safety culture – Page 69 – SafetyAtWorkBlog

Company directors and OHS obligations

Since the final report of Australia’s Review into Model OHS Law, discussion has been remarkably quiet. The ACTU was scheduled to meet for discussions on the report last Monday and no public statements have been made. Most of the labour law firms have been quiet also. It is fair to say that most are trying to digest the 480 page report.

But one employer group has provided an opinion piece in the business pages of The Age newspaper on March 2 2009. The article says little that is new but it is mischievous in some of its comments.

John Colvin, CEO of the Australian Institute of Company Directors, writes of his concerns about increased exposure for the Institute’s members. Colvin is concerned that upcoming OHS laws may be unprincipled and counterproductive.

The Model OHS Law report has said that it supports the statement of OHS principles as are already in place in the Victorian OHS legislation. According to WorkSafe Victoria

“The Act sets out the key principles, duties and rights in relation to occupational health and safety. The general nature of the duties imposed by the Act means that they cover a very wide variety of circumstances, do not readily date and provide considerable flexibility for a duty holder to determine what needs to be done to comply.”

These principles are

4. The principles of health and safety protection

(1)    The importance of health and safety requires that employees, other persons at work and members of the public be given the highest level of protection against risks to their health and safety that is reasonably practicable in the circumstances.

(2)    Persons who control or manage matters that give rise or may give rise to risks to health or safety are responsible for eliminating or reducing those risks so far as is reasonably practicable.

(3)    Employers and self-employed persons should be proactive, and take all reasonably practicable measures, to ensure health and safety at workplaces and in the conduct of undertakings.

(4)    Employers and employees should exchange information and ideas about risks to health and safety and measures that can be taken to eliminate or reduce those risks.

(5)    Employees are entitled, and should be encouraged, to be represented in relation to health and safety issues.

The article is mischievous in a number of areas. Colvin mentions how the current laws vary from state to state. He mentions that

“Some carry personal criminal liability for directors, even where they may not have had any personal involvement in a breach. In some states, they reverse the onus of proof, removing the presumption of innocence, and offer narrow legal defences and limited appeal rights.” (my emphasis)

Colvin is talking primarily about New South Wales, the State that everyone agrees has the OHS law that is most onerous for employers. However, the New South Wales union movement has been remarkably quiet and flexible on the issue of its OHS laws. There has been some rhetoric for the benefit of its members and to retain some ideological “face” but the union movement across Australia is coming to accept the reality of better OHS outcomes from nationally harmonised legislation.

Repeatedly the National OHS Law Review panel stated that it has based its decisions on the structure of the Victorian legislation as, for one reason, it has undergone the most recent legal review. Colvin’s focus on New South Wales OHS law is outdated, reflective, and unhelpful.

Colvin mentions a survey that found

“..more than 65 per cent said the risk of personal liability occasionally made them take an overly cautious approach in the boardroom and another 13 per cent said this happened frequently. Almost two-thirds felt this had inhibited an optimal business decision to a medium to high degree.”

This indicates that the risk of being prosecuted on OHS breaches is being discussed at board level – great result. Whether this translates to the board improving the OHS performance of their company is doubtful as Colvin’s article implies that directors are looking at ways of avoiding responsibility and liability rather than accepting the reality of their OHS obligations and working to improve them.

Colvin says that

“Directors should not be held criminally liable for a company’s misconduct simply because they are a director.”

Directors are not prosecuted for OHS breaches because of their status or position. They are prosecuted because of the decisions that they make and the ramifications of those decisions. If a director is dismissive of OHS issues and palms them off to someone else in the organisation and an incident occurs, should not the director be called to account for why they considered the safety of their workers to be unimportant, even when for over thirty years directors and executives have had responsibility for OHS compliance?

Colvin believes that holding directors accountable implies that directors have more control over the actions of their employers than they do. Current business and management theories promote the position that directors should be more in touch with what is happening on the shopfloor. The theories promote informed leadership and an increased awareness of how the company and its people work, they promote a level of engagement that creates a positive workplace culture and displays leadership. Colvin seems to be encouraging the opposite.

He ends his article with

“More fundamentally, it unfairly treats directors more harshly under the law than the rest of the community.”

He misunderstands the application and aims of OHS law. All people in a workplace have a responsibility to ensure a safe and healthy workplace for themselves, for employees and for members of public on and off their worksites. Directors have more detailed obligations, but not less, because they have control of production and benefit more from the success of the company than do the employees.

Ultimately, Colvin’s article reflects the misunderstanding of OHS that directors and companies have had for decades. Companies need to realise that the best performing companies in OHS, and those with the best productivity, are those that have embraced their obligations for safety and have incorporated the principles within their own culture.

The review into model OHS law has indicated the way of the future and company directors would be well-served to realise this and get on board. Being left behind will benefit no one, especially the shareholders.

Kevin Jones

CEO loses job over safety failures

Health funding and management is a constant political issue. The attention increases hugely during election campaigns like the one that is currently occurring in the Australian state of Queensland.

This week the leader of the opposition parties, Lawrence Springborg, called for the release of a government report into the sexual attack on a nurse and security in Torres Strait islands. SafetyAtWorkBlog has written repeatedly on OHS issues associated with the attack in February 2008. Springborg has pledged increased safety resources for remote area nurses.

Queensland Health reports on 25 February 2009 that the CEO of the Torres Strait District’s health service CEO has been stood aside as a result of the government’s investigation. The statement reads

“Director-General Michael Reid said the Crime and Misconduct Commission had reviewed the report by the Ethical Standards Unit and was satisfied with the investigation.
“Some allegations that members of the Torres Strait and Northern Peninsula Health Service District executive did not act appropriately were upheld by this investigation,” he said. “We accept this investigation has found serious faults in the way Queensland Health staff responded to this critical incident and we are taking immediate action.”
The CEO of the Torres Strait-Northern Peninsula District has been stood down, effective immediately, while her role with Queensland Health is under further consideration.”

Many of the issues raised relate to possible corruption and improper behaviour by the Queensland Health and others. These are the political points that Springborg is likely to chase.

In terms of occupational health and safety, the focus of this blog, Queensland Health says

“There is substantial evidence that there has been a systemic failure by the Torres Strait and Northern Peninsula Health Service District to acknowledge and address workplace health and safety issues within the District over a long period of time.”

“There is sufficient evidence to conclude, on the balance of probabilities, that members of the Torres Strait and Northern Peninsula Health Service District (TSNPHSD)
Executive responded inappropriately and insensitively when notified of the alleged rape of a Remote Island Nurse on Mabuiag Island on or around 5 February 2008.”

“Further, there is sufficient evidence exists to find, on the balance of probabilities, that the repatriation of the remote area nurse from the outer islands as not managed or coordinated at a level cognisant with the seriousness of the events which had occurred.”

It is no wonder the CEO of the health service has lost her job. It is a little surprising that more, and more prominent, heads have not rolled. It is suspected that this may be one of the aims of the opposition politicians during the current election campaign.

To return to our core issue of OHS and accountability, this result clearly indicates that senior executives, particularly in the public sector in this instance, must take a preventative approach to the health, safety and security of their staff, wherever the employee is located.

Kevin Jones

Beaconsfield Mine Collapse – Coroner’s Report Released

On 26 February 2009, the Tasmanian Coroner, Rod Chandler, released his findings in to the death of Larry Knight in the Beaconsfield mine collapse of April 2006

The Coroner found that

“the evidence does not permit me to make a positive finding that any person, corporation or other entity, by their conduct, directly contributed to Mr Knight’s death.”

The report is available for download HERE

SafetyAtWorkBlog will bring more information on this important decision over the next few days.

UPDATE

The brother of Larry Knight, Shane, and union representative Paul Howe, have expressed their disappointment with the findings of the Tasmanian Coroner. In an interview with journalists there was mention of the inadequacies in the risk assessment process, the poor resources of Workplace Standards Tasmania, the lack of attention given to safety advice from multiple consultants.

Shane Knight continues to believe that the mine management was responsible for the death of his brother.

Paul Howes called on the government to end the approach of self-regulation and called on business to not put profit before safety.

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

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

Eliminate the hazards

The first control measure on the “hierarchy of controls” is to eliminate the hazard. OHS consultants and professionals should always consider ways to achieve this. It may prove to be impractical, or politically unpopular, but it should always be discussed or recommended. Reports and submissions that do not consider this control measure can be considered invalid.

