lawyers – Page 34 – SafetyAtWorkBlog

All for the want of ….. the right decision

Recent a colleague was explaining to me how the cost of a project is ballooning and the project is generating a toxic workplaces by some managers not talking to other managers. The disharmony is doing nothing to control the costs and the juvenile conduct of the managers is spreading the damage throughout the organisation.

My colleague told me that if only the existing, long-standing purchasing and project policies had been followed this situation would not have occurred. One person did not do their job properly and made a decision that was not substantiated by the policy. The decision was not checked, for whatever reason, and the project is in serious jeopardy.

Many readers may recognise a similar scenario but often these become very muddy due to office politics, office allegiances etc. But it is often easier to understand big issues by looking at small cases. Douglas Law firm posts small court decision reports every so often that summarise OHS matters well. One of the latest concerns

“In Inspector Phillip Estreich v Hannas Civil Engineering a contractor suffered electric shock when cutting through a conduit pipe which was supposedly empty.

There was a documented safety system where before performing excavation work, a number was to be called which provided information on underground pipes and cabling. On the day in question the number was not called and the supervisor merely visually inspected the area. The risk of harm was reasonably foreseeable as electric cables were usually found in orange conduit pipes. The contractor was left unsupervised to cut the pipes, and had no experience in the area.”

This case is a useful thumbnail that illustrates the consequence of small decisions.

Perhaps, OHS professionals should look to ancient wisdom for current enlightenment. An old rhyme that I learnt as a child regularly pops into my head when I read about OHS problems.

“For want of a nail the shoe was lost.

For want of a shoe the horse was lost.

For want of a horse the rider was lost.

For want of a rider the battle was lost.

For want of a battle the kingdom was lost.

And all for the want of a nail.”

Kevin Jones

New coronial approach should lead to greater safety information

The Australian State of Victoria has been in a fortuitous position with a Coroner, Graeme Johnstone, who was a staunch advocate of safety in the public and workplace spheres. Johnstone was a strong and physical presence at many conferences and in the media. Indeed, it would be difficult to find a more obvious and influential safety advocate in Australia over the last twenty years.

Johnstone retired recently due to ill-health. From 4 November 2009, his successor, Jennifer Coate, will be sitting in an official Coroners Court and the supportive legislation should provide even greater support to safety advocates.

According to a media release issued in support of the Court, there are several important legislative changes.

The power of the court to make recommendations to any Minister, public statutory body or entity relating to public health and safety and the administration of justice. Previously recommendations could only be made to Ministers.

Importantly, any Minister, public statutory body or entity either receiving or [sic] the [sic]of a recommendation must now respond in writing within three months stating what action will be taken (if any) as a result of the recommendations. This has never been required before and is an Australian first.

All inquest findings, coronial recommendations and responses to recommendations will be published on the internet, unless otherwise ordered by a coroner. This is the first time in Victorian coronial history that a requirement to publish inquest findings has been enshrined in legislation.

A new power for coroners to compel witnesses to testify without the risk of self incrimination. The court will now be able to issue a certificate excusing evidence heard by the court from being used to incriminate witnesses in other court proceedings.”

On the first point, how much different would have been the approach to level crossing safety with this authority? Would the faulty design of some level crossings have been changed more quickly? Of course, recommendations are still only recommendations but by referring to statutory authorities and others, there is likely to be less direct political spin and, perhaps, greater accountability.

This leads to the second point, timelines. Any meeting, action item, control measure or even correspondence, should have a timeline for response. This will allow the families of victims a hook on which they can hang their dissatisfaction with government inaction. Of course, there is usually no guarantee that correspondence is publicly accessible but to bullet point three.

Not only will inquest findings now be easily accessible to the public, the government responses mentioned above will be made available on the Coroner’s website.

Around ten years ago I was writing a book on occupational health and safety in the sex industry in Australia. I requested details form the Coroner’s office of deaths in this industry. I received many pages of decisions which helped considerably in determining whether deaths occurred at work or in relation to work.

Several years later, I put in a similar request for information on dairy-related deaths in support of a WorkSafe Victoria guidance with which I was assisting. The level of detail provided then was a line or two on each incident. It was enough to prepare a rough data table but was woefully unhelpful in the preparation of case studies of work-related fatalities. The accessibility allowed under the new laws will allow for a greater, and more public, understanding of the contributing factors to death which should lead to greater options for elimination or control.

