law – Page 235 – SafetyAtWorkBlog

Director accountability for OHS reinforced by NZ penalty

On April 5 2008, a cool store in New Zealand exploded killing one firefighter and injuring 7 others. Icepak Coolstore Ltd, according to the fire services investigation report

“[had] very large quantities of combustible material contained in the expanded polystyrene construction panels and also in the foodstuffs stored.

“There were no compliant fire detection or protection systems or hydrants, and very limited firefighting water.”

In July 2008, the New Zealand Department of Labour (DoL) issued a media statement and fact sheet concerning the explosive potential of flammable hydrocarbon refrigerants.

Language warning on the video below

On 15 December 2009, a New Zealand Court penalised two companies and a director with fines totalling over $NZ390,000. The DoL has issued a media statement about the prosecution results.

The many reports and inquiries into the explosion and fire are very informative but one element that the DoL wants to focus on is the penalty applied to the Director of Icepak Coolstore, Wayne Grattan. He was

“fined $30,000 on one charge that he acquiesced in the failure of the company to take all practicable steps to ensure the safety of its employees while at work.”

The Department of Labour’s Chief Adviser for Workplace Health and Safety, Dr Geraint Emrys said (click HERE for audio):

“The prosecution against the director of Icepak should serve as a reminder to officers, agents and directors of organisations that they can be held personally accountable for the failures of their organisation.

“Mr Grattan was charged with acquiescing in Icepak’s failure in respect of obligations to its employees. The outcome of the case against Mr Grattan reinforces the requirements of directors to be proactive in health and safety matters.”

As many Commonwealth countries have a strong commonality of law, the Icepak Coolstore case should be an important case study in many jurisdictions.

Kevin Jones

Tasmanian mine safety review

Safety in mines in Tasmania has received great attention in the aftermath of Larry Knight’s death at Beaconsfield gold mine. On 13 December 2009, the Tasmanian Workplace Relations Minister, Lisa Singh released a regulatory impact statement and information paper on proposed amendments to the Workplace Health and Safety Act 1995.

This legislative package, according to the Minister’s media release:

“The proposed package considerably expands upon existing legislation, by including both general duties and hazard specific regulations for the mining industry.

“A key focus is the requirement for each mine to implement a health and safety management system, which must include risk management processes and procedures.”

Any OHS review should be welcomed but what is this trend of short periods of public comment? There were many complaints of the Federal Government for short periods of review on national model OHS laws and now the Tasmanian Government wants responses by 14 January 2010!!??

Just one month for responses and that month includes Christmas holidays and New Year. This brings the consultation period to around 19 working days.

A spokesperson for Workplace Standards Tasmania (WST) said that the various reviews and coronial reports over recent years have put pressure on the Government to improve mine safety legislation. She also said that comments on the Regulatory Impact Statement is an important and necessary step in drafting the relevant legislation.

The spokesperson said that WST is effectively closed down between Christmas and New Year but has an emergency response. Any enquiries from the public about the RIS will be handled by the WST Helpline on other working days untill relevant staff return. The Helpline is being briefed on the RIS this week.

WST emphasised that the consultation on the legislative amendments has been occurring for months. SafetyAtWorkBlog acknowledges this is the case but the Public Comment period is very tight.

The Minister, Lisa Singh, has said in her media release that

“I encourage comment from persons connected with the mining industry, including workers, mine operators and contractors.”

SafetyAtWorkBlog contacted the Minister’s Office and a spokesperson said that the timing of the Public Comment period is unfortunate but that the Government does not want to delay the process any longer than it has too. She advised that the minimum time period for comments on an RIS is three weeks and that the comment window on this particular process is four weeks.

There is no accusation of a conspiracy here but the unfortunate scheduling highlights a legitimate conflict between the aims of an effective public comment phase and legislative development that seems endemic through Australian politics.

Kevin Jones

Legal advice and safety management

The legal commentaries have begun to appear following the release of Australia’s draft Work Health & Safety Act.

One of the first, as usual, is a response from law firm Deacons. It should be noted before discussing the suggestions that in the last couple of months Australia’s OHS legal brains are now concentrated in this law firm since Barry Sherriff jumped ship from Freehills. A month or two earlier, Sherriff’s protegé, Penny Stephens, left the firm and took several others with her to Hall & Willcox. This brain drain sets Freehills’ OHS practice back considerably.

