railway – Page 7 – SafetyAtWorkBlog

Discrimination and OHS information in languages other than English

One of the most ignored OHS obligations in Australian workplace is to provide safety information in a language other than English. Most workplaces in a multicultural society struggle greatly with this obligation and, more often than not, rely on employees to pass on OHS information to their colleagues in the employee’s language.

This translation is an integral part of a safety management system and needs to be well-considered when developing and operating a system. OHS professionals need to be assured that the correct OHS information is getting to where it is needed and understood at that point.

A recent discrimination case that illustrated these issues occurred in the New South Wales Administrative Decisions Tribunal (Tanevski vs Fluor Australia P/L [2008] 7 August 2008). The tribunal found that Fluor had indirectly discriminated against Mr Tanevski (a Fluor employee since 2003 and with 314 years as a supervisor in rail maintenance) by placing a literacy requirement on him that he was unable to meet and that the tribunal found to be unreasonable.

A safety report had highlighted the “management of low English literacy standards of personnel” as a high priority for improvement. Mr Tanevski had been demoted from his role as a supervisor over concerns about his literacy level in relation to complying with the requirements under its OHS management system. The tribunal found that the company’s concerns were legitimate but unreasonable as

“there was a feasible, low cost alternative which did not involve any increased risk to safety…[to].provide him with training on the new HSE system, instruct him on how to complete the necessary forms and assist him with the duties, such as writing statements and reports, which he was unable to perform”.

In other words, the company needed to support the operation of the safety management system by helping the people who need to use it.

There is also another point to make from an OHS management perspective. Should not the new HSE system have accommodated the known literacy needs of existing employees? Information in the decision says that Mr Tanevski was a five-year employee with the company and there were no concerns with his work performance, indeed testimonials spoke otherwise.

The New South Wales OHS Act 2000 states

“An employer must ensure the health, safety and welfare at work of all the employees of the employer.
That duty extends (without limitation) to the following:…
(d) providing such information, instruction, training and supervision as may be necessary to ensure the employees’ health and safety at work,…”

The Victorian OHS Act is more specific:

“An employer must, so far as is reasonably practicable—………..
(c) provide information to employees of the employer (in such other languages as appropriate) concerning health and safety at the workplace…….”

The rail safety legislation may have obligations specifically to that industry. Both OHS regulators, WorkCover NSW and WorkSafe Victoria, have guidance notes on how to provide OHS information in languages other than English. WorkSafe Victoria also lists the language needs of employees as a necessary element in any OHS training needs analysis.

The Tanevski case may also have been dealt with by WorkCover NSW but that the issue came up through legal action on discrimination in a non-OHS tribunal, illustrates that OHS professionals cannot rely only on information provided by the OHS regulators.

Using workers compensation claims as exit strategies

There have been two instances in Australia in the last week where workers compensation claims have made the news. The first was in relation to the suicide attempt by Tasmanian politician, Paula Wriedt. She has revealed that after the break-up of her marriage she had an affair with one of the government chauffeurs, Ben Chaffey.

According to one media report, Chaffey has argued

“that his employment became untenable as a result of the relationship and his employer’s response to it. He is seeking a severance payment thought to be about $A140,000 to compensate for this, and for stress and harm suffered.”

It is also reported that he has been on “stress leave” for several months.

The other case involves unfair dismissal action being taken by public transport ticket inspector, Glenn Hoyne in the Australian Industrial Relations Commission (AIRC) against his dismissal by Connex. Hoyne made accusations on a Melbourne talkback radio show about Connex setting quotas for issuing ticket infringement notices and that inspecting was a revenue-raising exercise only.

Connex investigated the claims and described the allegations as “bribery, blackmail or extortion”.

Hoyne took leave in December 2007 and submitted a workers compensation claim due to work-related stress. The situation was clearly tense.

The AIRC Deputy President, Brian Lacy, described Hoyne’s actions as not a threat to Connex but

“some sort of industrial claim, albeit misguided, for a severance payment.”

These two cases illustrate how murky human relations, and human resources, can be. Both parties are seeking recompense for actions that are work-related and both actions will result in a resolution. But neither will generate any real preventive action. One claim has been described as a pitch for a severance payout and the other is stress from a broken work-related relationship and the employer’s response to a sexual relationship.

When did people begin to expect a monetary payout above their entitlements for leaving a job that they didn’t like or for when a relationship with a work colleague ended?

A law firm newsletter from 2005 reported on a case of a stress claim, which may provide a counterpoint to the situations above:

“The employee claimed, and was successful in establishing that his stress was directly caused by his employer’s failure to keep him informed of changes in the workplace. In essence, the prospect of redundancy was seen as a sufficient causative factor in the employee’s work related injury.”

The newsletter goes on to advise

“employers must assess the circumstances and sensitivities of individual workers when making management decisions in order to avoid stress claims being made or where claims are made, to avoid liability for such claims.”

Maybe this is the only safety management lesson we can learn from the unhappy ticket inspector and the stressed-out chauffeur, manage your people well.

Don’t rely on alarms

The Australian media has been following the investigation into the crash of a light aircraft that was travelling to Benalla on July 28, 2004. There was a report on 5 August about a family who will be suing Queensland Rail over the serious bashing of a relative. Different stories, different states, different modes of transport, but both stories of sadness.

Both stories illustrate an important reminder for the management of safety in workplaces and in public – alarms are there for a reason.

According to media, Barbara Lillicrap, the widow of bashing victim, Scott Lillicrap, said witnesses had pushed the emergency button at the station at least three times, but rail officers believed it to be a prank and ignored it.

