The Safety Institute‘s OHS Professional magazine for December 2009 included an article (originally published in an OHS newsletter from Piper Alderman for those non-SIA members) about the application of legal professional privilege using a New South Wales Industrial Relations Commission decision as its basis (Nicholson v Waco KwikForm Limited). The case received considerable attention by OHS law firms. Continue reading “Legal professional privilege and safety management”
Category: workplace
Safety is more than common sense
“Common sense” is a phrase regularly used to describe workplace health and safety. More often than not the term is used dismissively. This is part of the reason that the OHS profession struggles for legitimacy and why there is a constant sense of frustration in the profession and OHS regulators. Continue reading “Safety is more than common sense”
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.
Boiler death puts OHS spotlight on New Zealand Education Department
Reports are coming out of New Zealand that representatives of the Education Department are uncomfortable with being charged under the country’s OHS legislation following a fatal boiler explosion at Orewa College.
On 24 June 2009, a boiler exploded at Orewa College in Northland, New Zealand. Initial media reports said that the boiler was being repaired the day after a malfunction. Rough phone video taken by one of the students during the evacuation is available online.
Richard Louis Nel received burns to 90 per cent of his body and later died. A contractor, Robin Tubman, suffered a fractured skull and a shattered face.
The Department of Labour indicated shortly after the event that an investigation had begun but the Board of Trustees chairman Phil Pickford has questioned the delay in the prosecution. According to one media report, Pickford said:
“On December 24 it will be six months since the tragedy and here we are at the 21st… They have to prosecute within six months and they have left it to the last minute. Why? I could surmise why, but I’m sure there’s another way they could have done it.”
SafetyAtWorkBlog contacted the NZ Department of Labour on 21 December 2009 for further information about the prosecution. All the spokesperson would say is that “the outcome of the investigation is still being finalized”.
The belief that schools are not covered by OHS legislation is a common misperception in Australia and, from what one NZ SafetyAtWorkBlog reader says, New Zealand also. Partly this is because the education of children is seen as the principal focus by teachers and educators, to the exclusion of all else. Modern businesses and institutions have slowly learnt that this is not the case and that there are a wealth of obligations, legislative and social, that apply. Educational institutions are often slow to acknowledge this reality.
Another reason, which may stem from the first, is that government departments have been very hesitant to prosecute each other. This may also be supported by the political conflicts that could arise by one politician’s department taking action against another politician’s department. Politicians should not take the credit for departmental achievements and then not be held accountability for failings (although this seems to happen frequently).
In August 2007, The Education Department in Victoria was fined $A8,000 for ignoring the directions of a WorkSafe inspector. The media statement on the case illustrates a dismissive attitude to OHS issues.
Of more significance were issues at Merrilands College where “a Victorian principal accused of bullying has been removed from school and given a job in the Education Department after years of complaints by staff” according to The Age in July 2004. The issues at Merrilands had been occurring for some time:
“It was also revealed that the Education Department – which confirmed there had been “Worksafe (sic) issues” at the school in the past – had known about the allegations since 2000, when 12 teachers wrote to the department after a staff member died of a heart attack that some believed was linked to workplace stress.”
According to the same media report
“WorkCover recently issued an improvement notice against the department following allegations of bullying and harassment at two other schools in the northern suburbs.”
To some extent the Orewa College explosion is a more straightforward prosecution because the incident came from an equipment failure and did not relate to the teaching staff or students. The administrative staff are likely to be asked about maintenance schedules, particularly after other schools in the area had their boilers inspected with several found to be less than perfect. It is likely that the prosecution by NZ DoL will illuminate the plant maintenance procedures of secondary colleges but, perhaps of more long-lasting significance will be the attitudes of the education department and school representatives on show in court.
OHS debate is over, says Deputy PM
Deputy Prime minister and Workplace Relations Minister, Julia Gillard, has told the Australian Financial Review (only available online to subscribers) that the OHS law changes were finalised at the recent Workplace Relations Ministers’ Council.
Gillard again rejected the trade union movement’s concerns about weakened worker protection. The Minister emphasised that substantial economic benefits would flow to business as a result of increased administrative efficiencies.
However, the likelihood of a nationally harmonised OHS system seems as far away as ever with the West Australian Government continuing to refuse to apply the new laws which it sees as too friendly to the unions.
Significantly, the Australian Government has backed down from its earlier threat to penalise any governments that do not support the changes. This lets the WA Liberal Government off the hook and provides the New South Wales Liberal Party with an easy platform option for the 2010 State election.
