law – Page 181 – SafetyAtWorkBlog

Insurance over OHS prosecution hits the deterrence effect

In response to proven breaches of occupational health and safety laws, judges usually apply financial penalties to companies and individuals. These penalties, like all court-ordered punishments are to deter the offenders from re-offending but also to show others the consequences of their actions. But what if an insurance company would pay for that penalty in return for regular premium payments? If the offender does not pay the penalty, deterrence is gone.

On 27 June 2013, a company and its director were fined $A200,000 each in relation to workplace incident that resulted in the gruesome death of one man and a near miss for another but the director had taken out a general insurance policy and the insurance company paid out!!??. A fine of $A200K awarded but the offender may pay no more than $A10K. Continue reading “Insurance over OHS prosecution hits the deterrence effect”

Nitpicking or forensic analysis?

It is common for regulators, major clients and accreditation bodies to require copies of a detailed health and safety management plan so that they can be assured the contractor is complying with OHS laws and contract safety obligations. Over the years, part of my job has been to assess these plans to determine their quality, validity and applicability. Some have accused me of nitpicking, others have appreciated the pedantry but my perspective is that such plans are a crucial method of establishing and communicating OHS practices and providing a base from which a positive safety culture can be constructed.

I would argue that any company that has a carelessly written OHS management plan is unlikely to fully understand its own OHS commitments. That company would also be providing conflicting and confusing safety information to its own workforce and its subcontractors.

Inaccuracies and inconsistencies

One example that comes to mind was a large company who submitted an OHS management plan which detailed many safety commitments, what I consider “promises”. However, there were inconsistencies such as the person who was responsible and accountable for safety at the start of the plan, let’s say a “safety manager”, and who was not mentioned any further. Continue reading “Nitpicking or forensic analysis?”

Safety should not be the red tape bastard of productivity

There is a logic being applied to workplace safety and public policy that does not ring true. The argument seems to be that productivity levels in Australia are low, that part of the reason for this low productivity is excessive business paperwork and that workplace safety regulators are a major contributor. (SafetyAtWorkBlog has written around this topic previously.)

The authority on productivity in Australia is, unsurprisingly, the Productivity Commission (PC). In mid-June 2013, the commission released its Productivity Update, the first of promised annual reports. Search in the document for “workplace safety” and there is no mention, even “safety” only pulls up a couple of public safety references. Nothing for “workplace” either.

In fact, the report states that

“Strong growth in labour productivity in the December quarter of 2012-13 could be a sign that a broader improvement in MFP growth is now underway” (page 2)

and

“modelling shows that a comparatively small increase in the rate of labour productivity growth (primarily due to higher MFP growth) could lead to a comparatively large increase in the level of real GDP per person by 2050.” (page 2)

2050 is a long way off but the forecast is for an increase in productivity and the growth in the December quarter could indicate a trend. So for all the productivity gloom and doom being written about in the business newspapers, the reality may be different. Continue reading “Safety should not be the red tape bastard of productivity”

Legal changes on workplace bullying are forgetting the workers

The lower house (thanks, Rex) of the Australian Parliament has passed amendments to its industrial relations laws, the Fair Work Act, to allow for matters concerning workplace bullying to be heard in its Commission, once the laws pass the Senate.. But recent media and parliamentary discussion on this action seems to forgotten the welfare of the bullied workers.

Professor Andrew Stewart of the University of Adelaide is reported to have said that there is a risk that the Fair Work Commission will be “swamped” with bullying complaints and that a system of filtering should be applied. Such a mechanism is supported by Professor Ron McCallum who said in The Australian on 14 June 2013:

“I would agree with the Coalition that there should be some filtering mechanism because we don’t know how many complaints there are going to be,” he said. “There’s been wildly varying suggestions.

Continue reading “Legal changes on workplace bullying are forgetting the workers”

Draft bullying code and cultural measurement

Safe Work Australia has released its latest draft code of practice for preventing and responding to workplace bullying for public comment. There are many useful and practical strategies in the draft code but workplace bullying is only a small element of the more sustainable strategy of developing a safe and respectful organisational culture.

The definition in the May 2013 draft code is a tidied up version of the September 2011 definition:

“…repeated and unreasonable behaviour directed towards a worker or a group of workers that creates a risk to health and safety.”

The lack of difference in these definitions is a real positive given the complaints, primarily, from the business community since 2011. The significance in both definitions is that there must be a direct relationship between the behaviours and health and safety risks. This could be substantially difficult to prove, particularly if , as in most cases, it is the recipient of the bullying who needs to prove this.

Harm Prevention

Consider, for a moment, that this code of practice is used for establishing preventative measures and not just used for disproving a court case, these definitions can help establish a benchmark for creating a safe organisational culture. Continue reading “Draft bullying code and cultural measurement”

No one is mentioning OHS prosecution in Telstra/NBN asbestos stoush

Australian politics is currently embroiled in a dispute generated by a contractor entering the telecommunications pits of the asset owner. Some, or many, of the pits contain asbestos and the contractor’s work, the laying of new fibre-optic cables, may disturb the asbestos. There are many other concerns but that is the nub.

The Australian newspaper has been running on this issue for many weeks but one article in today’s edition called “Taking a dig: will Bill come up short?” (page 9 – online paywall), by David Crowe, caught my attention. Crowe reports that:

“The Australian has been told Telstra chief executive David Thodey wrote to Shorten in December 2009 to argue against his proposal for a ‘‘proactive’’ program to remove asbestos from the company’s pits. Thodey gave three reasons for not proceeding: the cost; the risk of releasing asbestos; and the fact plans for the NBN were in train but had not been locked in.”

I realise that the OHS legislative concept of “reasonably practicable” does not extend to all facets of life but if it were applied to the current asbestos exposure (and I think it could) Thodey’s three reasons given above would be crucial in any potential prosecution, particularly if the reasons in Thodey’s response to Bill Shorten were listed in order of priority. In OHS law, cost is the last element to be considered in determining a reasonably practicable hazard control measure.

Continue reading “No one is mentioning OHS prosecution in Telstra/NBN asbestos stoush”

The practical manifestation of safety leadership

Professor Andrew Hopkins‘ frequent appearances at safety conferences are always fascinating as he does not simply trot out the same presentation each time. He is certainly not a priest with the same 52 sermons each year.

At the Building Safety conference Hopkins spoke briefly about mindfulness but grounded this in how executives and others should inspect a worksite and what questions to ask. He discussed audits also but there will be more on that in another article.

Hopkins insisted that executives should show leadership and begin to satisfy their positive OHS duty and their due diligence obligations by walking their worksites, talking with their workers and, most importantly, listening to the answers. There are no hard and fast rules or guidelines on the frequency of these visits but he said that the executives should NOT be accompanied. Having a phalanx of execs in pristine PPE approaching a work group puts the workers on guard and makes them self-conscious. Continue reading “The practical manifestation of safety leadership”

Category: law

Insurance over OHS prosecution hits the deterrence effect

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Nitpicking or forensic analysis?

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Safety should not be the red tape bastard of productivity

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Legal changes on workplace bullying are forgetting the workers

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Draft bullying code and cultural measurement

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No one is mentioning OHS prosecution in Telstra/NBN asbestos stoush

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The practical manifestation of safety leadership

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