risk – Page 167 – SafetyAtWorkBlog

Insurance may diminish a director’s commitment to their positive OHS duty

Neil Foster of the University of Newcastle is known to SafetyAtWorkBlog for his work looking at the legal liabilities of company directors and officers. Recently Foster released a paper called “You can’t do that! Directors insuring against criminal WHS penalties” which provides an additional legal context to an earlier blog article.

Foster acknowledges that

“…provisions of the criminal law imposing personal liability for company breach of workplace health and safety provisions provide one of the strongest ‘drivers’ for company officers to use due diligence to see to the implementation of company safety policies.”

and asks

“… what if the officer knows all along that, should they be subject to such a penalty, the company, or an insurance policy, will come to the rescue?”

This is a concern that relates to insurance policies or indemnities that are being offered in some industrial sectors. Insurance could dilute the diligence of officers and directors on a range of matters including workplace safety. Continue reading “Insurance may diminish a director’s commitment to their positive OHS duty”

More safety indemnities offered but with similar limitations

In August-September 2012 a media release was circulated in Australia promoting an

“…an Australian industry first – leading construction & mining workplace safety provider RIS offers to indemnify operators against non compliance prosecution.”

This may be a first for RoofSafe Industrial Safety (RIS) but not for Australia. SafetyAtWorkBlog has reported on a smaller but similar system that originated in the automotive repair industry.

RIS’ Syncron system has several steps to compliance

Safety Audit
Assessment and Priorities
Coordinated actions aimed at maximum cost savings
Indemnification
Ongoing Monitoring and Continuous Improvement

It seems to be popular in the mining sector, according to the RIS website and clearly, from the media release, RIS is expanding its application from its fall–protection base into construction.

Indemnification

There are lots of issues of concern in the media release, if not in the Syncron system itself. The indemnification is of particular concern and although these sorts of safety management systems are apparently cleared through legal advisers they need a great deal of explanation in order for businesses to feel comfortable.

One of the potential traps of these systems is that indemnification only exists when the assessment and management system is followed absolutely, as highlighted below. Although the advisory resources exist outside the customer’s business, checking and monitoring still comes from the customer and adequate resources are required.

The legalese through all Syncron brochures and statements needs forensic analysis. Continue reading “More safety indemnities offered but with similar limitations”

Reliance on PPE impedes safety progress

There is an increasing call for the mandatory wearing of high-visibility clothing for motorcycle riders around the world. The reason is to make motorcyclist more visible to car drivers and other road users. This sounds logical and sensible and is, in some way, based on the prominence of high-visibility clothing in the industrial sectors of manufacturing, construction and others. But is this a matter of policy based on evidence or a broad application of logic or a “common sense”?

As the requirement for high visibility clothing has been in workplaces longer than on motorcyclists it is worth looking for evidence of the effectiveness of high visibility clothing in workplaces. A brief survey of some of the research literature has been unsuccessful in locating much research into this issue. (We always welcome input from readers on this). Wikipedia traces high-visibility clothing back to Scottish railways in the early 1960s, where

“Train drivers operating in these areas were asked their opinion as to the effectiveness of the jackets.”

It would seem the choice of high visibility clothing has stemmed from assessing a workplace, determining the dominant colour of that workplace or environment and then examining the colour wheel (above) to choose a colour of the greatest contrast, thereby providing a high visibility. Continue reading “Reliance on PPE impedes safety progress”

Principled pragmatism – Human Rights included in OHS Due Diligence

On 16 August 2012, Australia’s Workplace Relations Minister, Bill Shorten, said in Parliament, in relation to new asbestos management initiatives, that”

“On 14 March this year, in my first ministerial statement on workplace health and safety in this place, I said that every Australian who goes to work should return home safely. I know both sides of the House endorse this universal human right and today I reaffirm our commitment to this principle…” (page 13, Hansard. emphasis added)

It is very common to hear safety professionals and company executives echo the statement that workers should return home in an uninjured state. But few would be aware or, perhaps, agree that this is a human rights statement.

Following an earlier blog post, one reader has pointed us to the United Nations Guiding Principles for Business and Human Rights that were released in 2011. According to the author, John Ruggie, these principles:

“… highlight what steps States should take to foster business respect for human rights; provide a blueprint for companies to know and show that they respect human rights, and reduce the risk of causing or contributing to human rights harm; and constitute a set of benchmarks for stakeholders to assess business respect for human rights. Continue reading “Principled pragmatism – Human Rights included in OHS Due Diligence”

Extraordinary duty of care prosecution over a near miss

Near miss events, or “close calls”, are important opportunities to review safety and work processes. In fact they can be the best opportunities as the participants and witnesses are still alive and can provide detailed information on the mistakes, breakages or oversights. But rarely are companies prosecuted for near misses.

