Category: workplace

OHS law debate and Law Society position

Boardroom Radio has hosted a very interesting podcast between two labour lawyers, Andrew Douglas and Michael Tooma, with the participation of Barry Silburn, the National President of the Safety Institute of Australia.

Andrew Douglas speaking at one of his firm's regular breakfast seminars
Andrew Douglas speaking at one of his firm's regular breakfast seminars

The SIA National President’s contributions were quite narrow, dominated by the issue of “suitably qualified” in the new model OHS laws (but he did struggle to get a word in edge ways).

It will be disappointing if the SIA’s submission to the Federal Government on the new laws focusses on this single and, to most, secondary issue, when the institute could achieve better results through other mechanisms and more creative thinking.

The only expansive comment from Silburn was the fact that harmonised plant regulations that were introduced over 10 years ago still resulted in different legislation in each State even though they reflected a common core.  The high likelihood of this happening to the general OHS legislation was supported by the over panel members.

It is possible that the argy-bargy occurring now and at least for the next 6 weeks of public comment, will not achieve harmonisation as it was initially intended, and tried in a half-hearted way in the early 1990’s.  The Federal Government could still end the debate by applying its powers under the Corporations Act, as it has in industrial relations.  Some lawyers believe that this is the ace up the sleeve of the Federal Government.

The Law Council of Australia issued an interesting media statement on 30 September 2009.  Below are the comments from that statement by John Corcoran, the Council’s President:

“The model laws strike the correct balance and adhere to fundamental criminal law principles.  Governments must set aside jurisdictional differences and enact a uniform model OH&S law.”

“Despite the substantial differences in OH&S legislation across Australia, there is little evidence to suggest that the imposition of harsher penalties and evidentiary burdens in some jurisdictions has improved workplace safety performance.  Nor has it been improved by the extension of prosecution powers to unions or other organisations.”

“There are undeniable benefits, both to workers and employers, in a uniform national OH&S system, but there is no evidence that workers in any jurisdiction will be worse off if a model law is adopted uniformly.”

These quotes give one of the clearest indications that the OHS harmonisation process about law and not safety management.

It could also be asked that if there is “little evidence to suggest that the imposition of harsher penalties and evidentiary burdens in some jurisdictions has improved workplace safety performance” what alternative strategies and penalties would the Council suggest for consideration?  We will need to wait for their submission to the government for that.

Johnstone book 001Richard Johnstone, a leading academic and researcher into OHS law and enforcement polices argued in his 2003 book, “Occupational Heath and Safety, Courts and Crime”

“…that the court is an institution which, while appearing to dispense justice, is actually part of a broader process which decontextualises social issues.  Courts, inspectors, prosecutors and defence counsel are involved in filtering or reshaping OHS issues during the prosecution process, both pre-trial and in court.”

Johnstone says that the process leads to a focus on the “event” rather than the broader context which includes the workplace management systems.

Johnstone succinctly lists the five key principles of effective OHS management, based on his work and that of his colleagues:

  • “demonstrated senior management commitment to OHS;
  • the integration of OHS management into core management and work activities;
  • the adoption of a systems approach to OHS management, involving risk assessment processes and an audit system to identify all risks and to determine which require urgent attention;
  • the ability of the OHS management system to accommodate to change, particularly changes to work methods, systems and processes, changes to substances, plant and equipment, and changes to the workforce; and
  • valuing worker input to the OHS management system.”

This is the context in which the new draft Model OHS laws should be considered.  If the law does not support these principles than the law is being written for the lawyers and not for the improvement of safety for workers in Australia.

Much of the podcast discussion was about how one deals with what went wrong rather than providing guidance of how to manage to avoid the risk in the first place – the perpetual dichotomy between lawyers and safety professionals.

Kevin Jones

23rd suicide at France Telecome in 18 months

Adam Sage has been following the suicides that have occurred in France Telecome for some time.  On 23 September 2009 in the TimesOnline (a week later in The Australian newspaper??), Sage provides a useful summary and cogitation on the “cluster”.

But although this number of suicides in one company should be alarming, it is not really a cluster as the suicide rate for Telecome’s employees was only slightly above the national average of 14.7 per 100,000 people.  Sage reports that France is a country with a high comparative suicide rate.  The relevance to SafetyAtWorkBlog is that Sage goes on to identify work-related factors that contribute to suicides.

He quotes a sociology professor who says the French “define themselves by their professions”.  The risk with this basis for identity is always when the demand for the profession declines, one needs to redefine and this is not easy.

Sage finds a psychoanalyst who says that his patients feel isolated at work and have no support mechanisms.

A suicide prevention expert says that often a problem at home is the suicide trigger with someone who is feeling stressed at work.

Sage provides a potted history of the privatisation of France Telecome and speaks to a current employee bemoans the loss of camaraderie.

What is surprising about this article is that it seems France, and particularly France Telecome, are way behind other Western nations in having control measures in place for employee support programs and change management.

It is not as if France is ignorant of workplace stress issues or that workplace suicides have only occurred at France Telecome.  A major reason for its experiment with the 35-hour week was to

“…to take advantage of improvements in productivity of modern society to give workers some more personal time to enhance quality of life.”

In January 2008 (well before the current financial crises), the Institute for Economic and Social Research published “Workplace suicides highlight issue of rising stress levels at work “.  After some suicides at Renault and Peugeot it assessed the issues, acknowledged the trade union assertion that

“…excessive isolation of workers due to high workloads and fierce competition leads to a malaise in companies and thus call for a reflection on choices of work organisation.”

The article also reported

“The French Democratic Confederation of Labour (Confédération française démocratique du travail, CFDT) welcomed the ‘recognition of psychological factors being the cause of an occupational accident’ as it ‘opens the way to taking into account a form of suffering and malaise that, until now, has been minimised by companies’.”

A longer-lasting improvement will only come if this recognition is built on by all social structures in France.  Perhaps it should look across the channel at how the Health & Safety Executive and the corporate sector have responded to the report by Dame Carol Black – “Working for Health” – calling for an integrated approach to health management involving work, public health, health promotion and other elements of social capital.

France Telecome held an extraordinary Board meeting on 15 September concerning its suicide rate.  It made the following commitments:

  • “The national health, safety and working conditions committee (CNSHSCT) will be meeting on Thursday next week in the presence of Jean-Denis Combrexelle, the Ministry’s Director General for Employment.
  • To stop the phenomenon from spreading, it has been decided to immediately put in place a freephone number to promote dialogue. Psychologists from outside the company will be available to listen to and talk with any employees who may be having difficulties.
  • The first meeting for the negotiations on stress will be taking place on Friday September 18. On this occasion, the employee representatives will appoint an external consultancy to conduct an audit of the situation within France Telecom.
  • These negotiations will focus on the prevention of stress and psychosocial risks in the event of geographical or professional mobility among staff. To address this issue, a forward-looking employment and skills management (GPEC) system will be set-up with a view to offering employees and their direct managers visibility over their professional development and support.”

Didier Lombard, France Telecom’s Chairman and Chief Executive Officer, has set a tight timeframe for improvement.  On 15 September 2009 Lombard said

“December’s France Telecom will not be the France Telecom of today.”

Kevin Jones

UPDATE 30 SEPTEMBER 2009

Agence France Presse has reported a 24th suicide associated with France Telecom.  According to the report the 51-year-old male jumped to his death from an overpass onto a busy highway.  His suicide note to his wife expressly referred to the work environment as a reason for his action.

 

Deacons are first with harmonised OHS law comments

Michael Tooma speaking at the Safety Conference in Sydney in 2008
Michael Tooma speaking at the Safety Conference in Sydney in 2008

Michael Tooma, of the Australian law firm Deacons, is often the first labour lawyer to comment on Australia OHS Law matters and this week was no different.  While many of us are continuing to digest the draft OHS Act, Tooma has identified several issues of interest.  Some are discussed below.

[Tooma’s full legal update is available  HERE]

An expanded duty of care that may extend beyond workplace safety and OHS

The duty of care will include

  • “providing and maintaining a safe and healthy work environment;
  • providing and maintaining safe plant and structures;
  • providing and maintaining safe systems of work;
  • ensuring safe use, handling, storage and transport of plant, structures and substances;
  • providing adequate facilities for the welfare of workers carrying out work for the business or undertaking;
  • providing any information, training, instruction or supervision that is necessary; and
  • ensuring the health of workers and conditions at the workplace are monitored for the purpose of preventing illness or injury of workers.”

