Restorative Justice and workplace fatalities – Part 1

The city in which SafetyAtWorkBlog is edited, Melbourne, is struggling to manage a spate of street violence – some racially-based, a lot influenced by alcohol and drugs.  The Age newspaper carried a feature article on 25 August 2009 discussing the concept of “restorative justice”, a concept that is barely known outside of some legal or civil liberties areas, in relation to handling offenders and victims of street violence.

Pages from RJ_and_Work-Related_Death_Consultation_ReportOnly last week, there was an important launch of a research report into the application of restorative justice for those affected by workplace fatalities.  It is a fascinating new area of application for restorative justice in Australia and one that seems a more natural fit than for the more common acts of violence.

The research project builds on a lot of the work already undertaken into workplace fatalities by the Creative Ministries Network. Their research, mentioned in the project report, has shown

“…that families and company directors, managers and workers grieving a traumatic death suffer more prolonged and complicated grief due to delays in legal proceedings, public disclosure of personal information, lack of information, and increased stress from involvement in the prosecution process and coronial and other litigated processes.”

Over the next few days SafetyAtWorkBlog will run a series of articles on the concept and its application as well as being able to make available copies of the research reports and transcripts of interviews with research participants.

As SafetyAtWorkBlog has no legal expertise restorative justice needed some investigation.  Below are some useful definitions and descriptions:

Restorative justice is a theory of justice that relies on reconciliation rather than punishment. The theory relies on the idea that a well-functioning society operates with a balance of rights and responsibilities. When an incident occurs which upsets that balance, methods must be found to restore the balance, so that members of the community, the victim, and offender, can come to terms with the incident and carry on with their lives.”

Restorative justice brings victims, offenders and communities together to decide on a response to a particular crime. It’s about putting victims’ needs at the centre of the criminal justice system and finding positive solutions to crime by encouraging offenders to face up to their actions.”

“The term “restorative justice” is often used to describe many different practices that occur at various stages of the criminal justice system including:

  • Diversion from court prosecution (i.e. to a separate process for determining justice);
  • Actions taken in parallel with court decisions (e.g. referral to health, education and employment assessment, etc.); and
  • Meetings between victims and offenders at any stage of the criminal process (e.g. arrest, pres-sentence and prison release.”

[Of course, one can also read the Wikipedia entry)

The intention of restorative justice has more often been to reduce the likelihood of a re-offence.  The application of restorative justice for workplace fatalities seems to be slightly different.  In America, it would be difficult to avoid using the word “closure” (a phrase SafetyAtWorkBlog refuses to use as there is never a close to grief, only a way of living with it) as one of the aims of the workplace fatality application.

There are many effects of a workplace fatality on executives and companies.  It is hard to imagine a company that, after one fatality, would not do all it could to avoid another.  Restorative justice has the potential to heal the surviving victims – family and company.  It can also reduce the animosity that often results from the traditional adversarial justice system, particularly for those participants who may not have been exposed to such processes before.

Kevin Jones

US workplace fatality statistics – 2008

Preliminary data on workplace fatalities was released recently by the Census of Fatal Occupational Injuries (CFOI) program in the United States.  Economic pressures have reduced the size of the workforce which, the data indicates, decreased fatalities.  Good news in one way but only status quo if one is looking at long-term trends or for some benefit from government workplace safety initiatives.

Benchmarking and statistics junkies will be able to extract a great deal of information from the preliminary data.  The chart below is a good example of the level of detail available.

cfch0007 chart

There was a passing mention in the media release which caught our attention – workplace suicides.  The media release states:

“Workplace suicides were up 28 percent to a series high of 251 cases in 2008, but workplace homicides declined 18 percent in 2008……

Workplace suicides rose from 196 cases in 2007 to 251 cases in 2008, an increase of 28 percent and the highest number ever reported by the fatality census. Suicides among protective service occupations rose from 14 in 2007 to 25 in 2008.”

Regular SafetyAtWorkBlog readers will understand that work-related suicides is an area that we consider under-researched, so the figures quoted are of particular interest although only a minor part of the statistical report.  It would be great if the Bureau of Labor Statistics revisited its 2004 analysis of workpalce suicides in light of this considerable statistical increase.

Kevin Jones

Public Comments – Fishing and Legionnaire’s

WorkSafe Western Australia has two documents currently open for public comment.   One concerns a draft code of practice  for the prevention of falls from commercial fishing vessels.  The other may have a wider appeal as it is a draft code of practice for the prevention and control of Legionnaires’ disease.

man_overboard coverThe man overboard code is an example of established hazard management and risk control options for a niche hazard in a niche working environment, however, it is often in these areas where procedural and technical processes are most easily recognised.  The draft code is in a format, and has a degree of clarity, that encourages discussion and examination.

