Category: law

Accident Comp changes put to Victorian Parliament

According to the WorkSafe Victoria website, changes to the Accident Compensation Act were introduced to the Victorian Parliament on 10 December 2009.

WorkSafe is very confident that the changes will be passed.  The summary only talks about “when” the bill is passed.  There is every likelihood it will be passed but the summary has a tinge of arrogance to it.

A summary of the proposed changes is available online.

It all sounds positive and most of it seems about financial improvements.  There are always concerns when a government move from prescriptive- to performance-based practices.  The summary describes the Return-To-Work benefit:

“Prescriptive return to work requirements will be reframed as performance based duties to improve flexibility.”

Usually this sort of change is a red flag for rorts and abuse.

The summary does say that enforcement activities will be increased:

“The Return to Work Inspectorate will have a wider range of tools to improve the effectiveness of compliance activities in relation to return to work obligations, maintaining a fair and consistent application of the law.”

However with the government’s recent spate of administrative mistakes, sloppiness and oversights exposed through the Auditor-General’s reports, accountability in this important area will need to be carefully watched.

The Minister for Workcover, Tim Holding‘s speech to the Bill’s second reading concluded (according to the draft Hansard):

“This bill providers (sic) fairer and better benefits to injured workers and their dependents, recognises that getting injured workers back to work is a central pillar of the scheme, and provides greater transparency for employers in their interactions with the scheme.  The benefit enhancements in this bill are financially responsible, affordable, and consolidate Victoria’s position as the leader in workers compensation in Australia.”

Kevin Jones

News on Australia’s OHS model Act

Safe Work Australia (SWA) has released the latest communique following the Workplace Relations Ministers’ Council meeting on 9 December 2009.  Various amendments have been made to the draft Act following the public submissions period.  Those amendments that SWA consider significant are:

  • adoption of the definition of ‘officer’ in accordance with the Corporations Act 2001 and the definition of ‘due diligence’ to clarify officers’ duties
  • a duty for the persons conducting a business or undertaking (PCBU) to consult not only with workers directly affected by the health and safety matter, but with other duty holders who have a duty in relation to the same matter
  • the requirement for a PCBU to provide training to a health and safety representative (HSR) within three months of a request for training
  • removal of compensation orders as a sentencing option
  • removal of requirements for union right of entry which are already prescribed under the Fair Work Act 2009
  • restructuring of the most serious category of offence to a reckless endangerment offence when a duty holders’ conduct has exposed a person to a risk of death or serious injury of another person
  • monetary penalties, not penalty units, used to ensure consistency between jurisdictions
  • a 14 day timeframe for commencing negotiations between a PCBU and workgroup
  • allowing a PCBU to refuse entry on ‘reasonable grounds’ to a person chosen by the HSR to provide assistance, if no relevant assistance could be provided by the nominated person
  • being subject to a criminal penalty regime, except in relation to right of entry offences in Part 7. Right of entry offences in Part 7 would be subject to a civil penalty regime consistent with that in the Fair Work Act 2009. A framework will need to be established for civil penalties, and
  • penalties for the non-duty of care offences for corporations, ranging from a maximum of $500 000 for serious breaches to a maximum of $10 000 for minor administrative breaches.

Significantly, all the submissions that pushed for the inclusion of a “suitably qualified” OHS professional seem to have missed out.  Clarification or confirmation of this is being sought from Safe Work Australia.

Kevin Jones

UPDATE – 11 December 2009

The Model Work Health and Safety Act has now been posted on the Safe Work Australia website and is available for download HERE

Managerial federalism?

There are some OHS professionals in Australia who follow the harmonisation of the country’s OHS laws closely.  The current status is that the various public submissions are being analysed and discussed by the Government.

But for those who are hankering for some pre-Christmas reading the New South Wales Parliament has released a report called “Managerial Federalism – COAG and the States” written by Gareth Griffith.  This is not a report about OHS, although the topic does get a brief mention on page 25.

OHS harmonisation is perhaps one of the simpler reform processes compared with tax or the legal sector.

The report provides a very good summary of the various consultative structures that the Federal and State Governments operate within as the country changes to a process of “managerial federalism”.  The report summary defines “managerial federalism” as

“…defined to be administrative in its mode of operation, pragmatic in orientation, concerned with the effective and rational management of human and other resources, and rich in policy goals and objectives.  The States play a creative and proactive part but are, to a substantial degree, service providers whose performance is subject to continuous scrutiny and oversight.”

(“Rational management”?  Has everyone in the Australian government been told to read the book by Kepner and Tregoe?  Let’s hope it’s not the 1965 edition.)

Being familiar with some of the concepts and rationales in the report may help those lucky enough to be consulted on government decision-making to know their place in the wild scheme of bureaucratic policy-making.  It may even prove invaluable if you are the safety coordinator on one of the Governments’ many infrastructure projects.

Kevin Jones

Recent WorkSafe Victoria prosecutions

Over the last two weeks, WorkSafe Victoria has released over a dozen reports and summaries about prosecutions over OHS breaches.  Some have been highlighted in SafetyAtWorkBlog posts but there are too many for us to cover in detail or to expand upon.

Below is a list of those prosecution summaries

A Bending Company Pty. Ltd. – 8/12/09
Summary: Crush injury

Compass Recruitment Australia Pty Ltd – 8/12/09
Summary: Unguarded Plant/Labour Hire

McCain Foods (Aust) Pty Ltd – 7/12/09
Summary: Lack of isolation procedures, instruction and training

Barro Group Pty. Limited – 7/12/09
Summary: Fatality (crush injury) and a failure to provide and maintain for its employees, a safe working environment that was without risks to health.

Alan Mance Motors (Melton) Pty Ltd – 1/12/09
Summary: Explosion

Victorian State Emergency Service Authority – 30/11/09
Summary: Fatality, Volunteers, Employer, Drowning

Dynamic Industries Pty Ltd – 25/11/09
Summary: Fall from height – Fatality

The Inflatable Event Company Pty Ltd – 25/11/09
Summary: Failure to inform, instruct, train and supervise

Transglobal Shipping & Storage (Vic) Pty Ltd – 25/11/09
Summary: Forklifts, Failure to comply with a Prohibition Notice

Andrew Irvine – 25/11/09
Summary: Fall from height – fatality

Canningvale Timber Sales Pty Ltd – 25/11/09
Summary: Unguarded Plant

John Mavros – 25/11/09
Summary: Unguarded Plant

Shane Grigg -v- The Precast Company Pty Ltd – 16/11/09
Summary: Fail to provide suitable employment

OHS for volunteers is still not working

Most Australian States’s OHS laws have encompassed workplace risks fro those who enter the enter the workplace and for volunteers.  The issue came up again with the recent review process on model OHS laws.  However a recent national survey by Volunteering Australia found that

“30% of [over 1400 volunteer] organisations surveyed have not been able to access adequate information about the protection of volunteers under occupational health and safety legislation.

Although individual volunteers overwhelmingly see OHS resources as having been positive.

“467 (26%) volunteers reported that OHS had a positive impact on them in the past 12 months, while only 130 (7%) reported that it had a negative impact.”

The positive position was slightly lower than the 2008 survey results (30%)

Volunteering Australia should be applauded for considering OHS in its survey.  Many organisations, particularly community organisations, are not so upfront on the issue.

Volunteering Australia is aware of the national OHS model review and are preparing for the additional overt relevance of volunteers in OHS law, but Volunteering Australia tells SafetyAtWorkBlog that they chose not to make a submission on the OHS model laws.

Kevin Jones

Nightclub fires and evacuations

Mainstream press around the world reported on the fire in a Russian nightclub over the weekend in which 100 people were killed.  One report says the nightclub owner has been arrested quotes the Russian President Dmitry Medvedev as saying

“All that has happened can only be described as a crime….I think this is absolutely clear….You have noted that a criminal investigation has been launched.  This is not a premeditated crime, but that does not reduce the gravity of the consequences. A huge number of people were killed.”

