Construction industry bullies

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Workplace bullying is a possibility in all workplaces but more so in the blue collar construction industry than elsewhere, it seems. 

The front page report in The Australian confirms the blue-collar bully stereotype that the former conservative government tried to gain political mileage from, most noticeably in political advertising, but also in political rhetoric over the years.

The article reports threatening language and physical imposition towards inspectors from the Australian Building and Construction Commission (ABCC).  There was verbal abuse and insults to both the male and female inspectors.  John Lloyd, head of the ABCC, is quoted as writing in a letter to the building company Brookfield Multiplex, that his inspectors:

“”feared for their safety and believed they would be assaulted if they had left the vehicle”.

The article also says that John Lloyd believes the incident, being investigated by the police, to be

“the worst abuse encountered by his inspectors in 1400 building site visits.”

The ABCC has draconian powers and there is, obviously, tension between the ABCC and construction workers however there is no excuse for workers breaching their OHS obligations to visitors to their worksite, regardless of the organisation the visitors represent.

The industry and unions have tried to eradicate it for safety and political reasons but on some sites it persists.  The Construction, Forestry, Mining & Energy Union says that no CFMEU employee or officer was involved in the incident.  That is good news but it was very likely that many of the participants were CFMEU members.  The union should remind its members that the ABCC inspectors have the right to carry on their work tasks in a safe and healthy manner even if their presence is objectionable.

The construction workers involved in this incident are doing their case against the ABCC no good at all by their threatening behaviour.  Indeed it allows the Labor government the chance to use similar rhetoric to that used by the Liberal Party – construction industry bullies and union thugs.  Let’s hear the CFMEU discipline their members on their OHS obligations to others.

Who manages safety – employers or inspectors?

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Over the last few days at the Tasmanian inquest into the death of Larry Knight, several geotechnical consultants and experts have been going through their reports to Beaconsfield Mine management.  These assessment reports were undertaken before the collapse that caused Larry Knight’s death.  The impression from media reports is that mine management listened to, or read, the recommendations and made a decision. That decision seems to have not given the technical advice the weight that hindsight now shows was insufficient but hindsight does that and Coroners understand this.

Also safety decisions are made by the employer in consultation with their workforce and external experts, where necessary.  Beaconsfield Mine management did this.  The decision to mine on that fateful day obviously proved wrong but perhaps the decision was understandable.

The Australian on 12 August 2008 reported that senior technical consultant Frans Basson admitted that the mine was technically “in breach of his written recommendation to management”.  I found this extraordinary as “breach” is a term more often applied to when a rule is broken.  It seems that the mine management chose not take on the recommendation of a consultant.  That happens all the time but to give the decision more significance than this is, perhaps, a little unfair.  Let’s hope this was lawyer’s hyperbole.

How to describe the comments by former Mt Lyell engineering supervisor and ex-parliamentarian, Peter Schulze is more of a challenge. Inaccurate is probably the most generous term.  At a Tasmanian Legislative Council committee on 13 August 2008, Peter Schulze criticised “all these experts who pontificate with the benefit of hindsight” about mine accidents.  Okay, the wording is extreme but he makes a similar point to mine above.

He also echoes some of the recent criticisms of the OHS regulator in Tasmania, Workplace Standards. By inverting some of his comments reported in The Advocate on 14 August 2008, he believes that current inspectors are under-skilled in the mining sector and under-paid and that there are not enough.  I would support him in his calls for additional enforcement resources but he is confused over the role of the inspectorate.

The primary responsibility for safety in a workplace is held by the employer – the controller of the workplace and main beneficiary of its productivity.  Peter  Schulze says that 

“The inspectorate tends to isolate itself from accidents and comes in to blame the company … rather than being a party (to safety procedures and checks) and accepting some responsibility.”

Why on earth should a government department accept any responsibility for the operations of a privately-run business when there is legislation that states the responsibility rests with the employer?

Peter sees the system as being adversarial.  There are clear roles for the differing elements in a workplace but conflict is resolved through negotiation, consultation and resolution.  An adversarial climate in a workplace indicates a dysfunctional workplace but this does not mean the regulatory system is at fault.  Safety management systems are a systematic management of a workplace with the aim of improving safety.  Management is the key and this rests with the employer.

What New South Wales unions need to give up for harmony’s sake

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Gerard Phillips, a partner in the Middletons law firm, wrote in the 7 August 2008 edition of the Australian Financial Review about the belligerence of the trade union movement in New South Wales in relation to the harmonisation of OHS Laws in Australia.

He addresses two legal barriers to harmonisation that he believes should end.  In New South Wales unions have the legislative right to prosecute safety breaches.  Gerard argues that harmonisation won’t be achieved without the unions relinquishing this right.

