lawyers – Page 38 – SafetyAtWorkBlog

Safety In Action Conference – Part One

Following two short messages from international representatives of the Institute of Occupational Safety and Health (IOSH) and the American Society of Safety Engineers (ASSE), the Governor of Victoria, Professor David de Kretser AC, officially opened the Safety In Action Conference for 2009. The Governor made several pleas or suggestions. One was for the application of a duty of care at music concerts towards patrons just as there is a duty towards members of the public at workplaces. Another was that the contributions to reproductive ill-health from work practices be more thoroughly investigated and researched.

Barry Sherriff of Freehills law firm provided a personal perspective on the harmonisation of Australia’s OHS Model Law. He spoke of the benefits of enforcement policies and resource sharing that could eventuate from the model law review, should the government accept the recommendations (a long way from a done deal from the rumours in the safety profession).

It should come as no surprise that the major benefits from the review seemed to be for lawyers even though Barry insisted that the model law improved the application of OHS for the people. It certainly sets the context for safety to be improved but there are so many political steps in the process before safety improvements flow from the model OHS law review through to the shopfloor. There is still a strong disconnection between streamlining OHS law and implementing safety management. There are codes of practice, state government sign-off, trade union acceptance just to mention a few of the potential barriers to be overcome in the very tight implementation timeframe set by the Australian government.

What took the punch out of Barry’s presentation is the current silence on the model OHS law review from the government.

Kevin Jones

Beaconsfield Coroners report update

There have been several media reports of the disappointment in the findings felt by Larry Knight’s family but little else in the media, particularly over the weekend when some retrospection could have been expected.

However, the Tasmanian workplace relations minister, Lisa Singh, issued a statement last week. The most significant parts of the statement are

“I was pleased that the coroner Mr Rod Chandler noted in his report that the inspectorate was adequately staffed,” Ms Singh said. “I accept his criticism that at the time of the rock fall that killed Mr Knight, Workplace Standards was not sufficiently resourced to handle some issues of mine safety. That has now been rectified.

“I am seeking further advice on his recommendation that an audit of the office be undertaken each year to ensure that it is properly fulfilling its statutory duties.”

According to a statement from the law firm Maurice Blackburn

“Maurice Blackburn Special counsel Kamal Farouque, who acted as Counsel for the Knight family and the AWU throughout the Coronial Inquest, said that Coroner Rod Chandler’s findings include several major criticisms including:

ground support at the mine was inadequate;

the mine failed to put in place a comprehensive, rigorous and properly documented risk assessment process; and

if a thorough and systematic risk assessment process had been conducted, the likelihood of Mr Knight’s death occurring would have been reduced, perhaps significantly.

“What is plain is that the Coroner has made findings that indicate safety deficiencies,” Mr. Farouque said.

“A lesson to be learned from Mr Knight’s tragic death is the critical importance of proper risk management practices to worker safety, particularly in the mining industry,” Mr. Chandler found.”

Now we wait to see who implements those lessons.

Kevin Jones

Safety Interviews

A couple of weeks ago I conducted interviews with several speakers in the Safety In Action Conference to be held in Melbourne, Australia at the end of March 2009. The finalised videos are below.

Helen Marshall is Australia’s Federal Safety Commissioner who has a challenging job monitoring major government construction sites.

Dr Martyn Newman is a a fascinating speaker on the issues of leadership and emotional intelligence and how safety professionals can benefit for applying these concepts to their corporate aims.

Jill McCabe is a recent member of WorkSafe Victoria who provides quite startling survey information on the attitudes of supervisors to workplace safety.

Barry Sherriff is a partner with law firm Freehills and was recently also one of the review panellists into Australia’s OHS law review. Since this video, the final report of the panel has been publicly released and Barry will be discussing harmonisation at the Safety In Action conference.

John Merritt is the Executive Director of WorkSafe and a strong advocate of workplace safety.

Although part of my job is to help promote the Safety In Action conference, I have tried to provide a resource that will not be temporary and is actually useful to safety professionals everywhere.

Tip: Use the high quality YouTube settings if you can. It makes these much easier to view but does not improve the appearance of the interviewer.

Kevin Jones

Response to National OHS Law Review

In the Australian Financial Review on 17 February 2009 (page 8 but not accessible online) Steven Scott reports that the Western Australian Treasurer Troy Buswell is in a stoush with the Federal government over OHS laws. They are not. Buswell is quoted as saying

“My view is that it’s much more appropriate to make sure you get it right… We will not be supporting the establishment of Safe Work Australia until we are in a position to commit ourselves to the full harmonisation process.”

Buswell wants more time and more information. He is also concerned about the (related) industrial relations changes. Only last week, Buswell was at a Senate Committee supporting West Australian businesses. The Treasurer’s stance is at least consistent and prepared for flexibility.

Michael Tooma, a labour lawyer with Deacons in Sydney, is reported as saying that

“These right of entry provisions could be used for ulterior purposes, either for a recruitment drive or as a way of causing industrial agitation….. It gives unions the right to use OHS as a Trojan Horse for the purpose of entry onto sites.”

In his initial analysis of the final report Tooma wrote

“The Panel took the view that union right of entry contributes in a positive manner to OHS compliance at a workplace level. It recommended that the model Act provide right of entry for OHS purposes to union officials and/or union employees formally authorised for that purpose under the model Act.”

and that

“These recommendations have the potential to industrialise the safety agenda.”

The review panel is acting on the fact that workplace safety is already industrialised and that those who continue to split to two areas are denying reality. OHS cannot be managed successfully without also working with the human capital and industrial relations context.

The right-of-entry provisions in any legislation is a hotly contested ideological battle and there is plenty of evidence through the many submissions to many OHS and IR reviews of this.

