Professional standards – Page 17

OHS law debate and Law Society position

Boardroom Radio has hosted a very interesting podcast between two labour lawyers, Andrew Douglas and Michael Tooma, with the participation of Barry Silburn, the National President of the Safety Institute of Australia.

Andrew Douglas speaking at one of his firm's regular breakfast seminars

The SIA National President’s contributions were quite narrow, dominated by the issue of “suitably qualified” in the new model OHS laws (but he did struggle to get a word in edge ways).

It will be disappointing if the SIA’s submission to the Federal Government on the new laws focusses on this single and, to most, secondary issue, when the institute could achieve better results through other mechanisms and more creative thinking.

The only expansive comment from Silburn was the fact that harmonised plant regulations that were introduced over 10 years ago still resulted in different legislation in each State even though they reflected a common core. The high likelihood of this happening to the general OHS legislation was supported by the over panel members.

It is possible that the argy-bargy occurring now and at least for the next 6 weeks of public comment, will not achieve harmonisation as it was initially intended, and tried in a half-hearted way in the early 1990’s. The Federal Government could still end the debate by applying its powers under the Corporations Act, as it has in industrial relations. Some lawyers believe that this is the ace up the sleeve of the Federal Government.

The Law Council of Australia issued an interesting media statement on 30 September 2009. Below are the comments from that statement by John Corcoran, the Council’s President:

“The model laws strike the correct balance and adhere to fundamental criminal law principles. Governments must set aside jurisdictional differences and enact a uniform model OH&S law.”

“Despite the substantial differences in OH&S legislation across Australia, there is little evidence to suggest that the imposition of harsher penalties and evidentiary burdens in some jurisdictions has improved workplace safety performance. Nor has it been improved by the extension of prosecution powers to unions or other organisations.”

“There are undeniable benefits, both to workers and employers, in a uniform national OH&S system, but there is no evidence that workers in any jurisdiction will be worse off if a model law is adopted uniformly.”

These quotes give one of the clearest indications that the OHS harmonisation process about law and not safety management.

It could also be asked that if there is “little evidence to suggest that the imposition of harsher penalties and evidentiary burdens in some jurisdictions has improved workplace safety performance” what alternative strategies and penalties would the Council suggest for consideration? We will need to wait for their submission to the government for that.

Richard Johnstone, a leading academic and researcher into OHS law and enforcement polices argued in his 2003 book, “Occupational Heath and Safety, Courts and Crime”

“…that the court is an institution which, while appearing to dispense justice, is actually part of a broader process which decontextualises social issues. Courts, inspectors, prosecutors and defence counsel are involved in filtering or reshaping OHS issues during the prosecution process, both pre-trial and in court.”

Johnstone says that the process leads to a focus on the “event” rather than the broader context which includes the workplace management systems.

Johnstone succinctly lists the five key principles of effective OHS management, based on his work and that of his colleagues:

“demonstrated senior management commitment to OHS;

the integration of OHS management into core management and work activities;

the adoption of a systems approach to OHS management, involving risk assessment processes and an audit system to identify all risks and to determine which require urgent attention;

the ability of the OHS management system to accommodate to change, particularly changes to work methods, systems and processes, changes to substances, plant and equipment, and changes to the workforce; and

valuing worker input to the OHS management system.”

This is the context in which the new draft Model OHS laws should be considered. If the law does not support these principles than the law is being written for the lawyers and not for the improvement of safety for workers in Australia.

Much of the podcast discussion was about how one deals with what went wrong rather than providing guidance of how to manage to avoid the risk in the first place – the perpetual dichotomy between lawyers and safety professionals.

Kevin Jones

Return-To-Work and OHS

Many OHS professionals do not understand the return-to-work (RTW) process. Many OHS professionals choose to avoid RTW like the swine flu. In Australia, rehabilitation and compensation come under different legislation to OHS so it is easy to delude one’s self that they are different beasts.

On September 15 2009 at the WorkCover SA Conference, it was possible to argue the same ideological isolation as above but from the RTW stance. RTW can be as isolationist as OHS. Admittedly, the conference was about workers’ rehabilitation and injury management but it was surprising how many speakers talked about integrated management without mentioning OHS.

Is this demarcation widening? Was it formalised by the different Acts of Parliament? By different training backgrounds and criteria? By the different work-related government departments (they often inhabit the same office, share the same board members, but report to government separately?!)? Is the demarcation between the human resource specialists and the safety engineers?

In most workplaces such a demarcation would be unmanageable. Most workplaces, certainly the smaller ones, have the official RTW Coordinator role as part of the duties of an existing staff member, whoever is already juggling the personnel duties and often payroll as well. It is often a luxury to have a full-time RTW Coordinator.

It is noted that the Australian conferences of the OHS professionals rarely include RTW, and vice versa. Isn’t is just possible that some bright spark may offer a safety management conference that unites the complementary disciplines, professionals and government departments so that business managers can receive a combination of information that matches the reality?

Kevin Jones

Kevin Jones attended the conference with the support of www.rtwmatters.org an (increasing prominent) online RTW website, and WorkCoverSA.

