law – Page 238 – SafetyAtWorkBlog

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

Insights into crisis decision-making and communications – Victorian Bushfire Royal Commission

There’s an opportunity to follow the hearings of the Victorian Royal Commission on last summer’s horrendous bushfires via a live web stream. Here is the link to the Commission’s home page: http://www.royalcommission.vic.gov.au/ The “live stream” link on that page takes you to a live broadcast of the hearings underway at the time.

Fortunately, the catastrophe of the summer’s bushfires don’t happen often (unfortunately, the enormity of some people lighting fires does happen too often). What is even more rare is for us to be able to listen to first-hand witness experiences of decision-making in extreme conditions and to gain insights from listening to those experiences.

I often have the Royal Commission’s live stream running in the background while doing other work. I do that because I’d prefer to hear the witnesses reports directly. Of course, there will be a final report, but hearing the tone and context of the questions and answers are the sort of things that can be very difficult to recreate in a written report.

Monitoring the live stream is highly recommended for all safety professionals; doubly so for those people who work in larger businesses or organizations. A rare chance to observe and compare decision-making processes and lines of communication in complex situations to see what did and didn’t work.

Col Finnie
col@finiohs.com
www.finiohs.com

The OHS recommendations the Australian Government rejected

According to the Communiqué of the Workplace Relations Ministers’ Council on 18 May 2009, the following issues should be considered when drafting the new OHS legislation

“Application of the primary duty of care to any person conducting a business or undertaking

The panel recommends that the primary duty of care should be owed by any person conducting a business or undertaking. The objective of this recommendation is to move away from the traditional emphasis on the employment relationship as the determiner of the primary duty, to provide greater health and safety protection for all persons involved in, or affected by, work activity. Care needs to be taken during drafting to ensure that the scope of the duty is limited to matters of occupational health and safety and does not further extend into areas of public safety that are not related to the workplace activity. “

The first part of this is recognition of the variety of workplaces Australia now has, the number of people within worksites who are not employees and the previous issues of OHS and unpaid volunteers. It seems to expand to matters of public liability but then, curiously, pulls back to emphasise occupational health and safety. As Michael Tooma has noted, circumstances seem to have passed beyond the arbitrariness of the occupational categorisation. Continue reading “The OHS recommendations the Australian Government rejected”

Radio interview on harmonisation of OHS law

Last week, I had the pleasure of being interviewed byElanor McInerney of the 3CR radio program, Stick Together. The interview concerned the harmonisation law in Australia and my thoughts on the risks and impacts it would have on Australian business and workers.

The radio program is now available as a podcast (My part is around the 19 minute mark.)

Please let me know if I am totally off the beam with my applications of the OHS laws and the political issues.

I thank Elanor and the producers of Stick Together for making this available so soon after the broadcast on 17 May 2009.

Kevin Jones

Political response to new OHS laws for Australia

The Australian government got what they wanted for the harmonization of OHS laws but some persistent political shenanigans.

Troy Buswell, Western Australia’s Treasurer, is making political mileage with some bluster as the only Australian State run by the Liberal Party. Politically he could not be seen as following the lead of the Australian Labor Party but will “continue our dialogue with the council”. He does not have much option particularly as the Federal Workplace Relations Minister, Julia Gillard reminded him that he could risk his access to federal funding by risking a breach of the inter-governmental agreement. Expect Buswell to concede having saved face.

Joe Tripodi, the New South Wales Finance Minister, has expressed his disappointment. Tripodi knew what was coming as the compromise options had been flagged long ago. But from the state that has the most overtly-influenced government, he perhaps had as much face to save as Buswell in WA. The employers groups in New South must be jumping with joy this morning as one of the most contentious and divisive elements of NSW OHS legislation will go – the union’s right to prosecute. The process for instigating an OHS prosecution is formalized in the new model OHS legislation and still allows unions to begin prosecutions but with less direct control.

Tim Holding, the Victorian Finance Minister, is having trouble containing his excitement.

“This is a resounding endorsement of Victoria’s OHS laws, which will provide the building blocks for the new national scheme”.

Does anyone wonder why Victorians are so disliked by the other States? Is Holding’s over-confidence an indication that the Victorian OHS law was always going to be the dominant influence on the national law and perhaps the model OHS Law review was unnecessary for change and just a case of political processes?

In the euphoria, there are some words of caution. There has always been concern that if any States flexed their muscles and opted-out seriously then true harmonization would not exist and Australia would go back to the fuzzy days of a National OHS Framework that everyone signs up to but does not act upon. It is likely, with the tough Federal Government approach, that this won’t occur however a spokesperson for the Business Council of Australia is quoted as saying (page 3 of the Australian Financial Review 19 May 2009, not available online):

“If any states decide to opt out of the process, then we won’t have a fully harmonised system of OHS and that’s bad for business.”

The government’s response to the model OHS Law review is available online or as a page in this blog.

SafetyAtWorkBlog will be updated regularly over the next few days as interesting and relevant opinions and comments become available.

Kevin Jones

Category: law

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:

Insights into crisis decision-making and communications – Victorian Bushfire Royal Commission

Like this:

The OHS recommendations the Australian Government rejected

Like this:

Radio interview on harmonisation of OHS law

Like this:

Political response to new OHS laws for Australia

Like this:

Share this:

Like this:

Share this:

Like this:

Share this:

Like this:

Share this:

Like this:

Share this:

Like this:

Share this:

Like this:

Share this:

Like this: