Category: law

Management – the importance of what comes before

A special guest for the Safe Work Australia events in Queensland was Matthew Gill, former Beaconsfield Gold mine manager.  According to a media statement from the Government

“Matthew Gill who was the public face of the Beaconsfield mine rescue will speak about how he immediately took control of the emergency and then implemented rescue operations for the three missing miners,” [Workplace Health and Safety Queensland Executive Director, Dr Simon Blackwood] said.  “Mr Gill maintained an unwavering commitment to the safety of the people conducting the rescue and to the trapped miners.

“He oversaw the rescue teams which battled 24 hours a day for 14 days to release the two miners trapped almost 1km underground. Mr Gill will relive the emotional story of finding Larry Knight’s body and having to talk to his family afterwards.

“Previously he has been involved with mine rescue at rock falls at Mt Lyell in Tasmania and in Papua New Guinea, but Beaconsfield was the first time that he had such ‘hands on’ involvement.”

Matthew Gill has a lot of skills to share on disaster management and media handling but a lot of that skill seems to come about after the rockfall in 2006 that killed Larry Knight.

Cover KNIGHT,_Larry_Paul_-_2009_TASCD_25Prior to that time, in 1995 to 1997, Matthew Gill was the Responsible Officer for the mine.  From 1997, Gill appointed other people to undertake the role that is required by legislation.  Sometimes there were three people in the role at the same time.  Professor Michael Quinlan was quoted in the Coroner’s report saying that

“……….the very notion of appointing a Responsible Officer would have little meaning unless that person so appointed exercised overall control of the workplace and could therefore make critical decisions in relation to OHS not simply recommend them, be part of them, or make decisions but not others than might affect safety. For example, as Responsible Officer Mr Ball was a participant in decisions on mine design and mining methods – decisions that have a critical effect on the safety of underground workings – but he was not the only or final decision maker.”

The Tasmanian coroner Rod Chandler,agreed that there should be only one Responsible Officer and that the legislation be amended to reflect this.

Media reports of the inquest into Larry Knight’s death reported that after rockfalls in October 2005 and various risk consultants’ reports Matthew Gill undertook some remedial work on the mine and in February 2006, Gill declared the mine safe to restart mining.  The decisions made on the basis of those consultants’ reports came under close scrutiny in the coronial inquest.

On 10 November 2008, AAP’s Paul Carter reported the following:

Lawyer Kamal Faroque [representing the Knight family and the Australian Workers’ Union] told Coroner Rod Chandler in Launceston that Allstate’s management failures contributed to Mr Knight’s death…. Mr Faroque said mine manager Matthew Gill was ultimately responsible for deficiencies in the mine’s ground supports.  “It is submitted that deficiencies in ground support contributed to the Anzac Day rockfall which killed Mr Knight,” he said.

He also said there was no reasonable basis for Allstate to conclude that it was safe for workers to return to the area after two earlier rockfalls.

“Mr Gill accepted responsibility for the decision to recommence stoping in the western zone following the October (2005) rockfalls,” Mr Faroque said.  Stoping is a mining method in which underground chambers are opened up deep beneath the surface.

Mr Faroque said the risk management process conducted following the October 2005 rockfalls was inadequate.  “It is submitted that these failures are a sound foundation for a finding that Allstate contributed to the death of Larry Knight,” Mr Faroque told the court.

There is no doubt that Matthew Gill was integral to the successful rescue of Brant Webb and Todd Russell but Gill had been employed at the mine for over a decade before the fatal rockfall and therefore was also involved with the decision-making leading up to the rockfall.  The decisions made by the company over many years should be analysed to see the combination of bad, poor, or short-term decisions that ultimately led to Larry Knight’s death and the entrapment of his colleagues.

The rescue of Webb and Russell is an exciting tale with a happy ending and at least one book and several long articles (even a school lesson plan) have been written about this.  The most lasting lessons for safety professionals, mine managers and business operators would be what contributed to the bad decisions leading to Larry Knight, Brant Webb and Todd Russell being in an unsafe working environment during a rockfall.

