Category: transport

John Holland prosecution

The John Holland Group has featured several times in the SafetyAtWorkBlog in 2009.  Any organisation as large as this Australian conglomerate who promotes their commitment to safety and whose Board Chair, Janet Holmes a Court, has such a high profile is going to draw media scrutiny.  In fact, the evolution of the John Holland safety culture and the struggle to maintain such a culture as a company grows in profitability and complexity would make a fascinating case study.

On 18 December 2009, Comcare released details of its latest successful prosecution of John Holland.  This time the company was fined $A180,000 over the death of a worker, Mark McCallum, at the Dalrymple Bay Coal Terminal in Queensland in May 2008.  According to the media statement:

“Justice Collier stated that “It is clear that, despite the efforts taken by the respondent to implement a safe working environment, the operation involving the transportation unit was flawed in its original conception. The dangers were obvious from the start, relatively simple to avoid, but unrecognised and unaddressed in a manner which raises the objective gravity of the offence in these proceedings towards the higher end of the scale.” [emphasis added]

When a judge determines that the process was flawed from the very start, one’s expertise in managing an established practice safely should be critically reviewed.  Such fundamental failures in a safety management system should cause any company to realise something is wrong in the way it is addressing safety needs, particularly in an economic climate that is bursting with new infrastructure projects for which one is competing.

The circumstances of the fatality are that

“A team of five John Holland workers were involved in moving large precast concrete decks to the end of a jetty under construction.  The precast concrete decks were being transported on two jinkers that were being pushed by a front end loader.  During this procedure, a worker’s foot became trapped under wooden scaffolding planks on the jetty, and he was fatally injured when he was run over by the wheels of the jinker.”

The Federal Court judgement listed the safety deficiencies that John Holland acknowledged

“The respondent acknowledges that:

(a) its work method statement did not adequately identify the risks associated with the relevant work process, and did not adequately identify suitable control measures to remove or minimise those risks; and

(b) it did not carry out a plant hazard assessment with respect to the front and rear jinkers, which may have identified a requirement for a remote braking system or other controls on the jinkers for use by spotters and others; and

(c) it did not have in place a formal system whereby employees were certified as being competent in the use of jinkers; and

(d) it did not have in place a formal protocol or procedure for the use of radios to ensure that the transmitter of a radio message was able to be informed that the message had been received by its intended recipient and understood; and

(e) it did not have sufficient communication mechanisms in place to ensure that employees working out of sight of the loader operator and the rear spotter were able to communicate directly with spotters and the loader operator; and

(f) it did not ensure that an observer of a trainee jinker operator was also issued with a radio to directly communicate with the other members of the transportation crew responsible for the propulsion of the load; and

(g) it did not provide workers who were working out of sight of the loader operator or rear spotter with any form of alarm or safety device, other than a radio to alert other workers of the occurrence of an emergency situation; and

(h) it did not ensure that the clearance of obstacles in the path of the loader was done in a timely or effective manner, thereby requiring the front jinker operator to perform that duty during the progress of the transportation unit and whilst out of the line of sight of the loader operator.”

Mark McCallum’s death gained even greater media attention when unions challenged John Holland’s nomination for a safety award shortly after McCallum’s death.

Kevin Jones

Quad bike safety sensitivities

The quad bike safety issue is hotting up on a range of fronts in Australia with the trade unions taking an active interest,  meetings between bike manufacturers and safety designers, and the SafetyAtWorkBlog email box filling up with background content and opinion.

One of these emails reminded me of some court action that was taken in 2005 by Honda against the Victorian State Coroner, Graeme Johnstone.  Johnstone only recently retired from the position after many years and over that time there were fewer more ardent safety advocates, particularly not any that had the same broad audience and media attention.

In 2005 Johnstone was conducting an inquest into several quad-bike related deaths.  At one point he approached a witness outside of the Coronial process to seek their assistance in a training course.  Representatives from Honda took exception to this and began court action in the Supreme Court of Victoria to have him dismissed from conducting the inquests.

Justice Tim Smith found Johnstone remained open-minded and impartial throughout the inquest but the unreported judgement available online illustrates some of the tensions of the time and continue to exist to this day.

The judgement mentions the purpose of the inquest:

“The major disputed issues in the inquest relevant to the present application were the following:

  • whether the lack of roll-over structures on their ATVs caused the death of Mr Crole and Dr Shephard
  • whether roll-over structures should be installed on ATVs
  • whether the question of the provision of roll-over structures for ATVs should be investigated further.”

In describing the context of Johnstone’s contact with the witness, Dr Raphael Grzebieta, the judgement hints at the Coroner’s inquest findings (which are not available online)

“In addition, notwithstanding Dr Grzebieta’s conclusion that Dr Shepherd and Mr Crole [the deceased] would have been saved by the fitting of the roll bars and that this would be sufficient to justify a recommendation that they be fitted, the coroner expressed a provisional view that:

“My view at the moment is that it does not give me enough to recommend roll-over protection.””

The Victorian Coroner continues to be active in investigating quad-bike related deaths as seen in this newspaper article from earlier in 2009.  A related article quotes John Merritt, WorkSafe’s executive director as saying:

“This inquest came about as a result of a terrible spate of fatalities in the past two years… WorkSafe’s position on this is clear. It believes that a quad bike is like any piece of farming equipment and those who use them need the appropriate training to be able to use them safely.”

If a quad bike is like any other piece of farming equipment, the equipment designers would be reviewing their designs to minimise the risk of injury as the field bin and silo manufacturers have, or the milk vat designers have or the windmill manufacturers have or, indeed , as have the tractor manufacturers who actively promote the safety features of their new tractors.

The unreported Supreme Court judgement provides a good indication of the major players in the quad bike safety discussion, particularly the expert witnesses for and against.

Many of the issues are resurfacing because safety and work practices continue to change and the only satisfactory resolution is when hazards are controlled and harm is reduced and, hopefully, eliminated.  2010 in Australia looks set to be a year when quad bike safety gets a good going over once more.

Kevin Jones

Unique company response to confined space penalty

In 2007, according to the ABC news site,

“42-year-old Geoffrey Johnson [died after he] inhaled toxic fumes from paint stripper when he was cleaning the inside of a large chemical tank”.

On 16 December 2009, his employer, Depot Vic P/L, was fined half a million dollars over this breach of the OHS legislation.

Initial reports say that the company is no longer in business but it

“told the court is had put aside money to pay the fine.”

Wow.  What happened to phoenix companies?  – the business scourge that closes down to avoid paying outstanding debts and, often the costs associated with a worker’s death, and then starts up again under a different structure.

That a company will pay a fine for an OHS breach years after ceasing business seems a remarkable and admirable act.

Hyde Park Tank Depot’s assets were purchased by the Scott Corporation several months after Mr Johnson’s death, according to information SafetyAtWorkBlog obtained from Scott Corporation.  The current business and website listing was not operating at the time of Mr Johnson’s death.

WorkSafe Victoria provided background to Mr Johnson’s death in a prosecution summary in April 2009.  The full summary gives a clear indication why the fine was so high.

“Depot Vic Pty Limited (formerly known as Hyde Park Tank Depot Pty Ltd) undertakes cleaning, repair and maintenance of ISO containers for the chemical industry.  ISO containers are confined spaces, being portable tanks used to transport chemicals.  The tanks are usually cleaned purely by hydro-blasting, but on occasion the tanks were required to be cleaned more thoroughly.

The system of work was such that when this situation occurred, the cleaning of the tank required 2 stages. The first stage involved the application of a cleaning agent, usually a product known as ‘Selleys Renovators Choice’ stripper (which is not a dangerous good).

The second stage then involved the use of hydro-blasting on the internal walls to remove the stripper and clean the wall.  The company’s work instructions required that a confined space permit be issued and that appropriate PPE be worn.

On 16 August 2007, an employee of Depot Vic Pty Limited died whilst attempting to remove latex from the internal walls of a 25,500 litre ISO tank.  The deceased had entered the tank and instead of using the ‘Selleys Renovators Choice’ stripper, had used a product known as ‘Paint Stripper Gel GS 125’ that was suited to clean external components only (and not the inside of the tank).  The label of this product contained safety directions such as “do not breathe vapour” and “use only in a well ventilated area”.  This product is a dangerous good ‘class 6.1 (toxic substance) of packing group 111’.  It is also a hazardous substance according to the criteria of the Australian Safety and Compensation Council.

The deceased was located in the tank in an unconcious (sic) state, and when retrieved from the tank did not regain conciousness. An expert analysis of the atmosphere inside the tank concluded that that (sic) there was a lethal concentration in all or part of the tank (10 litres of the dangerous good was used).  At the time of the incident a confined space permit was not issued, the deceased was not wearing respiratory protection, gloves or a harness, and there was no ‘spotter’ in place to supervise the latex removal works.

Further, there was a lack of training and supervision of employees in relation to the work procedures for confined space entry.”

Kevin Jones

Workplace skin cancer risk remains high

The July 2004 edition of SafetyATWORK magazine contained an interview with Sam Holt the CEO of Australian company Skin Patrol.  The fascinating service of Skin Patrol was that they travelled the outback of Australia with a mobile skin cancer testing unit.  That is a big area to cover but with the increasing incidence of skin cancer and the acceptance of ultraviolet exposure as an OHS problem, the service seemed timely.

(The interview is available HERE)

SafetyAtWorkBlog was contacted by Skin Patrol in early December 2009 as it was releasing the findings of a survey of 1,000 outdoor workers.  Its survey has these key findings:

  • 2.5 times the national reported incidence of malignant melanoma
  • One in 10 patients had a lesion highly suspicious of skin cancer
  • 26% of patients were diagnosed with moderate to severe sun damage
  • 70% of patients diagnosed with a lesion suspicious of skin cancer were aged 40 years or greater
  • Over 90% of workers who attended the Skin Patrol clinic because they were worried about a particular spot or the condition of their skin had not had their skin checked in the past 12 months prior to the onsite clinic.

The company’s media release also states:

“The incidence of melanoma for all Australians currently sits at 46 in 100,000, however for those that work outdoors that figure jumps to 100 in 100,000.”

The risks from exposure to ultraviolet are well established and our understanding of the risks have changed considerably within one generation.  The Australian culture has changed to one of sun-worshipping to one where the wearing of hats is enforced at school, hard hats have wide brim attachments, and outdoor work is undertaken in long pants and long-sleeved shirts.  Occupational control measures have been introduced.

Of course, particularly in the construction industry, principle contractors still struggle in a getting compliance with the UV-protection policies but that’s the case for many OHS policies.

Skin cancer risks through high UV exposure are well-established OHS Issues but the reality still does not mean that controlling the hazard is easy to manage.  Culturally we still want to have a tanned complexion even if it is sprayed on.  Tanned skin is still synonymous with good health even though the medical evidence differs.

Skin cancer risks in the workplace are simply another of those workplace hazards that are ahead of the non-workplace culture and that safety professionals need to manage.  The attraction with this hazard is that there is no disputing the evidence.

Kevin Jones

The Senate inquiry into Australia Post should provide important lessons in OHS, HR, RTW and LTIFR

For decades OHS professionals have known that the Lost Time Injury Frequency Rate (LTIFR) does not accurately measure the safety performance of an organisation.  LTIFR can be manipulated and is responsive to single catastrophic events.  The consensus has always been that LTIFR is one indicator of safety improvement but should not be relied upon at that same time as acknowledging there is no real alternative to the LTIFR.

From an Australian Senate inquiry that is currently running and sparked, to some extent, from an ABC current affairs report in September 2009, it seems that the Australian postal service, Australia Post, is doing just that.

One of the attractive managerial elements of LTIFR is that it provides a figure from which incentives and rewards can be provided.  This is attractive to both OHS managers and employers because LTIFR provides a tangible benchmark.

Safety incentives and rewards have been contentious for decades but have come to the fore in this inquiry due to this type of accusation from one of the Australian trade unions, the CEPU ( Communications, Electrical and Plumbing Union):

Australia Post boasts that Lost Time Injury records are the lowest they’ve ever been. But those results haven’t been achieved by a safer workplace – rather by manipulating the injury management process to force people back to work and deny employees their rights.

Meanwhile, the same managers receive cash bonuses for reducing Lost Time Injuries in their sections.

The CEPU has documented extensive abuse of the injury management process.

Facility Nominated Doctors

Workers are being bullied into attending company-paid Facility Nominated Doctors.

FNDs are instructed to get people eligible for workers compensation straight back to work, before they’ve had to time to recover.

Australia Post has a commercial contract with InjuryNET, a private organisation, which gives Post access to a network of doctors.

InjuryNET guarantees it will reduce Lost Time Injury rates, lost hours and duration until return to pre-injury duties.

