“Suitably qualified” OHS professionals – who benefits?

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For many years OHS regulators have been concerned about the quality of advice that OHS experts have been providing to businesses in Australia.  Some States have a regulated profession, others do not. Certainly there is no regime in Australia that compares to the “closed-shop” of Singapore.

I have seen no evidence of bad OHS advice to business.  Looking through legal databases doesn’t help, as cases are too difficult to find and the regulators say they have evidence but they usually don’t share.

For over thirty years, OHS legislation has stated that OHS management in a workplace is, principally, the responsibility of the employer.  This also means that an employer is responsible for any OHS decisions made based on their own assessments, which may involve advice from an external adviser.

As an OHS consultant I provide the best advice I can.  If the client needs advice in an area that I am not knowledgeable in, I contract a suitably knowledgeable colleague as part of servicing my client.  Any advice I provide is clearly specified as coming from the information provided by the client and my observations on the day.  What decision the client makes is up to them. This point is made in the WorkSafe Victoria paper mentioned below.  The paper says

“It is important to note that employing or engaging a suitably qualified person to provide OHS advice does not discharge the employer from their legal responsibilities to ensure health and safety as required under Part 3 of the OHS Act. This duty cannot be delegated”

This week WorkSafe Victoria released a position paper to clarify a section of the OHS Act.  According to the website

“This document sets out WorkSafe’s position on the meaning of section 22(2)(b) in the context of duty holders meeting their obligations under Part 3 of the Occupational Health and Safety Act 2004 (OHS Act).

Part 3 (sections 21 to 23) of the OHS Act places duties on employers to ensure health and safety.

Section 22(2)(b) provides that employers must, so far as is reasonably practicable, employ or engage persons who are suitably qualified in relation to occupational health and safety to provide advice to the employer concerning the health and safety of employees of the employer.”

My belief is that OHS consultants should be called in, primarily, for a second opinion.  This opinion is provided after the employer and worker representatives have “had a go” at identifying hazards.  In my experience, businesses have a fair idea of the workplace hazards present but are not sure how to prioritise the controls of those hazards, and may be unaware of new control measures.  This is where the OHS consultant comes in.

Few OHS professional associations in Australia provide their members with information on how to do your job, or how to apply your knowledge in a commercial context.  Until recently few tertiary institutions provided this service and I would like to hear of those OHS courses that now do teach business practices to graduates.

(I remember attending a Ergonomics Society conference in Sydney almost ten years ago.  It was the first time anyone had spoken on the issue of professional ethics to the ergonomists.  I would be surprised if other Australian professional associations have progressed this far)

According to the position paper, these are the elements that they consider “may” make a suitable qualified person:

  • Knowledge
  • Industry experience
  • Professional activity
  • Reputation
  • Professional association
  • Communication skills
  • Technical expertise
  • OHS legislative understanding:
  • Risk management strategies

From that basis, below is my plain English checklist for businesses to assess their OHS advisers. Comments are in brackets:

  • Knowledge: Does the professional have an educational qualification that is relevant for your needs? (I have never been asked to show my education qualifications by a client. Also, having an educational qualification does not equate to competence, in itself, no matter what the education evangelists say)
  • Industry experience: Do they know what they are talking about? (This is impossible to verify unless they have worked in an industry for a long time in a prominent role. One could ask for references but the references are always friendly to the adviser)
  • Professional activity: Can the person demonstrate recent professional activity in the relevant OHS field? (Activity does not mean that the quality of that activity was any good. A snake-oil salesman could have been in business for a decade but they still sell snake oil. This is also relevant to the educational evangelists – academic papers in peer-reviewed journals do not indicate competence in advising companies on the best hazard control measures)
  • Reputation: Have they been any good in the past? (This can be indicated by googling their full name. I recently found an OHS adviser with a criminal record and jail time for “failing to act honestly as a director of various companies”. However, an internet campaign can be used to unfairly discredit someone. The best way of checking their reputation is the talk with the adviser’s professional association, should they be in one and should that association know what it’s on about.)
  • Professional association: Do they belong to a relevant professional association? (This is a good move but many associations allow advisers to buy membership without any verification of their competence? The flaw in this criterion is the validity of the association, its disciplinary procedures and its criteria for membership. Do not over-emphasise this criterion)
  • Communication skills: Can they read and write?
  • Technical expertise: Do they know how to use their tools properly?
  • OHS legislative understanding: Do they know there is an OHS law? Have they read it? Do they understand it?
  • Risk management strategies: Does their advice control the hazard or simply reduce its impact?

 But then, this could all be tosh.  Seek a second opinion.

Unions question the targeting and success of graphic WorkSafe ads

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One of the most popular recent postings at SafetyAtWorkBlog has concerned the graphic ads aimed at young workers by WorkSafe Victoria. Last week a safety group meeting was told that WorkSafe focus groups of teenagers had said that to get the attention of young people on workplace safety, advertisements needed to be graphic and confrontational.

However, other young workers tell a different story.  According to the Victorian Trades Hall,

“Feedback from young workers taken recently indicates the message they are taking from the ads is that if you get injured at work it is your fault. They paint a very negative stereotype of young workers.”

Trades Hall also reveals that WorkSafe’s own research does not necessarily fit with some of the current WorkSafe language:

“Research conducted for WorkSafe by Sweeneys in April this year does not demonstrate that young workers are ‘apathetic’. Rather it advises that young workers:

  • lack knowledge of their rights at work, what to do if they got injured, and of IR and OH&S issues;
  • mimic the behaviour and attitudes they observe around them from older workers and supervisors;
  • had a general reluctance to speak up or ask question because they are intimidated and worried about losing their job or think their boss will think they’re stupid;
  • are perceived as apathetic or arrogant by employers, which the research noted was due to young workers being too intimidated and worried about looking stupid to speak up.”
UPDATE: ads are now available through Youtube – nailgun, bakery,    kitchen  
It seems that the WorkSafe Victoria ads are not available on Youtube but the Canadian WSIB ads are.  It is worth reading some of the comments posted under the videos to see what a small section of Youtube viewers, presumably the “Youtube generation” the ads are aimed at, think of the ads.
Given that next week is Safe Work Australia Week and WorkSafe Victoria is likely to promote the young worker ads as a cornerstone of its safety promotions campaign, it is worth trying to listen behind, or between, the good news to determine if the campaign will, in reality, achieve the aims of reducing young worker deaths and injuries.
Recent satirical television shows, such as The Hollowmen, have shown a possible manipulation of focus groups in a similar way that the production of departmental reviews were shown to be politically influenced in Yes Prime Minister.  Focus groups and market research may be the best techniques we have but that doesn’t mean that the findings should be uncritically accepted.

Discrimination and OHS information in languages other than English

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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.