This is a more complex story that requires knowledge of geology, the stock markets, corporate accountability, OHS and mine safety regulations.  If this story had been Matthew Gill’s presentation during Safe Work Australia Week, it would have been worth travelling to Queensland to hear.

Kevin Jones

Amputations, shocks and burns – court cases

In late October 2009, there were several OHS court cases in Australia that raise issues that need to be kept at the forefront of the thoughts of safety managers, safety professionals, workers and business owners.

Amputation

One case in South Australia identified the need to have sufficient detail in policies and procedures for workers to be safe.  The comment of Industrial Magistrate Michael Ardlie is particularly important.

Beerenberg Pty Ltd was fined $A9,000 dollars for breaching OHS law

“The incident happened in May 2007 at the company’s Hahndorf premises. A female employee was operating a mincer as part of the process of producing green tomato chutney.

The court was told that at the conclusion of the task, the employee switched off the machine but noticed a piece of tomato hanging from the mincer plate. She went to flick the piece off, but in doing so lost the tip of her index finger.

SafeWork SA’s investigation concluded that the woman’s finger had gone through one of the holes in the mincer plate and come into contact with the cutting blade behind, which was still winding down after the machine was switched off.

The fingertip could not be reattached, but the woman returned to work with the business after five weeks. Aside from the cosmetic appearance, there remains some numbness in the finger.

In his penalty decision today, Industrial Magistrate Michael Ardlie acknowledged that while there was a safe operating procedure written and a warning sign in place, these measures alone were insufficient.

“(The measures) did not specifically warn employees of the dangers presented by the moving parts of the mincer after the mincer had been turned off… the procedures in place did not go far enough.”

Since the incident, the company has fitted a purpose-built distance guard as well as an interlock that shuts the machine down once the guard is removed.”

Magistrate Ardlie fined the defendant $9,000 this being its first offence.

Crushed Fingers and Guarding

The same Industrial Magistrate as above, McArdlie, had to deal with a very different case.  Whereas Beerenberg was facing its first offence, OE & DR Pope are on their fifth.

“SafeWork SA prosecuted OE & DR Pope Pty Ltd after investigating an incident at its Wingfield printing plant in March 2007.

A 34-year-old male employed as a machine operator, suffered crush injuries to three fingers of his right hand, which were caught between moving rollers.  While he returned to work after three weeks, he suffered residual sensitivity problems, and left the business in December 2007 for unrelated reasons.

The court was told that the operator had attempted to clean dry spots from a roller without stopping the machine, and was able to gain access to the moving parts through a 70mm gap in the guarding.  Furthermore, the employee’s usual assistant was not available leaving him to perform two roles on the machine.  The supervisor who also should have been present was elsewhere on the premises at the time.

In his decision on penalty handed down today, Industrial Magistrate Michael Ardlie noted that the machine involved had replaced another involved in a previous injury, but that a risk assessment failed to identify the problem which ultimately occurred:

“Whilst the defendant prior to the incident did assess the machine, installed a guard and introduced a Standard Operating Procedure, the steps it took were inadequate.”

The court was told that this was the company’s fifth offence dating back to 1998, and all previous incidents resulted in similar injuries from similar circumstances.

Therefore, being a subsequent offence under the Occupational Health Safety and Welfare Act 1986, the defendant faced a maximum fine of $A200,000. Magistrate Ardlie fined the company $A40,000.”

Fifth incident in just over ten years – “similar injuries from similar circumstances”.  The reduced fine of $A40,000 seems a little odd in this context.

There are several elements that are disturbing in this case – ineffective guarding, excessive or conflicting workload and absent work supervisor.

Overhead Hazards

Just as falling in some workplaces is as “easy as falling of a log”, so it is that many people forget to look up.  A court case in Western Australia has fined Shrigley Drilling Contractors $A40,000 after one worker was shocked and another burnt when their drilling rig tilted into high-voltage overhead powerlines in 2006.

“Laurence Victor Shrigley – trading as Shrigley Drilling Contractors – pleaded guilty to failing to ensure that the workplace was safe and, by that failure, causing serious harm to another person and was fined in the Perth Magistrates Court this week.