In Western Australia, a company has been found guilty of breaching its duty of care after two of its workers were lost for almost a whole day, and was fined over $A50,000, the highest fine of this type. The near miss is almost comical and at least one newspaper has described it as a “comedy of errors“, except that it could easily have resulted in tragedy. WorkSafeWA’s (long) media release, provides the details:

“MAXNetwork was contracted to the Department of Education, Employment and Workplace Relations to consult with disadvantaged job seekers, in this case through their office in Kalgoorlie.

A number of employment consultants work at the Kalgoorlie office, and they regularly travel to remote areas – some accessible only by dirt roads and narrow tracks – to work with job seekers.

In December 2009, two of the company’s Kalgoorlie area employment consultants were instructed to do an “outreach visit” to the remote community of Tjuntjuntjara, around 600km north-east of Kalgoorlie in the Great Victoria Desert.

The two consultants departed Kalgoorlie in a Toyota Prado leased by MAXNetwork at around 6.00am on a journey estimated to take nine to ten hours on a road with no signs that was a narrow track in some places.

The women were not provided with a map, GPS or any other navigational aid, and consequently they became lost. They had received no training or instruction on travelling in remote areas, and so did not know what to do in the event of becoming lost.

The satellite telephone provided to the consultants did not work, and management was aware of this prior to the trip. In addition, there was no schedule for regular contact with workers in remote locations so no-one realised the women were overdue. Continue reading “Extraordinary duty of care prosecution over a near miss”

Vulnerability and arrogance

“How can this be allowed to happen nowadays?” the distressed wife of a seriously injured worker asked me recently. Her husband was sitting next to her, his eyes still victims of the recent terror that nearly killed him. She saw that and struggled to join him in his very dark and personal space. This now would become a life time job for her.

This meeting captured for me one of the most fundamental factors at most workplaces. That workers’ most common feeling at work is that of vulnerability. Of course many workers find comfort and pride in their job. Of course it feeds them and their families. Of course it can provide personal identity and purpose. And of course there are many managers who understand all this.

But it’s also true that much too often this is not the case. That’s one reason why when suddenly factories or mines close, or car manufacturers ‘shed’ 200 workers, or car part factories go bust workers are not only shocked, but it substantiates their sense of vulnerability, “What a shock, I thought they loved us!”

Not only is this painfully evident when a negligently poor H&S standard results in crippling a worker for life, but is typically present on a daily basis. Permanent fear of job loss results. The fact that a worker can be disciplined or sacked for a number of events that can be defined and redefined by creative managers feeds that feeling. That’s another reason why so much bullying and humiliation occur and so much stress is experienced. Continue reading “Vulnerability and arrogance”

New book on OHS laws challenges current understandings of workplace safety

With the change of political heart from some of Australia’s state governments over the harmonisation of occupational health and safety laws, many academic and legal publishers revised their book plans as the national market was less national. However, some continued to publish understanding that although OHS harmonisation had a political deadline of 1 January 2012, refinement of the laws would continue for several years.

Federation Press has released a new book by prominent labour lawyer, Michael Tooma, and academic, Richard Johnstone, called “Work Health & Safety Regulation in Australia – The Model Act“. The title states an immediate limitation that other publishers squibbed at. The book is based on the Model Work Health and Safety Act and not, necessarily, the versions of the Act implemented at State level. Production timelines are responsible for this but it makes it even more important to follow the writings and research of Johnstone and Tooma to understand developments.

The Social Context of Safety

The authors reiterate an important element of the WHS Act in their introduction:

“[the laws] are no longer workplace or occupationally based, nor predicated on the employment relationship; rather the laws protect persons involved in ‘work’ in a business or undertaking, and, in addition, protect ‘others’ whose health and safety is affected by work. Consequently the scope of the Model Act is limited only by the imagination of those entrusted to interpret them and to enforce them.” (page 3)

This paragraph summarises well the elements of the laws that are causing so much fear in the Australian business community. Continue reading “New book on OHS laws challenges current understandings of workplace safety”

Category: risk

Insurance may diminish a director’s commitment to their positive OHS duty

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More safety indemnities offered but with similar limitations

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Reliance on PPE impedes safety progress

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Principled pragmatism – Human Rights included in OHS Due Diligence

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Extraordinary duty of care prosecution over a near miss

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Vulnerability and arrogance

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New book on OHS laws challenges current understandings of workplace safety

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