Most of these will be familiar to Australian OHS professionals and there is little that is controversial here but Tooma says

“This expanded duty has the capacity to broaden the existing duties significantly, extending their reach to any activities that may impact health and safety.   The extent of the duty as drafted in the model provisions arguably includes public safety matters…..  In addition to public safety, arguably the provisions are capable of applying to product safety matters.”

Tooma expands on this slightly in an article in SmartCompany in terms of an alternative to public liability.

“Tooma says this means duty of care will now extend to issues of public safety, including visitors, passers by and even trespassers, which could open businesses up to civil litigation claims from people who aren’t even employees of a business.

Tooma says the laws allow a member of the public to sue a workplace based on a breach of statutory duty, rather than a negligence claim, which often carries a higher penalty and is more difficult to defend in court.”

The extension of workplace safety obligations to include the impact of work processes on those outside the worksite has existed for some time but the draft legislation has the capacity to highlight this “opportunity” to some.  The integration of work and non-work exposures has some logic to it when one considers the growing push for integration of work health and public health management such as reducing cardio-vascular health risks through work-based initiatives.  It also broadens the social integration of OHS  and environmental management which larger companies are already managed through an integrated structure.

Union Right of Entry

There have been some frightful cases of union intervention, particularly in the construction industry, over the last few years.  Depending on one’s politics the union reps or organisers are either doing the right thing by their members or disrupting the workplace for their own secret agenda.  This situation does not reflect the vast majority of workplace consultations on OHS matters.

Prior to the introduction of the Victorian OHS Act which established an authorisation process for union organisers, SafetyAtWorkBlog remembers one prominent OHS lawyer, warning that “the sky will fall” over this issue.  It never did in Victoria and there is no reason to suspect that new right-of-entry provisions will be controversial in any workplaces other than those that already have fractious relationships between unions and management, and often on matters unrelated to safety.

However, Tooma says that

“The union right of entry provisions contained within the Model OHS Laws involve a far greater expansion of the rights of unions than those which exist in current OHS legislation throughout the jurisdictions, particularly in New South Wales, South Australia, Tasmania and the Commonwealth.  The Model OHS Laws give unions not only the power to investigate incidents but also to advise workers in relation to OHS matters.”

There was always going to be some changes in some jurisdictions due to the harmonisation process following the Victorian OHS Act 2004.  SafetyAtWorkBlog has faith in the authorities implementing sufficient safeguards that union right-of-entry will not be the hotbed of anxiety that some are suggesting.

More legal commentary on the draft OHS Law documents is likely to be released over the next few weeks as the drafts get digested and the six-week public comment phase kicks in.  It is sure to be the hot talking point as Australia moves into a bunch of OHS activities, conferences and awards events in October 2009 leading to Safe Work Australia Week.

Kevin Jones

Increasing risk of silicosis in the majority world

Australian safety expert and activist Melody Kemp reported from the annual meeting of the Asian Network for the Rights of Occupational Accident Victims (ANROAV) that was held in late September 2009 in Phnom Penh.

The meeting featured many stories about the increasing risk of silicosis in Asia.  Melody writes in the 27 September edition of the blog “In These Times”:

“Silicosis afflicts workers working with gems, ceramics, rock blasting, drilling and crushing, and mining. It haunts unprotected workers in glassworks, mines and foundries, as well as those who live within reach of the dust. It’s usually fatal by the time it is diagnosed.

Largely eradicated in the economic North, silicosis is now the scourge of the Global South. Millions die from the illness each year.”

The size of the growing occupational and community threat is frightening.

“China alone reports over 100,000 new cases of industrial lung disease per year, and has more than 4 million existing cases. And those are just the official figures. Even industrially advanced South Korea sees over 1,000 new cases of occupational chest disease each year, reported Dr. Domyung Paek, a pulmonary specialist from Seoul National University.”

Melody has contacted SafetyAtWorkBlog asking for assistance in attracting occupational medical experts to Cambodia and other countries undergoing rapid industrialisation.  She can be contacted by clicking HERE.

Kevin Jones

Harmonisation documents available but path is far from settled

On 25 September 2009, Australia’s Workplace Relations Ministers Council
(WRMC) agreed to release the draft legislation for public comment.

According to one media report, the New South Wales Finance Minister, Joe Tripodi,

“…moved at the [WRMC] meeting to have union prosecutions included in the new laws and was defeated by eight votes to one.”

