Category: law

Who is all this OHS harmonisation for?

The public comment phase of Australia’s review of its OHS law harmonisation process begins in September 2009.   To a large degree it is at this stage that the stakeholders can start refining their horse-trading.  It will also be interesting to watch as the distraction of the new industrial relations legislation has gone since that law was introduced.

Safe Work Australia is using the traditional limited consultative troika – government, employers and unions, and will need to give public submissions considerable weight to balance interests.

Two of the employer groups have already started setting out some guidelines and expectations.

SafeWork -0X1.DB7490P+747ustraliaMR_Aug_2009A statement from the CEO of the Minerals Council of Australia (MCA), Mitchell Hooke, was released on 14 August 2009.  The only new element of the media release was

“The MCA has called for the National Mine Safety Framework to form the basis of national minerals-industry specific regulation within the Model OH&S Act.”

One of the aims of the harmonisation movement is to minimise regulations for specific industry sectors.

The Australian Chamber of Commerce & Industry was more expansive in its statement of 5 August 2009.  The ACCI overstates the cost burden of OHS legislation in each State.  The Model OHS Law Review Panel found overwhelming similarities between the legislations but acknowledged that the variations would be difficult to resolve.

ACCIHarmonisation-ACCIPerspective CoverThe following quote from the ACCI statement illustrates the value of the ACCI perspective and also its major shortcoming.

“However, harmonisation of legislation is not of itself the solution to the compliance burden problem, but rather it will be the final content and quality of the model legislation and the approach to its implementation and enforcement that will be the critical determinants as to whether or not productivity gains are in fact realised in practice.”

It is accurate to say that the success of the legislation will be gauged by its implementation and enforcement.  However, the conservative  ideology of the ACCI is on show when it states that the harmonisation is intended to provide productivity gains.  OHS legislation’s first aim should always be to improve the safety and health of the workforce which, in turn, increases productivity.

ACCI and other employer associations too often jump the safety element and go straight to productivity yet it is the safety of employees that is by far the greatest value that employers share with the community and the unions.  Elsewhere in the ACCI statement, the importance of safety is acknowledged but the communication of priorities is muddled.

The ACCI also says “OHS laws should never be used as a vehicle to drive other agendas,” and then goes on to push issues of industrial relations and union behaviour that are not the core focus of the OHS model legislation process.

The ACCI statement closes on a more philosophical approach to OHS.  It talks about “cooperative development”, “safety culture” and  “continued engagements” but its own cooperation can be seen as conditional in the majority of the statement.

There is one statement that all involved in OHS law reform should consider. The ACCI states that practical and easily understood regulation is required.

“This is particularly important for the majority of employers who operate only in one jurisdiction and who will not receive a direct productivity benefit under harmonisation but who will bear the cost of understanding and complying with a new OHS Act and regulations.”

Not much will change for those companies who operate in a single State of Australia.  It is also useful to note that the vast majority of businesses in Australia are small- and micro-businesses  for whom all of this national hoo-ha is almost totally irrelevant.

The Australian Bureau of Statistics said in a webpage that was updated in September 2008 that

“Small businesses comprise the vast majority of Australian businesses. The importance of the small business sector to the Australian economy is recognised by researchers, government and policy makers as well as the business community as a whole. It is acknowledged that the characteristics and business drivers of small business are potentially very different to those of larger businesses and as such require specific, targeted policy initiatives. Central to the development of effective policy initiatives is a sound understanding of the nature and characteristics of this sector of the business economy.”

The employer associations do not represent the largest employment sectors in Australia – small businesses, micro-businesses and home-based businesses.  Nor do the trade unions.  So who exactly are the biggest beneficiaries of this whole OHS harmonisation process?

Kevin Jones

CertIV OHS training in Beijing

Several years ago I met an OHS professional from Singapore, Daniel LO.  Daniel relocated to Australia and has continued his OHS career.  Last month Daniel conducted a Certificate IV OHS course for the Sinopec Corporation.  As China becomes even more important to the world economy, pressure is increasing to show an acceptable commitment ot workplace safety.  We, in the West, have seen this most in China’s coal mining industry and some of its manufacturers, particularly for some global brands.

In talking with Daniel last week, he offered a short article on the training course he instigated and conducted.  Daniel is an asset to Australia and will be one OHS professional to watch.  Here is his contribution:

An OHS Professional Report on Safety Developments in China

Since China’s entry into the World Trade Organisation in December 2001, there has been much pressure from the international community for China to raise its Occupational Health and Safety standards.   The introduction of the Safe Production Law in 2002 and more recently the adoption of the Law on the Prevention and Control of Occupational Diseases in 2008 is the response of a determined government, to ensure that its regulatory framework catches up with the nation’s unprecedented economic growth.

