law – Page 223 – SafetyAtWorkBlog

Harmonising workers compensation

Gabrielle Lis raised an issue in an article for Return To Work Matters that deserves to be seriously considered. The Australian Government is set on a path of harmonising OHS laws through the coordination role of Safe Work Australia. One of the key policies for Safe Work Australia is also to

“develop proposals relating to… harmonising workers’ compensation arrangements across the Commonwealth, States and Territories…”

Wow, this is more of a challenge than harmonising OHS laws. As Gabrielle writes

“Workers and employers don’t always see eye to eye on the issue, not to mention the differing interests of big businesses and small and medium enterprises, and the entrenched positions of the states and territories, who all tend to prefer “how we do things” to how things might best be done.”

Safe Work Australia is going to be dealing with over a dozen worker’s compensation insurers, around half a dozen workers’ compensation bureaucracies and thousands of stakeholders in the compensation, insurance, healthcare and return-to-work sectors.

This challenge is phenomenal and will not fit into any short-term schedule. This challenge differs from OHS in that it directly involves money, millions of it. The negotiations on OHS between government, unions and employer groups will be nothing compared to when the insurance companies move in on workers compensation.

Kevin Jones

(Disclaimer: Kevin Jones is a regular columnist for www.rtwmatters.org)

Legal opinion on Australia’s model OHS laws

The comments on the Australian Government’s response to the report into Australia’s model OHS laws have been pretty muted. There were the obligatory compliments from those in favour and the obligatory criticisms from those against but both types of response were in the immediate aftermath of the Workplace Relations Ministers’ Council meeting in mid-May 2009.

Going from the institutional and media quiet, there must be few changes that are expected to have any great impact. Law firm Blake Dawson released their take on the government’s response. Here is their advice to employers – pretty much “wait and see”:

Lessons for employers

The decisions made by the WRMC on the proposed national model OHS Act will bring changes to virtually all areas of OHS in all Australian jurisdictions.

All employers and other duty holders should carefully review the model OHS Act upon its release and consider whether changes need to be made in advance of the laws being enacted.

Particular areas of focus are likely to be:

ensuring all duty holders have a clear understanding of the nature and scope oftheir duties and obligations;

ensuring that officers of corporations are taking proactive steps to promote health and safety;

in respect of some Australian jurisdictions (eg NSW) preparation for the introduction of health and safety representatives and the role that HSRs may play in an organisation;

thorough preparation for regulator investigations.

It is strongly recommended that their full “alert” be read for interest.

Kevin Jones

Presenteeism and swine flu

Craig Donaldson interviewed Joydeep Hor, managing partner of Australian law firm Harmers on employment issues related to the swine flu outbreak. Joydeep rightly points out that HR and OHS processes should not differentiate between swine flu and other workplace illnesses. Hor briefly discusses the employers duty of care and how to question one’s traditional approaches to the “sniffles” at work.

Of course there is also the much under-enforced obligation of the employee not to put their work colleagues at risk – the major argument against presenteeism.

Kevin Jones

Trade union OHS protests are shortsighted

On the eve of the ACTU Congress, the construction unions have threatened disruptions to building sites in, not surprisingly, New South Wales. This State was always going to be the one with the most to give up for the sake of national harmonisation of OHS laws.

It is reported in the Australian Financial Review on 2 June 2009 (page 11, not available online) that the CFMEU acting state secretary, Jim Tulloch, has said

“This is a line in the sand issue for trade unions……There’s a lack of leadership at the federal level and lots of states have been coerced into signing something that they are going to be held accountable for.”

This may be the case and the CFMEU may be positioning themselves prior to the ACTU Congress but the disruption is a risky strategy. Not only would any of the action be illegal, the Federal Government has yet not abolished the draconian Australian Building & Construction Commission (ABCC). Union protesters are likely to find themselves again in front of the ABCC being forced to answer questions.

The national OHS system is still being finalised but the union action will serve little purpose other than confirming the political perspective that the New South Wales government is overly influenced by the union movement. Surely by now the union movement has learnt there are other ways to achieve aims than by confrontation.