The fire reportedly started when stage pyrotechnics set fire to the ceiling.

Some readers, particularly in the United States would see distinct similarities with the  February 20 2003 in which 100 people were killed and over 200 injured.  A fire, also started by stage pyrotechnics, occurred in the Station nightclub on Rhode Island.  That whole event was captured on video.  The band’s tour manager who started the pyrotechnics, Daniel Biechele, was charged with 100 counts of involuntary manslaughter, pleaded guilty and served 4 years of a 15 year jail sentence.

The nightclub owners did not contest their charges and received similar sentences to Biechele.  Civil penalties added up to around $US175 million.

Given that the Station fire was six years ago, it is hard to understand why any nightclub would even consider using such stage pyrotechnics.

Other nightclub fires should not be forgotten although they received less coverage in the Western media.  Those with which SafetyAtWorkBlog is familiar include the 2002 fires in the Caracas nightclub, La Guajira where 47 people died, mainly from smoke inhalation.  Rumours had it that the nightclub had exceeded its allowable client limit.  Investigations showed that fire exits were not clear and the fire extinguishers were inoperative.

Although there are several incidents going back to the 1970s one that received a huge amount of attention was the December  30 2004 fire in the Republica Cromagnon nightclub in Buenos Aires. (The Wikipedia entry for this incident has a very good list of similar incidents)

The Republica Cromagnon nightclub had several of its doors shut with wire or padlocks.  The nightclub had 4,000 patrons in a premises licensed for 1,100.  Initial reports said that 715 people were injured and over 190 died from a fire that was started by a flare.

The incident generate three days of rioting and street protests of thousands of people, many were relatives of the dead.

In this case, not only were the club’s owners jailed on murder charges but city building inspectors and police officers were charged with manslaughter and corruption.  The inspectors allowed the nightclub to operate with inadequate safety standards.  The police accepted bribes from the owners and did not report the overcrowding or use of flares.

In November 2005, the mayor Buenos Aires, Anibal Ibarra, was suspended from office after the legislature voted to impeach him over issues related to the Republica Cromagnon fire.

Managing safety in nightclubs is a complex business as the industry overlaps many jurisdictional areas from workplace safety to building design to security to emergency response.  As the world moves towards the main season of celebrations with Christmas, New Year and others it is worth considering some of the more useful OHS guidelines for nightclub operation, even though such measures should have been considered well before now.

Going from the violations related to the Rhode Island fire by OSHA it would be expected for a nightclub owner to

  • Remove any highly flammable materials from the interior of the structure
  • Make sure that exit doors are visible at all times
  • have a written emergency action plan
  • have a written fire prevention plan
  • nominate and train staff to assist in a safe and orderly evacuation of other employees
  • review fire hazards with employees.

Seattle has a nightclub patron safety handout.

One guide from Virginia specifically references the Station nightclub fire.

The Health and Safety Executive has a guide to assessing risks in nightclubs as well as general OHS advice for the hospitality and leisure industries.

WorkSafe Victoria has a guide on crowd control which may also be useful

Many local jurisdictions have guidelines, or the industry itself has developed guidelines, to assist in the management of nightclub crowds.  SafetyAtWorkBlog urges owners and staff to undertake reviews prior to peak times.

Kevin Jones

Potential risks of investigating workers compensation cases

According to a several media reports in the United States, a private investigator, Matthew Brady, who was investigating a workers compensation case whilst hiding in the woods was mistaken for a turkey and shot by the man he was investigating.  Brady was operated on in the local hospital.

As the Workers Comp Insider Blog states:

“Investigator Brady was hit in the side, back and legs.  He underwent surgery and presumably filed his own workers comp claim for what is surely a work-related – if highly unusual – disability.”

Kevin Jones

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