Category: safety

Crushed finger leads to claim and Court

Regularly in OHS  submissions to the government and on OHS discussion forums, safety professionals state that industrial relations should be kept separate from workplace safety issues.  In a perfect world ? Possibly, but there was a court decision on 13 November 2009 in Australia that shows that this separation is not possible in the modern world.

According to a media statement from WorkSafe Victoria:

Concrete panel supplier, The Precast Company, pleaded guilty in the Dandenong Magistrates Court on Friday 13 November to failing to provide an injured worker with suitable employment as required under Victoria’s workers compensation legislation.

The Court heard that the injured worker was employed as a crane operator when he suffered a crush injury to his finger. He attended Dandenong hospital and 5 days later was certified as being fit for alternative duties.

Two weeks later, he left work early on a Friday to attend his doctor. When he returned to work the following Monday he was informed that he had abandoned his employment and had no right to be there.

At the time, the company defended its action stating the worker had not been dismissed, but instead had walked out of the workplace half way through the day without reason.

As the injured worker had an accepted workers compensation claim, The Precast Company, in dismissing the injured worker, had failed to provide suitable employment despite the worker being certified as fit for alternative duties. Under the State’s workers compensation laws, an employer is required to provide employment to an injured worker who has a capacity for work.

The company pleaded guilty to one charge of failing to provide suitable employment and was fined $2,500 without conviction and agreed to pay costs of $1,500.

WorkSafe’s own summary of court action provides more details:

The defendant company operates in the building and construction industry. It has declared annual remuneration of about $2 million and has 45 full-time employees.  An employee working as a crane operator suffered a crush injury to his finger on 1 April 2008 and was issued with a certificate of capacity certifying him ‘unfit for all duties’ from 2-4 April and fit for alternative duties from 5-16 April. The worker returned to work on 7 April on light duties.  He left work early to attend a doctor’s appointment and returned to work on 14 April and continued light duties. He saw his doctor on 17 April and was issued a further alternative duties certificate from 17 April -1 May.

On 18 April the worker left work around midday to attend his doctor’s later that afternoon when he was issued with another certificate. At this stage he had still not submitted a claim form. When he arrived for work on 21 April he was told that he had abandoned his employment and had no right to be there. He went home and soon after sought legal advice. He lodged a claim for compensation that day which CGU accepted.

The defendant company’s director wrote to WorkSafe stating that the worker was not dismissed but had abandoned his employment on 18 April 2008. The director was overseas on that date and his explanation is based on what other staff have told him. The foreman provided a statement to a circumstance investigator that on 18 April the worker “just walked out of the workplace half way through the day. He would not provide a reason. As far as I was concerned he was abandoning his employment at this time.”

On 23 June 2008, the date that the worker’s claim was accepted, he was issued with a certificate of capacity certifying him fit for alternative duties until 21 July. By dismissing the worker the defendant company failed to meet its obligation to provide him with suitable employment once his claim had been accepted.

These are the only public details available at the moment but clearly effective communication was not occurring between the employee and the company.  Sometimes circumstances that involve safety become a more complex industrial relations issue which may lead to Court, no matter how hard you try to compartmentalise them.

Annual holidays get a TV makeover

Regardless of concerns over the veracity of data, Tourism Australia’s “No Leave, No Life” campaign is continuing to develop its media presence.

The Seven Network announced this week that “No Leave, No Life” will form the basis of a television program to be broadcast from 5 December 2009.  As is the nature of TV shows, when a new successful format is found, it can travel around the world. So, be warned.

The rationale of the “No Leave, No Life” tourism campaign is that employees hold on to their annual leave entitlements and amass many weeks’ leave.  The employer groups have supported this campaign, principally, because this reduces the salary reserves each company must carry to cover the entitlements.Individually, employees can convince themselves that they are indispensable.  The risk, from the workplace safety perspective, is that the individual is not accessing the mental health and stress relief that can come from being away from a workplace for several weeks.