In May 2006, Western Power had contracted Outback Power Services to perform works and construct a voltage regulator at Eneabba. Outback Power had contracted Mr Shrigley to perform drilling works.

On May 17, Mr Shrigley and an electrical contractor were engaged in drilling holes with a drilling rig underneath power lines. The position in which the drilling contractor chose to place the rig required him to raise the mast very close to the power lines.

In repositioning the rig, the left-hand outrigger was raised and the mast tilted towards the power lines. The mast touched the power lines and Mr Shrigley received an electric shock and was thrown backwards from the drilling rig.

Another man, who was driving the truck that carried the drilling rig and was working with Mr Shrigley on a voluntary basis, also received an electric shock serious enough to set his clothing on fire. He sustained burns to around 60 per cent of his body.

The court heard that no formal pre-start meeting had been held before the work commenced, and no directions were given for the work, with the exception of where the holes were required to be placed.

Mr Shrigley had not checked whether the power lines were live, or attempted to make any arrangements for the power in the area to be isolated.”

The features in this case include contractor management, using a volunteer,  inadequate preparation, and inadequate number of workers (apparently, no spotter).

It is understandable that cynicism is rampant in the safety profession when the same work practices lead to injuries in the 21st century just as they did in the 20th and sometimes in the 19th.

Kevin Jones

Gov’t responds to insulation installer’s death

Recently SafetyAtWorkBlog reported of the death of a worker installing insulation in a domestic home.  A staple for the foil insulation apparently pierced an electrical cable and electrocuted the worker.

The Queensland Government has introduced mandatory provisions to avoid the hazard in the future.  In a media release on 1 November 2009, the Industrial Relation Minister, Cameron Dick,

“… issued a ministerial notice under the Electrical Safety Act 2002 to prohibit the use of metal fastenings for ceiling insulation.”

The ban is effective from 1 November 2009.

It may already be the case, elsewhere in the world, that non-conductive fasteners are used for installing metallic insulation.  If not, the rules introduced by the government should prove useful references.

“The ministerial notice means that installers will have to use nylon or plastic fasteners (which are already in use within the industry), glue or tape to fix foil insulation in ceilings.

As well as banning metal fasteners, the notice also:

  • forces insulation installers to comply with the Wiring Rules with respect to the placement of any type of insulation near recessed downlights
  • makes electrical safety risk assessment training mandatory for all installers
  • forces installers to document their on-site electrical safety risk assessments and keep a record f or five years.”

Such a mandatory rule is clearly a necessary short-term fix but it does little to address the concerns of the Master Electricians Association.  Training and enforcement are the long-term solutions but policymakers must also anticipate the applications of their policies more closely.  New policies should not be announced in an industry that does not have the resources to meet the policy’s aims.

Kevin Jones

New approaches on OHS fines and penalties

At the moment Australian OHS professionals, lawyers and businesses are preparing submissions to the Government on the harmonisation of OHS laws.  One of the areas that the Government is seeking advice on is penalties.  The Discussion Paper asks the following

Q17. Are the range and levels of penalties proposed above appropriate, taking account of the levels set for breaches of duties of care by the WRMC?

Q18. What should the maximum penalty be for a contravention of the model regulations?

Q19. The intention is that all contraventions of the model Act be criminal offences. Is this appropriate or should some non-duty of care offences be subject to civil sanctions e.g. failure to display a list of HSRs at the workplace, offences relating to right of entry?

The amount of  any fixed financial penalty is not a big issue in my opinion.  There is an assumption that the threat of a large financial penalty imposed on one company will encourage other companies to improve safety.  Is anyone seriously saying that all of the financial penalties imposed over the decades are in some way responsible for an improving level of safety in workplaces?  The motivation to improve safety comes from elsewhere.

The threat of large financial penalties send companies to seek ways of insuring against having to pay a fine.  Often it is cheaper to pay an insurance premium on the slim chance of being prosecuted and fined.  I acknowledge that this has been a corporate and risk management approach primarily but there are cases where such options are being offered to small business.

