Category: lawyers

Barry Sherriff talks about the Work Health and Safety Act

Boardroom Radio often has interesting speakers on topical issues.  On 11 December 2009,  they interviewed Barry Sherriff who recently joined the Australian law firm, Deacons.  The interview is of general interest and reflects many of the issues raised by Australian labour lawyers elsewhere.

Barry is an OHS law expert and was a member of the panel that reviewed Australia’s OHS legislation in 2008/09 in order to steer the development of  a model OHS law.  That process was completed in mid-2009 and the Government took on most of the recommendations.  Effectively the Government started a second separate process – the development of legislation based on a range of information, advice and public submissions.

Many recent submissions to the Government in this second phase harked back to earlier findings.  Many issues raised in the Model OHS Act Review, such as the issue of “suitably qualified” OHS advisers, are dead.  As Barry’s interview shows, contemporary thinking provides forward momentum and it is up to all of us to keep our state of OHS knowledge current.

Kevin Jones

Legal advice and safety management

The legal commentaries have begun to appear following the release of Australia’s draft Work Health & Safety Act.

One of the first, as usual, is a response from law firm Deacons.  It should be noted before discussing the suggestions that in the last couple of months Australia’s OHS legal brains are now concentrated in this law firm since Barry Sherriff jumped ship from Freehills.  A month or two earlier, Sherriff’s protegé, Penny Stephens, left the firm and took several others with her to Hall & Willcox.  This brain drain sets Freehills’ OHS practice back considerably.

However, Deacon’s first missive on the new OHS laws has been released, under the bylines of Sherriff & Tooma, and identifies several issues.  The first, and very useful to know, is the definition of due diligence that is now included in the Act under Duty of Officers:

“…due diligence means to take reasonable steps:

(a) to acquire and keep up to date knowledge of work health and safety matters; and

(b) to gain an understanding of the nature of the operations of the business or undertaking of the body and generally of the hazards and risks associated with those operations; and

(c) to ensure that the body has available for use, and uses, appropriate resources and processes to enable hazards associated with the operations of the business or undertaking of the body to be identified and risks associated with those hazards to be eliminated or minimised; and

(d) to ensure that the body has appropriate processes for receiving and considering information regarding incidents, hazards and risks and responding in a timely way to that information; and

(e) to ensure that the body has, and implements, processes for complying with any duty or obligation of the body under this Act; and

Examples

A body’s duties or obligations under this Act may include:

  • reporting notifiable incidents.
  • consulting with workers.
  • ensuring compliance with notices issued under this Act.
  • ensuring the provision of training and instruction to workers about work health and safety.
  • ensuring that health and safety representatives receive their entitlements to training.

(f) to verify the provision and use of the resources and processes referred to in paragraphs (c) to (e).”

This should provide more tips to OHS professional associations about where their services fit in general business obligations but it also sets the bar much higher for professionals in how they must upgrade their own OHS skills to match expectations.

Curiously, Deacons continues with issues of concern with the Act which have little to do with improving worker safety.  Several items hark back to the OHS Model Act Review Panel which has little more than historical interest nowadays but may reflect the fact that Barry Sherriff was a Review Panel member.  The list of concerns further supports SafetyAtWorkBlog’s position that safety law often masquerades as safety management.

Deacons concludes its update with the following “7 steps”:

“There are 7 steps that every business needs to undertake to prepare for this new era in Work Health and Safety regulation:

  • Legal risk analysis…
  • Review contracts …
  • Implement interface coordination plans …
  • Develop robust consultation processes …
  • Develop dispute resolution processes …
  • Develop processes on right of entry and regulatory rights and obligations …
  • Develop an OHS Corporate Governance Statement …”

Unsurprisingly, the first two involve assistance from one’s legal advisers.  SafetyAtWorkBlog recommends that businesses wait and see what support documentation is supplied by the OHS regulators first as it is they who determine the parameters for OHS compliance.

Businesses need to remember that the Work Health & Safety Act is not yet law and, in fact, has a long way to go before States introduces this law into their own jurisdictions.  Western Australia is still objecting to the law so it is unclear if this Act will ever be introduced without substantial change.  So until then keep following the local OHS legislation but keep both ears open in anticipation of the future.

Managerial federalism?

There are some OHS professionals in Australia who follow the harmonisation of the country’s OHS laws closely.  The current status is that the various public submissions are being analysed and discussed by the Government.

But for those who are hankering for some pre-Christmas reading the New South Wales Parliament has released a report called “Managerial Federalism – COAG and the States” written by Gareth Griffith.  This is not a report about OHS, although the topic does get a brief mention on page 25.

OHS harmonisation is perhaps one of the simpler reform processes compared with tax or the legal sector.