Having no break from work mode can unbalance one’s life and put considerable strain on personal and family relationships.  Just like adequate sleep can have productivity benefits, so can taking annual leave on a regular basis

There is also the organisational benefit that can come from breaking the routine.  Just as individuals may come to believe they are indispensable, so an organisation can come to rely too heavily on individuals.  A healthy corporate system should be able to cope with the absence of any staff member or executive for a short period of time (the period of annual leave).

Business continuity would dictate that a business can continue without key people permanently.  Coping without these people for a short period each year can be considered a trial run of continuity.

In relation to the new television program the Seven Network advised SafetyAtWorkBlog that each episode is structured around the removal of a worker who has a large amount of annual leave from their workplace for a holiday within Australia (hence the Tourism Australia support).  The viewer appeal, other than watching someone else have a good time, is that a comedian is used to fill the role of the holidaying staff members.  The show is likely to illustrate several points – no one is indispensable, a regular holiday is an important individual activity, and, although not indispensable, the employee and their effort is valued by the organisation.

The show will follow people from these occupations:

  • a paediatric nurse in a cardiac ward;
  • a sales manager in a brewery
  • an ambulance paramedic; and
  • a charity events manager.

The OHS role and benefits of regular leave are not as overt in the program as they could be but that is not he purpose of the program.  It is clearly a program that would not have existed without the Tourism Australia campaign.  It has been designed to encourage Australians to take holidays and to holiday within Australia.

It is hoped that if and when people return to work refreshed they may realise how important regular leave is to their own wellbeing and mental health but having stress management or career burnout as a motivation for the employees themselves to take leave would have been more instructional.

Of course, it should be pointed out that businesses are doing themselves no good by allowing for the accumulation of excessive leave in the first place.  In fact, it could be argued that by not enforcing the taking of leave the companies are increasing the stress of their employees and contributing to the social dysfunction that can result from such a work.life imbalance.

Kevin Jones

Unpaid overtime is the new danger money

In Australia there is increasing pressure to work more hours than what one is paid for. Many different organisations use this fact to push for various improved benefits, in many circumstances the statistics are used in support of wage improvements.

But working beyond contracted hours will certainly affect one’s work/life balance as there are only so many hours in the day and if work dominates one’s life, family time or rest will be sacrificed. The imbalance leads to a range of negative psychological and social actions. An article in Wikipedia on working time summarises this.

“In contrast, a work week that is too long will result in more material goods at the cost of stress-related health problems as well as a “drought of leisure.”  Furthermore, children are likely to receive less attention from busy parents, and childrearing is likely to be subjectively worse.  The exact ways in which long work weeks affect culture, public health, and education are debated.”

Australia has yet to have the debate on the matter of working hours that has been seen in Europe and England but the issue exists very much in Australia, although it has yet to gain any traction.

According to a media report by the Australian Council of Trade Unions a new research report by the Australia Institute

“… found that each year, the average full-time Australian worker does 266.6 hours of unpaid overtime, or an extra six-and-a-half working weeks…. The think tank estimates that through unpaid overtime, workers are forgoing a total of $72.2 billion in wages or 6% of GDP.”

The Australian Institute report found the following

  • Forty-five per cent of all Australian workers, and more than half of all full-time employees, work more hours than they are paid for during a typical workday.
  • Unpaid overtime is more common among people who work a ‘standard’ business workday (that is, not shift work) and among white-collar workers.
  • Workplace culture is a dominant contributing factor, with 44 per cent of people who work unpaid overtime saying that it is ‘compulsory’ or ‘expected’ and another 43 per cent saying that it is ‘not expected, but also not discouraged’.
  • Across the workforce, the average employee works 49 minutes unpaid during a typical workday.
  • Full-time employees work 70 minutes of unpaid overtime on average, while parttime employees work 23 minutes.
  • Men work more unpaid overtime than women (63 minutes versus 36 minutes a day). Men with young children work a great deal more than women with young children (71 minutes compared with 30 minutes).
  • Unpaid overtime increases with income: people in low-income households work an average of 28 minutes of unpaid overtime a day compared with 61 minutes for people in high-income households.
  • When asked what would happen if they didn’t work unpaid overtime, most say that ‘the work wouldn’t get done’, suggesting that the demands placed on employees are too much for many people.
  • A majority of survey respondents who work additional hours said that if they didn’t work overtime they would spend more time with family, and many said that they would do more exercise.