Where workers are not eligible for workers compensation, company doctors are instructed to find them unfit for duties, so Australia Post can direct them off work without pay, or sack them.

The CEPU has obtained email evidence that managers use the injury management process to get rid of ‘undesireable’ (sic) employees.

This is the language Australia Post management uses to describe injured workers.

Many of the attachment the CEPU has provided to the Senate Inquiry are not being publicly released because they include details of many cases of alleged mismanagement.  The CEPU has posted an example of Australia Post’s approach to injured workers on Youtube.

The Australian Government responded to pressure from unions and elsewhere and established the Senate inquiry with the following terms of reference.

“The practices and procedures of Australia Post over the past three years in relation to the treatment of injured and ill workers, including but not limited to:

  1. allegations that injured staff have been forced back to work in inappropriate duties before they have recovered from workplace injuries:
  2. the desirability of salary bonus policies that reward managers based on lost time injury management and the extent to which this policy may impact on return to work recommendations of managers to achieve bonus targets:
  3. the commercial arrangements that exist between Australia Post and InjuryNet and the quality of the service provided by the organisation:
  4. allegations of Compensation Delegates using fitness for duty assessments from Facility Nominated doctors to justify refusal of compensation claims and whether the practice is in breach of the Privacy Act 1988 and Comcare policies:
  5. allegations that Australia Post has no legal authority to demand medical assessments of injured workers when they are clearly workers’ compensation matters:
  6. the frequency of referrals to InjuryNet Doctors and the policies and circumstances behind the practices:
  7. the comparison of outcomes arising from circumstances when an injured worker attends a facility nominated doctor, their own doctor and when an employee attends both, the practices in place to manage conflicting medical recommendations in the workplace; and
  8. any related matters.”

Some submissions to the inquiry have been made publicly available, including a submission by Australia Post.  The company responds to each of the allegations included in the terms of reference.   A frequent response from Australia Post is that its actions do not breach the law be it privacy legislation, workers’ compensation or its own policies.  This defence is common for companies and organisations but it is often contrary to many of the arguments from the workers.

In the video above Brett Griffin describes the treatment from his managers at Australia Post as “wrong”.  It may be wrong but is it illegal?  This is the question that most Courts and judges face.

However this inquiry ends, the management of its employees seems not to have been to an acceptable level.  The safety and HR Management system seems not to have been working properly.  The evidence for this is the number of disgruntled employees and ex-workers and the existence of the Senate inquiry.

Clearly Australia Post’s conduct was not “best practice”.   In the company’s recently released annual Corporate Responsibility Report it says this under the section for People Management:

“The effective management of our human resources is, therefore, of vital importance to our brand strength, community engagement, service performance and financial returns. Over several decades, we have developed a set of policies and programs that are designed to protect and reward our people – including progressive industrial relations policies; proactive management of occupational health and safety; continuation of our successful injury management, rehabilitation and return-to-work programs; a strong commitment to diversity; structured workplace learning; and effective grievance procedures.”

RTWMatters said in an article on its website (subscriber access only) in late September 2009 this about Australia Post:

“Some of our team have had first-hand experience with Australia Post’s return to work. In the select number of cases they have dealt with the Australia Post system has been found to be frustrating and seemingly lacking in genuine interest in the employee. Perhaps our team has seen only isolated examples, not representative of the general approach – if so our opinion may be swayed by the appropriate data. Our experience is that the Australia Post system focuses on ‘process before people’.”

The “Senate Inquiry into Australia Post’s treatment of injured and ill workers” will undoubtedly provide important lessons that will be relevant globally on safety incentives, LTIFRs, return-to-work practices in a large organisation, rehabilitation provider conduct, and, most importantly, how to manage injured staff.  What should not be lost in any inquiry of this type is that the inquiry exists because people have been hurt and, they feel, unfairly treated.

Kevin Jones

[Kevin Jones is a feature writer for RTWMatters]

All non-confidential  submissions can be accessed as they are uploaded at http://www.aph.gov.au/senate/committee/eca_ctte/aust_post/submissions.htm

Big fine for Queensland Rail – big risks in rail

Almost two years ago, two rail workers died in Queensland.  According to the official report into the  incident:

“At approximately 1056 on Friday 7 December 2007, two QR [Queensland Rail] Infrastructure Services Group (ISG) track workers were fatally injured as a consequence of being struck by a track machine (train) at Mindi, approximately 130 kilometres south-west of Mackay.

