Peter Arthur, a Partner with Australian law firm, Allens Arthur Robinson, spoke on Boardroom Radio on 1 April 2010 about new duties that national OHS laws will place on Directors.
Although there are six elements in the new general duty, Arthur says that they all can come under the category of “information flow”. Continue reading “Information flow is critical for sound Board decisions on OHS”
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
Boardroom Radio has hosted a very interesting podcast between two labour lawyers, Andrew Douglas and Michael Tooma, with the participation of Barry Silburn, the National President of the Safety Institute of Australia.
The SIA National President’s contributions were quite narrow, dominated by the issue of “suitably qualified” in the new model OHS laws (but he did struggle to get a word in edge ways).
It will be disappointing if the SIA’s submission to the Federal Government on the new laws focusses on this single and, to most, secondary issue, when the institute could achieve better results through other mechanisms and more creative thinking.
The only expansive comment from Silburn was the fact that harmonised plant regulations that were introduced over 10 years ago still resulted in different legislation in each State even though they reflected a common core. The high likelihood of this happening to the general OHS legislation was supported by the over panel members.
It is possible that the argy-bargy occurring now and at least for the next 6 weeks of public comment, will not achieve harmonisation as it was initially intended, and tried in a half-hearted way in the early 1990’s. The Federal Government could still end the debate by applying its powers under the Corporations Act, as it has in industrial relations. Some lawyers believe that this is the ace up the sleeve of the Federal Government.
The Law Council of Australia issued an interesting media statement on 30 September 2009. Below are the comments from that statement by John Corcoran, the Council’s President:
“The model laws strike the correct balance and adhere to fundamental criminal law principles. Governments must set aside jurisdictional differences and enact a uniform model OH&S law.”
“Despite the substantial differences in OH&S legislation across Australia, there is little evidence to suggest that the imposition of harsher penalties and evidentiary burdens in some jurisdictions has improved workplace safety performance. Nor has it been improved by the extension of prosecution powers to unions or other organisations.”
“There are undeniable benefits, both to workers and employers, in a uniform national OH&S system, but there is no evidence that workers in any jurisdiction will be worse off if a model law is adopted uniformly.”
These quotes give one of the clearest indications that the OHS harmonisation process about law and not safety management.
It could also be asked that if there is “little evidence to suggest that the imposition of harsher penalties and evidentiary burdens in some jurisdictions has improved workplace safety performance” what alternative strategies and penalties would the Council suggest for consideration? We will need to wait for their submission to the government for that.
Richard Johnstone, a leading academic and researcher into OHS law and enforcement polices argued in his 2003 book, “Occupational Heath and Safety, Courts and Crime”
“…that the court is an institution which, while appearing to dispense justice, is actually part of a broader process which decontextualises social issues. Courts, inspectors, prosecutors and defence counsel are involved in filtering or reshaping OHS issues during the prosecution process, both pre-trial and in court.”
Johnstone says that the process leads to a focus on the “event” rather than the broader context which includes the workplace management systems.
Johnstone succinctly lists the five key principles of effective OHS management, based on his work and that of his colleagues:
- “demonstrated senior management commitment to OHS;
- the integration of OHS management into core management and work activities;
- the adoption of a systems approach to OHS management, involving risk assessment processes and an audit system to identify all risks and to determine which require urgent attention;
- the ability of the OHS management system to accommodate to change, particularly changes to work methods, systems and processes, changes to substances, plant and equipment, and changes to the workforce; and
- valuing worker input to the OHS management system.”
This is the context in which the new draft Model OHS laws should be considered. If the law does not support these principles than the law is being written for the lawyers and not for the improvement of safety for workers in Australia.
Much of the podcast discussion was about how one deals with what went wrong rather than providing guidance of how to manage to avoid the risk in the first place – the perpetual dichotomy between lawyers and safety professionals.
Ric Morgan, a Senior Associate at Allens Arthur Robinson, was interviewed recently by Boardroom Radio on the new OHS model legislation. Each lawyer seems to emphasise a different combination of features in the new proposed laws.
Morgan anticipates that minimal changes will be made to the draft law.
The interview is well worth listening to for a slightly different perspective on the issues.
The last time I spoke with Kathleen Rockefeller was in 2001 on the eve of her speaking at a conference organised by the Ergonomics Society of Australia. At that time Kathleen was a physical therapist and ergonomist within the Washington State Department of Labour & Industries. Her latest profile says that she is now in Florida (via Chicago) as an Assistant Professor at the School of Physical Therapy & Rehabilitation Sciences at University of South Florida.