Heeding this call to protect workers’ safety and health by investing in OHS training is state owned enterprise – China Petroleum & Chemical Corporation – one of the largest state-owned major petroleum companies in China, The company has made it to the top ten ranking by Fortune Global 500, is also known as Sinopec Corp, and is listed in the Shanghai, New York and Hong Kong Stock Exchanges.

In July 2009, as an OHS professional with bilingual ability, Daniel Lo personally negotiated, prepared and delivered the first ever CertIV in OHS in Sinopec (Beijing).  This flagship competency-based training and assessment  is also part of Sinopec’s policy of “Safety First, Prevention Foremost, All Involvement and Comprehensive Control," to achieve a better Health Safety and Environment (HSE) performance.  Participants for this training are project managers, safety managers and supervisors from various oil fields in Saudi, Sudan, Ecuador, Yemen, Iran, Nigeria, and China.  The key success of this program has been the training and sharing of occupational safety and health management system in context of China’s language, culture and history.

Daniel LO is presently engaged as a senior OHS consultant by IFAP.  He has an MBA, BSc in Mechanical Engineering, Specialist Diploma in OHS, CertIV in OHS, Diploma in Information Technology, Advanced Certificate in Training and Assessment.  He is also a Certified lead auditor for OHSAS18001.

Working Hours and Political Scandal

Over the last month or so, Australian politics has been scandalised by a senior Treasury official admitting to faking an email that implied political favouritism by the Australian Treasurer, Wayne Swan, and the Prime Minister, Kevin Rudd.

Godwin Grech is the public servant who has admitted faking the email and there are many reasons he has put forward, and journalists have endlessly speculated on, for his actions.  SafetyAtWorkBlog will discuss a minor element of the “Ozcar affair” that has been almost entirely overlooked – OHS.

Since the scandal broke in a Senate inquiry, Godwin Grech kept a fairly low profile and was last reported to be receiving treatment in a Canberra psychiatric facility.  It has been reported that Grech has a history of physical health problems and it has been reported, in an investigation into the affair by the Australian National Audit Office (ANAO), that administering the scheme was taxing on Grech.  The report says

“The under‐resourcing of the implementation phase of the policy placed at risk the anticipated policy outcomes. It also placed a considerable workload on Mr Godwin Grech, the Treasury official primarily responsible for the development and implementation of the policy measure, particularly in light of his medical condition.”

It needs to be noted that additional resources were offered to Grech to assist in administering the scheme. But Treasury was also criticised in the report.

“There were no indications that these matters, or Mr Grech’s medical condition, were given due weight in the implementation planning and delivery.”

Grech admitted to the ANAO that he had not informed his employer, the Department of Treasury, of his ongoing struggle with depression.

“What senior Treasury management did not know – as I have only very recently discovered – was that I have also been suffering from chronic clinical depression for some years, dating back to at least 2003. This had not been treated.”

Page 100 of the ANAO report has Grech quoting the OHS Act’s employer obligation to “take all reasonably practicable steps to protect the health and safety at work of [its] employees’”, and then lists his working hours required by the scheme.

“My work on the Oz Car program required me to work between 75‐85 hours per week including on weekends from late October 2008 until the onset of my bowel obstruction in early February 2009. My hours varied from 60‐70 hours per week from late February to June 2009.”

The amount of hours expected is phenomenal and there is little surprise that health problems or poor judgement occurred on this hazard alone.

However, what Grech fails to quote in the information to the ANAO is another section of the OHS Act 1991 – Section 21

“Duties of employees in relation to occupational health and safety

(1) An employee must, at all times while at work, take all reasonably practicable steps:

(a) to ensure that the employee does not take any action, or make any omission, that creates a risk, or increases an existing risk, to the health or safety of the employee, or of other persons (whether employees or not) at or near the place at which the employee is at work; ……”

Employees have a legislative obligation to not put themselves at risk. It would be interesting to know why Grech took on more than was healthy for him.

This dichotomy of choice is a crucial but difficult one for all employees in all industries.  When is it the right time to say no more or to ask for help or to say something is unsafe or unhealthy?

A further complexity to employment relations comes when industrial relations legislation specifies a maximum amount of working hours.  The Australian Government’s very recent Fair Work Act 2009 specifies maximum weekly hours of 38.  So what does this say about the employer’s OHS obligations to  civil servants, such as Godwin Grech?

The Fair Work Act says (Division 3, Section 62 (1))

“An employer must not request or require an employee to work more than the following number of hours in a week unless the additional hours are reasonable:

(a) for a full time employee—38 hours; or
(b) for an employee who is not a full time employee—the lesser of:

(i) 38 hours; and
(ii) the employee’s ordinary hours of work in a week.

