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Role of OHS Inspectors

There have been several incidents recently that illustrate the unenviable pressures on inspectors and Australian OHS regulators.

The Tasmanian Coroner found that the mining inspectorate of Workplace Standards Tasmania was “inadequate” and incapable of  “of carrying out its core function of inspecting and enforcing best safety practices within the mining industry.”  Two inspectors for that State’s mining sector- a sector that in 2007/08 was 621 mining leases strong, according to the Annual Report of Mineral Resources Tasmania.

The construction union (CFMEU) in Victoria was highly critical of WorkSafe Victoria following a scaffolding collapse in a main street of the suburb, Prahran.  A similar event occurred in Sydney a couple of days later.

However, OHS legislation clearly states the employer is responsible for safety in workplaces, as WorkSafe reiterated in a press statement.  TV an press reports did not quote the construction union official criticising the construction company or project manager for having the scaffold collapse on their worksite.

(The CFMEU provides a scaffolding checklist on its website.)

In the scaffolding situation a union criticising the OHS regulator is a peculiar distraction from the obvious failure of the organisation that has control of the worksite, the employer.  In the Beaconsfield case, the distraction is just as effective and allows the employer to feel that less attention, less criticism, equates to the incident or the fatality being considered of a lesser significance.

The days of government certification for scaffolding, boilers & Pressure vessels, and a raft of other work items disappeared almost twenty years ago in many Australian States.  One of the reasons this occurred was that regulators realised that by certifying something, by granting official approval, the regulator took on some of the responsibility for the work item.  Most regulators, with government support, realised that it was in their interest to re-emphasise the employers’ legislative obligations that had existed in law for some time.

One does not need to physically visit worksites to encourage “best practice”.  No inspectorate would expect every workplace to be visited by inspectors but high-risk workplaces, such as mines, may have this expectation.  

It seems increasingly popular for the OHS inspectorate to be called in early on high hazard organisations (HHO) projects. (HHO is a concept most recently discussed by Jan Hayes and discussed elsewhere in the works of  Professor Andrew Hopkins)  This enables projects to meet high safety standards in the planning stage.

OHS regulators have a delicate balancing act between consultation and enforcement.  This is a balance that is constantly being tweaked as political, economic and social pressures fluctuate.  The process is not helped b y fingers being pointed in the wrong directions.

Kevin Jones

[NOTE:Professor Michael Quinlan  of  UNSW, Middlesex University and University of Sydney) will be a keynote speaker at the upcoming   Safety in Action 2009 Conference on 2 April 2009 concerning the results of a five-year research report into what OHS Inspectors do and the implications for employers and safety professionals.]

Video of Level Crossing Survivor

The Australian Broadcasting Corporation has shown a remarkable video of a Turkish man who was involved in a level crossing incident and survived.  

Initially it is difficult to identify the man from the aerial perspective but the side view shows clearly how lucky the man is.

It is not the policy of SafetyAtWorkBlog to show gratuitous videos with no point.  That is a role, it seems, for the internet generally.  However this video has instructional uses beyond the “gosh” factor.

It is worth looking at the video and considering the following issues

  • Rail location
  • Visibility of truck driver
  • Isolation of pedestrians from rail and vehicular traffic
  • Signage

There are many other issues that could be pertinent but are not identified in the video, such as administrative policies, compliance, even behavioural safety.

In this instance it is highly unlikely that the worker complementing the hard hat with a high visibility vest would have made much difference to the outcome.  But then an unfastened vest may have presented its own non-visibility hazard as a catch point for the wheel structure of the truck as it passed over him.

Please note that it is his survival which makes this video of interest but there are clear safety improvements to be made.

Two different approaches to risk management and safety in Australia

Australian Standards can have a major role to play in the management of safety in workplaces.  They apply to equipment, documents, decisions and can have legislative credibility if required by specific regulations.  Australian Standards are regularly referred to in guidances issued by OHS regulators adding further credibility.  The highest selling standard for many years has been Risk Management.

Unreasonable safety costs

One of SafetyAtWorkBlog’s long-held peeves needs to be stated here.  The standards are produced by a private company, Standards Australia.  The standards are only available for sale.  Small business, in particular, often baulks at OHS improvements because they see OHS management as a large cost for a small return, in a risk management context.  But the standards they need to satisfy regulatory compliance can only to be purchased.

If the Australian government is serious about easing the cost of regulatory compliance, make any Australian Standard that is mentioned in legislation available for free.