The report clearly states that allowing “unpaid overtime” has a strong cost in social and individual health but there is an OHS perspective that over gets overlooked due to public health and industrial relations dominating the issue.

In a media statement from October 2009, as an example, Deloittes quoted some scientists, in support of a anti-sleep device, on statistics that have been bandied around for some time:

“…scientists equate fatigue to blood-alcohol levels: if a person has been awake for 18 hours, it’s the equivalent of having a .05 level of alcohol in their body; if they have been awake for 21 hours, it’s equivalent to a.08 level.”

There are several further examples on negative health impacts in the Australia Institute report.

It can be strongly argued that by allowing, or expecting, “unpaid overtime”, employers may be encouraging workers to travel home while impaired and that employers are creating a work/life imbalance by requiring “unpaid overtime”.   Certainly it could be argued that even during unpaid overtime, the cognitive function of the employee is less than expected, or even have the worker unfit for work.

Arguing about unpaid overtime clearly makes the debate one of money not safety or wellness or the social contract, and this is the argument’s inherent weakness.

Arguing for compensation for “unpaid overtime” is arguing for “danger money” – how much money will a worker accept in order to keep working into the unhealthy and dangerous hours beyond their regular contracted hours?  This type of argument disappeared almost twenty years ago in Australia when the Australian awards system was reformed to remove allowances in relation to working at heights, picking up roadkill, or working in excessive heat.   It was agreed that “danger money” was inappropriate and that OHS principles demanded the risks involved with these tasks be reduced rather than “paying workers” to place themselves at risk.

ACTU Secretary Jeff Lawrence, in his media statement in support of Go Home on Time Day, and The Australia Institute in its media statement on its report both underplay a major point in the debate on working hours when they argue in economic terms.  Lawrence says

“If the work demands are too much to complete in a normal working day, then employees should be paid for their extra hours, or their employer must hire more staff.”

The institute mentions wellness in passing but emphasises in its media release

“..the 2.14 billion hours of unpaid overtime worked per year is a $72 billion gift to employers and means that 6% of our economy depends on free labour.”

Employing more staff is preferable but removing the culture of unpaid overtime is far more important.   Arguing on the basis of economics, ie “being paid for their extra hours”, may expose the worker to greater risk of injury or illness at the workplace or on the way home.   Quality of life, work/life balance and personal health and safety are stronger arguments for “going home on time”, arguments supported by The Australia Institute and the Australian Greens.

Kevin Jones

Work-related suicides in Europe

The Irish Times has reported on a speech made by Dr Jukka Takala, Director of EU-OSHA, in Spain in November 2009.

“[Dr Takala] said since the publication of a recent study showing a very high level of work-related suicides by French Telecom workers, there was an urgency about getting this information. “Personally, I favour a system such as they have in Japan where the families are compensated for the suicide of a relative, and the debate has already started in this organisation and in the commission and some of the member states,…”

It is not uncommon in OHS to hear calls for further research and more research on work-related suicide is definitely needed.  (Australia has some very good work in this area.)

Caution has to be voiced on the risk that suicides be seen as the mental health version of workplace fatalities.  Research and OHS statistics often focuses on fatalities for various reasons including that the statistics are easy to quantify.  If a worker dies from being crushed by a machine, its a workplace fatality.  There is a trap in terms of suicides where the cause and effect is not so clear, or mechanical.

Only recently have workplace fatalities begun to be investigated with consideration of the social or non-work contributing factors.  If the machine operator was pulled into the machine because they were inattentive, why were they inattentive?  In terms of suicides, the agency of injury will be fairly obvious but the contributory factors could be far more complex.  And if the suicide victim has not left a note explaining the reasons for their action, it is even harder to determine “cause”.

Looking at suicides runs the risk of  not paying enough attention to the mental health issues that have not reached the suicide level.  The focus should not be researching suicides but researching the combination of issues leading to suicide.  It is a much greater challenge but is likely to have more long term benefits.