Employee may refuse to work unreasonable additional hours.”

In May 2008, the Prime Minister, Kevin Rudd, said the following about public service workloads:

“I understand that there has been some criticism around the edges that some public servants are finding the hours a bit much ….. Well, I suppose I’ve simply got news for the public service — there’ll be more.  This Government was elected with a clear-cut mandate.  We intend to proceed with that.  The work ethic of this Government will not decrease.  It will increase.”

Godwin Grech could be considered one example of the Rudd Government work ethic.

In this political scandal OHS is an oblique and fringe issue but its existence cannot be ignored and it raises legitimate questions about how a Labor Government, the traditional friend of the worker, manages the safety of its employees.

Kevin Jones

River death leads to OHS prosecution

The prosecution of a New Zealand adventure company, Black Sheep Adventures, over the death of Englishwoman Emily Jordan has received more press in England than in Australia but the case should be watched by all OHS professionals.

One report provides a useful summary of the fatal incident

“Emily Jordan drowned while riverboarding on the Kawarau river in New Zealand’s south island in April last year [2008].

The 21-year-old former Alice Ottley School (now RGSAO) pupil was travelling with her boyfriend after graduating from Swansea University with a first class degree in law.

The riverboarding company Black Sheep Adventures Ltd and its director Brad McLeod have been charged with failing to ensure the actions or inaction of employees did not harm Miss Jordan.”

The same article is an illustration of the importance of regular communication with the family of the deceased by the Authorities, even if the parties are on opposite sides of the globe.

The family established The Emily Jordan Foundation and a eulogy about Emily is available which provides a clearer understanding of what was lost in this tragedy.

Black Sheep Adventures have also been charged under the Health and Safety Employment Act 1992, with failing “failure to take all practical steps to ensure the safety of employees and the prevention of possible hazards.”  The company and its director have pleaded not guilty.

The Birmingham Post is continuing to cover the case including the start of the trial due for next week.

Maritime New Zealand who are prosecuting the company instigated a review of the river boarding industry in late 2008.

Kevin Jones

Vehicles are workplaces too

Radical Concept 1 – A vehicle can be workplace

Today the Australasian New Car Assessment Program (ANCAP) urged fleet managers to consider OHS obligations in their choice 0f work vehicles.  ANCAP said

“Our understanding of the OH&S principles is that there is an obligation on companies and fleet managers to ensure a safe workplace.

“Vans certainly constitute a workplace under the legal definition. We would urge fleet purchasers to examine the legislation and then factor safety into their fleet purchasing policies.”

But in practice this creates enormous challenges for the fleet manager who may only have chosen vehicles in the past that were fit-for-purpose without considering the needs of the driver.

Only recently have steps been added to trucks to allow for easier access to goods on the rear trays.  When technology became affordable tilt-down hydraulic ramps were installed, although these have their own work hazards. In both of these examples the changes occurred outside the cabin and related to accessing the transportable products.  Looking after the physical and psychological needs of the driver as a worker is different.

For instance, emergency fire appliances in Australia have had substantially improved design over the last ten years.  Many of the features are for the benefit of drivers and passengers, such as flip-out steps  for when the vehicle is stationary or special seating to allow for personal protective clothing.  But the cost of each of these new “safer” vehicles is such that the introduction is phased in and most likely as replacement vehicles.  This process could take years.  How can a workplace justify allowing only some workers to use “safer” workplaces?  The churn of vehicles could establish an inequitable safety standard ion the workplace.

ANCAP’s argument seem to be that a fleet manager who chooses a vehicle that does not have the  highest level of safety available are not providing a safe workplace.  We could be back to determining what is reasonably practicable.

Radical Concept 2 – A road can be considered a workplace.

Some bus drivers consider their regular route to be a workplace.  To some extent this is supported by the road traffic authorities who only allow certain speed control mechanisms on the roads that have bus traffic, such as speed islands rather than speed humps.  Although this may be due to the needs of not knocking the passengers around as well.

Regardless of the whether it is passenger safety, pedestrian safety or public liability insurance that creates these design decisions, bus drivers take some “ownership” of their routes.

Important Consideration 1 – Vehicles have drivers

A lot of attention has been given to driver distraction and how drivers drive.  Not only are there distractions from within the cabins from passengers, radios, phones, cigarette smoking and a range of driving activities, the relationship between external signage and driver response has also been high.

The complexity of the distraction issue can perhaps be summarized by a couple of recent links. In July 2009 a roadside memorial to a fatality itself is identified as having contributed to a fatality.  Research in the United States has begun on the impact of roadside memorials but at the moment the jury is out.

“Our results showed that the number of red light violations was reduced by 16.7% in the 6 weeks after the installation of the mock memorials compared to the 6 weeks before whereas the number of violations at two comparison sites experienced an increase of 16.8%.”

Managers, fleet and OHS, also need to assess the suitability of their workers for driving and consider the following matters.

  • Companies have an obligation to induct new workers.  Do companies induct new drivers on their vehicles or is a valid driver’s licence deemed sufficient?
  • Is a driving licence a certificate of competence?
  • Is a worker’s driving record considered when employing them?  Would one employ a driver whose record shows a propensity for speeding?
  • Are driving applicants asked whether there is a history of road rage?
  • How many demerit points are left on their licence when employed?
  • For car driving the same licence is used for personal vehicle use and driving work vehicles.  What would happen if the worker has their driver’s licence suspended thereby ending their capacity to drive for work?
  • It would be necessary to clarify in what circumstance transport accident insurance applies and when injuries relate to workers’ compensation?
  • Who should investigate a traffic incident involving work vehicles – the OHS regulator, police or some other authority?
  • Are traffic incident statistics collected for work-related vehicles?

Perhaps ANCAP could begin looking not only at the design of vehicles and additional safety features but also how these matters affect a driver’s perception of their own safety.  Does the elevation of the driver compared to other vehicles change the way the driver drives?  Could the safety features encourage the driver to drive recklessly?  Is technology deadening the driver’s instincts?

Similar questions have been posed in the occupational field for decades in relation to the operation of plant, the safe design of workplaces and the types and locations of safety signage.  Now these concepts must be considered for the mobile workplace.  Many will find this process challenging with some thinking that it is just another grab by the OHS “fascists”.

The issues do need considerable discussion in workplaces.  The recent WorkSafe Victoria “Guide to safe work related driving” is a good starting point but for the development of appropriate policies and, more importantly, to affect cultural change on the matter, companies require an elaboration by traffic authorities and from groups like ANCAP.

Kevin Jones

Drugs in the workplace – small business blog

The Age newspaper included a short article on drugs in the workplace in a small business pages on 4 August 2009.  For OHS professionals there is little new information but it’s a nice summary of some of the legal and management challenges on this workplace hazard.

Sadly some of the reply comments to the article online are demoralising.

Kevin Jones

John Merritt and ‘reasonably practicable’

On 4 August 2009, John Merritt, Executive Director of WorkSafe Victoria, spoke at an OHS function hosted by the Australian Human Resources Institute in Melbourne.  John is a lively speaker whose passion for workplace safety is obvious. I had the opportunity to ask the following question

“How is reasonably practicable NOT a ‘get-out-jail-free card’?”

Many readers will know that I am skeptical about “reasonably practicable” as is evident from the question.  However John’s response was the first from a non-lawyer that saw some positives in the concept.  John said

“I do think [the concept] is a real strength in the law.  In trying to move people to embrace this issue, for those who are in that denial phase, they often think we are asking them to do the impossible, and I find it really useful to say “no we’re not.  We’re asking you to do that which is reasonably practicable.

Our job, if  we say what you’re doing is not reasonably practicable, all we have to do is go and find someone who is just like you who is doing it.  We’re not asking you to do anything that somebody else, and usually in some critical mass of numbers, isn’t already doing, so why can’t you do it?” And I think that’s a reasonably sophisticated law.

You’ve got to have really good teams of investigators and lawyers and inspectors and all that sort of stuff to make that sort of law work.  But that’s good, that’s doable …. but I do think, in our field, its a reasonable proposition.

The alternative, which is an absolute duty – you must have a safe workplace and if someone is hurt, prima facie, you’ve failed and you need to prove to us that you’re innocent – can be made to work as well and most of the research is …. but in trying to move that hearts and minds of, particularly, our target audience, I think it’s the right way to go.”

It was refreshing to hear that “reasonably practicable” can be used as a tool for good instead of evil through illustrating an example of a control measure that has already been found to be reasonably practicable.  Tangible examples have been missing from OHS in Australia for a long time, ever since the OHS Solutions databases fell over in the 1990s.

If WorkSafe finds such examples useful for businesses, it would be good to see such databases resurrected. The images below show some pages from “Share Solutions” a hard copy database produced by WorkSafe’s predecessor, the Occupational Health and Safety Authority, in the late 1980’s.  It would be a good idea if someone like Safe Work Australia investigated the feasability of resurrecting this initiative.

Kevin Jones

Share Solutions 001 002

Share Solutions 003

© Workplace Safety Services P/L (ABN: 68091088621) and SafetyAtWorkBlog, 2008-2024. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Kevin Jones and SafetyAtWorkBlog with appropriate and specific direction to the original content.

Concatenate Web Development
© Designed and developed by Concatenate Aust Pty Ltd