Kevin Jones

A slap on the wrist – Varanus prosecution

The West Australian government has finally decided to prosecute Apache Energy over the Varanus Island explosion in 2008. Many people are asking if the effort is worth the bother as the maximum penalty possible is a measly $A50,000.

Comparing the disruption to the state’s gas supply to the Esso-Longford explosion, which generated a Royal Commission in Victoria, it illustrates the difference in having an explosion in an isolated area, that does not kill or injure, and that allows a government to ensure domestic gas supplies. One could argue that a major difference was also that WA did not rely solely on a single gas source.

According to one media report

Apache spokesman David Parker said it would vigorously defend the matter. “The explosion was an unfortunate and unforeseen event”.

Explosions often are unfortunate and usually unforeseen but adequate maintenance requirements of pipelines are foreseeable, just not often profitable.

Apache Energy, a subsidiary of the US energy giant Apache, has not been the most transparent and helpful corporate citizen as it has taken Federal Court action that impedes the government’s investigations.

Kevin Jones

More on the Varanus pipeline can be read by searching for “Varanus” in the search function to the right of this blog page

Working alone – a poorly understood work hazard

Working alone is an established workplace hazard in many industries. The control measure most applied is “don’t work alone” that is, undertake as many work tasks in isolated location with someone supervising or in close contact.

Modern technology has often been applied as a possible control measure – “deadman switch”, GPS tracking, mobile phone use. Many of these control measures are second nature to workers in this century and are so commonplace that their safety role is ignored.

Regardless of the many zookeeper attacks that have gained media headlines over recent years, many workers are assaulted and killed while working alone. Industries that do not have a strong history of safety management most often get caught out by having a staff member injured or killed. Bosses or industry associations often express wonder at how such an incident could occur. Safety professionals would have seen the hazard instantly.

The risk of violence from working alone has been a hot topic in Australia since a Victorian female real estate agent was murdered while showing a prospective “client” an isolated property.

WorkSafe Victoria has just released a further publication concerning this matter. The alert is okay in its context but is doing a disservice by being restricted to real estate agents. Worksafe has more generic guidance but focus on real estate agents? Why not produce similarly detailed guidance guidance that is more broadly applicable to workers in isolation – pizza deliverers, night shift workers, street cleaners, office cleaners a whole raft of occupations that operate alone?

WorkSafe has said previously that real estate agents gain priority because such guidances are developed in conjunction with industry associations. A legitimate question can be asked, why is a government authority producing guidance for a sector that already has an industry body who can do this? Shouldn’t an OHS regulator be focusing on those areas that don’t have industry support?

Below are some of the recommended control measures in the latest publication. SafetyAtWorkBlog’s more generic control measures are in red.

having a new client stop by the office and complete a personal identification form before viewing a property to verify details

Have a detailed list of staff work locations and a contact name and (after hours) number for a supervisor at each location

inspecting properties during the day. If night inspections are necessary, ensure the agent is accompanied. Identify exit points in case a quick escape is needed

Work with a colleague wherever possible

inspecting the property before showing clients,to assess any existing risks or hazards

Consider the security measures of each work area – lighting, access/egress, phone coverage, camera surveillance, etc

making an excuse and leaving the site immediately if the client becomes aggressive or makes the agent feel uncomfortable

Cancel the work task at the first sign of hazard

calling the office with a pre-assigned emergency code phrase if the agent senses a dangerous situation

The “safe word” control measure is well established in the escort business. It can work but will only notify of a dangerous situation not eliminate it

regularly training staff on safety procedures, including instructions on dealing with potential offenders and incident reporting.

Develop safe work procedures in consultation with staff

When considering control measures in these situations it may be very useful to understand that prosecutions are likely to consider that employers have undertaken control measures “as far is reasonably practicable” – a movable feast of judgements. Ask yourself or your client the question, would they prefer to know that an employee is in danger, injured or killed, or would they prefer to have the employee safe and loose a potential client? The court may consider camera or other technical surveillance to be reasonably practicable but what would your employee who has lost an eye, limb and quality of life think?