Readers may find some useful information for those workers who work alone or in isolation, for those who need to undertake tasks at nighttime and in intense darkness, and for those workplaces that require a strict induction for new workers.

LEGIONNAIRES__Public_comment coverSimilarly, the Legionnaire’s code of practice builds on established risk management concepts and shows that businesses still need to prevent legionnaire’s infections even if there is a regulatory/licensing system in place for cooling towers.

On a formatting note, both these draft codes could have benefited from the regulators embracing more of the Web 2.0 concepts.  The PDF files do have some hyperlinks for some more information or emails but there could be a lot more effort put in to making the drafts a hub for the documents’ references.  For instance, mentions of legislation could lead to online versions so that those commenting online can flick back and forth from reference to topic.

[Just imagine how much more helpful a code of practice with such functionality could be to a small business – wiki + blog+ safety = better compliance]

In the Legionnaire’s draft there are tags on page 36 that could lead to the online text of the Acts referred to.  The tags are a good idea but could use increased functionality.

Lastly, the Legionnaire’s code references eight Australian Standards and publications.  It is a reasonable expectation that, for this hazard, industry submissions will be the majority and those parties already have the Standards.  However, if a broad consultation is required, many interested parties may find purchasing these Standards a substantial cost burden,  which SafetyAtWorkBlog calculated to be at least $A390 for the PDF versions.

Kevin Jones

More thoughts on Standards

Australian Standards have two, almost, distinct categories of standards – technical and management.   A safety colleague reminded me of the distinction recently, a distinction that greatly helps the debate of Australian Standards’ authority.

Perhaps there continues to be a role for some Standards, such as construction-related standards, that deal specifically with the environmental climate and peculiarities of Australia.  Bushfire-rated housing is an example that comes readily to mind.

My colleague also pointed out that as Australia has stopped manufacturing many articles of plant, the importation of plant from Asia and Europe has increased.   In the government’s chase for the reduction in red tape, the need to re-engineer, in some cases, plant to local regulatory standards that “mirror” European standards seems to be an easy target for reform.

The previous article on standards should, perhaps, have ended questioning the management standards as these standards are those most readily supplanted by internationals – the ISOs and the BS.   The challenge for Standards Australia is that thes Australian versions of the management standards are their biggest sellers.

Kevin Jones

Uncovered holes

Recently SafetyAtWorkBlog reported on a new WorkSafe Victoria guidance on guarding cellar doors.  Comcare has started legal action against a company a similar hazard but one located in public.

Comcare has instigated proceedings against Australia’s leading telecommunications company, Telstra, for an unguarded pit in a public area.  According to the media release dated 19 August 2009,

“The proceedings arise from an incident on 31 January 2008 when two Telstra sub-contractors opened an access pit while conducting work.  The pit is located on a pathway between a train station in Brisbane and the office of an organisation that provides services to persons with impaired vision.  While the access pit was allegedly left open and unguarded, a member of the public, with a vision impairment, fell into the pit and sustained a serious personal injury.

The maximum pecuniary penalty for a breach of s17 of the Act by a body corporate is $242,000.”

This is not a new hazard and open telecommunications pits have been guarded for decades, often with canvas to provide weather protection for workers.   We’ll report on the judgement when it is handed down.

Kevin Jones

The future for Standards Australia will be hard

SafetyAtWorkBlog has written elsewhere of how the global financial crisis has caused OHS related programs to be revised.  The latest bulletin from Standards Australia indicates the impact of the financial pressures on its plans and the reduction in the value of their investments has come at a time of other worrisome changes.

(In this article there is a focus on the safety-related Australian Standards.)

Bulletin_1_Standards_Australia_170809_Page_1According to the 17 August 2009 bulletin, Standards Australia has lost $A70 million from its investment portfolio since November 2007.  This has caused it to introduce a “New Business Model”  which reduces Standards Australia’s operating costs and also increases the costs to many of the voluntary participants on committees that develop Australian Standards through the new consultative strategies.

Hopefully during the period of reflection caused by the financial threats, Standards Australia should have considered whether it is worth continuing, at all.

Following are some ruminations about safety-related Standards and their applicability.  These may be relevant to quality, risk and environmental Standards, also.