The Coroner is clearly enthusiastic about her new powers. In the media release Coates says

“This new legislation will better enable the court to thoroughly examine and investigate the different types of deaths reported to us so we can help prevent similar deaths from occurring. Of real significance is the requirement that any body or entity receiving a recommendation must respond to us. This will be a real mechanism for change to public safety and we expect enormous benefits for the Victorian community to follow,” she said.

Judge Coate said publishing inquest findings, recommendations and responses on the internet would make public statutory authorities and entities more aware of their responsibility to respond to coronial findings.

“The new response requirement means the recommendations of a coroner cannot be selectively pursued or ignored. This is an important gain for the public safety and administration of justice for our community”

She said the publication of inquest findings, recommendations and responses on the internet would also make the coronial process more accessible to families who experience the death of a loved one investigated by the court.

“We have gone to great lengths to ensure our new practices under the Act recognise and have regard for the families and friends of a loved one who has died. That includes acknowledging the distress of families and their need for support and a recognition that different cultures have different beliefs and practices surrounding death.”

SafetyAtWorkBlog wishes Coroner Coates all the best and will be keenly watching the progress.

Kevin Jones

Management – the importance of what comes before

A special guest for the Safe Work Australia events in Queensland was Matthew Gill, former Beaconsfield Gold mine manager. According to a media statement from the Government

“Matthew Gill who was the public face of the Beaconsfield mine rescue will speak about how he immediately took control of the emergency and then implemented rescue operations for the three missing miners,” [Workplace Health and Safety Queensland Executive Director, Dr Simon Blackwood] said. “Mr Gill maintained an unwavering commitment to the safety of the people conducting the rescue and to the trapped miners.

“He oversaw the rescue teams which battled 24 hours a day for 14 days to release the two miners trapped almost 1km underground. Mr Gill will relive the emotional story of finding Larry Knight’s body and having to talk to his family afterwards.

“Previously he has been involved with mine rescue at rock falls at Mt Lyell in Tasmania and in Papua New Guinea, but Beaconsfield was the first time that he had such ‘hands on’ involvement.”

Matthew Gill has a lot of skills to share on disaster management and media handling but a lot of that skill seems to come about after the rockfall in 2006 that killed Larry Knight.

Cover KNIGHT,_Larry_Paul_-_2009_TASCD_25 Prior to that time, in 1995 to 1997, Matthew Gill was the Responsible Officer for the mine. From 1997, Gill appointed other people to undertake the role that is required by legislation. Sometimes there were three people in the role at the same time. Professor Michael Quinlan was quoted in the Coroner’s report saying that

“……….the very notion of appointing a Responsible Officer would have little meaning unless that person so appointed exercised overall control of the workplace and could therefore make critical decisions in relation to OHS not simply recommend them, be part of them, or make decisions but not others than might affect safety. For example, as Responsible Officer Mr Ball was a participant in decisions on mine design and mining methods – decisions that have a critical effect on the safety of underground workings – but he was not the only or final decision maker.”

The Tasmanian coroner Rod Chandler,agreed that there should be only one Responsible Officer and that the legislation be amended to reflect this.

Media reports of the inquest into Larry Knight’s death reported that after rockfalls in October 2005 and various risk consultants’ reports Matthew Gill undertook some remedial work on the mine and in February 2006, Gill declared the mine safe to restart mining. The decisions made on the basis of those consultants’ reports came under close scrutiny in the coronial inquest.

On 10 November 2008, AAP’s Paul Carter reported the following:

Lawyer Kamal Faroque [representing the Knight family and the Australian Workers’ Union] told Coroner Rod Chandler in Launceston that Allstate’s management failures contributed to Mr Knight’s death…. Mr Faroque said mine manager Matthew Gill was ultimately responsible for deficiencies in the mine’s ground supports. “It is submitted that deficiencies in ground support contributed to the Anzac Day rockfall which killed Mr Knight,” he said.

He also said there was no reasonable basis for Allstate to conclude that it was safe for workers to return to the area after two earlier rockfalls.

“Mr Gill accepted responsibility for the decision to recommence stoping in the western zone following the October (2005) rockfalls,” Mr Faroque said. Stoping is a mining method in which underground chambers are opened up deep beneath the surface.

Mr Faroque said the risk management process conducted following the October 2005 rockfalls was inadequate. “It is submitted that these failures are a sound foundation for a finding that Allstate contributed to the death of Larry Knight,” Mr Faroque told the court.

There is no doubt that Matthew Gill was integral to the successful rescue of Brant Webb and Todd Russell but Gill had been employed at the mine for over a decade before the fatal rockfall and therefore was also involved with the decision-making leading up to the rockfall. The decisions made by the company over many years should be analysed to see the combination of bad, poor, or short-term decisions that ultimately led to Larry Knight’s death and the entrapment of his colleagues.