Large financial penalties, such as the then record fine to Esso over its Longford gas explosion, are easily paid with little OHS improvement resulting from the fine.  It can be argued that the negative corporate exposure from the resulting Royal Commission, a reulting class action and the media coverage resulting from its unforgivable treatment of Jim Ward were stronger motivators for improvement.

In most Australian States, there is not a crime of industrial manslaughter.  This issue has faded from the political agenda but it remains very much alive in England.  On 27 October 2009, the Sentencing Guidelines Council wrote the following:

“Companies and organisations that cause death through gross breaches of care should face punitive and significant fines, a consultation guideline published by the Sentencing Guidelines Council proposes today.

Fines for organisations found guilty of the new offence of corporate manslaughter may be measured in millions of pounds and should seldom be below £500,000.

The new sanction of Publicity Orders forcing companies and organisations to make a statement about their conviction and fine introduced under the Corporate Manslaughter and Corporate Homicide Act should be imposed in virtually all cases.

The consultation guideline proposes that the publicity should be designed to ensure that the conviction becomes known to shareholders and customers in the case of companies and to local people in the case of public bodies, such as local authorities, hospital trusts and police forces.  Organisations may be made to put a statement on their websites.”

The Council recommends a minimum financial penalty and a publicity order that has teeth. More on the publicity order is below.

Council member Lord Justice Anthony Hughes clearly states the purpose of financial penalties and it is not preventative.  He said in a media statement

“Fines cannot and do not attempt to value a human life – compensation will be payable separately in these cases.  The fine is designed to punish and these are serious offences so the fines imposed should be punitive and significant to reflect that.”

Penalties as a Percentage of Turnover

Hughes says that the Council rejected a Sentencing Advisory Panel proposal that I believe should be floated in the current debate on penalties in Australia, even though it is likely to be similarly rejected.

The Panel recommended the following

“In order to achieve an equal economic impact on offending organisations of different sizes, the proposed starting points and ranges for offences of corporate manslaughter are expressed as percentages of the offending organisation’s average annual turnover during the three years prior to sentencing.  The relevant turnover is that of the company convicted of the offence or, where the offending organisation is a holding company, the consolidated turnover of the group of companies of which it is the holding company.”

Here is the penalty table

Manslaughter table

Lawyers argue extensively about the use of manslaughter in relation to deaths in workplace but the public jumps across the legalese by repeatedly asking how the death of their loved one is not manslaughter when the actions of a director or company led directly to the death?  No level of legal explanation is going to counter this need for accountability, some would say revenge.

Similarly the penalty rate listed in the table above is easier for the public to understand conceptually compared to a judge’s or lawyer’s explanation of why a financial penalty for a workplace death was less than the maximum.

Sentencing options are complex and SafetyAtWorkBlog has no legal contributors but on 30 October 2009 within a public discussion period on national OHS laws and at the end of Safe Work Australia Week, it seem thats penalties imposed from a percentage of turnover may be an attractive concept to many safety advocates and one that needs to be considered in the Australian context.

Publicity Orders

On the issue of publicity orders, many Australian jurisdictions have had this option for a while.  Indeed, the issue of enforceable undertakings is getting a broader hearing after some of the recent actions by Comcare against John  Holland Group and others.

It is always important to look at the most recent actions and decisions in OHS law and regulation from outside one’s own jurisdiction so that innovations are not overlooked.  It seems that the Sentencing Advisory Panel has looked at lots of  jurisdictions in making the following requirements.

The Sentencing Advisory Panel listed specific requirements of a publicity order to be applied within a specified timeframe:

  • a quarter-page advertisement in a local or regional newspaper, in the case of an organisation operating in one area; or
  • an eighth-page advertisement in three specified national daily newspapers, in the case of an organisation operating nationally; and
  • an eighth-page notice in a relevant trade publication; and
  • a prominent notice in the organisation’s annual report (also in electronic format where applicable); and
  • where applicable, a notice on the homepage of the organisation’s website for a minimum period of three months.

The panel also closed a possible (out) for offending companies.

” The making of a publicity order does not justify a reduction in the level of fine imposed on an organisation for an offence of corporate manslaughter.”

