Successful appeal in finger injury case

SafetyAtWorkBlog mainly keeps away from referring to specific court decisions on OHS Prosecutions because, to a large extent, these are decisions of law rather than safety management.  The judgements also require clear legal interpretation so that any management lessons of the judgement can be extracted.

Another reason is that SafetyAtWorkBlog intends to be a FREE conduit for OHS discussion and news. We don’t agree that blogs should refer to information that can only be accessed through subscriptions.  That approach renders a blog advertising which is contrary to what we believe a weblog should be.

In this context some readers may be interested in reading the judge’s decision in an appeal case that has appeareed on several Australian OHS sites in the last day.

According to a judgement in the South Australia Industrial Court:

Adelaide Industrial Labour Service Pty Ltd (AILS)… is a labour hire company which employed John McCutcheon on 19 May 2005. At the time Mr McCutcheon was eighteen years old and had no trade qualifications or experience.
On 19 May 2005 AILS sent Mr McCutcheon to work for Dagenham Pty Ltd (trading as Link Plus) as a labourer.
On 20 May 2005 Mr McCutcheon whilst operating a pipe bending machine which was unguarded, sustained serious finger injuries to both hands. Mr McCutcheon had not received adequate instruction or training to operate that machine.
Dagenham was charged with a breach of s 19(1) of the Occupational Health Safety and Welfare Act 1986 (the Act) and was sentenced on 18 December 2006 by Ardlie IM to a penalty of $12,000, discounted on account of its guilty plea to $9,000.

The court has reduced the fine by $3,000 and has found that the Industrial Magistrate in the initial case made a defective decision.

The full decision is available for download HERE

Australia’s OHS Review questions and resources

The public submission period for the National OHS Review Panel ends on 11 July 2008, so don’t miss your chance to influence Australia OHS legislation.

To help you prepare your submissions, the is a page that lists the questions that are included in the review panel’s issues papers.

As was noted in the movie “Russia House” lists often indicate what is already known as well as what is required.  The questions from the issues paper provide a very rough introduction of the topics that the panel believes should be addressed.

The panel has also compiled an excellent collection of relevant OHS reports from Australia and overseas.  If you need to ensure your collection is complete you may want to cross-check.

Workplace Safety Reforms and “Red-Tape”

As well as the National OHS Review Panel, there are several other reviews and investigations that are occurring that will change how OHS is managed and enforced in Australia. One process is under COAG (Coalition of Australian Governments) which met in early July 2008 and provided an update on its actions.

Sadly, most of the media reporting focussed on the issue of water in the Murray-Darling Basin and only a day or two later, a major draft report on climate change was released. OHS didn’t get much of a look-in.

OHS law reform is occurring under regulatory reform intending to reduce business “red tape”. I am not comfortable with this categorisation because there is no cut-off point. When is there too much red tape and when is there the right amount of red tape to ensure compliance or a good safety management scheme?

In brief, the National OHS Review is looking at harmonising the government legislation so that the administrative costs are lessened in those companies that operate across jurisdictional boundaries.

People see red tape as principally unnecessary paperwork and not the big picture of legislative reform. And, if their company operates only within one state, as most companies do, the reforms may seem of little relevance. OHS professionals may be putting emphasis on the review outcomes and processes way beyond what the public cares about.

The COAG processes, the red-tape review, gives OHS a paperwork image, an image where OHS is an unnecessary cost rather than an activity that minimises harm, saves lives and increases productivity and profitability. Marketing strategies or OHS promotions should include elements that counter this growing perception.

What annoys me the most is that the majority of the paperwork associated with OHS has been generated by lawyers and insurers who have advised that everything should be documented. “You don’t comply unless you can show that you comply”. The need for OHS paperwork has been imposed on business by forces outside that business and yet the business has to pay for the cost of preparing the paperwork. I don’t see the lawyers and insurers helping reduce red tape by saying that business needs less documented procedures and compliance.

Paperwork is an unavoidable business cost but we must remember that the decisions of other companies and organisations have generated that cost and are often unwilling to accept for that cost to be passed on to them, or deducted from their fees or premiums.

Business, by and large, in Australia will be unaffected by the various review processes into OHS management and OHS laws. The effect will be felt in the five years after the legal changes when the definition of compliance will change and systems will need to be changed to accommodate this.

Varanus Island Q&A

The National Offshore Petroleum Safety Authority (NOPSA) has received considerable media attention since the pipeline explosion at Varanus Island. On 3 July 2008, it issued a fact sheet about its role and reporting process. It is worth remembering the lines of authority and accountability when reading media reports on the explosion’s investigation.

Beaconsfield Mine Inquest

An article in today’s Australian newspaper reports on the coroner’s inquest into the death of Larry Knight in the Beaconsfield mine in 2006. It provides the first insight into the OHS report for the Melick investigation.

In October 2005, six months before Larry Knight’s death, the mine was closed after a minor rockfall. It is reported that mine management only allowed workers back into the mine after geotechnical advice.

Professor Michael Quinlan of the University of New South Wales wrote that, from an OHS perspective, this was a poor decision. Whether financial pressures were behind the permission to reenter the mine is under dispute.

Counsel for the mining company, Stephen Russell has

urged the court to exclude Professor Quinlan’s evidence because the University of NSW professor was not expert in geotechnical issues.

Valid point, perhaps, except that the coroners need to investigate deaths from a broad pool of opinion and expertise. I suspect that Michael Quinlan would be the first to admit he is not an expert on geotechnical matters.

It seems from the media report that the counsel for the mine believes that, even though an assessment would involve worker activity in a workplace, occupational health and safety considerations were not necessary at the time.

In an earlier report in the Mercury newspaper, counsel assisting the Coroner, Michael O’Farrell

argued against an earlier move by the mine’s lawyers to confine the inquest to seismic event on the day of the rockfall.
Mr O’Farrell told Launceston’s Supreme Court that attempts to contain the inquiry to a close examination of the geotechnical issues surrounding the collapse did not serve justice, and may lead to error.
He urged Coroner Rod Chandler to consider all types of evidence, “even red herrings”, in order to make the recommendations necessary to prevent similar mine deaths.
The inquest should also focus the mine’s safety processes and risk assessment procedures, as well the capacity of the state government’s workplace standards body, Mr O’Farrell said.

I have stressed elsewhere that I have no problem with companies deciding to do nothing after a risk assessment is undertaken. It is the right of the employer to accept or reject OHS advice. But what I object to is if a company then tries to avoid responsibility for that decision if it turns out to be a poor one.

The mine’s senior counsel, David Neal SC, then asked the Coroner, Rod Chandler, to review the cost-benefit of a detailed investigation into Larry King’s death as the proceedings are costing each party $20,000 per day.

David Neal, also requested 28 witnesses identified by the opposing counsel be excluded. I don’t think that relatives of dead workers would see these costs as an impediment to determining the cause of a loved one’s death. I find it extraordinary that such a suggestion would be made at all.

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