Kathleen’s career may have progressed (as probably has her tan) but the hazards and control solutions that we discussed in 2001, sadly remain relevant. I have reproduced some of the interview I conducted with Kathleen in those early days when no-lift policies were radical and patient-handling equipment was expensive and rare.
SAW: Around the world the no-lift policy is being introduced but why is that policy the most popular risk control measure?
KR: I don’t know where it actually originated or where the term “no-lift” came from. It’s a horrible term because everyone in healthcare knows that it is a little unrealistic. I think some people have been turned off by the name. I prefer to call it “low-lift” or “minimal-lift”.
Looking at the literature and research clearly shows that decreasing the amount of times per day that the human body has to act like a derrick is a good idea. Each episode exposes the body to forces of a magnitude high enough to potentially be injurious. Anyone who has nursed or worked in nursing homes knows that lifting is not the only activity that carries physical risk. There are tasks like leaning over the bed to delivering treatment to changing clothing, repositioning—these activities can be stressful as well. I wish it were simple to say “let’s get rid of the lifting” but it is an important first step.
SAW: In Australia the no-lift push came from the unions in order to push management to get into action on a whole range of manual handling issues.
KR: I’ve heard a rumour over here, and I don’t know how true it is, that the equipment manufacturers began using the term “zero-lift” but I really don’t know.
SAW: Your research shows that financial incentives were used to encourage the purchasing of new equipment. Were the incentives really necessary?
KR: Washington State is unique in the US in that the workers compensation insurance is handling by a State agency. So the insurance is handled by us unless the company meets the requirements for self-insurance. The agency has monitored the data and monitored the trends to try some initiatives with a number of different industries, nursing homes were chosen for a research project. They were hurting financially. A major reason for not buying lifting equipment was financial.
The agency decided to allocate some of their funds to the nursing home industry and to see if offering some of the funds allocated for injury prevention projects would help. The funds weren’t handouts but discounts on the workers’ compensation premium in return for investing in equipment and beginning a manual handling improvement process. The program was designed as a trial project to see what effect this type of incentive might have.
SAW: How applicable is your research to other States, given Washington’s unique processes?
KR: Many recommendations will be applicable as the program wasn’t just on the financial incentives. The study was a state-wide and industry wide look at how nursing homes were doing overall in implementing zero-lift programs. The research has identified the problems of implementing a large-scale intervention and we can all learn from these problems.
SAW: Other than manual handling what are the major OHS risks in nursing homes?
KR: Of course, patient handling has various tasks and the higher risks are certainly the physical transferring but also the repositioning, delivering incontinence care to residents, changing their clothing. The other thing I noticed in the homes while following nursing assistants and doing sampling is the total amount of time they stand or walk. I think that fatigue must be a contributing factor, both local muscle and total-body fatigue. There is very little recovery time. I knew this already but doing the research really emphasised this.
SAW: Did you observe a high stress level? Was resident violence an issue?
KR: Those are certainly issues as well. The issues of staffing and turnover is huge. The turnover for nursing assistants is an industry average of 100% a year and can go much higher. The constant turnover creates turmoil.
An unexpected element was the huge turnover in management personnel. This was striking. When you think of a facility trying to keep stable processes and procedures and the head person leaves within 3 years or even one year— that is a real problem.
I heard a lot from the nursing assistants and through the literature about the importance of knowing the residents. You mentioned potential problems with the residents but if you work with the resident for a while you get to know them and then you may be able to pick up warning signs on behaviour. If you’re a short term agency nurse and you don’t know the residents, it may increase your vulnerability.
SAW: Perhaps the no-lift policy has been introduced due to the throughput of staff rather than dealing with a root cause of the manual handling injuries? Perhaps because no-lift can give immediate results?
KR: Expecting a zero-lift program to have miraculous results in light of these other issues leading to instability is an unreal unrealistic expectation. I think introducing the program and getting it to work as best you can while at the same time, people who can affect change, maybe us baby boomers, need to start screaming very loudly because our parents are next.
Injuries related to manual handling have a number of causes and efforts to decrease these injuries require multi-faceted approaches. The point is well taken because if you are going to expect a zero-lift program in itself to have miraculous results in light of these other issues leading to problems and instability, it is not a realistic expectation.