The rescue of Webb and Russell is an exciting tale with a happy ending and at least one book and several long articles (even a school lesson plan) have been written about this. The most lasting lessons for safety professionals, mine managers and business operators would be what contributed to the bad decisions leading to Larry Knight, Brant Webb and Todd Russell being in an unsafe working environment during a rockfall.

This is a more complex story that requires knowledge of geology, the stock markets, corporate accountability, OHS and mine safety regulations. If this story had been Matthew Gill’s presentation during Safe Work Australia Week, it would have been worth travelling to Queensland to hear.

Kevin Jones

New approaches on OHS fines and penalties

At the moment Australian OHS professionals, lawyers and businesses are preparing submissions to the Government on the harmonisation of OHS laws. One of the areas that the Government is seeking advice on is penalties. The Discussion Paper asks the following

Q17. Are the range and levels of penalties proposed above appropriate, taking account of the levels set for breaches of duties of care by the WRMC?

Q18. What should the maximum penalty be for a contravention of the model regulations?

Q19. The intention is that all contraventions of the model Act be criminal offences. Is this appropriate or should some non-duty of care offences be subject to civil sanctions e.g. failure to display a list of HSRs at the workplace, offences relating to right of entry?

The amount of any fixed financial penalty is not a big issue in my opinion. There is an assumption that the threat of a large financial penalty imposed on one company will encourage other companies to improve safety. Is anyone seriously saying that all of the financial penalties imposed over the decades are in some way responsible for an improving level of safety in workplaces? The motivation to improve safety comes from elsewhere.

The threat of large financial penalties send companies to seek ways of insuring against having to pay a fine. Often it is cheaper to pay an insurance premium on the slim chance of being prosecuted and fined. I acknowledge that this has been a corporate and risk management approach primarily but there are cases where such options are being offered to small business.

Large financial penalties, such as the then record fine to Esso over its Longford gas explosion, are easily paid with little OHS improvement resulting from the fine. It can be argued that the negative corporate exposure from the resulting Royal Commission, a reulting class action and the media coverage resulting from its unforgivable treatment of Jim Ward were stronger motivators for improvement.

In most Australian States, there is not a crime of industrial manslaughter. This issue has faded from the political agenda but it remains very much alive in England. On 27 October 2009, the Sentencing Guidelines Council wrote the following:

“Companies and organisations that cause death through gross breaches of care should face punitive and significant fines, a consultation guideline published by the Sentencing Guidelines Council proposes today.

Fines for organisations found guilty of the new offence of corporate manslaughter may be measured in millions of pounds and should seldom be below £500,000.

The new sanction of Publicity Orders forcing companies and organisations to make a statement about their conviction and fine introduced under the Corporate Manslaughter and Corporate Homicide Act should be imposed in virtually all cases.

The consultation guideline proposes that the publicity should be designed to ensure that the conviction becomes known to shareholders and customers in the case of companies and to local people in the case of public bodies, such as local authorities, hospital trusts and police forces. Organisations may be made to put a statement on their websites.”

The Council recommends a minimum financial penalty and a publicity order that has teeth. More on the publicity order is below.

Council member Lord Justice Anthony Hughes clearly states the purpose of financial penalties and it is not preventative. He said in a media statement

“Fines cannot and do not attempt to value a human life – compensation will be payable separately in these cases. The fine is designed to punish and these are serious offences so the fines imposed should be punitive and significant to reflect that.”

Penalties as a Percentage of Turnover

Hughes says that the Council rejected a Sentencing Advisory Panel proposal that I believe should be floated in the current debate on penalties in Australia, even though it is likely to be similarly rejected.

The Panel recommended the following

“In order to achieve an equal economic impact on offending organisations of different sizes, the proposed starting points and ranges for offences of corporate manslaughter are expressed as percentages of the offending organisation’s average annual turnover during the three years prior to sentencing. The relevant turnover is that of the company convicted of the offence or, where the offending organisation is a holding company, the consolidated turnover of the group of companies of which it is the holding company.”

Here is the penalty table

Manslaughter table

Lawyers argue extensively about the use of manslaughter in relation to deaths in workplace but the public jumps across the legalese by repeatedly asking how the death of their loved one is not manslaughter when the actions of a director or company led directly to the death? No level of legal explanation is going to counter this need for accountability, some would say revenge.

Similarly the penalty rate listed in the table above is easier for the public to understand conceptually compared to a judge’s or lawyer’s explanation of why a financial penalty for a workplace death was less than the maximum.