Takala’s comments about family compensation and the need to acknowledge the reality of work-related suicides gained the attention of The Irish Times because they meet the imperatives for a newsworthy angle.  Takal’s speeches at the Healthy Workplaces European Summit 2009 covered much greater territory than the Irish Times article and should be read to better understand the comment’s context.

There are hundreds of work risks that require assessment and psychosocial hazards is one of those areas.  A full list of speakers at the conference is available by looking at the program.  Abstracts of most presentations are available for download.

Kevin Jones

Managing stress the Wall Street Journal way

When a financial newspaper or website posts an article about workplace safety, it is worth reading.  The fact of such an article does not mean, though, that safety management is the focus of the story.

A 17 November 2009 article in the Wall Street Journal, ” Workers Denied Company Help Due to Stress-Related Complaints” understandably reports on new workplace stress statistics in a way attractive to its readers.  Sadly it reports on “how can the problem be managed?” rather than the next step that OHS professionals should always take, “how can this problem be eliminated?”

The paragraph that clearly illustrates this myopia is

“Companies are now faced with critical decisions over how to tackle stress. The first step, according to Dr. Wright, is to provide workers with access to a dedicated help line service. “Picnics, parties … those things are nice to have when the times are good, but it is the fundamental things – like making sure your role fits your skills and having the support of your manager – that matters the most now.”

A help line as a first step?  The article is full of statistics that illustrate the reality of the hazards.  Talking to a sympathetic counselor throws the responsibility (blame?) onto the individual and away from the organisation.

Earlier in the article Aviva’s Dr Wright said that workers are

“…being pushed to work harder, longer hours, in roles they are often not trained for…”

He acknowledges that workload and excessive hours is a contributory factor but makes no recommendations for changing these hazards.  Dr Wright accepts the traditional wisdom that harsh economic times leads to these pressures and individuals must cope, with some assistance from the employer.

It is probably unfair to expect the Wall Street Journal to publish an article that proposes fundamental change to the corporate order on the basis of valuing the mental health of employees.  But OHS professionals and advocates, those speaking from a position of independence, must keep reminding business, and (sadly) some OHS regulators, that long-term sustainability will only come from valuing the workforce as human beings and not as cogs in the race for executive performance bonuses.

Kevin Jones

Below is a list of links to some of the reports mentioned in the WSJ article.

National Institute for Health and Clinical Excellence

Aviva UK Health of the Workplace 2009 (report not found)

Chartered Institute of Personnel and Development

Public Comments vs Petition – modern lobbying required

Recently SafetyAtWorkBlog noted that almost one quarter of the submission to the government on its proposed national model OHS law were from individuals and confidential.  There was a suspicion of bulk proforma submissions.

One example that is available through the publicly accessible submissions is a letter to the Minister, Julia Gillard, from the Dr Sharann Johnson, President of the Australian lnstitute of Occupational Hygienists.  The letter raises concerns over the omission of “suitably qualified” from the legislation.  It concludes

“I strongly implore you to reconsider your decision not to include a requirement for the providers of Occupational Health and Safety advice and services to be “suitably qualified” in the national new model OHS legislation.  lt would be disappointing to see this amalgamation of legislation miss the opportunity to make a significant impact on the standard of OHS advice provided to Australian industry and ultimately improve our health and safety performance at a national level.”

Similar concerns to Dr Johnson’s have been discussed elsewhere in  SafetyAtWorkBlog but on the issue of proforma submissions it is noted that three other submissions, Kevin Hedges, Gavin Irving and a personal submission by Dr Johnson, contain almost exactly the same text.

What these and other proforma submitters are producing is not a response to a draft document or a submission but a petition.  Petitions have existed for centuries and carry considerable political clout but putting in a cut-and-paste submission is unhelpful.  It signifies a united position but is not constructive.  A petition to the Government or specific ministers on a single issue, such as “suitably qualified”, may have had more influence if it included an influential number of signatories and was lodged at the appropriate time, in response to outrage over the particular matter.

There is no criticism of the content of the AIOH letters only of the method of delivery and strategy.  There are many more confidential submissions that have also applied a similar strategy.

