Category: law

“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.

Who manages safety – employers or inspectors?

Over the last few days at the Tasmanian inquest into the death of Larry Knight, several geotechnical consultants and experts have been going through their reports to Beaconsfield Mine management.  These assessment reports were undertaken before the collapse that caused Larry Knight’s death.  The impression from media reports is that mine management listened to, or read, the recommendations and made a decision. That decision seems to have not given the technical advice the weight that hindsight now shows was insufficient but hindsight does that and Coroners understand this.

Also safety decisions are made by the employer in consultation with their workforce and external experts, where necessary.  Beaconsfield Mine management did this.  The decision to mine on that fateful day obviously proved wrong but perhaps the decision was understandable.

The Australian on 12 August 2008 reported that senior technical consultant Frans Basson admitted that the mine was technically “in breach of his written recommendation to management”.  I found this extraordinary as “breach” is a term more often applied to when a rule is broken.  It seems that the mine management chose not take on the recommendation of a consultant.  That happens all the time but to give the decision more significance than this is, perhaps, a little unfair.  Let’s hope this was lawyer’s hyperbole.

How to describe the comments by former Mt Lyell engineering supervisor and ex-parliamentarian, Peter Schulze is more of a challenge. Inaccurate is probably the most generous term.  At a Tasmanian Legislative Council committee on 13 August 2008, Peter Schulze criticised “all these experts who pontificate with the benefit of hindsight” about mine accidents.  Okay, the wording is extreme but he makes a similar point to mine above.

He also echoes some of the recent criticisms of the OHS regulator in Tasmania, Workplace Standards. By inverting some of his comments reported in The Advocate on 14 August 2008, he believes that current inspectors are under-skilled in the mining sector and under-paid and that there are not enough.  I would support him in his calls for additional enforcement resources but he is confused over the role of the inspectorate.

The primary responsibility for safety in a workplace is held by the employer – the controller of the workplace and main beneficiary of its productivity.  Peter  Schulze says that 

“The inspectorate tends to isolate itself from accidents and comes in to blame the company … rather than being a party (to safety procedures and checks) and accepting some responsibility.”

Why on earth should a government department accept any responsibility for the operations of a privately-run business when there is legislation that states the responsibility rests with the employer?

Peter sees the system as being adversarial.  There are clear roles for the differing elements in a workplace but conflict is resolved through negotiation, consultation and resolution.  An adversarial climate in a workplace indicates a dysfunctional workplace but this does not mean the regulatory system is at fault.  Safety management systems are a systematic management of a workplace with the aim of improving safety.  Management is the key and this rests with the employer.

What New South Wales unions need to give up for harmony’s sake

Gerard Phillips, a partner in the Middletons law firm, wrote in the 7 August 2008 edition of the Australian Financial Review about the belligerence of the trade union movement in New South Wales in relation to the harmonisation of OHS Laws in Australia.

He addresses two legal barriers to harmonisation that he believes should end.  In New South Wales unions have the legislative right to prosecute safety breaches.  Gerard argues that harmonisation won’t be achieved without the unions relinquishing this right.

It has been clear for months that New South Wales will have to give up some elements of its OHS legislation in order to allow harmony.  If it needs to save face, it would be lobbying now for enough resources at a national level to mount rigorous OHS enforcement.

As the Victorian OHS law is the front runner for a national OHS legal model, unions can take some solace from the extension of Victoria’s right of entry provisions that, prior to 1984, were tipped to generate industrial warfare In Victorian worksites.  There were, at the time, many lawyers touting for business by recommending a tightening of paperwork, vetting all credentials before letting “them” on your site and accompanying “them” wherever they go.

Business achieved some important concessions with the registration of ARREOS (Authorised Representatives of Registered Employee Organisations) and a legal comeback if the ARREOS breach their authority, but an ARREO visit can still be daunting as WorkSafe found in February 2008.

WorkSafe advises that

An ARREO may enter a workplace during working hours to enquire into a suspected contravention of the OHS Act or regulations. The suspected contravention must relate to or affect the work being carried out by people who are:
• members of the registered employee organisation;
• subject to a certified agreement which binds the registered employee organisation; or
• eligible to be members of the registered employee organisation and are not subject to a certified agreement.

Gerard Phillips also can’t see why a union should have prosecutorial powers that no one else, other than the OHS regulator, has.  Although he acknowledges that for enforcement to work any prosecutor must be “appropriately funded”.  If the New South Wales government decided to reduce WorkCover NSW costs by sharing responsibility, I don’t think the economic benefit outweighed the political damage.

Phillips also sees no great difficulty in the onus of proof being held by the prosecutor.  This authority is already in the legislation of Victoria and Western Australia with no complaints from the union movement that safety standards have declined as a result.  The unions will need to give ground on having the onus rest with the business owner, and the employer groups will dance a gig when they do.

I remember Australia’s Royal Commission into the building industry where employer groups asserted, with little proof, that OHS is used by unions for purposes of industrial action.  Terence Cole in his final report illustrated the accusations well.

“….employers have raised concerns about the unions raising industrial concerns under the guise of safety issues, and the adoption of the role of safety policemen by unions to the exclusion of the statutory inspectorates. The issue of safety is a constant source of friction in the workplace, either because it is not being appropriately addressed, monitored, enforced, or is being abused.”

This may or may not be true, however unions in New South Wales risk providing the truth that employer associations have long desired if they continue in holding onto a strong poker hand when the other players have changed to playing whist.

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