law – Page 260 – SafetyAtWorkBlog

Australian Greens Senator speaks on OHS legislation

Senator Rachel Siewert spoke on Australia’s review of OHS law on 13 October 2008.The Senator summarised the statistical reason for OHS legislation (included here as statistics is a popular issue at SafetyAtWorkBlog), as well as the societal context.

Australian Greens Senator for Western Australia Rachel Siewert

“The importance of occupational health and safety is obvious from looking at even just a few key statistics. In 2004 Access Economics estimated that there were 4,900 work related deaths each year in Australia. The ABS calculated that 690,000 employees suffered from a work related injury or illness in 2006. The Productivity Commission found that, in 2004, workplace deaths, injuries and illnesses cost the economy over $30 billion a year. These figures go to the economic and, importantly, the personal and social costs of workplace injuries and deaths. Behind each of those numbers is a person with a family, workmates, friends and a community.”

Senator Siewert reiterates the timetable for the initial report of the National Review into Model Occupational Health and Safety Laws is due by the end of this month but also identified a plethora of inquiries, agreements and discussions that will also inform the Australian government’s ultimate decision on OHS law. She supports the concept of tripartism:

“We believe that building on best practice in OH&S in this country and around the world is to implement genuine tripartism and independence. On these criteria, this legislation is too skewed in favour of governments and to the detriment of other key stakeholders in OH&S regulation-that is, employees and employers. [The Robens report in the 1970s]. It went on to recommend that statutory recognition of joint consultative practices-including government, employees and employers-need to underpin the new approach.”

But also makes the pitch for broader representation:

“If you agree with this approach-and all of Australia’s OH&S laws are based on this concept-then you also have to acknowledge the importance of genuine participation of employers and employees through a representative structure. The NOHS Commission did recognise this and was established as a statutory corporation with a membership structure incorporating employee and employer representatives. Its functions included formulating policies and strategies relating to OH&S matters, reviewing and making recommendations for the making of laws relating to OH&S matters, researching OH&S matters and conducting inquiries into OH&S matters.”

My recollection of NOHSC was that representation remained the domain of employer associations, trade unions and the government. Independent OHS specialist were few and far between. Given the dreadfully poor rate of union membership in Australia, it would have been more progressive for the Senator to nominate independent OHS specialists and to propose a 25% ratio of represntation for each of the representative groups so that (hopefully) apolitical opinion could be provided on a subject that should be apolitical. (And I still think an OHS Ombudsman is a practical and useful concept.)

In 2004, in its report into national workers compensation and occupational health and safety frameworks, the Productivity Commission made a number of recommendations relevant to the National Occupational Health and Safety Commission, including having a specific objective of achieving national uniform OH&S regulation and joint funding from the states. We note that this bill does implement these recommendations. The Howard government, however, instead of implementing those recommendations, once it got its chance by taking control of the Senate, abolished the commission. Prior to being able to abolish the commission, the previous government had already reduced its funding significantly. Between 1996 and 2005 the then government slashed the budget by over $4 million. We believe OH&S was never much of a priority for the Howard government.

The Senator places the proposed Safe Work Australia authority in a particularly awkward position:

“Safe Work Australia fits somewhere in the middle of the NOHSC and the ASCC. It continues the practice of being tripartite-although inexplicably downgrading the representation of employee and employer representatives-and, while more independent of government than the ASCC, is significantly less independent than the NOHSC.”

Other Greens’ concerns are:

reduced representation
vague definitions on ‘authorising body” or those associations who become represnetatives
excessive and unnecessary ministerial control, including veto
two-thirds majority decisions
insufficient funding for research

It would be interesting to hear the thoughts of other minor parties although the position of Family First may change in line with varying economic situations.