SafetyAtWorkBlog contacted Safe Work Australia over the issue  and asked “How many proformas were used and who were they by?”  A spokesperson responded

“Of the 480 submissions received, just over 200 standard form submissions were received from union members, in five different proformas.  Each of the five forms contained similar comments.  In addition, we identified a small number of standard form submissions from one professional association.”

In developing better legislation, the influence on the process from “weight of numbers” is likely to be far less in this circumstance than would be gained through constructive and innovative suggestions.

As Australia is likely to go through similar public comment phases on a raft of OHS regulations and documents over the next 12 months, assuming the Government does not shelve the project.  It is important for the proforma submitters to review their strategies and, perhaps, establish more direct contact through lobbying the relevant Ministers in each State and Federally, on behalf of their large (?) membership. In this way the Government would be familiar with the various organisations, would understand the background to those organisations’ arguments, and would then anticipate the innovative solutions that OHS organisations, professionals and experts, would put forward.

This strategy has worked for the unions and business groups for decades.  It may be time for a new strategy for some groups that combines reliable techniques like petitions with personal contact to be followed up by a knock-out submission at the right time, perhaps supported by a broadly distributed media statement.

Kevin Jones

Flawed basis for OHS decision-making

Most strategic plans made by OHS regulators in Australia are based on workers’ compensation statistics.  Everyone agrees that this is a huge underestimation of the work-related injury and illness rates but no one yet has tackled this information deficiency.

Australia’s OHS harmonisation might attempt this but it will not be until the government harmonises the States’ workers’ compensation system that Australians can have unified and consistent statistics.  Yet even then, the reliance on workers’ compensation data will continue to understate the significance of work-related injuries on the community.

The Australian inaction contrasts to activity undertaken in the United States by the Government Audit Office (GAO).  An October 2009 report by the GAO, released online on 16 November and discussed in blogs and one US newspaper, shows the state of OHS statistical play in the US through its audit of the operations of the Department of Labor’s Occupational Safety and Health Administration.

  • OSHA only audits 250 of the 130,000 high hazard worksites each year.
  • All of the data available is provided by employers.  Workers are not interviewed.
  • If the worker has left the company’s employment, they are unable to be interviewed.
  • “OSHA also does not review the accuracy of injury and illness records for worksites in eight high hazard industries because it has not updated the industry codes used to identify these industries since 2002. “
  • Statistics supplied to the Bureau of Labor Statistics by employers are not verified. (BLS is not required to do this)
  • The GAO identified disincentives on both employers and employees for reporting illnesses and injuries – potential job loss, fear of increasing workers’ compensation premiums or losing out on work contracts.
  • The disincentives may lead to a reduced medical treatment so as to avoid injury reporting and the issues associated with the reporting. (A third of health practitioners interviewed admitted to being pressured about workplace injuries)

On this last point, those OHS professionals who advocate safety incentive schemes may wish to consider the graphic below

Pressure From Workers to Downplay Injuries and Illnesses and Awareness of Incentive Programs

Of the 47% who said they were pressured to downplay injuries and illnesses, over 60% were from workplace s that had incentive programs.  This is a serious statistic that incentive advocates must address in their programs.

Australia has tried to gain greater accuracy to OHS data over many years.  The (then) National OHS Commission published several very useful statistical reports into various industries but they could not provide an easily understood national picture because of State variations on reporting criteria.  Australia is much less complex than the US and the task of achieving better OHS statistics should be easier, as long as there is the political will.

The importance of accurate statistics in decision-making at the policy level as well as that at individual workplaces cannot be overstated.  The GAO report summarises the significance in its report.

“Accurate injury and illness records are important because they assist Congress, researchers, OSHA, BLS, and other agencies in describing the nature and extent of occupational safety and health problems.  These records are also vital to helping employers and workers identify and correct safety and health problems in the workplace.  In addition, these records help OSHA evaluate programs, allocate resources, and set and enforce safety and health standards.  Without accurate records, employers engaged in hazardous activities can avoid inspections because OSHA bases many of its safety inspections on work-related injury and illness rates.”

Kevin Jones

My thanks to Workplace Professor Blog for bringing the report to our attention.

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