-V Experts (North Fitzroy)

Initiative: Running Rails

Running rails have been a safety issue in the racing industry for many years, causing serious injuries to jockeys and horses involved in collisions. Track staff have also been hurt due to the manual handling required to set up and move rails. Designed and invented by Dan Mawby, tested by Delta-V Experts and used by Racing Victoria, this new lightweight durable UV-rated plastic running rail is a welcome replacement for the solid aluminium rails currently in use. The major improvement is that the horizontal rail doesn’t break from the impact of weight-bearing objects – instead, it elevates, springs and bends on impact. The design and flexibility of this rail system also has the ability to steer a horse back on track should light contact be made, therefore avoiding injury. The new Running Rail is in place at Flemington and Caulfield Racecourse and some training facilities.

Safe Work Australia Week podcast

Today, 1,500 union health and safety representatives attended a one-day seminar in Melbourne concerning occupational health and safety.  The seminars were supported by a range of information booths on issues from support on workplace death, legal advice, superannuation and individual union services.

Kevin Jones, the editor of SafetyAtWorkBlog took the opportunity to chat with a couple of people on the booths about OHS generally and what their thoughts were on workplace safety.

The latest SafetyAtWork Podcast includes discussions with the Asbestos Information and Support Services, the AMWU and TWU.

The podcast can be downloaded HERE

Deacons are first with harmonised OHS law comments

Michael Tooma speaking at the Safety Conference in Sydney in 2008
Michael Tooma speaking at the Safety Conference in Sydney in 2008

Michael Tooma, of the Australian law firm Deacons, is often the first labour lawyer to comment on Australia OHS Law matters and this week was no different.  While many of us are continuing to digest the draft OHS Act, Tooma has identified several issues of interest.  Some are discussed below.

[Tooma’s full legal update is available  HERE]

An expanded duty of care that may extend beyond workplace safety and OHS

The duty of care will include

  • “providing and maintaining a safe and healthy work environment;
  • providing and maintaining safe plant and structures;
  • providing and maintaining safe systems of work;
  • ensuring safe use, handling, storage and transport of plant, structures and substances;
  • providing adequate facilities for the welfare of workers carrying out work for the business or undertaking;
  • providing any information, training, instruction or supervision that is necessary; and
  • ensuring the health of workers and conditions at the workplace are monitored for the purpose of preventing illness or injury of workers.”

Most of these will be familiar to Australian OHS professionals and there is little that is controversial here but Tooma says

“This expanded duty has the capacity to broaden the existing duties significantly, extending their reach to any activities that may impact health and safety.   The extent of the duty as drafted in the model provisions arguably includes public safety matters…..  In addition to public safety, arguably the provisions are capable of applying to product safety matters.”

Tooma expands on this slightly in an article in SmartCompany in terms of an alternative to public liability.

“Tooma says this means duty of care will now extend to issues of public safety, including visitors, passers by and even trespassers, which could open businesses up to civil litigation claims from people who aren’t even employees of a business.

Tooma says the laws allow a member of the public to sue a workplace based on a breach of statutory duty, rather than a negligence claim, which often carries a higher penalty and is more difficult to defend in court.”

The extension of workplace safety obligations to include the impact of work processes on those outside the worksite has existed for some time but the draft legislation has the capacity to highlight this “opportunity” to some.  The integration of work and non-work exposures has some logic to it when one considers the growing push for integration of work health and public health management such as reducing cardio-vascular health risks through work-based initiatives.  It also broadens the social integration of OHS  and environmental management which larger companies are already managed through an integrated structure.

Union Right of Entry

There have been some frightful cases of union intervention, particularly in the construction industry, over the last few years.  Depending on one’s politics the union reps or organisers are either doing the right thing by their members or disrupting the workplace for their own secret agenda.  This situation does not reflect the vast majority of workplace consultations on OHS matters.

Prior to the introduction of the Victorian OHS Act which established an authorisation process for union organisers, SafetyAtWorkBlog remembers one prominent OHS lawyer, warning that “the sky will fall” over this issue.  It never did in Victoria and there is no reason to suspect that new right-of-entry provisions will be controversial in any workplaces other than those that already have fractious relationships between unions and management, and often on matters unrelated to safety.

However, Tooma says that

“The union right of entry provisions contained within the Model OHS Laws involve a far greater expansion of the rights of unions than those which exist in current OHS legislation throughout the jurisdictions, particularly in New South Wales, South Australia, Tasmania and the Commonwealth.  The Model OHS Laws give unions not only the power to investigate incidents but also to advise workers in relation to OHS matters.”