But government’s are only interested in reducing indirect OHS costs through paperwork and “red tape”, and OHS compliance requires some level of documentation.

Risk Management

Two important OHS documents that discuss risk management were released within weeks of each other.  First the Australian government released the second and final report of the Review into National Model OHS Laws (OHS Report).  The other report was the findings of the Tasmanian Coroner into the death of Larry Knight.  

The Coroner’s report was highly critical of the Beaconsfield mine’s (BGM) risk management process.

“BGM submits that there has been adequate documentation of its risk management…… I do not accept BGM’s submission” (pages 68-69)

The Coroner goes on to say

“…., the evidence is unclear upon the steps taken by BGM, prior to this decision, in its evaluation of those risks identified by its own risk analysis process. To illustrate:

  • There is no evidence to explain the decision to resume mining in contradiction of Mr Gill’s memorandum which had stipulated that forward modelling be completed beforehand.
  • Mr Gill had, in his memorandum posed the questions, “Are our current ground support standards sufficient for the seismicity being experienced?, and if they aren’t, “What is required?” However, there is not any evidence of BGM having undertaking an assessment of the sufficiency of its ground support standards so that these questions could be answered nor is there any record evidencing why the decision was taken to resume mining without these questions being addressed.
  • Dr Sharrock had identified an important depth of failure issue which Mr Gill acknowledged was raised by him at his close-out meeting yet there is no evidence to explain the evaluation of this concern by BGM and the basis for its rejection.
  • There does not appear to be any evidence of BMG having considered the reevaluation of its ground support after Mr Basson’s modelling results became available although this had been advised by Mr Turner.”  (pages 66-67, my emphasis)

The coroner’s report is full of this type of comment of an inadequate risk management and assessment process.

Reading the report in full generates a big question of how can a company be so deficient in its safety management system and still not be held responsible for the consequences of its actions?

The company remains belligerent  in its defence of the very risk assessment process that the Coroner slammed.  In a media statement, CEO Bill Colvin states

“…the company is disappointed at the lack of acknowledgement of the extensive risk assessment process undertaken by the Beaconsfield Gold mine following the October 2005 rock fall.

“Contrary to comments made by the Coroner, there was rigorous risk assessment, the mine did vary its ground support system and it changed its mining method. Nevertheless, the Coroner did find that no person contributed to the death of Larry Knight.”

Which report was he reading?

Outside of the coronial process, there seems to be sufficient evidence in the coroner’s report for Workplace Standards Tasmania to have another look at prosecuting BGM for failing to ensure that Larry Knight had a healthy and safe work environment.

Review Panel – Risk Management

The Review Panel decided not to include risk management as an enforceable element of national OHS legislation, even though it is a legislative requirement in Queensland.  The panel has reduced the emphasis on risk management by including it only “as part of an object of the model Act.” (page xviii) 

Placing it as an object of the Act puts risk management out of the public’s eye.  If risk management is not part of the obligations of an employer in law, we should not expect business operators to embrace them.  The BGM risk management process was found to be deficient by the Coroner and may have contributed to the death of Larry Knight but the Review Panel sets risk management as an aim and not an enforceable part of model OHS legislation.  It advocated the concept but would not committed

The panel heard, in a submission by Johnstone, Bluff and Quinlan, that

“The Model OHS Act should explicitly require duty holders to undertake systematic OHS management in order to comply with their general duty obligations, and the Act should outline the approach to be taken in a way that integrates the concept of ‘reasonably practicable’ into the process, and also shows how duty holders should use the provisions in regulations and codes of relevance to the issue being addressed in order to comply with the general duty.”

The Review Panel followed the recommendation of the Law Council of Australia that risk management be included in Regulations and not the Act itself.

But then, the review was not a review of occupational health and safety but of occupational health and safety law.  The management of safety was never its focus.

If it had been such a review, or if the government decides that a “safety management review” is warranted in the next few years, there would have been the opportunity to analyse the cost of managing safety and to show how the legal fraternity and the standards setting processes unnecessarily contribute to high compliance costs and red tape.

Risk management was clearly an important business process at Beaconsfield Gold even if the application of the process was poor.  The Coroner said

“one obvious line of defence is to have in place a systematic, comprehensive, rigorous and properly documented risk assessment process.  It is my opinion that BGM did not abide by such a process in the period between the October ’05 rockfalls and Anzac Day 2006.” (page 71)

Larry Knight died on Anzac day 2006.