The conservative forces in Australia can take heart but Minister Gillard’s position has the union movement facing difficult decisions. It has strongly funded a campaign against elements of the OHS laws and branded the laws as “second-rate safety”. It now needs to decide whether to give up the campaign totally as a lost cause or to pare it back so that, over time, the campaign fades away, as did the industrial manslaughter campaign of around five years ago.
The ACTU has expressed disappointment but must have realised, privately at least, that some union powers, considered to be extreme by business and industry groups and over which the business complaints have been load and long, were going to be sacrificed in any harmonisation process.
Former Prime Minister and ACTU President Bob Hawke achieved many industrial relations reforms in the early 1980’s by pushing “consensus”. This negotiation process had strong similarities to the current OHS harmonisation however big C Consensus is now rarely spoken by the Australian trade union movement. One of the few contemporary outings was when current ACTU Secretary Jeff Lawrence, who expressed the disappointment above, speaking about industrial relations said on 14 June 2007:
“I’m tough enough but I’m also a person who likes to work by consensus”.
To operate constructively at the big tripartite table of OHS, the unions will need to accept a defeat and gain whatever they can from the new rules. This is doubly important in the lead-up to the planned harmonisation of workers compensation. Australia will see some fiery union rhetoric when harmonisation threatens to reduce the income and entitlements of workers who are already injured.
“Best Practice…First Aid”? – not sure
First aid is one of the most neglected areas of workplace health and safety but, when required , vital. The neglect comes from it rarely being integrated into the safety management system and on relying of the advice from first aid training and equipment suppliers. “Why shouldn’t it be relied on? They’re the experts.”
In a previous career I worked for a first aid equipment and training provider in various roles. A major task was to visit workplaces and assist them in determining their first aid needs. Over the years that I undertook this role I came to the general conclusion that first aid kits were almost always over stocked in comparison to what was needed. (Assessing the first aid needs of 28 McDonalds restaurants in 2 days was fun, at first)
In relation to first training, most companies had insufficient first aiders and those they had were trained fair beyond the needs of their workplaces.
Granted most of these workplaces were not high risk organisations or in isolated locations, mostly they were in urbanised areas. But it was also this fact that generated most of the oversupply of equipment.
I was reminded of my many years in that role in the 1990s when SafeWork SA announced the release of its “Approved Code of Practice for First Aid”. (The Code will be available on the SafeWork SA website in a couple of days, and I will review it then) This Code comes into effect on 10 December 2010 which means a busy 12 months for most South Australian OHS professionals.
According to SafeWork SA’s media statement, the new Code:
- provides a more contemporary and best-practice approach to first aid
- gives workplaces more flexibility to tailor their first aid arrangements to suit their type of business
- better aligns South Australia with provisions interstate.
SafeWork SA’s Executive Director, Michele Patterson, says
“An extensive two-year consultation by SafeWork SA revealed that existing workplace first aid kits were often too big, not relevant to the individual workplace needs, and resulted in considerable wastage……”Under the new Code, first aid kits can be smaller, will cover more types of injuries and should reduce wastage.”
The capacity for tailoring first aid kits to the needs of the workplace has been allowed in Victoria for almost twenty years. New packaging and configurations were designed by suppliers, – cloth pouches, wall-mounted plastic boxes, back packs… But the contents and packaging was determined in relation to the manufacturers costs, more than the needs of the client.
Here is my first aid kit. A pair of disposable gloves, a disposable resuscitation faceshield, a ziplock bag to keep them in and a mobile phone. Everything else should be determined by need.
If you don’t remember that first aid is “emergency medical treatment”, you will be ripped off by equipment providers.
Of course it is possible to provide first aid without even this amount of equipment. The above package is purely personal protective equipment to stop infectious liquid passing between the injured and the first aider. There are plenty of cases of people who have no access to this PPE still saving lives.
Patterson says that a benefit of the Code is that it brings South Australia’s first aid training levels up to the standards of the other States. This is relevant for some workplaces but most will wait to see what the national OHS harmonisation process produces and then apply that.
But Patterson says something that holds more wisdom than she expected.
“The more people trained in basic first aid who may be able to keep a person alive until an ambulance arrives – the safer both our workplace and communities will be.”
Here is the core of first aid. The skills are basic, usually stop the bleeding and keep someone breathing. I used to refer to this as “plug them and puff them”. If a first aider achieves these two aims on an injured person until an ambulance arrives, they are fulfilling their tasks.