The collision occurred when Track Machine MMA59, in the process of conducting track resurfacing work on the Down line at Mindi, commenced a routine reversing movement.

During the process, two QR Systems Maintenance personnel, working on the same track and behind the track machine, were struck and fatally injured by this track machine.

Analysis of evidence and conditions surrounding the accident revealed:

  • An overall lack of compliance with elements of the QR SMS at the Mindi site; and
  • Inadequate communication and coordination between workgroups at the Mindi site.”

On 26 November 2009, Queensland Rail was fined $A650,000 over the deaths.  The fine is only $A100,000 below the maximum fine applicable.  According to a media release about the fine:

“The Workplace Health and Safety Queensland investigation found that QR’s safety management systems were inadequate for managing the separation of workers and plant, particularly when both were within the same section of track between signals.

It also found that QR knew the systems were inadequate and not working because it had been highlighted to management in a series of audits.”

Not only were Queensland Rail’s safety management systems inadequate, Queensland Rail knew they were inadequate because a series of audits had told it so.

Railway in Australia and elsewhere is one of the most regulated industries.  It is also one of the industries with the most prescriptive set of rules.  It is a complicated business but one where hazards are known and systems are in place to control these hazards.

The extent of QR’s failure to operate safely can be illustrated by some of the many recommendations made in 2008 by Queensland Transport:

  • The necessity for consistent and effective Worksite Safety Briefings by ISG personnel;
  • Preconditions to the reversal of vehicles in accordance with QR safeworking requirements;
  • Responsibilities and training syllabi for ISG Resurfacing personnel;
  • The necessity for pre-departure safety checks on ISG trains;
  • Provision of safe separation and segregation between ISG track workers and trains;
  • ISG SMS compliance monitoring, at the local level;
  • Fatigue management within QR, and in particular ISG rostering;
  • Management of the perceived relationship between ISG and Network Control;
  • Awareness of the priority of safety over commercial pressures by remote ISG staff;
  • Distribution of safety communications and documents within QR;
  • Representation for relevant stakeholders in operational change management processes;
  • Risk and change management training for ISG operational personnel;
  • Safety risks presented to ISG through the permanent coupling of track machines;
  • The safety value to QR of an enhanced and transparent reporting system;
  • The management of ISG district staff relationship issues; and
  • ISG and Network Access radio protocol compliance monitoring.

Many elements are familiar to other investigations in rail and other industries – fatigue, on-site communication, training, segregation, document control and distribution, local compliance enforcement, transparency in reporting…..

On 10 September 2008, the QR CEO Lance Hockridge said:

“When I arrived in November 2007, I found an organisation with a safety record that was improving but not what it should be.  Only three weeks later we had a very tragic reminder of this when work colleagues Jamie Adams and Gary Watkins were killed at Mindi.

“Organisations hoping to achieve meaningful change must firstly be honest with themselves – we need to confront this reality and make the changes required.”

Queensland Rail did not face the reality of problems identified by safety auditors and two workers died.

The news of the record fine came at a time when the ownership of  Victoria’s metropolitan rail network has changed from Connex to Metro.  Victoria has a stressed rail service but has managed to avoid the controversy of  Queensland Rail and RailCorp in New South Wales but this has been through luck rather than good management.  The Victorian Government, and particularly the Transport Minister, Lynne Kosky, needs to read the Waterfall Inquiry report and the Queensland Mindi report to understand the personal, economic and political cost of not having a tightly managed, functional rail safety regime.  Having been in power for just over 10 years, this government now owns all the Victorian problems and must account to the electorate for not fixing them.

The political risk was summarized in an editorial in The Age on 30 November 2009

“In September, a Senate report into federal funding of public transport found Melbourne’s network was badly managed in comparison with Perth’s government-operated system.  A key problem was lack of accountability: it was unclear who was in charge.  The consequences of the lack of an overarching transit authority to oversee the whole system are clear…..

New operators of trains and trams in new livery will struggle to deliver acceptable service unless the Government makes good its past neglect of infrastructure.”

The fact that the Victorian rail system is being privately operated will not be an acceptable shield when the first passenger train crashes with a jam-packed peak hour cargo.

Kevin Jones

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