The Review Panel believes risk management can sit in Regulations and in legislative aims.  Standards Australia continues to charge for its OHS and risk management standards.  The Australian government remains silent on providing free business management information that has the real possibility of saving lives.  Bring on the safety management review!

Kevin Jones

Beaconsfield Coroners report update

There have been several media reports of the disappointment in the findings felt by Larry Knight’s family but little else in the media, particularly over the weekend when some retrospection could have been expected.

However, the Tasmanian workplace relations minister, Lisa Singh, issued a statement last week.  The most significant parts of the statement are

“I was pleased that the coroner Mr Rod Chandler noted in his report that the inspectorate was adequately staffed,” Ms Singh said. “I accept his criticism that at the time of the rock fall that killed Mr Knight, Workplace Standards was not sufficiently resourced to handle some issues of mine safety. That has now been rectified.

“I am seeking further advice on his recommendation that an audit of the office be undertaken each year to ensure that it is properly fulfilling its statutory duties.”

According to a statement from the law firm Maurice Blackburn

“Maurice Blackburn Special counsel Kamal Farouque, who acted as Counsel for the Knight family and the AWU throughout the Coronial Inquest, said that Coroner Rod Chandler’s findings include several major criticisms including:

  • ground support at the mine was inadequate;
  • the mine failed to put in place a comprehensive, rigorous and properly documented risk assessment process; and
  • if a thorough and systematic risk assessment process had been conducted, the likelihood of Mr Knight’s death occurring would have been reduced, perhaps significantly.

“What is plain is that the Coroner has made findings that indicate safety deficiencies,” Mr. Farouque said.

“A lesson to be learned from Mr Knight’s tragic death is the critical importance of proper risk management practices to worker safety, particularly in the mining industry,” Mr. Chandler found.”

Now we wait to see who implements those lessons.

Kevin Jones

Happiness is a warm million

The Australian newspapers in late-February shared the “outrage” of politicians and then the community over training that was provided to public servants by the American “happiness guru” Professor Martin Seligman.

The cost to the taxpayer seems exorbitant but the psychologist was from the US and was training delegates for many days.  It is not unusual for US experts to charge over $US600 per hour plus travel and accomm0dation.

The Community & Public Sector Union‘s Assistant National Secretary Paul Gepp noted  in a media statement that news of the expensive conference, which paid an American psychologist’s team more than $440,000, came with news of more layoffs of  public servants, as 100 lost their jobs in the Crime Commission. 

“Public servants are working hard to keep essential services going, keep our communities safe and make the stimulus package work,” said Mr Gepp.  “Million-dollar, feel-good conferences don’t help get these jobs done. If the Government is looking to cut, we suggest it starts with junkets like this.” 

The OHS context of this furore comes from the reasons for the training and whether the same benefits could have been obtained at a reduced price.

Media reports say that in parliament on 26 February 2009

“[Deputy Prime Minister, Ms Julia] Gillard attacked Liberal frontbencher Andrew Southcott for attempting to “parody” Professor Seligman, who she described as a “noted educationalist”.
“He is the leader in the development of (a) resiliency program that has been shown to make a difference to mental health issues amongst young people, including issues like anorexia and depression.  That is actually serious and ought not to be cat-called about.”

SafetyAtWorkBlog has written previously about the workloads of the public sector under the Rudd government and how the government has chosen not to set reasonable production targets.  The Seligman seminars are an example of trying to treat the symptoms and not the cause.   Seligman’s programs are not the issue here as the results claimed may be absolutely justified.  

Part of the problem for the government is timing, and in this, it shares a lot with behavioural-based safety programs.  Whenever a company introduces a wellbeing program, or a happiness seminar, or resilience training, or a team-building extreme sports excursion, it indicates to me that either the company is one that has already tried the traditional approaches to controlling workplace hazards, hasn’t  the faintest ides what to do to improve the safety in their workplace , or has too much money in its human resources budget and needs to spend it by the end of the financial year.

Regrettably, the money spent on public service mental health has been poorly targeted and papers over the cracks whilst ignoring the structural instability of how it manages its people.

Kevin Jones

Company directors and OHS obligations

Since the final report of Australia’s Review into Model OHS Law, discussion has been remarkably quiet.  The ACTU was scheduled to meet for discussions on the report last Monday and no public statements have been made.  Most of the labour law firms have been quiet also.  It is fair to say that most are trying to digest the 480 page report.

But one employer group has provided an opinion piece in the business pages of The Age newspaper on March 2 2009.  The article says little that is new but it is mischievous in some of its comments. 

