John Merritt and ‘reasonably practicable’

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On 4 August 2009, John Merritt, Executive Director of WorkSafe Victoria, spoke at an OHS function hosted by the Australian Human Resources Institute in Melbourne.  John is a lively speaker whose passion for workplace safety is obvious. I had the opportunity to ask the following question

“How is reasonably practicable NOT a ‘get-out-jail-free card’?”

Many readers will know that I am skeptical about “reasonably practicable” as is evident from the question.  However John’s response was the first from a non-lawyer that saw some positives in the concept.  John said

“I do think [the concept] is a real strength in the law.  In trying to move people to embrace this issue, for those who are in that denial phase, they often think we are asking them to do the impossible, and I find it really useful to say “no we’re not.  We’re asking you to do that which is reasonably practicable.

Our job, if  we say what you’re doing is not reasonably practicable, all we have to do is go and find someone who is just like you who is doing it.  We’re not asking you to do anything that somebody else, and usually in some critical mass of numbers, isn’t already doing, so why can’t you do it?” And I think that’s a reasonably sophisticated law.

You’ve got to have really good teams of investigators and lawyers and inspectors and all that sort of stuff to make that sort of law work.  But that’s good, that’s doable …. but I do think, in our field, its a reasonable proposition.

The alternative, which is an absolute duty – you must have a safe workplace and if someone is hurt, prima facie, you’ve failed and you need to prove to us that you’re innocent – can be made to work as well and most of the research is …. but in trying to move that hearts and minds of, particularly, our target audience, I think it’s the right way to go.”

It was refreshing to hear that “reasonably practicable” can be used as a tool for good instead of evil through illustrating an example of a control measure that has already been found to be reasonably practicable.  Tangible examples have been missing from OHS in Australia for a long time, ever since the OHS Solutions databases fell over in the 1990s.

If WorkSafe finds such examples useful for businesses, it would be good to see such databases resurrected. The images below show some pages from “Share Solutions” a hard copy database produced by WorkSafe’s predecessor, the Occupational Health and Safety Authority, in the late 1980’s.  It would be a good idea if someone like Safe Work Australia investigated the feasability of resurrecting this initiative.

Kevin Jones

Share Solutions 001 002

Share Solutions 003

Aspirational targets are next to useless put politically expedient

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Further to the recent blog article on New South Wales WorkCover statistics,  SafetyAtWorkBlog has been provided with a copy of the official Comparative Performance Monitoring (CPM) report that was released in August 2008.  These figures are used to measure performance against the National OHS Strategy 2002-2012.

SafeWorkAustralia has told SafetyAtWorkBlog that the next edition is due in October 2009 (just in time for Safe Work Australia Week – what a coincidence!) after it has been discussed at the next scheduled Workplace Relations Ministers Council amongst other meetings.

Most organisations, including political ones, have key performance indicators for managers and the companies themselves, to measure the likelihood of meeting the target.  This may involve additional remuneration, awards or any other type of recognition.  If the target is not reached, there are repercussions – loss of potential bonus, loss of job….

The National OHS Strategy has no reward for achievement other than a warm, fuzzy feeling.  Nor does it have any penalty except the same warm, fuzzy feeling with perhaps a few less degrees of warmth or duration.

According to the media release from the then-National OHS Council in May 2002, the “indicators of success” are

  • “Workplace parties recognise and incorporate OHS as an integral part of their normal business operations
  • Increased OHS knowledge and skills in workplaces and the community
  • Governments develop and implement more effective OHS interventions
  • Research, data and evaluations provide better, timelier information for effective prevention”

The release also said

“There are five initial national priority areas for action to achieve short-term and longer-term improvements…. The priorities are:

  • reduce high incidence/severity risks;
  • improve the capacity of business operators and workers to manage OHS effectively;
  • prevent occupational disease more effectively;
  • eliminate hazards at the design stage;
  • strengthen the capacity of government to influence OHS outcomes”

These are classic “aspirational targets” that have no penalties for failure.  The targets themselves were discussed in the previous blog article.