A newspaper report says that air traffic controller Stuart Hodge said that an alert was sounded when the plane veered off course before approaching Benalla Airport. Mr Hodge said false alarms were common and there was a culture among air traffic controllers to ignore them.

These two reports also need to remind safety professionals that alarms are simply audible signs to which people need to respond, or at least acknowledge. An ignored sign is a useless control measure and if this is likely to occur, then a higher order of control measure needs to be implemented to control the hazard.

(Don’t get me started on signs at level crossings!)

Australian Level Crossings – Part 2

The Victorian Government’s investigation into level crossing safety is continuing. Yesterday the Parliamentary Committee on Road Safety ran a seminar on technological issues related to level crossings. Today (22 July 2008 ) I attended the morning session of a seminar on Fail-Safe technologies. The meat of today’s seminar was to be an open and frank…

Safety, Maintenance and Business Continuity

America and Europe have a huge advantage over Australia – they know how to respond to a broad range of disasters. Australia has had its share of bushfires and cyclones but because the country is so large and the geology so stable, the large metropolitan centres of Sydney and Melbourne have been spared. This stability has led to less emphasis on the fragility of infrastructure by business operators than there should be.

In the Herald-Sun newspaper on 12 April 2008, there was a cover story on the organizational neglect of the State’s electrical infrastructure. This was emphasised recently when it took 6 days for many homes to have power restored after a serious storm, a storm that was of the level that Sydney experiences regularly and that the tropical areas of Australia and designed to withstand.

A government inquiry will be held into the delay but this is unnecessary. Privatised corporations are notoriously neglectful of the need to maintain infrastructure services as there is little profit in holding resources in reserve for large-scale disasters. Numerous inquiries into the disasters on the privatised rail networks in England have shown the corporate values of privatised transport companies, some of whom have investments in Australia.

The poor and unsafe conditions of the infrastructure are not the fault of the companies if we take it that their raison d’etre is to make profit. But we cannot extend the same understanding to governments who forsake the public good for the sake of an improved bottom line.

Poor maintenance leads to unsafe conditions which lead to disasters. As safety professionals we need to stress that adequate levels of maintenance are a core part of any preventative strategy. Not only will it reduce the social impact of any disaster but it maintains a robust corporate economy, reduces employees’ exposure to trauma and establishes a company as an important community asset.

Level Crossings, Driver Behaviour and Politicians

Victoria has experienced several more level crossing incidents in late-March 2008. The significance of one of the recent incidents is that a vehicle driver survived, as happened with the Kerang incident which resulted in multiple fatalities. Curiously, the most recent survival also involved a vehicle colliding with the side of a train already on the railway crossing.

In this case there were no fatalities as the train was freight. But the driver’s comments are interesting. 59-year-old Laurie Heffernan was reported by AAP as admitting using the crossing, 1.5 kilometres from his residence, over 30,000 times and has recommended that freight trains have reflective strips on the sides and that engines should have flashing lights. The incident occurred on a misty morning at 7am.

On radio interviews, Heffernan has also blamed the layout of the road and rail crossing and the proximity of sheds that obscure part of the view of the crossing. This seems a peculiar excuse for someone who must use the crossing on a daily basis.

Yes, Heffernan was travelling slower than the speed limit. Yes, the collision was a glancing blow, but the collision still bounced him “back a bit and it spun me”. He says “If I’d have been travelling faster I probably would’ve gone under it… I would’ve done a lot worse, I mightn’t be talking with you right now.”

His responses, sadly, support the Victorian government’s push for increased driver awareness of level crossings.

The crossing, at Terang, has no flashing lights or boom gates but has recently had rumble strips installed. There was no indication whether Mr Heffernan noticed the rumble strips but he stated they are “useless”.

I have great respect for Victoria’s Transport Minister, Lynne Kosky, having met her before she became a parliamentarian, but her comments after this most recent incident are alarming and ill-advised

Her government established a parliamentary inquiry into level crossings as a result of an increase in incidents and fatalities. That inquiry has received many submissions and has had its timeline expanded to October 2008. The inquiry is not a court case so is not sub-judice but the Minister has knee-capped the inquiry by stating that various safety control measures are not needed or cannot be afforded for rural crossings. Her comments could make some of the legitimate findings of the inquiry look stupid. The inquiry cannot now recommend boom gates on every rail crossing. It is highly unlikely that grade separations could ever be seriously recommended.

How such an intelligent parliamentarian could place such limitations on the inquiry, or her advisers let her say such things, is very surprising. In this circumstance politician-speak of “let’s wait and hear what the rail safety experts in the parliamentary inquiry will say when they report to Parliament in October” would have been appropriate.

Kosky is forever going to have to explain to the families of victims of rail incidents why one particular rail crossing had less control measures than another crossing down the track. If she had applied the political nous that I know she has, she would have increased the validity of the parliamentary inquiry that her own Labor Government established.

As it is she has shown that it is not only America that has politicians who resemble Tonya Harding.

Australian Level Crossings

The State Government has instigated a Parliamentary Inquiry into level crossing incidents. Submissions have been received and the final report is expected at the end of 2008. For the next couple of SafetyAtWork blogs I am going to look at some of the submissions from an OHS perspective and in terms of grade separations, the most effective control measure for level crossings.

Category: railway

Discrimination and OHS information in languages other than English

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Using workers compensation claims as exit strategies

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Don’t rely on alarms

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Australian Level Crossings – Part 2

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Safety, Maintenance and Business Continuity

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Level Crossings, Driver Behaviour and Politicians

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Australian Level Crossings

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