Category: law

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.

Using workers compensation claims as exit strategies

There have been two instances in Australia in the last week where workers compensation claims have made the news. The first was in relation to the suicide attempt by Tasmanian politician, Paula Wriedt.  She has revealed that after the break-up of her marriage she had an affair with one of the government chauffeurs, Ben Chaffey.

According to one media report, Chaffey has argued

“that his employment became untenable as a result of the relationship and his employer’s response to it.  He is seeking a severance payment thought to be about $A140,000 to compensate for this, and for stress and harm suffered.”

It is also reported that he has been on “stress leave” for several months.

The other case involves unfair dismissal action being taken by public transport ticket inspector, Glenn Hoyne in the Australian Industrial Relations Commission (AIRC) against his dismissal by Connex.  Hoyne made accusations on a Melbourne talkback radio show about Connex setting quotas for issuing ticket infringement notices and that inspecting was a revenue-raising exercise only.

Connex investigated the claims and described the allegations as “bribery, blackmail or extortion”.

Hoyne took leave in December 2007 and submitted a workers compensation claim due to work-related stress.  The situation was clearly tense.

The AIRC Deputy President, Brian Lacy, described Hoyne’s actions as not a threat to Connex but

“some sort of industrial claim, albeit misguided, for a severance payment.”

These two cases illustrate how murky human relations, and human resources, can be.  Both parties are seeking recompense for actions that are work-related and both actions will result in a resolution.  But neither will generate any real preventive action.  One claim has been described as a pitch for a severance payout and the other is stress from a broken work-related relationship and the employer’s response to a sexual relationship.

When did people begin to expect a monetary payout above their entitlements for leaving a job that they didn’t like or for when a relationship with a work colleague ended?

A law firm newsletter from 2005 reported on a case of a stress claim, which may provide a counterpoint to the situations above:

“The employee claimed, and was successful in establishing that his stress was directly caused by his employer’s failure to keep him informed of changes in the workplace. In essence, the prospect of redundancy was seen as a sufficient causative factor in the employee’s work related injury.”

The newsletter goes on to advise

“employers must assess the circumstances and sensitivities of individual workers when making management decisions in order to avoid stress claims being made or where claims are made, to avoid liability for such claims.”

Maybe this is the only safety management lesson we can learn from the unhappy ticket inspector and the stressed-out chauffeur, manage your people well.

New Guidance on Preventing Fatigue

Australian OHS authorities have been struggling for many years to address issues of fatigue in the workplace.  Partly this has been because the issue of stress and bullying came to dominate the psycho-social agenda.

The transport industry has pushed fatigue into the unavoidable hazard basket.  New South Wales’ experience with this issue has been particularly interesting and continues to do so. France’s experiment with a maximum set of working hours, partly on the grounds of occupational health and safety, has proven to be a brave experiment.  The Australian Trade Unions’ campaign on “reasonable hours” had safety echoes.

But, as with so many long-term OHS initiatives, Australia waited until England’s Health & Safety Executive (HSE) did all the leg work before tailoring fatigue guidelines to its own circumstances. At least this guideline acknowledges the HSE’s work.

On 4 August 2008, WorkSafe Victoria and WorkCover New South Wales published their guidelines on “Fatigue – Prevention in the Workplace”.  As far as it goes, it is a good addition to OHS information and, if its existence is publicised sufficiently, should place fatigue on the radar of OHS professionals.  Prior to this guide, the only fatigue information that WorkSafe produced was concerning fatigue in the forestry industry in March 2004! – hardly something that any other industry would see as relevant to themselves.

It is worth comparing some of the basic concepts that the OHS regulators have put forward.

The differing definitions reflect the perceptions of the OHS regulators, the state of knowledge at the time, the approach taken by the organisation consulted in the development of the guidances, they anticipate the level of resources allocated to the promotion and enforcement of fatigue management.  The contrast between the Victorian “definitions” of 2004 and 2008 are particularly marked.

Guidelines only go so far and then it is up to business to consider the advice and decide what to do.  The success of the new fatigue guideline won’t be in evidence for several years and, of course, that relies on the very dim chance of anyone undertaking an assessment of the guideline at all.

There are several issues that I think should be considered when reading the new guidance:

The role of the second job.

Second jobs, often undertaken by shift workers are assessed, if at all, for potential conflicts of interest.  The impediment in being “fit for work” in the principal employment is never assessed.  This guideline, in a roundabout manner, identifies this risk. 

The need for nightshift.

Often nightshift, or specific shift rosters, are traditional structures.  “This is the way it has always been done”.  The existence of nightshift in every workplace should be reassessed on a regular basis as economic factors change and as knowledge of the extent of harm presented by nightshift accumulates.

Overlap of Human Resources and OHS

I have bleated on for years about the silo mentality of the OHS and HR disciplines.  The demarcations have been eroding for ages in the real world of business and this trend has been increases as more and more psychosocial hazards are placed within the OHS context.  But the HR professional and the OHS professional continue to speak different languages and with competing agenda.

Fatigue cannot be successfully managed without a common understanding between HR and OHS.

Impairment

Impairment has been a concept floating around the trade unions for some time and they have never found the right approach to getting this on the OHS agenda.  Much of the content in the new fatigue guideline is broader than fatigue and deals with interaction with our employees and colleagues.  The guideline clearly identifies issues from outside work that may exacerbate fatigue in the workplace. (That other demarcation between work and non-work hazards does not apply to fatigue)

Fatigue impairs judgement as well as actions.  Mental fatigue is applicable to a broader range of occupations than physical fatigue and reaches into occupations that are not familiar with OHS, such as judges and politicians, whose important decisions must not be impaired.

 

Fatigue should not be one of the workplace hazards that are increasing shuffled off into the miasma that is work/life balance and wellness.  It relates directly to the traditional areas of OHS but can only be controlled by non-traditional approaches.  There lies the challenge.

Foster’s unforgiveable fatality

Foster’s Brewing has received one of the largest fines for a health and safety infringement in Victoria’s history, $1.125 million.  In 2006 Cuu Huynh was jammed by the neck between the doors of a de-palletiser and a handrail and died as a consequence. The same circumstances injured another worker in 2002.

A major reason for the large fine is because, as WorkSafe’s John Merritt put it

“The problem had been identified, someone had been hurt previously, the solution was known and it wasn’t fixed until after a man had died. The opportunities to make improvements were repeatedly deferred.”

Foster’s chose to upgrade the de-palletiser involved in the 2002 incident but neglected the other de-palletisers in the same plant.  This is where stupidity or laziness enters the equation.  The OHS Plant Regulations allow for the risk assessment and findings on one type of machine to be applied to the same machines without revisiting the assessment process.  Foster’s chose not to learn from a mistake.

It seems what is “reasonably practicable” for one machine is not so for another.

Readers would be aware that I support companies who choose to keep with the status quo through a risk assessment process, as long as they own up to when that decision may be proven wrong; in the case of Foster’s fatally wrong.

There is no indication that Foster’s will appeal the fine.  This is to be applauded as, on top of the fine, the company has had to spend almost $4 million in plant safety upgrades.  This is a substantial cost that probably would have been cheaper in 2002, or even earlier, but it remains little comfort to Cuu Huynh’s family.

Below are some of the points that WorkSafe is making in relation to Foster’s handling of safety on their depalletisers.

  • An employee was hurt in similar circumstances on another machine in 2002. While safety was improved on that machine, improvements were not made to the machine which killed the man in 2006.  
  • Operators were required to enter the operating area of their machines to remove broken bottles and plastic binding tape and ensure sensor lights worked. Workers estimated they would do this up to 20 times per shift.
  • There was no adequate visual and no audible warning of the opening of the pneumatic doors, unguarded chain sprockets created hazards, while safety devices were easily over-ridden to prevent sudden stoppage of the machine which caused bottles to fall over and break;.
  • Written standard operating procedures (SOP’s) for operating the depalletisers and cleaning them during breaks in production had been produced, but they did not deal with clearing jams during production. A specific SOP covering this was produced after the workers’ death.
  • Various operators told WorkSafe they were unfamiliar with the SOP’s and did not have sufficient English to read them. Much training was done ‘on the job’.
  • Workers were allowed to leave work an hour earlier on the last shift of the week if they had completed cleaning the machine. As a result they would clean the machine while production continued. The man who died was on this position.

This is a litany of poor safety management that any company should be ashamed of.  Of particular concern, and should be noted by other companies and OHS regulators, is that written instructions for the machine were inadequate and in a format that could not be easily understood by the machine operators. 

One of my safety colleagues has mentioned to me the absurdity that the first of WorkSafe’s new Compliance Codes is expected to be on workplace amenities.  This workplace element rarely leads to death or injury and the release of a “minor” code does not auger well for the rest of the codes.  It is understandable that Amenities may be one of the easier-to-produce codes but, to my mind, the most neglected guidance material in the last 20 years has been the provision of safety information in languages other than English – a workplace issue that WorkSafe has indicated was directly relevant to the death of Cuu Huynh.

For all of those corporations that say that safety is the first priority and that production will be suspended if a safety hazard is identified, Foster’s did not follow its own policies.  According to its own HSE Policy

“We will work towards our goals through a process of continuous improvement and, in particular, fulfil these commitments by:

1. Meeting or exceeding all health, safety and environment regulations in each of our workplaces around the globe.”

Cuu Huynh’s death has shown, as mentioned by WorkSafe above and mentioned in media reports

“…the workplace culture encouraged the machine operators to maintain production by not stopping depalletisers when they were clearing jams or cleaning the machine.” 

Production, at Foster’s, was more important than safety.

Imperial Sugar explosion update

Last month America’s 60 Minutes broadcast an article on the explosion at the Imperial Sugar plant (pictured below) in Port Wentworth which killed 13 workers and hospitalised 40.  On 25 July 2008, the Occupational Safety and Health Administration (OSHA) issued citations proposing penalties totalling $8,777,500 against the Imperial Sugar Co. and its two affiliates alleging violations at their plants in Port Wentworth and Gramercy. 

The US Chemical Safety Board (CSB) has released some details about its appearance at the US Subcommittee on Employment and Workplace Safety, Senate Committee on Health, Education, Labor, and Pensions, on 29 July 2008. (Transcripts and video are available HERE)

CSB Chairman John Bresland said the tragedy demonstrates the need for a new OSHA standard that would cover a range of industries exposed to this hazard, such as food, chemicals, plastics, automotive parts, pharmaceuticals, electrical power (where generated by coal) and others.
According to the CSB, Chairman Bresland told the subcommittee, chaired by Sen. Patty Murray of Washington,

‘After witnessing the terrible human and physical toll from the Imperial explosion, I believe the urgency of a new combustible dust standard is greater than ever. A new standard, combined with enforcement and education, will save workers’ lives.’
‘We obtained documents indicating that certain parts of Imperial’s milling process were releasing tens of thousands of pounds of sugar per month into the work area. Based on our evidence, Imperial did not have a written dust control program or a program for using safe dust removal methods. And the company lacked a formal training program to educate its workers about combustible dust hazards.’

Bresland emphasised the need for a uniform Federal standard:

‘Instead of the present patchwork of miscellaneous federal, state, and local requirements, the Chemical Safety Board has recommended that OSHA develop a single, comprehensive, uniform standard – based on the sound, consensus-based technical principles and practices that are embodied in NFPA standards,’ Chairman Bresland said.  ‘Ambiguities in the NFPA standards need to be resolved in clear, enforceable regulations developed by a thorough, public rulemaking process.’

 

 

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