An Ombudsman for the safety profession

WorkSafe Victoria is very keen for the safety advice and management discipline to become professional. It is providing considerable technical and financial support to the Safety Institute of Australia and other members of the Health and Safety Professionals Alliance (HaSPA). The current status of HaSPA in Australia has been discussed in other SafetyAtWorkBlog articles.

HaSPA likes to compare itself to other managerial professions such as accounting, medicine and the law, and is trying to establish a contemporary profession. One of the professions mentioned, law, an established profession for hundreds of years, is seriously considering the introduction of an ombudsman, a concept that should have been established already for the safety sector.

According to a media report in The Australian on 4 September 2009:

A taskforce of federal and state officials is working on a plan to create a national legal ombudsman with unprecedented power over the nation’s lawyers.

If the plan goes ahead, the ombudsman would be able to set standards for all lawyers, oversee the handling of all complaints from consumers and intervene with the profession’s state-based regulators.

One option being considered would establish the office of the legal ombudsman as a new national institution drawing authority from a network of uniform state laws.

This would unify the regulation of lawyers and give state governments a role in confirming prospective candidates for the new national office.

Lawyers, rather than taxpayers, could be asked to pay for the cost of establishing their new regulator.

The taskforce, which has been appointed by federal Attorney-General Robert McClelland, is examining the possibility of establishing the new office as the centrepiece for the promised regulatory overhaul of the legal profession.

OHS law in Australia is undergoing its most major national review in decades. Shouldn’t the safety profession also develop the “Office of the Safety Ombudsman”? The legal profession is doing all the work on a model.

Australia has a tradition of effective industry-based ombudsmen. A list is available online but the most publicly well-known would be the Telecommunications Industry Ombudsman.

[In the last couple of years the safety profession has heard from the Victorian Health Services Commissioner, Beth Wilson, on the purpose and role of the commission and how the safety profession can learn from her support, adjudication and advocacy. The commissioner is not an ombudsman but there may be a role for a safety commissioner to address WorkSafe’s concerns over the quality of safety advice being provided by safety professioanls to business. A video of Beth Wilson briefly discussing the role is available on YouTube.]

The application of an Ombudsman model in the safety profession should be discussed but similar objections will be raised to those of the legal profession in the article quoted above. Underpinning the objections is that an established profession is resistant to change and suspicious of relinquishing the power it has established over its lifetime.

If the safety advocates are truly committed to establishing a contemporary profession, the concept of a safety ombudsman must be discussed or else the system of self-regulation will continue and so will the lack of independence, the lack of accountability, the limited communication and the lack of faith by the general community that safety professionals can be trusted to do a good job.

Kevin Jones

The importance of handling professional complaints professionally

Any member of any profession can be subject to the complaints process of that profession’s governing body. A complaints procedure is an essential element of any organisation. In fact, one could argue that the professionalism and maturity of an organisation can be judged by how that organisation investigates and handles a complaint.

Not only must a complaint be handled professionally, it must be seen to be handled professionally.

Regardless of whether a complaint is valid or baseless, it is essential to have

Clear guidelines on how to make a complaint and the consequences of lodging a complaint;
Defined complaints handling procedures;
Complaints procedures that have been tested through desktop exercises and simulations;
An independent assessor/mediator;
An understanding that of natural justice;
An independent appeals process; and
The commitment to support, in practice, the professional ideals espoused.

Many executives, particularly of volunteer organisations whose good intentions are often not supported by the necessary administrative procedures, resources or skills, run the risk of exacerbating both frivolous and valid complaints.

As can be seen by some of the articles in SafetyAtWorkBlog, from James Hardie Industries to restorative justice to handling aggressive customers, people expect a certain dignity and accountability in their professional dealings. A major element of safety management, and basic professionalism, is the ability to apologise when mistakes have been made. For only through an acknowledgement of mistakes can the integrity of a process be (re)established.

Australia’s Prime Minister, Kevin Rudd, has shown the power of the apology when he acknowledged in 2008 the injustices done to Australia’s indigenous population. It took courage to apologise for actions done long ago by someone else. The ability to apologise shows a maturity and professionalism that is still lacking from many Australian organisations, voluntary and corporate.

Kevin Jones

The importance of independent advice at Board level

The recent court decision by Judge Gzell on the previous directors of James Hardie Industries generated considerable media attention in Australia for many reasons; a primary reason is that the company is perceived as making its profits at the cost of its employees’ health. The social and corporate cost of inadequate workplace and product safety management is now clear to everyone, even public policy makers.

Another area of attention has come from how Judge Gzell’s decision has affected the operation of company boards and the roles of directors. This is hugely important to the big end of town but the rules apply to boards big and small. In August 2009 Regnan (Governance Engagement & Research Pty Ltd) identified three major points from Gzell’s decision; the third is the one that is most broadly relevant.