John  Colvin, CEO of the Australian Institute of Company Directors, writes of his concerns about increased exposure for the Institute’s members.  Colvin is concerned that upcoming OHS laws may be unprincipled and counterproductive.

The Model OHS Law report has said that it supports the statement of OHS principles as are already in place in the Victorian OHS legislation.  According to WorkSafe Victoria

“The Act sets out the key principles, duties and rights in relation to occupational health and safety. The general nature of the duties imposed by the Act means that they cover a very wide variety of circumstances, do not readily date and provide considerable flexibility for a duty holder to determine what needs to be done to comply.”

These principles are

4. The principles of health and safety protection

(1)    The importance of health and safety requires that employees, other persons at work and members of the public be given the highest level of protection against risks to their health and safety that is reasonably practicable in the circumstances.

(2)    Persons who control or manage matters that give rise or may give rise to risks to health or safety are responsible for eliminating or reducing those risks so far as is reasonably practicable.

(3)    Employers and self-employed persons should be proactive, and take all reasonably practicable measures, to ensure health and safety at workplaces and in the conduct of undertakings.

(4)    Employers and employees should exchange information and ideas about risks to health and safety and measures that can be taken to eliminate or reduce those risks.

(5)    Employees are entitled, and should be encouraged, to be represented in relation to health and safety issues.

The article is mischievous in a number of areas.  Colvin mentions how the current laws vary from state to state.  He mentions that

“Some carry personal criminal liability for directors, even where they may not have had any personal involvement in a breach. In some states, they reverse the onus of proof, removing the presumption of innocence, and offer narrow legal defences and limited appeal rights.” (my emphasis)

Colvin is talking primarily about New South Wales, the State that everyone agrees has the OHS law that is most onerous for employers.  However, the New South Wales union movement has been remarkably quiet and flexible on the issue of its OHS laws.  There has been some rhetoric for the benefit of its members and to retain some ideological “face” but the union movement across Australia is coming to accept the reality of better OHS outcomes from nationally harmonised legislation.  

Repeatedly the National OHS Law Review panel stated that it has based its decisions on the structure of the Victorian legislation as, for one reason, it has undergone the most recent legal review.  Colvin’s focus on New South Wales OHS law is outdated, reflective, and unhelpful.

Colvin mentions a survey that found

“..more than 65 per cent said the risk of personal liability occasionally made them take an overly cautious approach in the boardroom and another 13 per cent said this happened frequently. Almost two-thirds felt this had inhibited an optimal business decision to a medium to high degree.”

This indicates that the risk of being prosecuted on OHS breaches is being discussed at board level – great result.  Whether this translates to the board improving the OHS performance of their company is doubtful as Colvin’s article implies that directors are looking at ways of avoiding responsibility and liability rather than accepting the reality of their OHS obligations and working to improve them.

Colvin says that

“Directors should not be held criminally liable for a company’s misconduct simply because they are a director.”

Directors are not prosecuted for OHS breaches because of their status or position.  They are prosecuted because of the decisions that they make and the ramifications of those decisions.  If a director is dismissive of OHS issues and palms them off to someone else in the organisation and an incident occurs, should not the director be called to account for why they considered the safety of their workers to be unimportant, even when for over thirty years directors and executives have had responsibility for OHS compliance?

Colvin believes that holding directors accountable implies that directors have more control over the actions of their employers than they do.  Current business and management theories promote the position that directors should be more in touch with what is happening on the shopfloor.  The theories promote informed leadership and an increased awareness of how the company and its people work, they promote a level of engagement that creates a positive workplace culture and displays leadership.   Colvin seems to be encouraging the opposite.

He ends his article with

“More fundamentally, it unfairly treats directors more harshly under the law than the rest of the community.”

He misunderstands the application and aims of OHS law.  All people in a workplace have a responsibility to ensure a safe and healthy workplace for themselves, for employees and for members of public on and off their worksites.  Directors have more detailed obligations, but not less, because they have control of production and benefit more from the success of the company than do the employees. 

Ultimately, Colvin’s article reflects the misunderstanding of OHS that directors and companies have had for decades.  Companies need to realise that the best performing companies in OHS, and those with the best productivity, are those that have embraced their obligations for safety and have incorporated the principles within their own culture. 

The review into model OHS law has indicated the way of the future and company directors would be well-served to realise this and get on board.  Being left behind will benefit no one, especially the shareholders.

Kevin Jones

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