At The Safety Conference in Sydney in October 2009, Dr Ian Woods, a senior research analyst for AMP Capital Investors, will advise Australian employers that the cost of workplace injuries on their businesses could be around 6% of their profit.
According to a media release in support of the conference
Dr Woods signals three occupational health and safety costs of concern to investors: workers’ compensation premiums, indirect costs, and the costs of alleviating workplace incidents.
“The indirect and unbillable costs associated with workplace injuries are like an iceberg,” he says. “They represent a huge percentage of the total cost that’s impossible to assess until you run into trouble.”
“The disruption to production caused by workplace injuries cost Australian businesses an estimated $490 million in 2000-01. The extra administration cost another $360 million. Incidents can also trigger loss of goodwill, strikes, recruitment issues and dozens of other immeasurable costs. The United Kingdom’s Health and Safety Executive indicated that the cost of uninsured losses is 10 times the business cost of insurance premiums paid for the same period.
“An injury with $1,000 in direct claims costs will also bring about $5,000 of indirect costs. Assuming a 5% profit margin, that equates to $100,000 of turnover. This simple return on investment (ROI) illustrates how valuable preventive measures are to financial bottom lines.
“Still, there is more to investing than just the economic case for improving OH&S performance. As well as the economic costs, inequality of benefits, costs and suffering are key issues.”
Some of the concepts sound familiar. Around the turn of the century there was increasing interest in corporate social responsibility and ethical investments and OHS was mentioned regularly as a corporate element that investors would seriously consider.
A good example of the feeling at the time can be seen in a 2002 interview for SafetyAtWork magazine, Paul Gilding of ECOS Corporation* talked about workplace safety. He was asked about linking workplace safety with sustainable business.
PG: This is a real fascination for us. We first came across workplace safety as a major issue for one of our clients, DuPont, where safety culture is so embedded in their business that you can’t walk into their offices without picking it up. We realised that, as sustainability experts, we had hardly ever come across that issue. The people who talk about sustainability also talk about corporate social responsibility, human rights in developing countries, climate change, biotechnology, ethics, every issue you could think of but they very rarely, except in a token way, talk about workplace safety.
We first thought why should this be a sustainability issue and then we thought why wouldn’t it be? We’re talking about the way corporations behave, the effect they have on society, the effect they have on the community they work in, yet we’re not talking about the fact that they are killing and hurting their own people. This is a surprising omission when it is so fundamental to sustainability.
This perspective has transformed into the widespread advocacy of “safety culture”.
Around 2001 Westpac Banking Corporation was developing an OHS index that measured the share performance of the top 100 companies. Interest in this has faded over the last ten years to such an extent that it is difficult to locate any reference to it. However, the Westpac index was discussed at many OHS conferences at that time and gained overseas attention as shown in these comments by the former Director of EU-OSHA, Hans-Horst Konkolewsky to Safety At Work magazine in 2001. [Full interview is available]
Q: One of Australia’s major banks, Westpac, is establishing an OHS index that shows relations between this index, the All Ordinaries share index and a company’s share performance. Have you seen this sort of thing in the European region?
HHK: We haven’t seen it explicitly. This bank has taken the lead. I saw on my way to Australia that there seems to be an F4 investment initiative to assess companies’ performance but more broadly with environmental performance, social performance, child labour issues, but also safety and health.
This is one of the many ways we can improve awareness and create a preventive culture starting through the investment area. In Europe, we have had quite a number of different approaches where companies have issued social statements or accounts where they have informed about their employees’ satisfaction with their work, working conditions, customer satisfaction with servicing, their relationship to the society, activities related to employment problems and so on. There are a number of examples that point in the same direction.
I must say that I believe that this can be a rather strong movement if investors and customers, through their demands and market mechanisms, can improve safety and health.
A more detailed report that places OHS strongly within the CSR discipline is a 2002 report, now available through an Australian Government website, called “A capital idea -Realising value from environmental and social performance“.
Dr Wood’s presentation will build on these reports and the work of overseas OHS organisations in trying to provide a cost estimate for workplace injuries. Let’s hope that there are specifics and that there is enough audience enthusiasm to generate a sustainable interest.
* cannot verify that this report is still available online
In January 2009, SafetyAtWorkBlog reported on the end of a political saga involving parliamentarian Paula Wriedt. Ms Wriedt has since become a spokesperson for the treatment of depression and on 10 August she spoke with the Australian Broadcasting Corporation about more resources for the treatment of mental health issues in the young.