The other vital element is “until an ambulance arrives”. Most workplaces are in urbanised locations with good emergency response. Victoria has a targeted ambulance response time of around 15 minutes and over the last couple of decades the ambulance service has been supplemented by emergency medical services from the fire brigade.
Too many workplace first aid courses teach people how to immobilise a broken leg. In most circumstances, a broken leg will be treated by ambulance officers. Only yesterday a high school student attending an end-of-school function broke their nose. The supervising teacher did the correct action and called an ambulance. I am sure the boy’s parents also supported the decision.
Companies may consider the skills gained from a five-day first aid training course to be worthwhile for those employees who have children or bushwalk but in relation to workplace first aid, they were overtrained. First aid courses have been trimmed from the standard workplace first aid course of fifteen years ago but as long as one signs up to an off-the-shelf training course, there will be training elements that are not required.
The last nugget of wisdom from Michele Patterson’s statement above is that the more people trained the better. Imagine if everyone on one office floor were training in basic first aid. There would always be a first aider present in the workplace, regardless of the hours of work. No juggling of this level first aider and that level, or training additional people to cover the absences of the designated first aiders. The emergency first aid response would the fastest possible and therefore the survival rate would be the best achievable.
Teach everyone in the workplace to “plug them and puff them” and you will be looking after your own health too. For if you keel over and stop breathing, you will have at least one first aider at your side within a minute. More likely you’ll have more than one and two-person CPR is very effective. In this circumstance “reasonably practicable” may increase the level of first aid response rather than diminish OHS standards as it usually does.
It is also worth considering what provides the best first aid coverage in your workplace one first aider trained to a high level (who may be away on the day they’re most needed) or five first aiders trained only in CPR. The cost would be about the same but which scenario provides the better emergency response and which scenario is more likely to provide compliance.
UPDATE – 11 December 2009
SafeWorkSA has identified the August 2009 First Aid Code of Practice on its website as the version which will apply from 10 December 2010.
New guidelines on aggression in health care
WorkSafe Western Australia and the other OHS regulators in Australia have produced a very good, and timely, guideline for the “Prevention and Management of Aggression in Health Services“.
The hazard has existed for many years and hospitals, in particular, are torn between the competing priorities of keeping their staff safe and maintaining contact with their clients. Glass screens and wire are effective barriers to violent attacks but it can be argued that such structures encourage aggression by implying that “violence happens here”.
The guidelines, or what the regulators call a “handbook for workplaces” (How does that fit in with the regulatory hierarchy for compliance?), provides good information on the integration of safe design into the health service premises. But as with most of the safe design principles, as is their nature, they need to be applied from initial planning of a facility and so, therefore, are not as relevant to fitting-out existing facilities. In health care, it often takes years or decades before upgrades are considered by the boards and safe design is still a new concept to most.
Another appealing element of the guide is that it does not only consider the high customer churn areas such as casualty or emergency. It is good to see the important but neglected issue of cash handling mentioned even in a small way.
Another positive is the handbook includes a bibliography. This is terrific for those who want to establish a detailed understanding of the issues and the current research. For the OHS regulators, it allows them to share the burden of authority. Just as in writing a blog, by referencing source material the reader understands the knowledge base for the opinions and the (blog) writer gains additional credibility by showing they have formed opinions and advice from the most current sources.
Having praised the bibliography, it is surprising that of all the Claire Mayhew publications and papers mentioned her CCH book “Guide to Managing OHS Risks in the Health Care Industry”, was omitted.
The regulators have often had difficulty determining whether checklists or assessment forms should be included in their guidances. In Victoria one example of the conflict was in the Manual Handling Code of Practice that included a short and long assessment checklist. Hardly anyone looked beyond the short version and many thought this undercut the effectiveness of the publication.
The fact is that safety management takes time and business want to spend as little time on safety as possible but still get the best results. Checklists are an audience favourite and contribute to more popular and widely read guidelines, and broad distribution of the safety message is a major aim.
Interestingly amongst the checklist in this health services aggression publication a staff survey has been included.
(At least) WorkSafe WA has listened to the frustrations of readers who download a PDF version but then have to muck about with, or retype, the checklists. This handbook is also available as an RTF file for use in word processing.
This is the first OHS publication that has come out from a government regulator with this combination of content, advice and forms. It is easy to see how this will be attractive to the intended health services sector.