The report provides a very good summary of the various consultative structures that the Federal and State Governments operate within as the country changes to a process of “managerial federalism”.  The report summary defines “managerial federalism” as

“…defined to be administrative in its mode of operation, pragmatic in orientation, concerned with the effective and rational management of human and other resources, and rich in policy goals and objectives.  The States play a creative and proactive part but are, to a substantial degree, service providers whose performance is subject to continuous scrutiny and oversight.”

(“Rational management”?  Has everyone in the Australian government been told to read the book by Kepner and Tregoe?  Let’s hope it’s not the 1965 edition.)

Being familiar with some of the concepts and rationales in the report may help those lucky enough to be consulted on government decision-making to know their place in the wild scheme of bureaucratic policy-making.  It may even prove invaluable if you are the safety coordinator on one of the Governments’ many infrastructure projects.

Kevin Jones

How much does poor safety management cost?

In late November 2009, the Victorian State Emergency Services (SES) was convicted of OHS breaches over the death of one of its volunteers and was fined $A75,000.  The SES has chosen to allocate $A150,000 to a review of its safety management after strong criticism from the Mildura Magistrate, Peter Couzens.

In answer to the title of this article, a minimum of $A225,000 and one person’s life.

In May 2007, a volunteer with the SES a, 54-year-old Ron Hopkins drowned on a training exercise in the Murray River.  WorkSafe Victoria provides the following scenario:

“A boat took the four volunteers doing the [swimming] test out into the river and they got in to the water but Mr. Hopkins soon got into difficulty.

An oar was extended to him from the safety boat but he soon disappeared below the water.

Despite the efforts of the SES personnel to find him, his body was recovered the next morning by NSW police divers.

WorkSafe’s investigation found the safety boat had life jackets for the two assessors who were in the boat, but there were no other buoyancy devices which could be used in an emergency.

Some other participants involved in the swim test also experienced difficulties in the cold water and after swimming to the centre pylon of the George Chaffey Bridge, they held on to bolt heads extending from a rubber buffer attached to the pylons at water level. They were later picked up by the safety boat.

At the time of Mr Hopkins’ death the SES had no rule against carrying out swim tests in water where there was limited visibility or where a rescue could be difficult to carry out if someone got into trouble.

As a result, lakes and rivers were sometimes used as well as local swimming pools.

At the time of this incident there were a number of swimming pools with the facilities to help anyone one (sic) who got into difficulties in the Mildura area that could have been used for the test.”

Hopkins had been a member of the SES for seven years and had participated in searches associated with drownings previously, according to one AAP report.  The SES expressed regret and sympathy at the time of the incident in a media statement.   A short report of Hopkins funeral is available online.

As the Murray River runs on the boundary between Victoria and New South Wales a NSW coronial inquest was planned until the Victorian prosecution was announced.

At the committal hearing in June 2009, the magistrate allowed Hopkins’ widow, Meryl, some input in the Court procedures.  And in the November 2009 hearing, Mrs Hopkins’ victim impact statement is reported to have said that:

“… since the incident Mrs Hopkins had felt her life had lost meaning and she sometimes wished she had drowned with him.  The court heard she had experienced mental and physical health issues, including post traumatic stress, panic attacks, exhaustion and sleep disturbance.”

In 2003/04 Chris Maxwell undertook a review of the Victorian OHS Act and was critical of the special treatment provided to government authorities at that time and advocated that any organisation that breaches OHS law should be treated equally.  Maxwell told the Central Safety Group in 2004:

“I have to address a meeting next week of the Heads of Department to talk to them about the chapter entitled “The Public Sector As An Exemplar”.   They need it explained a little more fully. It is good that the Public Sector wants to grapple with the issue “what does that mean for us?”   It is a theme of the Report that the public sector should be treated exactly the same as the private.  It shouldn’t be otherwise but the history of prosecutions tends to make you wonder about that. I know John Merritt, the Executive Director is absolutely committed to that principle. It is interesting to note that the Education Department has recently received an Improvement Notice.”
In his actual report he advocated that government departments should not only be treated the same but that they should become OHS role models.  When comparing the Victorian situation with a UK review he wrote:
“I would go further, however, and suggest that government (as employer and duty holder, and as policy maker) can, and should, be an exemplar of OHS best practice.  By taking the lead in the systematic management of occupational health and safety, government can influence the behaviour of individuals and firms upon whom duties are imposed by the OHS legislation.”
If this had been embraced by the OHS regulator and government departments agencies imagine the state of OHS compliance on matters of workplace stress and manual handling in health care and other public service hazards.  And maybe, the SES OHS program would have been further advanced than it was in 2007 when Ronald Hopkins died.

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_25Prior 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

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