OHS uniformity is looking unlikely

Michael Tooma, a lawyer with Australian law firm Deacons, has stated

“Despite the enthusiastic manner in which the harmonisation agenda has been pursued, and the appearance of progress in that regard, it is likely that the quest for uniformity in OHS laws across Australia will remain elusive.”

His reasons for this statement in a recent edition of Safety Solutions magazine (August/September 2008) are

  • The National OHS Review was set up to develop model legislation for implementation in each State jurisdiction;
  • Duty of Care is absolute in two States, Queensland and New South Wales;
  • “Reasonable practicable” is not applied in each State to the same extent;
  • The New South Wales right for unions to undertake prosecutions for OHS breaches;
  • Not each State has a legal forum dedicated to handling OHS prosecutions;
  • The level of enforcement of OHS law is inconsistent between States; and
  • The level of maximum penalty available.

Tooma is worth listening to for lots of reasons but principally he seems to be less wrapped up in political baggage compared with other OHS legal commentators.

Tooma seems to favour an industrial or OHS court because of the substantial jurisprudence that has been achieved through the New South Wales Industrial Commission.  I support the expansion of this type of court as NSW decisions, regardless of legislative differences, can be particularly useful is clarifying the most suitable OHS interventiosn for particular hazards.

He also says that enforcement must be consistent.  This is true or else, if given the chance, an employer could undertake certain hazardous tasks in the jurisdiction where enforcement or prosecution is less effective and active.

This relates, in a way, to Tooma’s last point on penalties.  An OHS offence in Victoria could lead to jail but in Tasmania, not.  A monetary fine of over $1 million could apply in some States with only $180,000 in another.

It seems that the fantasy of one OHS law for Australia will remain a fantasy.  The trick will be whether, after months of government review and hundreds of submissions, there will be sufficient consistency across the States.  The likelihood is that we will be slightly better off but still with State variations.  We have a little less red tape but red tape nonetheless. 

My question will be, was it worth it?

What does the government mean by “flexibility”?

Australian governments have all missed the solid, positive support that workplace safety can provide in pushing through useful OHS, and industrial, initiatives.  It would be a courageous employer who argued against any initiative that is intended to imporve the level of safety in any workplaces. 

The Deputy Prime Minister and IR Minister, Julia Gillard, reminded me of this when she spoke about the intoriduction of the government’s Fair Work Australia authority.  I have written elsewhere that the time is right for the Minister to also announce a “Safe Work Australia” authority which can arise out of ashes of the Australian Safety & Compensation Council. I would suggest that Safe Work Australia could also use the structure of the Workplace Ombudsman, have Comcare for the paperwork, establish a dedicated OHS stream in the justice system and use the moral authority of a new independent OHS Ombudsman.  This would be my mix for a strong, fair, independent and national OHS process for Australia.

In Gillard’s speech on Fair Work Australia though, she provided little hope of such an achievement.  This government continues to consider OHS as a separate discipline (or perhaps a subset) to Industrial Relations except when business accuses the unions of gaining IR advantage through OHS actions.  OHS could be legtitimately used to present consultation and consensus in a united IR strategy but there is little indication of that, indeed the gulf is widening. 

In Gillard’s speech on industrial relations she mentions “promoting workplace flexibility” as an important part of the platform.  This appears a couple of lines after a mention of “business flexibility”.  These are not interchangeable terms and seem to be included to soften the message, as there is no further mention, or expansion, of these concepts.

In HR and OHS terms we are looking at flexible work structures that can reduce workplace hazards, improve staff retention, increase career longevity and provide sustainable productivity.  Whether this is workplace flexibility or business flexibility seems to depend on which end of the management structure you come from but there should be no ambiguity in government statements on the issue of flexibility.  Then again maybe staff health, safety and welfare is only a distraction.

“Negligence” and salvation

SafeWork SA recently released details about the successful prosecution of MCK Pacific P/L (trading as Plexicor) over two injuries in a carpet manufacturing plant in South Australia that occurred in January 2006 and July 2007.

The company was fined a total of over $40,000.  The new management has been congratulated on its new OHS management program (to such an extent that it won a Safe Work Award in 2006) and for achieving a positive safety culture.

It’s a shame that the prosecution didn’t focus on the lack of a safety culture that had lead up to two injuries on the same machine at the same MCK Pacific plant both involving the trapping of a worker’s foot in exactly the same nip point.

Risk Assessment

According to the report from the SA Industrial Relations Tribunal a risk assessment had been undertaken after the first incident but the control measures were not undertaken:

“The recommendations involved re-wiring the machine and ensuring safe work practices were put in place. …… The defendant failed to act on the identified risk. Further there was no hazard identification or risk assessment done with respect to the particular issue of cleaning and maintaining the foaming press being the function Wilson was performing at the time he was injured.”