Pages from Discussionpaper_ExposureDraft_ModelActforOHS_PDFThe documents are now available for download HERE.

According to Safe Work Australia’s media statement:

“The suite of documents available for public comment includes a model Act, administrative Regulations and consultation Regulation Impact Statement (RIS). The RIS will allow individuals and organisations to comment on the potential costs and benefits of the proposed Regulations. The RIS has been prepared by Access Economics.”

Curiously, it also says that Access Economics is

“…surveying businesses across a range of sizes, industries and regions in an effort to obtain primary data on compliance costs and safety benefits.”

It is odd that this has not been done earlier to, perhaps, substantiate the claims that the OHS law changes will reduce costs and “red tape”.

At the Comcare Conference in Canberra in late September 2009, Geoff Fary, illustrated very effectively the small sector of business that would be affected by the national laws.  Fary estimates that only around 1% of Australian businesses are likely to be liable to the “red tape” argument.  Many of these companies could be expected to already have some form of national OHS management systems, perhaps through Australian management standards.

Whether the percentage of affected 1% or 5% it is hoped that the Access Economics survey does not focus only on this sector.  Previous surveys have indicated a large ignorance or apathy about national harmonisation.  This is likely because the vast majority of Australian businesses operate within a single jurisdiction so the harmonisation is considered irrelevant.  The sad reality is that the OHS legislative structures in Australia for the next 10 to 20 years will be determined by the corporate sector, the regulators themselves, and the labour law firms and not necessarily by the small to medium-sized businesses for whom OHS can be the most burdensome.

SafetyAtWorkBlog had the chance to ask Geoff Fary, the assistant secretary of the ACTU, of his thoughts on the continuing opposition to harmonisation expressed by Troy Buswell, the Western Australia Treasurer.  Fary said that harmonisation

“…could occur without Western Australia being involved.  It couldn’t occur, I believe, without Victoria or New South Wales or Queensland being involved but because of the nature of the place and the geography of the place it could occur without Western Australia, and I think there is probably a strong possibility….that harmonisation will proceed in the absence of Western Australia.”

If this evenuates the harmonisation process becomes an academic exercise yet again.

Kevin Jones

Early worker health statistics from WorkHealth

WorkHealth has released some data on the results of its first wave of free health checks (not yet available online)

“Recent results from tests of 3500 workers conducted as part of the ….WorkHealth program found more than half were overweight and/or had high blood pressure while a quarter had high levels of blood cholesterol.”

These figures are not as “surprising” as WorkHealth makes out as the health check program is free to all workers in the State of Victoria and is likely to be the first time that many of the workers would have undergone such checks.  Indeed, WorkHealth acknowledges this fact for its blue-collar male workers.

The data is summarised by WorkHealth below:

  • Male workers were more likely to have high blood pressure;
  • Female workers were more likely to have higher levels of cholesterol in their blood;
  • The majority tested eat less than the recommended five serves of vegetables each day; and
  • The majority of people tested eat at least two pieces of fruit each day.

A health profile of the general Australian population from 2008 found the following statistics, amongst others:

Coronary heart disease is the largest single contributor to the burden of disease
in Australia, followed by anxiety and depression.

Coronary heart disease is the largest single contributor to the burden of disease in Australia, followed by anxiety and depression.

Cardiovascular diseases, cancers and respiratory diseases remain the leading causes of death overall.  However, injury is by far the most common cause of death in the first half of life.

Many Australians live with long-term health conditions. Most of these conditions are not major causes of death, but they are common causes of disability and reduced quality of life.

WorkHealth may be a turning point in the health management for some of the participants, and even if this is a tiny minority, the WorkHealth program could be claimed as a success.

Now if we could only do more about the smoking, dust, fumes, forklifts, sedentary work, fatigues, shiftwork, depression, stress, alcoholism and anxiety…..

Kevin Jones

Nursing home OHS – a 2001 interview with Kathleen Rockefeller

The last time I spoke with Kathleen Rockefeller was in 2001 on the eve of her speaking at a conference organised by the Ergonomics Society of Australia.  At that time Kathleen was a physical therapist and ergonomist within the Washington State Department of Labour & Industries.  Her latest profile says that she is now in Florida (via Chicago) as an Assistant Professor at the School of Physical Therapy & Rehabilitation Sciences at University of South Florida.

