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.

Using workers compensation claims as exit strategies

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There have been two instances in Australia in the last week where workers compensation claims have made the news. The first was in relation to the suicide attempt by Tasmanian politician, Paula Wriedt.  She has revealed that after the break-up of her marriage she had an affair with one of the government chauffeurs, Ben Chaffey.

According to one media report, Chaffey has argued

“that his employment became untenable as a result of the relationship and his employer’s response to it.  He is seeking a severance payment thought to be about $A140,000 to compensate for this, and for stress and harm suffered.”

It is also reported that he has been on “stress leave” for several months.

The other case involves unfair dismissal action being taken by public transport ticket inspector, Glenn Hoyne in the Australian Industrial Relations Commission (AIRC) against his dismissal by Connex.  Hoyne made accusations on a Melbourne talkback radio show about Connex setting quotas for issuing ticket infringement notices and that inspecting was a revenue-raising exercise only.

Connex investigated the claims and described the allegations as “bribery, blackmail or extortion”.

Hoyne took leave in December 2007 and submitted a workers compensation claim due to work-related stress.  The situation was clearly tense.

The AIRC Deputy President, Brian Lacy, described Hoyne’s actions as not a threat to Connex but

“some sort of industrial claim, albeit misguided, for a severance payment.”

These two cases illustrate how murky human relations, and human resources, can be.  Both parties are seeking recompense for actions that are work-related and both actions will result in a resolution.  But neither will generate any real preventive action.  One claim has been described as a pitch for a severance payout and the other is stress from a broken work-related relationship and the employer’s response to a sexual relationship.

When did people begin to expect a monetary payout above their entitlements for leaving a job that they didn’t like or for when a relationship with a work colleague ended?

A law firm newsletter from 2005 reported on a case of a stress claim, which may provide a counterpoint to the situations above:

“The employee claimed, and was successful in establishing that his stress was directly caused by his employer’s failure to keep him informed of changes in the workplace. In essence, the prospect of redundancy was seen as a sufficient causative factor in the employee’s work related injury.”

The newsletter goes on to advise

“employers must assess the circumstances and sensitivities of individual workers when making management decisions in order to avoid stress claims being made or where claims are made, to avoid liability for such claims.”

Maybe this is the only safety management lesson we can learn from the unhappy ticket inspector and the stressed-out chauffeur, manage your people well.

Irrational decision-making

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Occupational health and safety often gets sidetracked from the main issue of preventing injury and illness at work.   I often hear employers, particularly in small business, complaining that their workers continue to do the wrong thing even though the employers have done everything they can think of.  

Sometimes an approach is offered that seems like a quick-fix to all the safety problems.  The one that always annoys me is behavioural-based safety.  BBS is like the Hydra and reappears regularly in different guises and with different jargon.

A podcast crossed my desktop this morning that provides a different perspective on “why rational people make irrational decisions”.  

The podcast illustrates the conflicts in trying to make the right decision by discussing the decision of a pilot in the Canary Islands who caused a major crash.  The pilot was also the head of safety at KLM Airlines.

The podcast does not focus on workplace safety but the discussion is probably the better for it.

Don’t rely on alarms

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The Australian media has been following the investigation into the crash of a light aircraft that was travelling to Benalla on July 28, 2004.  There was a report on 5 August about a family who will be suing Queensland Rail over the serious bashing of a relative.  Different stories, different states, different modes of transport, but both stories of sadness.

Both stories illustrate an important reminder for the management of safety in workplaces and in public – alarms are there for a reason.

According to media, Barbara Lillicrap, the widow of bashing victim, Scott Lillicrap, said witnesses had pushed the emergency button at the station at least three times, but rail officers believed it to be a prank and ignored it.

A newspaper report says that air traffic controller Stuart Hodge said that an alert was sounded when the plane veered off course before approaching Benalla Airport.  Mr Hodge said false alarms were common and there was a culture among air traffic controllers to ignore them.

These two reports also need to remind safety professionals that alarms are simply audible signs to which people need to respond, or at least acknowledge.  An ignored sign is a useless control measure and if this is likely to occur, then a higher order of control measure needs to be implemented to control the hazard.

(Don’t get me started on signs at level crossings!)

Inquiry into health impacts of maintaining jet-fighter fuel tanks

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Earlier this century the Australian Defence Force established the F-111 Deseal-Reseal Health Care Scheme to compensate workers who may have been affected through exposure to chemicals while cleaning F111 fighter aircraft between 1977 and the late 1990s.

A parliamentary inquiry has been established to further investigate the issue of compensation. In the 29 July 2008 edition of The Australian newspaper details of the work exposures have been restated.

“More than 800 RAAF personnel were forced to do the work on the fuel tanks, removing old sealant using chemicals.

The work was done because of a basic flaw in the design of the aircraft — their fuel tanks did not include a bladder, and the sealant used on rivets to stop leaking had to be replaced at regular intervals.”

Details of the impact of this work on workers and their families have also been restated. Ian Fraser, Queensland president of the F-111 Deseal-Reseal support group has said that

“former workers now suffer temper swings, drug abuse and broken marriages — and some had committed suicide.

A significant number have died from cancer, which Mr Fraser’s organisation says is directly attributable to them being made to work with the chemicals — particularly one known as SR51.”

Those OHS professionals who have read Professor Andrew Hopkins’ book “Safety, Risk and Culture” should be familiar with the case as Hopkins investigated the issue and devoted a chapter to his book on the F111 Deseal/Reseal process.  A review of the Hopkins book is available online as is a useful article by Hopkins on safety culture.

It is worth remembering that exposure to chemicals and inadequate protection is not something from the developing nations or from Western industrial history.  These workers faced unacceptable risks within the last twenty years.