The ads on home pages, local newspapers and trade publications (if there are any) seems very reasonable but the media option that may be most influential is the inclusion in the company’s annual report.  Acknowledging a workplace death and expressing regret in an annual report is admirable but “a prominent notice in the organisation’s annual report” goes straight to the shareholders who often have the ear of the corporation.  Just look at the influence being applied by them at the moment on executive salaries.

Now is the right time for Australia to consider alternative OHS penalty options.

Kevin Jones

OHS – time to grow up or get locked in the attic

In OHS law in Australia, the employer/employee relationship is dead or, at least, coughing up blood.  OHS law is to be based on “people conducting a business or undertaking” (PCBUs have been discussed briefly elsewhere) and not a worker working in a workplace, even though the recently changed industrial law, the Fair Work Act, maintains this relationship.

This morning in a staff seminar at a large multinational business in Australia a regional CEO revealed a considerable level of financial detail to his employees, much more so than any of the staff had seen before.  His reason for this was that he was talking with “adults”.  He employs adults and expects his workers to act like adults.  He also said that he cannot understand why, for so long, employees have been treated as children or act like children.

Past occupational health and safety law seems to reflect this relationship.  Employees have expected someone else to fix a problem because the employer has the principal responsibility for everyone’s safety.  The employee has had a legislative responsibility to look after their own safety and that of others for decades but it was rarely emphasised and only occasionally did it appear as a reason for a prosecution.

To be simplistic for a moment, parents set the house rules for when children are in the  house.  As children grow, the rules are amended and new rules are created as the child becomes more mobile, curious and intelligent.  In many circumstances, the children are given a fair degree of flexibility in meeting the house rules but every so often the rules need to be enforced and children reminded of them.  A penalty of some sort is applied.

At a WorkSafe seminar on 26 October 2009 in relation to the proposed Safe Work Bill, there was a tone to the panelists’ comments that seemed to be calling for a new “maturity” in OHS management.  It was as if the last thirty years has been the learning phase where the house rules have been clearly established and the children have reached a point where the house rules are to be self-policed.  It could also be put that the children are expected to extend these rules to any guests to the house.  But the analogy of a house as a workplace and business should stop there before it becomes silly.

What the new/proposed OHS laws are looking for is a responsible approach to staying safe.  The emphasis on “reasonably practicable” in the legislation is a plea and an expectation for people in a workplace to behave reasonably.  The impression is that if the test in law is to be of a “reasonable person” then the OHS law should be encouraging people in a workplace, whatever their status, to act reasonably.

In short, the Australian Government is asking businesses and workers to “grow up”.  The test will be who chooses to be sitting at the family meal table and who becomes the mad uncle locked in the attic that everyone feels embarrassed by.

Kevin Jones

Australian Standards and OHS harmonisation

This morning in Melbourne, WorkSafe Victoria conducted a three-hour seminar on the harmonisation of Australia’s OHS laws.  The speakers and panelists were John Merritt of WorkSafe, Tracey Browne of the Australian Industry Group and Cathy Butcher of the Victorian Trades Hall.  Tripartism at its best.

The large auditorium was filled with hundreds of attendees, very few were the familiar faces of the OHS professionals who can often dominate such events.

A question was asked to the panel about the application of the Australian Standard for Plant.  The question was, basically, will the Australian Standards be referred to within the upcoming OHS regulations?  The panel unanimously said no.

This was the clearest indication yet that the rumour about Australian Standards not being given legislative legitimacy through legislation is correct.  Tracey Browne however provided the rationale.  She said

“The important thing is that as soon as we incorporate an Australian Standard in a regulation, we create a whole different legislative status of something that was never designed to be a safety regulation….

This doesn’t change the fact, though, that it is the “state of knowledge” and when you look at what you are doing in relation to what is reasonably practicable, you need to take into account all the things you know or ought to know.  So if you are [for instance] bringing plant into Australia, and that is your business, then you need to know what the Australian Standards are and make sure that’s part of your consideration.”