There are several issues raised in this prosecution that need discussing.  The first is that the company was able to save over $10,000 by “early guilty pleas, cooperation and contrition” assumably by the new management.  In other words, once you are caught, get an easy 25% deduction on the penalty by realising you’ve been caught and saying sorry.

What has happened to the previous management who allowed for a second injury from an unguarded machine 18 month’s after a serious incident?  Are those directors and executives excluded from managing a company unless they have had safety training?  Have they acknowledged that they were negligent?

Regardless of the argy-bargy over an executive’s personal accountability and what is a company’s “controlling mind”, this case seems to be a good example of business owners not being held accountable for their (in)action.  Once may be a mistake but twice is negligent.

It is also clear from the Tribunal findings that basic safety procedures were not followed and that workers were unaware of interlock devices.

“There was an isolation key but this was not common knowledge to all employees. Wilson and the other employees working on the machine at the time of the incident indicated that they were not aware of any lockout procedure. There was no documented lock out procedure with respect to the cleaning and maintenance of the machine.”

Following the second incident the company made substantial improvement:

Following the [second] incident … a lockout and isolation procedure was developed together with training for employees in relation to that procedure. Safe work practices were developed for all of the processes involved with respect to the foaming press. A space entry permit was required to be completed and signed prior to the entry of personnel into the press. Audible alarms were fitted. Hoses on the tool die were relocated to the front of the die which eliminated anyone standing behind the die and potentially out of sight of employees at the control panel.

Supplier Obligations

There is also a movement in OHS for contractors to meet the OHS standards of the commissioning company.  Plexicor lists the following companies as its clients – Chep Australia, Ford Australia, Holden, JC Decaux, Mitsubishi, Pacific Center Cyber Works, and Telstra.

In 2004, before the injuries mentioned above, Holden made this statement in its 2004 Community and Workplace Report:

“Supplier Management
GM’s Worldwide Purchasing Policy includes a number of practices that guide its suppliers in purchasing activities throughout the world. Suppliers and any goods or services supplied must comply with all applicable regulations or standards of the country of destination, including those relating to environmental matters, wages, hours, conditions of employment, subcontractor selection, discrimination, occupational health and safety and motor vehicle safety.” (my emphasis)

Holden doesn’t seem to have pushed this obligation with Plexicor.

Holden sets out its current expectations for its suppliers on its website.  One of the criteria, which seems a little contrary to well-resourced OHS management systems, is “Lean Manufacturing” – “the production of durable goods with a minimum consumption of capital investment, floor space, labour, materials, time and distance”.  Holden states that

“For Holden to be successful a a low cost producer of quality vehicles, Holden suppliers also must be committed to the lean ethic.”

Similar obligations are imposed by Ford Motor Company through its joint venture with Futuris Automotive (the new owners of Plexicor and the defendant in the SA IR Tribunal case).

The Magistrate was certainly optimistic about the safety future of Plexicor under the tutelage of Futuris.  If only Futuris had bought Plexicor earlier.

Beaconsfield inquiry seems quiet but there’s conspiracy fodder

Several readers have asked for information about what is happening at the Tasmanian coronial inquest into the death of Larry Knight at Beaconsfield Mine in 2006.  Since the return of Beaconsfield’s legal team, media reporting has been fairly quiet as expert opinions and risk consultant reports are argued over.  There is considerable effort being expended to determine what the mining company knew and when.

Conspiracy theorists could benefit from reading about the late appearance of, apparently, important documents.  The underground mine manager, Pat Ball, had taken notes at mine meetings where seismicity issues were discussed in 2005 and 2006.  The notes were only presented to the inquest last week as Mr Ball had only just relocated them.  As these notes were missing, the previous investigations, such as that by Greg Mellick, could not draw on the information.

This has lead the legal team for Larry Knight’s family and the Australian Workers’ Union to issue

“a request for all such documents, later defined to include all notes, memoranda, minutes and diary entries relating to daily head of department and weekly planning meetings between October 9, 2005 and April 25, 2006.  This includes any such documents generated by Mr Ball, mine manager Matthew Gill and chief geologist Peter Hills.”

Conspiracy or stuff-up?  Always go for the stuff-up first.

Legal games at the Beaconsfield inquest

The legal team representing the Beaconsfield mine at the inquest into the death of Larry Knight have returned early – much to the annoyance of the Coroner, Rod Chandler.  The team headed up by David Neal SC returned to the Launceston inquest on 28 August 2008 according to The Australian newspaper. 

It’s an extraordinary development due to the circumstances of their withdrawal after their opening submission.  Rod Chandler is quoted as saying

“In my view, to withdraw in this manner showed disrespect to this court. More critically, it showed gross disrespect to Mr Knight’s family. Such insensitive conduct does not, in my opinion, have any place in this jurisdiction.”