Rockefeller interview 2001_Page_1Kathleen’s career may have progressed (as probably has her tan) but the hazards and control solutions that we discussed in 2001, sadly remain relevant.  I have reproduced some of the interview I conducted with Kathleen in those early days when no-lift policies were radical and  patient-handling equipment was expensive and rare.

SAW: Around the world the no-lift policy is being introduced but why is that policy the most popular risk control measure?

KR: I don’t know where it actually originated or where the term “no-lift” came from. It’s a horrible term because everyone in healthcare knows that it is a little unrealistic. I think some people have been turned off by the name. I prefer to call it “low-lift” or “minimal-lift”.

Looking at the literature and research clearly shows that decreasing the amount of times per day that the human body has to act like a derrick is a good idea. Each episode exposes the body to forces of a magnitude high enough to potentially be injurious. Anyone who has nursed or worked in nursing homes knows that lifting is not the only activity that carries physical risk. There are tasks like leaning over the bed to delivering treatment to changing clothing, repositioning—these activities can be stressful as well. I wish it were simple to say “let’s get rid of the lifting” but it is an important first step.

SAW: In Australia the no-lift push came from the unions in order to push management to get into action on a whole range of manual handling issues.

KR: I’ve heard a rumour over here, and I don’t know how true it is, that the equipment manufacturers began using the term “zero-lift” but I really don’t know.

SAW: Your research shows that financial incentives were used to encourage the purchasing of new equipment. Were the incentives really necessary?

KR: Washington State is unique in the US in that the workers compensation insurance is handling by a State agency. So the insurance is handled by us unless the company meets the requirements for self-insurance. The agency has monitored the data and monitored the trends to try some initiatives with a number of different industries, nursing homes were chosen for a research project. They were hurting financially. A major reason for not buying lifting equipment was financial.

The agency decided to allocate some of their funds to the nursing home industry and to see if offering some of the funds allocated for injury prevention projects would help. The funds weren’t handouts but discounts on the workers’ compensation premium in return for investing in equipment and beginning a manual handling improvement process. The program was designed as a trial project to see what effect this type of incentive might have.

SAW: How applicable is your research to other States, given Washington’s unique processes?

KR: Many recommendations will be applicable as the program wasn’t just on the financial incentives. The study was a state-wide and industry wide look at how nursing homes were doing overall in implementing zero-lift programs. The research has identified the problems of implementing a large-scale intervention and we can all learn from these problems.

SAW: Other than manual handling what are the major OHS risks in nursing homes?

KR: Of course, patient handling has various tasks and the higher risks are certainly the physical transferring but also the repositioning, delivering incontinence care to residents, changing their clothing. The other thing I noticed in the homes while following nursing assistants and doing sampling is the total amount of time they stand or walk. I think that fatigue must be a contributing factor, both local muscle and total-body fatigue. There is very little recovery time. I knew this already but doing the research really emphasised this.

SAW: Did you observe a high stress level? Was resident violence an issue?

KR: Those are certainly issues as well. The issues of staffing and turnover is huge. The turnover for nursing assistants is an industry average of 100% a year and can go much higher. The constant turnover creates turmoil.

An unexpected element was the huge turnover in management personnel. This was striking. When you think of a facility trying to keep stable processes and procedures and the head person leaves within 3 years or even one year— that is a real problem.

I heard a lot from the nursing assistants and through the literature about the importance of knowing the residents. You mentioned potential problems with the residents but if you work with the resident for a while you get to know them and then you may be able to pick up warning signs on behaviour. If you’re a short term agency nurse and you don’t know the residents, it may increase your vulnerability.

SAW: Perhaps the no-lift policy has been introduced due to the throughput of staff rather than dealing with a root cause of the manual handling injuries? Perhaps because no-lift can give immediate results?

KR: Expecting a zero-lift program to have miraculous results in light of these other issues leading to instability is an unreal unrealistic expectation. I think introducing the program and getting it to work as best you can while at the same time, people who can affect change, maybe us baby boomers, need to start screaming very loudly because our parents are next.

Injuries related to manual handling have a number of causes and efforts to decrease these injuries require multi-faceted approaches. The point is well taken because if you are going to expect a zero-lift program in itself to have miraculous results in light of these other issues leading to problems and instability, it is not a realistic expectation.

Kevin Jones

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