Standards Australia is undergoing a considerable rethink due to a big loss of funds and in response to the changing regulatory structure in all sorts of industry and financial sectors.  The challenge is acknowledged by the CEO of Standards Australia, John Tucker ,when he discusses a “new way of operating“.

Kevin Jones

Employer concerns on OHS law review

In support of the Safety Show mentioned in a previous article, the organisers have issued a media release which provides illuminating quotes on the issue of the Australian Government’s program for review of OHS laws:

One of those keen to comment is exhibitor at The Safety Show and chief executive of the Australian Federation of Employers and Industries, Garry Brack [significantly NOT a speaker at the Safety Conference ED.].

“We are concerned about the content of the model laws,” Mr Brack says. “New South Wales’ OHS Act is the most difficult piece of legislation in the developed world and we believe this is a lost opportunity to wind up with more balance.”

“If an employee does the wrong thing, the employer is found guilty. We’re not arguing that employees should be prosecuted but reject the notion that employers should be liable when employees fail to meet safety requirements.”

Clearly Brack has not compared the NSW OHS Act to the Federal Taxation legislation.

Brack reflects many of the perspectives of those who deal with OHS in the State of New South Wales.  The pent-up frustration is clear and the employers do not believe the reassurances from the Federal Government.

Brack also illustrates the desire for prescription in OHS law.  If people, in this case employers, know how to comply with a law, they are more likely to do so.

“Smaller employers don’t have the financial resources and in-house expertise to interpret what is ‘reasonably practicable’. They say ‘Tell us what we have to do’. They don’t wanted to return to the lunacy of years ago where every nut and bolt was defined but they do need a more prescriptive approach and help from regulators.”

He highlights a concern about the OHS laws shared by SafetyAtWorkBlog, small business has always struggled to provide an appropriately safe workplace.  “Reasonably practicable” does not help.  However, Brack’s desire for prescription is nostalgic at best, some would say fantasy.  This government has no intention of taking a seemingly regressive step to prescription and Brack has been aware of this for years.  At some point one has to accept reality and work with what is being offered.

Variations

Another exhibitor discussed the expectation that States will still add their own variations to the model OHS laws.  This option has never been hidden by the government or the various review panels.  In fact, this flexibility has been a major point in the government’s choice on harmonisation rather than uniformity.

“National legislation is highly desirable to avoid the massive duplication of work for national organisations,” Mr [Bill] Henman [of the College of Warehouse Training] says. “Unfortunately, the legislation will be enforced by various state jurisdictions and this will result in variation between states in interpretations, penalties and the finer points of the legislation. The devil is in the detail. [ED. please kick the next person who uses this cliche] Different penalties in different states currently affect the priorities of safety managers and standardised penalties would provide better outcomes.”

Henman needs to read the legislation and supportive documents to see that standardised penalties are proposed.  Though Henman is considering one of the most important issues that does not seem to be in consideration in much of the commentary on the legislation to date – improved safety.

“It’s very hard to say whether these new laws will make workplaces safer. The culture of those less safety conscious workplaces where the employer bends the rules has to change. One would hope the new laws will help engender better safety cultures.”

The Master Builders Association of NSW‘s OHS risk management officer, Tim Stootman, echoes the perspective of Garry Brack, looking at the  legislation through the experience of a New South Wales employer:

“Master Builders supports the review of OHS laws and believes that this is an opportunity for better, rather than greater, OHS regulation,” Mr Stootman says.  “Better, rather than greater, regulation will assist to improve OHS performance in the construction sector.

Master Builders supports the rejection of what could be called a ‘highest common denominator’ approach to OHS duties.  Essentially, this approach would have seen an absolute duty of care on employers to ensure the health and safety of their employees and provides unions with the right to bring a prosecution for a breach of the OHS law, the latter a provision adopted in recent changes to the law in the ACT.

The Draft National Model OHS Act is a positive step towards harmonisation of OHS laws in this country.”

Submissions to the government on the draft Safe Work Bill are being regularly posted at the Safe Work Australia website.  SafetyAtWorkBlog is watching the submissions and will draw attention to some of the more useful comments in the submissions.

Kevin Jones

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