When psychosocial hazards originate from poor management

There are still some OHS professionals who are uncomfortable with approaching workplace hazards that do not involve nip-points and energy-transfer. In fact there are some who can’t cope with the industrial relations interplay with occupational health and safety. A major industrial relations problem ran for some time at Tristar Steering and Suspension. The absurdity of this…

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OHS uniformity is looking unlikely

Michael Tooma, a lawyer with Australian law firm Deacons, has stated

“Despite the enthusiastic manner in which the harmonisation agenda has been pursued, and the appearance of progress in that regard, it is likely that the quest for uniformity in OHS laws across Australia will remain elusive.”

His reasons for this statement in a recent edition of Safety Solutions magazine (August/September 2008) are

The National OHS Review was set up to develop model legislation for implementation in each State jurisdiction;
Duty of Care is absolute in two States, Queensland and New South Wales;
“Reasonable practicable” is not applied in each State to the same extent;
The New South Wales right for unions to undertake prosecutions for OHS breaches;
Not each State has a legal forum dedicated to handling OHS prosecutions;
The level of enforcement of OHS law is inconsistent between States; and
The level of maximum penalty available.

Tooma is worth listening to for lots of reasons but principally he seems to be less wrapped up in political baggage compared with other OHS legal commentators.

Tooma seems to favour an industrial or OHS court because of the substantial jurisprudence that has been achieved through the New South Wales Industrial Commission. I support the expansion of this type of court as NSW decisions, regardless of legislative differences, can be particularly useful is clarifying the most suitable OHS interventiosn for particular hazards.

He also says that enforcement must be consistent. This is true or else, if given the chance, an employer could undertake certain hazardous tasks in the jurisdiction where enforcement or prosecution is less effective and active.

This relates, in a way, to Tooma’s last point on penalties. An OHS offence in Victoria could lead to jail but in Tasmania, not. A monetary fine of over $1 million could apply in some States with only $180,000 in another.

It seems that the fantasy of one OHS law for Australia will remain a fantasy. The trick will be whether, after months of government review and hundreds of submissions, there will be sufficient consistency across the States. The likelihood is that we will be slightly better off but still with State variations. We have a little less red tape but red tape nonetheless.

My question will be, was it worth it?

What does the government mean by “flexibility”?

Australian governments have all missed the solid, positive support that workplace safety can provide in pushing through useful OHS, and industrial, initiatives. It would be a courageous employer who argued against any initiative that is intended to imporve the level of safety in any workplaces.

The Deputy Prime Minister and IR Minister, Julia Gillard, reminded me of this when she spoke about the intoriduction of the government’s Fair Work Australia authority. I have written elsewhere that the time is right for the Minister to also announce a “Safe Work Australia” authority which can arise out of ashes of the Australian Safety & Compensation Council. I would suggest that Safe Work Australia could also use the structure of the Workplace Ombudsman, have Comcare for the paperwork, establish a dedicated OHS stream in the justice system and use the moral authority of a new independent OHS Ombudsman. This would be my mix for a strong, fair, independent and national OHS process for Australia.

In Gillard’s speech on Fair Work Australia though, she provided little hope of such an achievement. This government continues to consider OHS as a separate discipline (or perhaps a subset) to Industrial Relations except when business accuses the unions of gaining IR advantage through OHS actions. OHS could be legtitimately used to present consultation and consensus in a united IR strategy but there is little indication of that, indeed the gulf is widening.

In Gillard’s speech on industrial relations she mentions “promoting workplace flexibility” as an important part of the platform. This appears a couple of lines after a mention of “business flexibility”. These are not interchangeable terms and seem to be included to soften the message, as there is no further mention, or expansion, of these concepts.

In HR and OHS terms we are looking at flexible work structures that can reduce workplace hazards, improve staff retention, increase career longevity and provide sustainable productivity. Whether this is workplace flexibility or business flexibility seems to depend on which end of the management structure you come from but there should be no ambiguity in government statements on the issue of flexibility. Then again maybe staff health, safety and welfare is only a distraction.

“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.

Category: law

Australian Greens Senator speaks on OHS legislation

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