It has been clear for months that New South Wales will have to give up some elements of its OHS legislation in order to allow harmony.  If it needs to save face, it would be lobbying now for enough resources at a national level to mount rigorous OHS enforcement.

As the Victorian OHS law is the front runner for a national OHS legal model, unions can take some solace from the extension of Victoria’s right of entry provisions that, prior to 1984, were tipped to generate industrial warfare In Victorian worksites.  There were, at the time, many lawyers touting for business by recommending a tightening of paperwork, vetting all credentials before letting “them” on your site and accompanying “them” wherever they go.

Business achieved some important concessions with the registration of ARREOS (Authorised Representatives of Registered Employee Organisations) and a legal comeback if the ARREOS breach their authority, but an ARREO visit can still be daunting as WorkSafe found in February 2008.

WorkSafe advises that

An ARREO may enter a workplace during working hours to enquire into a suspected contravention of the OHS Act or regulations. The suspected contravention must relate to or affect the work being carried out by people who are:
• members of the registered employee organisation;
• subject to a certified agreement which binds the registered employee organisation; or
• eligible to be members of the registered employee organisation and are not subject to a certified agreement.

Gerard Phillips also can’t see why a union should have prosecutorial powers that no one else, other than the OHS regulator, has.  Although he acknowledges that for enforcement to work any prosecutor must be “appropriately funded”.  If the New South Wales government decided to reduce WorkCover NSW costs by sharing responsibility, I don’t think the economic benefit outweighed the political damage.

Phillips also sees no great difficulty in the onus of proof being held by the prosecutor.  This authority is already in the legislation of Victoria and Western Australia with no complaints from the union movement that safety standards have declined as a result.  The unions will need to give ground on having the onus rest with the business owner, and the employer groups will dance a gig when they do.

I remember Australia’s Royal Commission into the building industry where employer groups asserted, with little proof, that OHS is used by unions for purposes of industrial action.  Terence Cole in his final report illustrated the accusations well.

“….employers have raised concerns about the unions raising industrial concerns under the guise of safety issues, and the adoption of the role of safety policemen by unions to the exclusion of the statutory inspectorates. The issue of safety is a constant source of friction in the workplace, either because it is not being appropriately addressed, monitored, enforced, or is being abused.”

This may or may not be true, however unions in New South Wales risk providing the truth that employer associations have long desired if they continue in holding onto a strong poker hand when the other players have changed to playing whist.

Texas Crane Collapse

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Large cranes are now a basic tool for high-rise construction.  Over the last six months the United States has had several crane collapses.  The latest occurred in Texas on 19 July 2008 and involved a mobile crane.  The collapse resulted in four deaths and injuries to seven workers.  Fed-OSHA is investigating but as this is the latest in a run of collapses there is increased media attention.

According to the most recent media statement by the company that owned the crane, Deep South Crane & Rigging

“The Deep South Crane and Rigging Company experienced a tragic industrial accident yesterday in Houston, TX, that resulted in the death of four members of our company family. Our thoughts and prayers are focused on our deceased co-workers, their families and friends, and the extended Deep South Crane and Rigging family.

We wish we had all of the answers on what happened and why – but we do not – and speculating on cause would not resolve anything. But we are actively working to find those answers. We are fully engaged and cooperating with OSHA in their investigation of the accident. Our common goal is to identify the root cause, correct any issue that may be found, and ensure that this type of tragic accident does not occur again.”

According to one article:

“An Associated Press analysis in June found that cities and states have wildly varying rules governing construction cranes, and some have no regulations at all, choosing instead to rely on federal guidelines dating back nearly 40 years that some experts say have not kept up with technological advances.”

Video and audio reports on the incident are available through the links below.  SafetyAtWorkBlog will be reporting on any new information about the investigations

Company representative – http://www.chron.com/disp/story.mpl/front/5896374.html  

Crane investigations – http://www.khou.com/video/index.html?nvid=264952 

Crane investigations/”competent person” – http://kut.org/items/show/13389

Workplace Safety Inspector Ad

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WorkSafe Victoria has launched a new advertising campaign emphasising its role as an OHS inspectorate (click image below to view).  The emphasis fits that of WorkSafe’s CEO, John Merritt, who has pledged mre inspectorate resources and enforcement in the future.

The ad is clever in its structure by relieving the boss’ tension over an expected WorkSafe inspector visit and then reinforcing the surprise nature of many WorkSafe visits.  The ad is also very well acted but I wonder about the effectiveness of the message as a TV ad.  Not being privy to WorkSafe ad strategies, I would have thought that billboards in and around industrial sectors with the boss’ worried face may be more effective.

One small point though, the female worker being asked about office cabling is too stereotypical.  However I acknowledge that having a female machine operator may have distracted the focus from the main message.

Still from new WorkSafe inspector ad
Still from new WorkSafe inspector ad