“Non‐Executive Directors – Today more than ever, investors need competent directors from diverse backgrounds, and this case highlights the critical role non‐executive directors play in overseeing and interrogating company management. While the facts of the James Hardie case are very specific and do not create additional responsibilities for directors, it does underscore the value at risk when non‐executives fail to perform their role and highlights the role of independent directors to satisfy themselves through the taking of advice wholly independent of management.” [my emphasis]

The need for independent advice is regularly identified as an important element of effective risk management for all industry and professional sectors. A board of “yes-men” can do a disservice to an organisation in a very short time.

The OHS professional often seeks a “devil’s advocate” role at senior management level yet to achieve that level of influence one often has to “sell one’s soul to the devil”. It may be possible to be an independent director who holds strong OHS opinions but one would never achieve such a position unless one could demonstrate business acumen, and business acumen often requires the dilution of principles.

The environmental movement has shown one pathway to corporate influence but it is hard to identify an environmental advocate who has achieved corporate influence while maintaining a grass-roots credibility. Similarly, at some point in the OHS professional’s career it is necessary to choose between the ideology from which progression has come and the career progression that requires a reinterpretation of that ideology into the corporate mould.

Is it possible to represent core OHS principles at board level without “joining the darkside”?

Kevin Jones

New Cleaning Standard

The Victorian Government has released a revised cleaning standard for the hospital and healthcare sectors but many others would find the information of direct relevance, particularly those who like to state they meet “world’s best practice”.

The standard is supported by a good short newsletter.

Many businesses and industry OHS professionals can feel like they are audited to death. This is particularly so in the healthcare sector so it is with interest that the government has dropped the lodgement of scores for internal audits. However the benchmarking exercise will continue with three annual external audits.

Those SafetyAtWorkBlog readers who are also auditors, inside and outside the health system, may find the overview on auditors of interest.

Kevin Jones

UK’s HSE wants OHS professionals to be accredited

In early July 2009, the Chair of the Health and Safety Executive (HSE), Judith Hackitt spoke in favour of an accreditation system for OHS professionals. This has particular relevance for those countries and professionals associations which follow some of the UK initiatives.

Hackitt is quoted in the HSE media release said:

“We do believe that there is a need for an accreditation system within the competency framework for health and safety professionals. We have no interest in HSE directly controlling or regulating such a scheme, but we are very keen to ensure that all professional bodies who establish an accreditation scheme do so in a way that measures competence in practice, not just acquired knowledge.

“Accreditation must include continuing professional development as a requirement as well as a means of sanction, with real teeth, for anyone who acts unethically in their professional activities – including providing inappropriate advice or guidance.”

She said that those involved in health and safety needed to be competent to assess and manage risk by applying common sense, taking a proportionate approach and exercising judgment about what is reasonable.

Competence is one of the cornerstones of the new health and safety strategy for Great Britain, and HSE wants to see increased competence as the basis of a more sensible and proportionate approach to managing risk.”

SafetyAtWorkBlog asked the Institute of Occupational Safety and Health (IOSH) for their response on the issues raised in Hackitt’s speech. The response is below

Richard Jones, IOSH’s policy and technical director, said: “IOSH has long advocated some form of official accreditation of the health and safety profession. It is something that has been mooted for many years, but has never had formal government support, so has never got off the ground.

“The present system in the UK means that anyone can operate as a health and safety consultant. This means some businesses are likely to be getting advice from health and safety consultants with inadequate qualifications and experience or none at all. We feel this is wrong. You wouldn’t have an unqualified doctor looking after your medical needs, so why should you put lives at risk because of incompetent health and safety advice.

“Employers have repeatedly asked for better guidance on how to identify competent assistance, so they can be sure they’re getting good quality health and safety advice. We believe an accreditation scheme will help reassure them about the competence and suitability of the person they’re engaging.”

Richard added: “IOSH has been actively pushing the need for accreditation for some years now, in evidence to two select Committee Inquiries, through our ‘Get the best’ campaign and lobbying activities, and more recently through our ‘manifesto’. We’ve had discussions with government, the Health and Safety Executive (HSE), MPs and other stakeholders on the need for an accreditation system for health and safety practitioners.

“We believe the majority of consultants are doing good work and providing a valuable service. IOSH’s professional development scheme helps ensure our members keep their knowledge and skills at a satisfactory level. However, the scheme obviously doesn’t apply to those who aren’t members of IOSH. Our hope is that an accreditation scheme will mean that all those working in the health and safety field have sufficient qualification, skills and knowledge to do the job properly and are maintaining these on a regular basis.

“At a meeting on 21 July, representatives from the HSE and key health and safety organisations came together to discuss an accreditation scheme for health and safety consultants. These stakeholders will now form a ‘steering group’ looking to take the proposal forward. It is hoped that an accreditation scheme could be introduced by around autumn 2010.”

Some Australian readers may want to keep an internet eye on the Australian OHS professionals’ alliance HaSPA.

Kevin Jones

Category: Professional standards

OHS law debate and Law Society position

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Return-To-Work and OHS

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An Ombudsman for the safety profession

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The importance of handling professional complaints professionally

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The importance of independent advice at Board level

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New Cleaning Standard

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UK’s HSE wants OHS professionals to be accredited

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