  • Australia is a very small market for Standards compared to Europe and the United States, in particular.
  • The management professions are becoming more globalised.
  • Manufacturing is becoming more globalised.
  • Europe can draw upon a broader range of expertise in the development of management standards, than can Australia.
  • Several International Standards could be applied in Australia allowing for an international “compliance”.  Some Standards are already in place and promoted by companies as somehow more legitimate that the Australian Standards.
  • Safe Work Australia has informed SafetyAtWorkBlog that:

“The application and use of Australian Standards in model OHS regulations has not yet been decided and will be considered by the Safe Work Australia Council’s Strategic Issues Group”

  • SafetyAtWorkBlog has heard from a South Australian colleague that SafeWorkSA is considering replacing OHS Standards referenced in legislation with codes of practice. (SafetyAtWorkBlog has sought confirmation of this from SafeWorkSA)
  • Australian Standards can be expensive for small businesses, who may have the greatest need for OHS management standards, whereas government publications, such as Codes of Practice are generally free.

Australian Standards are important for many industries, particularly, those that are required to be audited and/or accredited.  Needless to say there is a considerable secondary industry of auditors for these sectors.

All Australian Standards are only guidelines but many have been granted legislative clout by being referenced in law.  As mentioned above a considerable industry has developed in support, providing some legitimacy to the guidelines through weight of numbers.

Safe Work Australia recognised the important role of Australian Standards, but with several qualifications:

“The COAG [Council of Australian Governments] Guidelines recognise that the use of prescriptive requirements, such as those in Australian Standards, while not preferable, may be unavoidable in order to ensure safety.”

Standards Australia must have realised by now that the days of automatic legitimacy through referencing in legislation may be numbered for many of their Standards .  Their previous operating model has had to be thoroughly revised, government and business are fierce on reducing red tape, international standards have been developed that can be applied in Australia, and contributing organisations are reviewing their own costs of participation.

In fact so keen is the government on the reduction of red tape that it established an Office of Best Practice Regulation in the Department of Finance.  On Finance’s website is a clear statement of aim:

“The Government has committed to reducing the regulatory burden on Australian businesses, non-profit organisations and consumers.  This is consistent with larger commitments to address impediments to Australia’s long-term productivity growth.”

Employer groups have identified industrial relations and OHS requirements as “impediments”.

There is no doubt that in many circumstances technical standards are essential reference documents for improving safety, in particular, and for showing that workplace safety is being managed in a systematic and verifiable manner.  The big question is whether those technical standards should be those produced by Standards Australia.

Kevin Jones

From worker safety to patient safety

Many of us grew up under the “shadow of the mushroom cloud” and have strong suspicions towards radiation of any kind but the OHS achievements of those working with radiation should be acknowledged.

In the latest edition of the IAEA Bulletin (May 2009) this achievement is clearly summarised as it relates to those in medical radiation.

IAEA Mag 001The early emphasis on staff protection did pay rich dividends in terms of making staff safer.  Currently, most (nearly 98%) of those who work with ionizing radiation in any area of medical practice receive a radiation dose that is lower than what they get from natural radiation sources — the so-called background radiation, e.g., cosmic radiation, radon, radiation from building material, earth, food, etc.  Background radiation depends on the place you live, but typically is 1 mSv to 3 mSv per year, although in some places can be up to 10 mSv.  The dose limit for staff currently recommended by the International Commission on Radiological Protection (ICRP), and adopted by the IAEA and most countries with few exceptions, is 20 mSv/year, expressed as 100mSv over a period of five years.  Such has been the success of occupational radiation protection programmes that not even 0.5% of staff members who work in medical facilities (or in any nuclear facility) reach or exceed the dose limit.”

The siginifcance of the article from which this paragraph is taken comes from the next sentence:

“Since there are no dose limits for patients, many may incorrectly assume that there are no controls on patient exposure.”

The article by Madan M Rehani, and thankfully available online, discusses the possibility of introducing an ongoing monitoring system that records the cumulative exposure to radiation by patients.  The smart card project launched by the International Atomic Energy Agency will be one to watch as there could be applications of such a system to other occupations and work-related hazards.

The importance of such a program is high as Rehani writes:

“The risk of cancer from radiation doses imparted through a number of CT scans is not insignificant.  Most other radiation effects (such as skin injury, just to name one) can be avoided rather effectively, but this is not true for the risk of cancer.  There are estimates of few million excess cancers in the USA over the next two to three decades from about 60 million CT scans done annually.”

Kevin Jones

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