There was always going to be some changes in some jurisdictions due to the harmonisation process following the Victorian OHS Act 2004.  SafetyAtWorkBlog has faith in the authorities implementing sufficient safeguards that union right-of-entry will not be the hotbed of anxiety that some are suggesting.

More legal commentary on the draft OHS Law documents is likely to be released over the next few weeks as the drafts get digested and the six-week public comment phase kicks in.  It is sure to be the hot talking point as Australia moves into a bunch of OHS activities, conferences and awards events in October 2009 leading to Safe Work Australia Week.

Kevin Jones

Business drops opposition to Australia’s new OHS laws

A story on the front cover the Australian Financial Review on 8 September 2009 lists the “wins” of the union movement in its negotiations on new national OHS law.  But it is the last couple 0f paragraphs on page 8 that are most surprising.  The article says

“The coalition dropped its previous opposition to the SafeWork Australia bill, allowing it to pass in its original form, limiting the number of unions and employer representatives on the body to two each and giving Ms Gillard [the Workplace Relations Minister] a veto on the appointment of these representatives.”

This seems to be a considerable backtrack on the strong opposition and media statements coming from employer groups over the last 12 months.  One wonders what trade-off the industry associations have managed to obtain.

The changes reported are not very radical for those familiar with the Victorian OHS laws – leave for OHS training and greater protections for union members.  But the union movement has (yet) to get a reverse onus of proof or rights to prosecute.

The media release from the IR Minister crows about the Conservatives’ backdown and says little else other than marking the passing of the legislation.  Ultimately the biggest benefit of this legislation is clarifying the status of Safe Work Australia.

UPDATE: ACCI media statement

The Australian Chamber of Commerce & Industry has released a conciliatory media statement making no reference to its previously strident opposition.  The only semi-interesting content (other than the fact of the statement itself) is its reiteration of OHS being a shared responsibility and the need for Safe Work Australia to ensure its independence.

“The message that working safely requires everyone to take their responsibilities seriously now has a better chance of becoming a co-ordinated national message, with parallels to the mutual responsibility message that features in road safety awareness and safe driving campaigns.”

Kevin Jones

“Union safety”?

Reading an article about CFMEU organiser, Joe McDonald, today illustrates an important differentiation to be kept in mind.  A unionist’s benchmark for safety compliance may differ from that of the employer, regardless of the fact that the employer has the major legislative obligation to establish a “safe and healthy work environment”.

Joe McDonald pledges to keep his members safe.  A spokesperson for the construction company said

“…there were some safety issues at the site but said they were being addressed when the union walked out.”

How does walking away from OHS consultation improve safety?

The cause of the confusion on “safety” comes from the weakening of prescriptive legislation and codes to accommodate operating costs, and in the increase of the  “reasonably practicable”  test.

The union movement in New South Wales had the most extreme level of OHS regulation in Australia.  It was hated by the business sector and has been weakened by the government as a result of federal pressures and aims but, the fact that New South Wales has achieved a 2% reduction in the injury incident rate, may add weight to the unions’ desire to retain the legislation.

There is a fundamental dichotomy of regulatory and operational approaches in OHS management in Australia currently that the harmonised OHS system may only exacerbate.  It is now up to the Safe Work Australia boffins to keep an open mind in harmonisation negotiations but to also remained focused on the aim of any OHS legislation which is to keep people safe.

Kevin Jones

It’s not what you do, it’s the way that you do it

One of my colleagues has described her role in a corporation as an “irritant”.  She is responsible for quality, environment, risk and OHS – all of those required business elements that companies will avoid or ignore if they could.   Her company acknowledges that these elements are necessary and values her role and efforts.

OHS professionals could benefit from realising that in most circumstances, they are not welcome, or rather, their advice is not welcome.  OHS is a bitter pill for many companies.  But handled well, explained and discussed, OHS can be a substantial agent for positive change.

Sadly, one construction industry unionist in Australia is doing more harm than good.  Joe McDonlad is an experienced unionist who is undoubtedly committed to the safety of his members in Western Australia’s construction industry.  However, he does not respect the law or due process.

This week, Joe McDonald was fined $10,000 by a Perth Magistrate, Jeremy Packington, for unlawfully entering three building sites in 2007.  McDonald’s actions generated considerable political discussion at the time, mainly because his actions occurred during an election campaign.

Safety improvements can be achieved without confrontation and insults.  A major OHS principle is consultation.  McDonald is a safety-focused trade unionist who may succeed in his aims to improve safety for his members.  But the manner in which he conducts his services is causing widespread damage to the cause of OHS in the general community, employers’ perceptions of OHS and the trade union movement in general.

Sometimes the bigger picture is important.

An audio report and a video report of Joe’s action on the construction site and his thoughts on safety are available online.

Kevin Jones

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