Sentencing options are complex and SafetyAtWorkBlog has no legal contributors but on 30 October 2009 within a public discussion period on national OHS laws and at the end of Safe Work Australia Week, it seem thats penalties imposed from a percentage of turnover may be an attractive concept to many safety advocates and one that needs to be considered in the Australian context.

Publicity Orders

On the issue of publicity orders, many Australian jurisdictions have had this option for a while. Indeed, the issue of enforceable undertakings is getting a broader hearing after some of the recent actions by Comcare against John Holland Group and others.

It is always important to look at the most recent actions and decisions in OHS law and regulation from outside one’s own jurisdiction so that innovations are not overlooked. It seems that the Sentencing Advisory Panel has looked at lots of jurisdictions in making the following requirements.

The Sentencing Advisory Panel listed specific requirements of a publicity order to be applied within a specified timeframe:

a quarter-page advertisement in a local or regional newspaper, in the case of an organisation operating in one area; or

an eighth-page advertisement in three specified national daily newspapers, in the case of an organisation operating nationally; and

an eighth-page notice in a relevant trade publication; and

a prominent notice in the organisation’s annual report (also in electronic format where applicable); and

where applicable, a notice on the homepage of the organisation’s website for a minimum period of three months.

The panel also closed a possible (out) for offending companies.

” The making of a publicity order does not justify a reduction in the level of fine imposed on an organisation for an offence of corporate manslaughter.”

The ads on home pages, local newspapers and trade publications (if there are any) seems very reasonable but the media option that may be most influential is the inclusion in the company’s annual report. Acknowledging a workplace death and expressing regret in an annual report is admirable but “a prominent notice in the organisation’s annual report” goes straight to the shareholders who often have the ear of the corporation. Just look at the influence being applied by them at the moment on executive salaries.

Now is the right time for Australia to consider alternative OHS penalty options.

Kevin Jones

Peek-a-boo safety – Oh Dear!

The Australian Model OHS laws do not have duties and responsibilities that focus on the employer. The focus is now on a “person conducting a business or undertaking” or a PCBU. In a legal seminar in Melbourne on 20 October 2009, this acronym was spoken as a “peek-a-boo”. Throughout the next 60 minutes, prominent Australian OHS lawyers repeatedly mentioned the OHS responsibilities of the “peek-a-boos”.

iStock_000002473027Small

If OHS law has not been taken seriously by some sectors now, there is no hope if this absurd terminology continues.

How will regulators and safety professionals “sell” safety in a small business person is described as a peek-a-boo? If we’re lucky, the employer will think of a game played with young children. If we are not lucky, they may think of diaphanous female lingerie tenuously constructed with ribbons. If the employer is a goth, one may get away with a cool reference to a Siouxsie & The Banshees song.

One could speak PCBU phonetically as “pissy-be-u” but even that is dubious. Please delete this term from one’s vocabulary and recommend to the Australian Government that its bill-drafters look for another acronym.

Kevin Jones

OHS model law remains divisive

An article in the Australian Financial Review (not available on line) on 16 October 2009 provided some additional legal opinions on the implementation and aims of Australia’s draft Safe Work Bill.

Other than Michael Tooma’s well established thoughts on the draft law, Liberty Sanger of Maurice Blackburn, a law firm with strong trade union links, is said to support the capacity for jurisdictional variations in the harmonisation process. She is quoted as saying there

“need to be regional difference in a country as vast as ours and with such a different industry composition as ours…”

This position is supported by a call from the CFMEU’s General Secretary, Andrew Vickers. In a media statement released on 15 October 2009, Vickers uses the aftermath of the Gretley mining disaster of 1996 as an indication of the need for OHS laws specific to the mining industry. He says

“Under the Federal Government’s National OH&S Harmonisation Review, there is a growing view among lawyers and bureaucrats that industry specific safety laws – laws that protect coal and metalliferous miners for example – ought to be scrapped.

The trouble is miners and their families and their union have been left in the dark. We still do not know if the new laws will be tailored to meet the safety needs of our industry. Despite this, the Federal Government is pressing on with its changes.

Yet the reality remains that the safety of miners and their families and the future of our mining communities are too important to ignore. And we have fought too long and too hard for tough safety standards in our industry to give them up now.”