According to the 2008 CPM report summary

“The reduction in the incidence rate of injury and musculoskeletal claims between the base period (2000–01 to 2002–03) and 2006–07 was 16%, which means the interim target of a 20% reduction by 2006–07 has not been met.  It is also below the rate of improvement needed to meet the long term target of a 40% improvement by 2012.  The rate of decline in the incidence of claims will need to accelerate in future years if the target is to be achieved.  Four jurisdictions however, met the interim target of improvement: NSW with 29% improvement, the Australian Government with 27% improvement and South Australia and Seacare each recorded 24% improvement.  Although these four jurisdictions recorded improvements higher than the 20% required, considerable efforts will be required by all jurisdictions if the national target is to be met.

The number of fatalities recorded for 2006–07 is lower than in previous years, increasing the percentage improvement from the base period.  The incidence of compensated fatalities from injury and musculoskeletal disorders decreased by 16% from the base period to 2006–07, thus the interim target of a 10% reduction by 2006–07 has been surpassed.  The national incidence rate is still ‘on target’ to meet the 20% reduction required by 2011–12, however there is a considerable amount of volatility in this measure and consistent improvement is required.

The National OHS Strategy also includes an aspirational target for Australia to have the lowest work-related traumatic fatality rate in the world by 2009.  Analysis of international data indicates that in 2006–07, Australia recorded the sixth lowest injury fatality rate, with this rate decreasing more quickly than many of the best performing countries in the world.  However, despite this improvement, it is unlikely that Australia will meet the aspirational goal unless substantial improvements are recorded in the next few years.”

The federal government can react in several ways if the signatories to the strategy fail to meet the target in 2012:

  • Blame the previous government who was in power at the time of the strategy;
  • the large number of parties to the strategy made it impossible to coordinate;
  • The political climate has changed so much  that the targets reflected unreasonable expectations; or
  • The economic climate has changed so much that the targets reflected unreasonable expectations.

Unless all the parties renew their efforts (and their budgets) in order to reach the targets in 2012, from 2009, which is highly unlikely, 2012 is going to have an OHS “elephant in the room” and it will have been white.

Kevin Jones

Statistics traps and a soft “warning”

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In the Sydney Morning Herald on 17 July 2009, Kirsty Needham reported

“Total injuries rose by 2339 (2 per cent) to 142,542”

The media release from the Minister, Joe Tripodi  on 15 July pointed out that the injury rate actually fell by 2%.  An important point for the article and an error that has already been pointed out to Kirsty by others in New South Wales.  Sadly, the error is understandable to those of us who dip into the statistical reports. (SafetyAtWorkBlog reported on the NSW stats previously)

However, this should not be case.  Statistics should be supported by clear analyses that allow the layperson to understand, particularly, whether their government agencies’ efforts are providing  positive results.

Business “warning”

The alert to New South Wales businesses Kirsty refers to is the regular WorkCover News sent out to businesses in hard copy but also available for download.

Below is an excerpt from the article “Safety matters in hard times

“Many businesses in NSW and across the country are feeling the effect of the global financial crisis. Some employers are cutting costs and workers want to know what that means for them. For the good of your pocket as well as your people, it’s important you uphold safety at work.

Hard times can hit in a number of ways, and nowhere is this more evident than in the workplace. Some businesses might cut their stationery budget; some might put projects or recruitment plans on hold; others might consider a complete restructure. These decisions can affect more than the bottom line.

One thing to consider is the health and safety of your workers. Pressure and change can cause stress and anxiety. If your workers are distracted they may make mistakes or put themselves at risk. If your workers feel insecure, they may not tell you about new hazards. If you take on jobs you don’t have the capacity to deliver, your equipment and people may not cope. Any of these factors could take a human toll.”

As the newsletter is one of the few that Australian OHS regulators publish in hard copy nowadays it is worth registering for.  For non-Australian readers, the site is worth bookmarking if overseas.

Kevin Jones