Right-of-entry is not a threat of punishment and is readily avoided through workplaces having active and functional methods of consultation and safety management.

Similarly, concerns are being raised over the introduction of Provisional Improvement Notices (PINs) in some jurisdiction. PINs are an acknowlegement of a breakdown in communication and a dysfunctional safety management system in the workplace. In some workplaces PINs are never applied because everyone talks about safety in an open and accountable fashion.

Many of the concerns being raised over this final review panel report can be addressed by safety professionals and advocates publishing examples of how alarming legislative provisions have proven to be non-starters. The power may be on the legal register but are infrequently applied.

When the new right-of-entry provisions were being introduced in Victoria, many lawyers and employer representatives said the world would collapse. It hasn’t and the sensible control and oversight of the process is now recommended across Australia.

It is perhaps time for WorkSafe Victoria to re-emphasise the success of the right-of-entry management process it has operated under for several years. John Merritt, CEO of WorkSafe Victoria has spoken very positively of the process. An information sheet on the issues for employers is also available.

Kevin Jones

Workplace bullying – interview with Lawrence Lorber (2002)

In April 2002, I interviewed Lawrence Lorber of US law firm Proskauer Rose on workplace bullying. It was at the height of the Enron collapse and corporate behaviour towards staff was gaining a lot of attention. Over the last fortnight I have been researching some of the management books and concepts concerning leadership, emotional intelligence, modern expectations of managers – all of which could be thrown into “workplace culture.”

As I was reading back issue of the SafetyATWORK magazine, I used to published, there seemed to be valuable comments from Lawrence that remain relevant. Below is an extract of the interview. The full interview is available HERE

SAW: In Australia, the approach to workplace bullying seems to be coming from a systemic management system rather than one relying on psychological assessment.

LL: The highly competitive and highly contentious nature of what is coming out about Enron, the “up or out” atmosphere is one aspect of a system that can lead to managers or co-workers to engage in bullying. The characteristics of being tough or abrasive may be necessary to get ahead in the organisation. The environment can encourage or create bullying tendencies. However, not everybody turns into Attila the Hun in a highly competitive environment. Others survive without taking on the attributes of the bully.

Psychological testing is frequently applied in the States with regard to executive promotions. Dealing with bullying does require a combination of the systemic and individual approach. I work for some companies who are publicly perceived as fairly aggressive, there are tough people there who I might not want to work for but they are effective. They might be perceived as bullies. But looking at bullying as an environmental issue does mask the problem.

SAW: Managers sometimes need to motivate a staff member, perhaps, by rebuking them. The receiver of the rebuke may perceive that as bullying. How can we balance these perceptions?

LL: There were management books in the States in the 1980s, which encouraged management by intimidation. At one point that was the vogue. After the movie PATTON came out, everyone wanted to be General Patton.

If you look at a harsh manager who is demanding in an abrasive manner, that could be bullying.

How do you define bullying? Do you define it by your own reaction? A very US example is sex harassment. Is harassment in the eyes of the beholder? Does it have to be a reasonable woman who believes she is being harassed? In the circumstance where the bully is a male and the recipient is a female, frequently that becomes harassment.

SAW: That is a problem for the managers where for the last 30 years, harassment, bullying and discrimination has been handled outside the OHS field, in Human Resources. Now there are national and international moves to combat bullying because of the stress at work issues. I haven’t seen that approach in the United States.

LL: Here it’s not health and safety. Our definition of harassment is an “intimidating atmosphere”. That can also be a definition of bullying.

I don’t think it will be considered as a health and safety issue because workplace stress is not a field that is devoid of regulation. It is simply being regulated in a different context-employment discrimination and to a lesser extent under the disability laws.

SafetyATWORK magazine April 2002 cover image

Those at risk of exposure to asbestos

Over this last weekend, asbestos-safety advocates, ADSVIC, took advantage of the topicality of the navy’s poor management of asbestos by including half-page ads in major Australian newspapers. The ads focused on the risks associated with DIY home renovators but law firm, Slater & Gordon, related their asbestos information sheet directly to the media attention about the Australian Navy.

Slater & Gordon, a former employer of Australia’s industrial relations and education minister, Julia Gillard, have always been active in seeking new clients and have participated in many class actions based on workplace safety issues, particularly the James Hardie Industries legal action of earlier this century which was important for many reasons, including the furthering of political careers.

Slater & Gordon’s information sheet includes a list of those people who it believes are at risk of asbestos-related diseases. It doesn’t much leave room for anyone to feel safe from this risk.

Miners
Asbestos plant workers
Handlers and waterside workers
Asbestos factory workers
Carpenters, plumbers, electricians and builders
Wives and children of workers
Office workers
Mechanics/brake workers
Power plant workers/refinery workers
Teachers and students
Hospital workers
Telstra workers
People at home

Kevin Jones

OHS Podcast with Andrew Douglas

One of the services that Workplace Safety Services (the company behind SafetyAtWorkBlog) provides to its clients are podcasts.

The Safety Institute of Australia had a podcast produced principally to promote its Safety In Action Conference, which is in Melbourne Australia on 31 March to 2 April 2009, that includes an interview with Andrew Douglas. Andrew is speaking at the SIA09 conference and is a director of Douglas Workplace and Litigation Lawyers.

In the podcast he discusses making OHS a core business function, the OHS role in small business and the not-for-profit sector, and how important it was for him personally and professionally to be involved with the Safety In Action conference.

The podcast is a short promotional one but you may find Andrew’s comments of interest and use.

Category: lawyers

Safety In Action Conference – Part One

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Beaconsfield Coroners report update

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Safety Interviews

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Response to National OHS Law Review

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Workplace bullying – interview with Lawrence Lorber (2002)

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Those at risk of exposure to asbestos

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OHS Podcast with Andrew Douglas

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