The newspaper went on to report that

“Mr Chandler said Dr Neal had failed to explain what had changed since the mine claimed on July 22 that it could not assist the inquest any further than its opening submission.”

To those who have said in comments to this blog that the lawyers are astute poker players, I would ask what benefit the legal team derived from getting the Coroner off-side?

To those who said that sitting through an inquest unnecessarily is too expensive, I would ask, is it now less expensive?

Lawyers usually have some sense of public feeling, media appearance or image.  If this team had such skills, they forgot to apply them in this case.  Let’s hope that their decisions do not lead to a legal cock-up.

Discrimination and OHS information in languages other than English

One of the most ignored OHS obligations in Australian workplace is to provide safety information in a language other than English. Most workplaces in a multicultural society struggle greatly with this obligation and, more often than not, rely on employees to pass on OHS information to their colleagues in the employee’s language.

This translation is an integral part of a safety management system and needs to be well-considered when developing and operating a system. OHS professionals need to be assured that the correct OHS information is getting to where it is needed and understood at that point.

A recent discrimination case that illustrated these issues occurred in the New South Wales Administrative Decisions Tribunal (Tanevski vs Fluor Australia P/L [2008] 7 August 2008). The tribunal found that Fluor had indirectly discriminated against Mr Tanevski (a Fluor employee since 2003 and with 314 years as a supervisor in rail maintenance) by placing a literacy requirement on him that he was unable to meet and that the tribunal found to be unreasonable.

A safety report had highlighted the “management of low English literacy standards of personnel” as a high priority for improvement. Mr Tanevski had been demoted from his role as a supervisor over concerns about his literacy level in relation to complying with the requirements under its OHS management system. The tribunal found that the company’s concerns were legitimate but unreasonable as

“there was a feasible, low cost alternative which did not involve any increased risk to safety…[to].provide him with training on the new HSE system, instruct him on how to complete the necessary forms and assist him with the duties, such as writing statements and reports, which he was unable to perform”.

In other words, the company needed to support the operation of the safety management system by helping the people who need to use it.

There is also another point to make from an OHS management perspective. Should not the new HSE system have accommodated the known literacy needs of existing employees? Information in the decision says that Mr Tanevski was a five-year employee with the company and there were no concerns with his work performance, indeed testimonials spoke otherwise.

The New South Wales OHS Act 2000 states

“An employer must ensure the health, safety and welfare at work of all the employees of the employer.
That duty extends (without limitation) to the following:…
(d) providing such information, instruction, training and supervision as may be necessary to ensure the employees’ health and safety at work,…”

The Victorian OHS Act is more specific:

“An employer must, so far as is reasonably practicable—………..
(c) provide information to employees of the employer (in such other languages as appropriate) concerning health and safety at the workplace…….”

The rail safety legislation may have obligations specifically to that industry. Both OHS regulators, WorkCover NSW and WorkSafe Victoria, have guidance notes on how to provide OHS information in languages other than English. WorkSafe Victoria also lists the language needs of employees as a necessary element in any OHS training needs analysis.

The Tanevski case may also have been dealt with by WorkCover NSW but that the issue came up through legal action on discrimination in a non-OHS tribunal, illustrates that OHS professionals cannot rely only on information provided by the OHS regulators.

OHS harmonisation could create disharmony

OHS experts have said that the Victorian OHS legislative structure is leading the way in being a major influence on the National OHS Model Law Review. A leaked email, reported in the 15 August 2008 edition of the Australian Financial Review, has John Merritt, CEO of WorkSafe Victoria, calling for a summit before the end of 2008 at which tough enforcement policies are to be discussed with his counterparts from other Australian States.

His call seems to be in response to an equivocation on OHS harmonisation that would allow States to have different ways of applying national OHS laws. This flexibility has been flagged for some time and has the potential to allow just as much jurisdictional confusion and overlap in a new structure as there is currently.

The leaking of the email does not help the process of OHS legislative review but it does identify a potential weakness in the national OHS model law review process if the government is not decisive. The Rudd government has been in for less than 12 months and has applied a rapid pace of legislative review. Several reports and recommendations have already been released with the impact of wet lettuce. For instance, Bracks’ automotive industry review has cost a lot of money for minor tweaks to the status quo unless you are a conservative voter who chooses an imported vehicle.

Whatever the government’s response to the OHS law review, it needs to be one that will stand the test of time, as the UK’s Roben’s review has since the early 1970s. It also needs to be brave enough to see OHS law as independent from industrial relations law. Too often OHS is the tail to the IR dog. The OHS and IR Acts are separate legislation even though the application of the laws overlap at the shopfloor.

We have to remember that harmonisation is the sum of many different voices making up a song, not everyone singing the same tune at the same time. Perhaps the the wrong goal was aimed for at the start of the process.

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