The AFR article also quotes Miles Bastick of Freehills. The article says Bastick believes that the jurisdictional changes that have so alarmed some are likely to relate to only peripheral issues. The article says that although Bastick generally supports to the Safe Work Bill

“….he said, that in practical terms, OHS laws were likely to be enforced differently across Australia, even if laws were nationally consistent because of the different prosecution policies of OHS authorities and the approaches of different courts and tribunals that would hear prosecutions.”

SafetyAtWorkBlog would argue that the variations Bastick identifies provide very strong reasons for the Government to take the big step forward of one national OHS law supported by a nationally consistent enforcement policy through a single national safety authority and a coordinated court system. This may be a fantasy but it remains an option for the Federal government. Some lawyers believe the Government has not dismissed the application of the Corporations Act in the OHS field as it has already unified the IR system through a similar process.

Such a national system would achieve many of the aims of the government by

reducing red tape across States, businesses and Courts,
reducing the number of OHS regulatory authorities saving considerable expenditure from many areas of duplication from administrative staff to publications and advertising,
providing a single focus to business for clarity and consistency of information; and
still allowing for industry-specific variations that can be coordinated consistently with the general OHS principles.

If Australia is looking for an OHS regulatory system that it expects to last as long as the previous system, all stakeholders may need to look in a slightly longer term and broader perspective than they are currently.

Kevin Jones

OHS is becoming criminal law in a social context

On 14 October 2009, Australian law firm Deacons hosted a breakfast seminar of the draft OHS model law proposed by the Australian Government. The speaker, Mike Hammond, expressed concern about many sections of the draft laws because they do not seem to fit how OHS law has been structured in Australia and the UK for over thirty years.

This is not to say the clauses and sections are worthless, useless or wrong, but the Government has not provided enough information on the rationale for the changes or the context for those changes so that those who need to use the law understand the law.

Hammond had five major concerns with the proposed law in the Victorian context:

Person conducting business or undertaking vs employer

Officers’ duty to exercise due diligence

Failure to acknowledge “Control” as issue of first principle

Abrogation of right to silence and privilege against self-incrimination for individuals

Unions able to cause work to cease

Hammond is, of course, looking at the laws from a lawyer’s perspective and not that of a safety professional or business operator but he raised some excellent points, some of which have been discussed previously in SafetyAtWorkBlog.

The coverage of the proposed OHS laws is so broad as to include anywhere where work is conducted. Tooma, a partner of Hammond at Deacons, touched on this impractical definition in some of his statements. The way some work is done in 2009 is radically different from 1985 for example, mainly due to technology.

This blog article could be written on a kitchen table, in a cafe, on a park bench or a desk in an office. Each of these would be workplaces because work is being undertaken however if the article is being written on a laptop in a cafe, at the moment, the cafe owner would have no OHS obligations on my actions. There would likely be public liability and safety issues, particularly if the laptop was also plugged into the cafe’s power supply, for instance, but the cafe is only a workplace for the employees of the cafe. Under the draft Safe Work Act (or Bill), if the customers are working there, the cafe owner would have OHS obligations for them. The customers, the workers, of course would have their own OHS obligations as they do now.

Hammond made the point that the new proposed laws dispense with the legal relationship of employer and employee. This fundamentally changes the coverage of OHS legislation. As I put it to Hammond at the seminar, the changes remove the “occupational” from the OHS law. It has become a criminal law in a social context.

Hammond sees no reason to change the employment relationship to the extent proposed if the aim is to encompass the new varieties of work activity and workplace. He believes that these circumstances can still be met specific provisions to deal with the new varieties of work whilst maintaining the fundamental employer- employee relationship. Business and society would then be able to better understand some of the changes because the context would be within what has been understood for decades as “work”.

The proposed Safe Work Bill is trying to be too much too quickly and will set back OHS gains a long way. OHS has accrued considerable social awareness and acceptance. The legal principles of a safe workplace and safe work have been largely embraced by the community. Australia has not experienced the “OHS has gone mad” campaigns waged in the United Kingdom but if this law proceeds as it is, government will not be able to manage it, business will dismiss it through frustration, and the community will think (rightly) that OHS is a joke. Safety professionals and OHS regulators will be seen as sucking the sense out of what used to be sensible.

Mike Hammond has seen criminal law reacting to changing social circumstances. He said that this proposed law is attempting to set a social agenda and a dangerous precedent.

Kevin Jones

Category: lawyers

All for the want of ….. the right decision

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New coronial approach should lead to greater safety information

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Management – the importance of what comes before

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New approaches on OHS fines and penalties

Penalties as a Percentage of Turnover

Publicity Orders

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Peek-a-boo safety – Oh Dear!

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OHS model law remains divisive

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Penalties as a Percentage of Turnover

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