In late-January 2009, the organic farmers in Australia reminded the media that its farming members are developing a safer industry for the customer and the producer. This industry has boomed in Australia since the 1970’s in as a result of a desire and commitment to “eliminate the hazard”.

Interviews conducted by Biological Farmers of Australia (BFA) to help discover why producers ‘go organic’ reveal a high number of farmers consider the switch for the health of themselves and their families.

Rob Bauer (Bauers Organic Farm, Qld), one of Australia’s largest organic horticultural growers, says he turned to organic farming 27 ago after farmers in his area became ill with cancer.

He says he wanted to decrease health risks associated with synthetic farm chemicals.

“I started thinking about farming differently after growing up in the Lockyer Valley (Qld) where friends and family passed away in their fifties after years of intensive agrichemical production.”

He says neurological problems, tumours, and cancer were among the chronic diseases he watched take their toll on his local farming community.

“I wasn’t comfortable with producing food using harsh farm chemicals for consumers,” he says.

Steve Skopilianos, commercial lettuce producer from Ladybird Organics in Keilor (Vic) looked into organics when he started a family.

“We had been applying pesticide blends with no understanding of their effect on people and employees. There were times prior to organic conversion where I would not take my own produce home for my family to eat.”

Biodynamic producers of macadamias are happy to avoid high levels of agrichemicals typically used on the nuts.

“Working without a high exposure to synthetic chemical farm products is a weight off your mind,” says Marco Bobbert, from Wodonga Park Fruit and Nuts macadamia plantation (Qld), certified biodynamic since 1987.

He says direct chemical exposure could easily occur on conventional farms from accidents in production. “All it takes is a broken spray pipe.”

He says it is not just organic farmers who are concerned – “All farmers try to minimise their contact with chemicals on-farm. But organic production actively works toward negating that risk”.

Research has shown there is good reason for producers’ concern – a high exposure to some farm chemicals can lead to major health problems.

Particularly problematic substances include organophosphate insecticides and pesticides, which have been connected to several types of cancer, sterility and cognitive deficits (1).

The agrichemical endosulfan is one example of a highly toxic organochlorine cyclodiene) insecticide still in use in Australia.

1. (1) Ciesielski, S, Loomis, D, Rupp Mims, S, Auer, A, Pesticide Exposures, Cholinesterase Depression, and Symptoms among North Carolina Migrant Farmworkers; American Journal of Public Health, 1994.

HR vs. OHS

I have written elsewhere in SafetyAtWorkBlog concerning the silo mentality of managers in relation to human resources and OHS. This weekend a reader posted the following comment on this blog:

“You are right about the divide between HR & OHS. Fact is HR are the culprits of negligence, they exist to support Management. Any one with a serious complaint thinks long and hard before sticking their neck out and going to HR…”

What struck me about this comment was that human resources was seen to be aligned with management whereas workplace safety was not. A successful safety management system cannot exist in conflict with other management systems but how much compromise does OHS need to make to achieve an integrated management position?

I am sure that HR professionals would not perceive their position in the same way as above but I remember a colleague once saying that safety professionals were on the same level of influence to companies as hairdressers. Perhaps OHS professionals are envious of the level of influence that HR professionals seem to have with senior management and say such things from bitterness.

At some time or other we all feel less than relevant to employers but circumstances have a way of re-establishing relevance, sadly in OHS this is often and injury or a compensation claim.

I don’t believe that the disciplines of HR and OHS are incompatible but I have seen many instances in companies where the HR Manager sees OHS as divisive, particularly in the areas of stress and bullying. I believe that HR professionals by-and-large have a poor understanding of how safety should be managed in companies but that is not necessarily the fault of the HR professional. OHS professionals need to be far more analytical of their own actions and purpose within organisational structures and start being active.

Kevin Jones

Category: safety culture

Company directors and OHS obligations

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CEO loses job over safety failures

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Beaconsfield Mine Collapse – Coroner’s Report Released

UPDATE

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Safety Interviews

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Workplace bullying – interview with Lawrence Lorber (2002)

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Eliminate the hazards

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HR vs. OHS

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UPDATE

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