However, Deacon’s first missive on the new OHS laws has been released, under the bylines of Sherriff & Tooma, and identifies several issues. The first, and very useful to know, is the definition of due diligence that is now included in the Act under Duty of Officers:

“…due diligence means to take reasonable steps:

(a) to acquire and keep up to date knowledge of work health and safety matters; and

(b) to gain an understanding of the nature of the operations of the business or undertaking of the body and generally of the hazards and risks associated with those operations; and

(c) to ensure that the body has available for use, and uses, appropriate resources and processes to enable hazards associated with the operations of the business or undertaking of the body to be identified and risks associated with those hazards to be eliminated or minimised; and

(d) to ensure that the body has appropriate processes for receiving and considering information regarding incidents, hazards and risks and responding in a timely way to that information; and

(e) to ensure that the body has, and implements, processes for complying with any duty or obligation of the body under this Act; and

Examples

A body’s duties or obligations under this Act may include:

reporting notifiable incidents.

consulting with workers.

ensuring compliance with notices issued under this Act.

ensuring the provision of training and instruction to workers about work health and safety.

ensuring that health and safety representatives receive their entitlements to training.

(f) to verify the provision and use of the resources and processes referred to in paragraphs (c) to (e).”

This should provide more tips to OHS professional associations about where their services fit in general business obligations but it also sets the bar much higher for professionals in how they must upgrade their own OHS skills to match expectations.

Curiously, Deacons continues with issues of concern with the Act which have little to do with improving worker safety. Several items hark back to the OHS Model Act Review Panel which has little more than historical interest nowadays but may reflect the fact that Barry Sherriff was a Review Panel member. The list of concerns further supports SafetyAtWorkBlog’s position that safety law often masquerades as safety management.

Deacons concludes its update with the following “7 steps”:

“There are 7 steps that every business needs to undertake to prepare for this new era in Work Health and Safety regulation:

Legal risk analysis…

Review contracts …

Implement interface coordination plans …

Develop robust consultation processes …

Develop dispute resolution processes …

Develop processes on right of entry and regulatory rights and obligations …

Develop an OHS Corporate Governance Statement …”

Unsurprisingly, the first two involve assistance from one’s legal advisers. SafetyAtWorkBlog recommends that businesses wait and see what support documentation is supplied by the OHS regulators first as it is they who determine the parameters for OHS compliance.

Businesses need to remember that the Work Health & Safety Act is not yet law and, in fact, has a long way to go before States introduces this law into their own jurisdictions. Western Australia is still objecting to the law so it is unclear if this Act will ever be introduced without substantial change. So until then keep following the local OHS legislation but keep both ears open in anticipation of the future.

OHS debate is over, says Deputy PM

Deputy Prime minister and Workplace Relations Minister, Julia Gillard, has told the Australian Financial Review (only available online to subscribers) that the OHS law changes were finalised at the recent Workplace Relations Ministers’ Council.

Gillard again rejected the trade union movement’s concerns about weakened worker protection. The Minister emphasised that substantial economic benefits would flow to business as a result of increased administrative efficiencies.

However, the likelihood of a nationally harmonised OHS system seems as far away as ever with the West Australian Government continuing to refuse to apply the new laws which it sees as too friendly to the unions.

Significantly, the Australian Government has backed down from its earlier threat to penalise any governments that do not support the changes. This lets the WA Liberal Government off the hook and provides the New South Wales Liberal Party with an easy platform option for the 2010 State election.

The conservative forces in Australia can take heart but Minister Gillard’s position has the union movement facing difficult decisions. It has strongly funded a campaign against elements of the OHS laws and branded the laws as “second-rate safety”. It now needs to decide whether to give up the campaign totally as a lost cause or to pare it back so that, over time, the campaign fades away, as did the industrial manslaughter campaign of around five years ago.

The ACTU has expressed disappointment but must have realised, privately at least, that some union powers, considered to be extreme by business and industry groups and over which the business complaints have been load and long, were going to be sacrificed in any harmonisation process.

Former Prime Minister and ACTU President Bob Hawke achieved many industrial relations reforms in the early 1980’s by pushing “consensus”. This negotiation process had strong similarities to the current OHS harmonisation however big C Consensus is now rarely spoken by the Australian trade union movement. One of the few contemporary outings was when current ACTU Secretary Jeff Lawrence, who expressed the disappointment above, speaking about industrial relations said on 14 June 2007:

“I’m tough enough but I’m also a person who likes to work by consensus”.

To operate constructively at the big tripartite table of OHS, the unions will need to accept a defeat and gain whatever they can from the new rules. This is doubly important in the lead-up to the planned harmonisation of workers compensation. Australia will see some fiery union rhetoric when harmonisation threatens to reduce the income and entitlements of workers who are already injured.

Kevin Jones

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

Category: law

Director accountability for OHS reinforced by NZ penalty

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Tasmanian mine safety review

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Legal advice and safety management

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OHS debate is over, says Deputy PM

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Accident Comp changes put to Victorian Parliament

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News on Australia’s OHS model Act

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Managerial federalism?

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