Consider other control measures ONLY AFTER elimination has been seriously considered.

Kevin Jones

Other OHS guides concerning working alone are available below

Workplace Health & Safety Queensland

Should OHS regulators be involved in the competence of professionals?

WorkSafe and the Safety Institute of Australia are at the forefront of pushing for a defined level of competence for the safety professional. WorkSafe identified this need many years ago and has been working on establishing alliances with safety professions since then to achieve its aims.

Significantly similar issues have been discussed in the United Kingdom over a similar period however, in that process the WorkSafe equivalent, the Health & Safety Executive (HSE), have chosen not to participate. According to a recent article in HEALTH AND SAFETY AT WORK, the HSE has stated its position

“Speaking at IOSH’s recent conference, HSE chief executive Geoffrey Podger was adamant that the general description of competence in the Management of Health and Safety at Work Regulations 1999 (MHSW) Approved Code of Practice (ACoP) is sufficient. “I don’t think it helps the whole health and safety system if HSE tries to over-define the area,” he said, adding that there is still a “huge opportunity” for the professional bodies to work on their own definition.”

This position is considerably different from that in Australia where WorkSafe is now closely working (some would say too closely) with the SIA in developing standards and protocols that it and its partners want to operate nationally. Its aim seems to be similar to one the HSE and Health & Safety Commission established in 2007 – “Mapping Occupational Safety and Health (OSH) Professional Body Activities in Scotland”. It is worth looking at the page to see the list of safety professional bodies who are listed, the services offered and the membership databases.

A crucial HSE document is the “HSE statement to the external providers of health and safety assistance”. Its statement that competence should be a goal rather than a benchmark should worry the Australian competence lobbyists. In the Ponting article above, IOSH calls for more clarity but, as discussed elsewhere in SafetyAtWorkBlog, OHS legislation clearly states it is the employers’ ultimate responsibility to establish a safe and healthy work environment. They may choose assistance from competent people but why should it be the regulator that establishes this? The professional bodies such as IOSH and SIA have existed for decades. Have they not determined levels of competency for their own members by now?

Geoff Hooke of the British Safety Industry Federation says

“when you ask how you measure competence, the simple answer is: with great difficulty”.

In general, shouldn’t the response from OHS professional associations be along the lines of

“we believe that all members of the XXX Association are competent within their fields and we would not hesitate in recommending our professional members in providing competent advice to companies…”?

These organizations who are calling for a clear definition are often the same organizations that are in support of “as far as is reasonably practicable”, a vague management concept that can be defined and re-defined depending on which judge hears which OHS prosecution. – the antithesis to the prevention principles of OHS. One cannot call for certainty in one area while advocating flexibility in another.

The UK Works and Pensions Committee was right in saying that more control is required on external consultants and clearly lobbed the responsibility on the professional bodies.

Ponting’s article concludes that it is the job of the professional bodies to organize accreditation and the maintenance of that accreditation but acknowledges that it is politically fraught. That is not enough reason to look to the regulator to solve the problem as it only makes the regulator the target of criticism over the process and the results. The professional bodies themselves must work to a commonality of purpose and relinquish years of demarcation and, sometimes, schism.

The Australian safety professions would ultimately gain far more credibility for themselves and their professions if they too took it upon themselves to define accreditation, audit their members’ competencies and assist in the maintenance of skills. In that way Australia may gain a safety profession of which everyone can be proud.

Kevin Jones

Category: law

Harmonising workers compensation

Like this:

Legal opinion on Australia’s model OHS laws

Lessons for employers

Like this:

Presenteeism and swine flu

Like this:

Trade union OHS protests are shortsighted

Like this:

A slap on the wrist – Varanus prosecution

Like this:

Working alone – a poorly understood work hazard

Like this:

Should OHS regulators be involved in the competence of professionals?

Like this:

Share this:

Like this:

Lessons for employers

Share this:

Like this:

Share this:

Like this:

Share this:

Like this:

Share this:

Like this:

Share this:

Like this:

Share this:

Like this: