law – Page 245 – SafetyAtWorkBlog

An Ombudsman for the safety profession

WorkSafe Victoria is very keen for the safety advice and management discipline to become professional. It is providing considerable technical and financial support to the Safety Institute of Australia and other members of the Health and Safety Professionals Alliance (HaSPA). The current status of HaSPA in Australia has been discussed in other SafetyAtWorkBlog articles.

HaSPA likes to compare itself to other managerial professions such as accounting, medicine and the law, and is trying to establish a contemporary profession. One of the professions mentioned, law, an established profession for hundreds of years, is seriously considering the introduction of an ombudsman, a concept that should have been established already for the safety sector.

According to a media report in The Australian on 4 September 2009:

A taskforce of federal and state officials is working on a plan to create a national legal ombudsman with unprecedented power over the nation’s lawyers.

If the plan goes ahead, the ombudsman would be able to set standards for all lawyers, oversee the handling of all complaints from consumers and intervene with the profession’s state-based regulators.

One option being considered would establish the office of the legal ombudsman as a new national institution drawing authority from a network of uniform state laws.

This would unify the regulation of lawyers and give state governments a role in confirming prospective candidates for the new national office.

Lawyers, rather than taxpayers, could be asked to pay for the cost of establishing their new regulator.

The taskforce, which has been appointed by federal Attorney-General Robert McClelland, is examining the possibility of establishing the new office as the centrepiece for the promised regulatory overhaul of the legal profession.

OHS law in Australia is undergoing its most major national review in decades. Shouldn’t the safety profession also develop the “Office of the Safety Ombudsman”? The legal profession is doing all the work on a model.

Australia has a tradition of effective industry-based ombudsmen. A list is available online but the most publicly well-known would be the Telecommunications Industry Ombudsman.

[In the last couple of years the safety profession has heard from the Victorian Health Services Commissioner, Beth Wilson, on the purpose and role of the commission and how the safety profession can learn from her support, adjudication and advocacy. The commissioner is not an ombudsman but there may be a role for a safety commissioner to address WorkSafe’s concerns over the quality of safety advice being provided by safety professioanls to business. A video of Beth Wilson briefly discussing the role is available on YouTube.]

The application of an Ombudsman model in the safety profession should be discussed but similar objections will be raised to those of the legal profession in the article quoted above. Underpinning the objections is that an established profession is resistant to change and suspicious of relinquishing the power it has established over its lifetime.

If the safety advocates are truly committed to establishing a contemporary profession, the concept of a safety ombudsman must be discussed or else the system of self-regulation will continue and so will the lack of independence, the lack of accountability, the limited communication and the lack of faith by the general community that safety professionals can be trusted to do a good job.

Kevin Jones

Thoughts on tasers and the hierarchy of controls

The Braidwood inquiry report into the use of energy weapons (tasers) is readily available on the internet. Regular readers of SafetyAtWorkBlog would know that I consider tasers to be a item of personal protective equipment (PPE) for enforcement officers.

Determining whether PPE is the most appropriate hazard control measure usually involves the application of the Hierarchy of Controls. The hierarchy is not applicable for all workplace hazards, particularly in the control of psychosocial hazards, but it’s a good place to start.

While reading the executive summary of Canada’s Braidwood report, one part in particular reminded me of the hierarchy – page 17.

Although the definitions for “assaultive behaviour” in both use-of-force continuums can be traced back to the Criminal Code’s language for common assault, they also justify use of the weapon when there has been only an attempted common assault, and even when no criminal offence has been committed. I concluded that the subject behaviour threshold should be met when the subject is causing bodily harm or the officer is satisfied, on reasonable grounds, that the subject’s behaviour will imminently cause bodily harm. Even then, an officer should not deploy the weapon unless satisfied, on reasonable grounds, that no lesser force option would be effective, and de-escalation and/or crisis intervention techniques would not be effective.

Let’s see if the hierarchy can apply.

Can the subject behaviour be eliminated? – No

Substitution doesn’t seem relevant.

Can we engineer out the threatening behaviour? – Barriers, shields… perhaps but the presence of these items may also inflame the behaviour, increasing the hazard.

Can administrative controls be applied to the hazard? Unlikely, unless the subject was cooperative or able to accept instruction or read signs, in which case, the hazard may not exist.

That leaves PPE, in this case a Taser.

The report places a considerable number of criteria that the enforcement officer must apply prior to using the taser and these should be considered administrative controls but as these apply to the enforcement officer and not the subject, they would not come under the hierarchy of controls.

I welcome readers comments on this rumination on Tasers as PPE, and/or the application of the Hierarchy of Controls to a police situation.

Kevin Jones

Australian survey on attitudes to OHS and laws

Firstly there is an apology for having statistics dominate SafetyAtWorkBlog this week however everything became available all at once.

An earlier article mentioned some recent OHS statistics that have been released by the Australian Council of Trade Unions. Below is the SafetyAtWorkBlog interpretation of the survey report.

The survey was undertaken by an independent research firm using a representative sample of the Australian population. It was not taken, like some previous ACTU surveys, from the trade union membership exclusively. In some respects the generality makes the survey results more interesting and some more broadly relevant.

67% of respondents were not aware that the governments are coordinating the standardisation of OHS laws.

67% believe that workplace safety is important, but only 40% see it as “very important”.

85% were not aware that workplace deaths (quoted from an unreferenced Government report) are “four times the annual road toll”.

80% think more should be done about OHS. However, if this question was asked after the previous one that compares workplace death to the road toll, the high response is not unexpected. Also the report gives no indication of who is expected to do something about OHS – government? employer? individual? sea urchins?

The issue of “red tape” was specifically asked in the question. It would have been interesting to have the question remain at just its core so it was a clear agree or disagree response:

“Do you agree or disagree that employers should have to do more to protect the health and safety of their workers (even if it means more costs or red tape for their business)?”

69% said that if they are injured at work, they should be able to take court action under OHS laws against an employer.

One would have to ask the purpose of this question. Don’t people trust that OHS regulators would take legal action on the part of the injured workers?

Not all the questions in the survey report are mentioned above but lets take away the trade union context of the survey results for the moment.

OHS regulators claim that their extensive and expensive advertising campaigns are generating an increased awareness of OHS in the community. Two thirds of a population believing OHS is important is a good result but how much of this awareness has been generated by government advertising, increased media reporting of incidents, union activism or some other reason? An analysis or further research would be useful.

Workplace deaths occur more often than road fatalities. Is this a fair comparison? Driving a car on a country road is a very different activity to driving a forklift in a cold store, for instance.

More should be done about workplace safety but would the respondent take on the responsibility themselves? A clarification of this response would have occurred by comparing it with the employer question above, without the red tape distraction. But what would the union movement had said to a response that may indicate an overall happiness with how employers manage safety?

The Australian trade union movement has continued its campaign against the operation of harmonised OHS laws by marches on 1 September. The first draft of the harmonised OHS laws will be available in a couple of weeks. Around a month after that is Safe Work Australia Week. The next two months promise to be a busy period of heightened debate (or lobbying and spin) on OHS laws.

Kevin Jones

SafetyAtWorkBlog would like to thank the ACTU for making the survey report available and we look forward to many more surveys from unions and employer groups that hopefully clarify people’s attitudes and approaches to safety.

In Australia OHS management is red tape

The Australian newspaper of 1 September 2009 epitomised the ideological problems with OHS in a business management context. Page 5 has two articles next to each other:

“Renewed pledge to cut business regulation” and

“Building chief ‘spat on an abused‘”.

The first article reports on a speech by the Competition Minister, Craig Emerson, where it is reported that the Minister

“has pledged his commitment to removing unnecessary regulation that hampered business”.

The Minister was speaking to a business audience and has been described as less friendly to regulation than his predecessor. OHS compliance is often bundled as an element of unnecessary business paperwork by employer and industry groups however, in this speech, the Minister spoke more of open markets.

The second article focuses on an attack on the head of the much-hated Australian Building & Construction Commission, John Lloyd, but also reports on the national union protest scheduled for 1 September 2009, concerning the weakening of OHS laws through the harmonisation process.

The article reports on a union survey:

“Unions commissioned a poll that showed 78 per cent of those surveyed agreed employers should do more to protect the health and safety of their workers, even if it led to increased costs or red tape.”

That unions would even accept that OHS compliance could be considered red tape is a great concern, and the phrase is taken directly from the ACTU media release.

Union Survey figures

SafetyAtWorkBlog is endeavouring to obtain the original survey results (over 1000 respondents (workers) taken in the last week of August 2009) but for the moment it is worth quoting ACTU Secretary Jeff Lawrence’s interpretation of the statistics.

“… this poll shows the Australian public don’t want workplace safety rights undermined.”

“The poll shows there is significant support in the Australian community for stronger rights and protections for workers and an ongoing role for unions in checking workplaces where employees are worried they are in danger.

“The poll finds 81 per cent of those surveyed agreed workers should have the right to call in help from a union to check on health and safety issues regardless of their employer’s approval.

“Seven out of ten Australians (69%) believe that injured workers should be able to take their employer to court under workplace health and safety laws.”

Business and government in Australia are harmonising OHS laws to reduce the red tape business compliance costs. Unions believe that OHS red tape and increased business cost is acceptable.

What does this leave the safety professional who says that they can minimise the red tape associated with OHS compliance AND that safety is not a cost but an investment? Out in the cold with the Victorian WorkCover Minister, it is suggested.

Kevin Jones

Productivity is also the Government’s aim with OHS law reform

A few posts back the productivity priorities of Australian employer groups toward OHS harmonisation were noted, particularly that of the Australian Chamber of Commerce & Industry.

On 25 August 2009, Australia’s Workplace Relations Minister, Julia Gillard, addressed the 15th World Congress International Industrial Relations Association. The Minister mentioned OHS and said:

“So, our new workplace relations system is now up and running. We are close to reaching agreement with State Governments to end the fragmentation of the past and have the entire private sector by the one national workplace relations system.

Additionally, for the first time ever, after a 25-year wait, Australian businesses and workers are close to having a uniform national occupational health and safety laws. A massive step forward in achieving a seamless national economy that Australia needs to release lasting and much-needed productivity improvements.

But the legal changes are the beginning, not the end, of the reform process.

Australians should now move beyond a focus on law changes to a new focus on cultural change in the workplace. We need to build partnerships between management and workers and their unions that operate for the benefit of all.

Change of this sort is slower to take root than rapid structural reform.

It is more dependent on intangibles, including the goodwill and motivation of those who take part. But in the long run it will have an important impact on our economic prospects.

So over the coming months and years we will be looking at ways of embedding change through workplace relations, innovation and leadership practices in workplaces.” [my emphasis]

Minister Gillard talks of OHS law reform in the same productivity terms as the employer groups. This may be down to the audience at the conference and the congress’ theme as well as industrial relations being the main focus of the government’s reform agenda but it is an inclusion that, for fairness, it was worth highlighting.

Rather than taking the OHS paragraph by itself, it is telling to see the section in the speech that includes the only direct mention of OHS law reform. Minister Gillard continues to emphasise the process of establishing harmony across industrial relations as much as in OHS law.

She also is clearly up on the latest business lingo, even though some of the phrases have a cloudy definition –

“cultural change”
“intangibles”
“innovation”
“leadership”
“collaboration”

The Minister rightly states that law reform is at the end of one process but often at the start of a far more difficult reform process. There is no guarantee that the new OHS will have a smooth entry and, as with any law, the best test for its suitability is in the Courts, sadly.

Kevin Jones

Standards are often developed without the aim of enforcement

[Expansion on recent SafetyAtWorkBlog article regarding Standards]

It’s always going to present complications when a tech standard is magically converted into law by incorporating it into a regulation. And that happens whether it’s an AS/NZ tech standard or one produced in Europe.

The fundamental problem is that tech standards are often not produced with enforcement in mind.

The core questions that drafters for each type of document have to ask are fundamentally different. The law drafter has to constantly ask: “What am I demanding and why? Does what I’m demanding fit sensibly and reasonably within the scope of the powers I have? How does a person comply with what I’m demanding? How do I prove that person is not complying?” Very few elements of those questions need to be addressed when developing a technical guidance document.

This is what leads me to think that it’s wrong to defer to incorporating technical standards in regulations. That’s not to say that it is always wrong. When a tech standard, or even a section of it that’s incorporated, includes the best thinking on achieving a good outcome, and that outcome is pretty well universally accepted as the right one and no issues of achieving or proving compliance crop up, then incorporate away I say.

But I think there are just too many good reasons to make the default option recommending tech standards or the type of standard setting body in a code of practice. The absence of mandatory requirements in a code stops the punter (or a regulator) being confused by trying to understand a technical guidance document in the context of mandatory requirements.

The code of practice route for applying tech standards also has that excellent element of letting the best thinking apply to a given problem; given that codes allow people to choose alternatives that are comparable to a tech standard recommended in a code. This is critical. When people know what type of standard or standard setting body an enforcement agency has confidence in, then the global state of knowledge can be brought to bear on a safety problem. That has got to be always a good thing.

I don’t see any reason for Standards Australia to give the game away because they are increasingly not having their productions transformed into law. All strength to their arm in fact. There’s no reason Standards Australia shouldn’t aim to be produce world’s best practice and thinking on safety solutions. Everyone gains from that.

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

Restorative Justice and workplace fatalities – Part 1

The city in which SafetyAtWorkBlog is edited, Melbourne, is struggling to manage a spate of street violence – some racially-based, a lot influenced by alcohol and drugs. The Age newspaper carried a feature article on 25 August 2009 discussing the concept of “restorative justice”, a concept that is barely known outside of some legal or civil liberties areas, in relation to handling offenders and victims of street violence.

Only last week, there was an important launch of a research report into the application of restorative justice for those affected by workplace fatalities. It is a fascinating new area of application for restorative justice in Australia and one that seems a more natural fit than for the more common acts of violence.

The research project builds on a lot of the work already undertaken into workplace fatalities by the Creative Ministries Network. Their research, mentioned in the project report, has shown

“…that families and company directors, managers and workers grieving a traumatic death suffer more prolonged and complicated grief due to delays in legal proceedings, public disclosure of personal information, lack of information, and increased stress from involvement in the prosecution process and coronial and other litigated processes.”

Over the next few days SafetyAtWorkBlog will run a series of articles on the concept and its application as well as being able to make available copies of the research reports and transcripts of interviews with research participants.

As SafetyAtWorkBlog has no legal expertise restorative justice needed some investigation. Below are some useful definitions and descriptions:

“Restorative justice is a theory of justice that relies on reconciliation rather than punishment. The theory relies on the idea that a well-functioning society operates with a balance of rights and responsibilities. When an incident occurs which upsets that balance, methods must be found to restore the balance, so that members of the community, the victim, and offender, can come to terms with the incident and carry on with their lives.”

“Restorative justice brings victims, offenders and communities together to decide on a response to a particular crime. It’s about putting victims’ needs at the centre of the criminal justice system and finding positive solutions to crime by encouraging offenders to face up to their actions.”

“The term “restorative justice” is often used to describe many different practices that occur at various stages of the criminal justice system including:

Diversion from court prosecution (i.e. to a separate process for determining justice);

Actions taken in parallel with court decisions (e.g. referral to health, education and employment assessment, etc.); and

Meetings between victims and offenders at any stage of the criminal process (e.g. arrest, pres-sentence and prison release.”

[Of course, one can also read the Wikipedia entry)

The intention of restorative justice has more often been to reduce the likelihood of a re-offence. The application of restorative justice for workplace fatalities seems to be slightly different. In America, it would be difficult to avoid using the word “closure” (a phrase SafetyAtWorkBlog refuses to use as there is never a close to grief, only a way of living with it) as one of the aims of the workplace fatality application.

There are many effects of a workplace fatality on executives and companies. It is hard to imagine a company that, after one fatality, would not do all it could to avoid another. Restorative justice has the potential to heal the surviving victims – family and company. It can also reduce the animosity that often results from the traditional adversarial justice system, particularly for those participants who may not have been exposed to such processes before.

Kevin Jones

Category: law

An Ombudsman for the safety profession

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Thoughts on tasers and the hierarchy of controls

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Australian survey on attitudes to OHS and laws

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In Australia OHS management is red tape

Union Survey figures

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Productivity is also the Government’s aim with OHS law reform

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Standards are often developed without the aim of enforcement

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Restorative Justice and workplace fatalities – Part 1

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Union Survey figures

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