workplace – Page 181 – SafetyAtWorkBlog

Prosecution results from fall through roof

On 22 October 2007, a commercial premise in Southbank, Victoria, was to undergo renovations which included replacing the asbestos roof with an iron roof. Two men were employed as project managers and during the roof replacement, according to WorkSafe Victoria.

“…the dogman fell [through an unguarded shaft] a total distance of 8 metres and as a result he broke 3 bones of his right wrist and a fractured scapula as well as sustaining bruising to the body and serious lacerations to the head.”

On 16 October 2009, the Magistrates’ Court fined the specialist roofing company contracted for the task $A15,000. The prosecution summary says that as the company specialised in roofing, the hazards of working on an asbestos roof, and unprotected edges, would have been well-known.

The two project managers were fined $A7,500 each as they were not sufficiently experienced for their project management roles. The lack of fall protection for those working on the roof was of particular note according to the Prosecution Summary from WorkSafe Victoria.

More details on the prosecution are available from the WorkSafe hyperlinks in this article.

It would be interesting to run this prosecution summary as a hypothetical under the proposed National OHS Model law to provide a contrast between the old and new laws particularly on the following matters, although many more could be considered if further details were available:

who controls the workplace
competence
suitably qualified
role and enforcement of JSA’s
contractor management

Kevin Jones

Two forklift cases in Australia – one death and one fine

On 19 October 2009, SafeWorkSA released details of a court case against Macbar Nominees Pty Ltd trading as Southern Cross Trailers . The company has been fined over $A15,000 due to the incapacitating injury of a worker from a load falling off a forklift. The event, described below, occurred in July 2007.

“A man aged 38 at the time had been with the firm just two weeks in his job as a labourer. He and two colleagues had been instructed to clean a work area: a job, which involved lifting several large items by forklift.

In the process of this task, a drum that was part of an unsecured load raised aloft by the forklift, fell about two metres onto the man as he moved a second pallet beneath.

He suffered a head wound, which required stitches and a finger injury that required surgery. In a Victim Impact Statement, the court heard that the worker had been unable to resume his work as a labourer as a result of the finger injury.”

A forklift-related incident occurred in Queensland on 5 October 2009 and details of the incident are being reported in the media. According to Queensland Emergency Services

“Firefighters and paramedics responded to a business on Riverview Road at Dinmore around 10.50pm after a man became trapped under a forklift. The 18-year-old suffered from crush injuries to his head, neck and chest and was declared deceased at the scene.”

According to media reports, the man had been working at the abattoir for only two months and was not licenced to operate a forklift. Clearly the management of the site has some very serious questions to answer to the family and the Government.

It is still too early to make more than basic recommendations from this case as the available information is conflicting or not yet released.

Licences for driving forklifts or for operating any specialised plant must be produced and verified, regardless of the size of the site or the complexity of the task.
Whether the man was specifically given the task to drive the forklift or whether he was “skylarking”, still raises the issue of supervision.
The matter of communication with the family of workplace victims, whether by the Government or the company, is also very relevant.

Kevin Jones

Evidence of heart attacks due to secondhand smoke

According to a media release from the Institute of Medicine (IOM) in the United States, a new research report says:

“Smoking bans are effective at reducing the risk of heart attacks and heart disease associated with exposure to secondhand smoke, says a new report from the Institute of Medicine. The report also confirms there is sufficient evidence that breathing secondhand smoke boosts nonsmokers’ risk for heart problems, adding that indirect evidence indicating that even relatively brief exposures could lead to a heart attack is compelling.”

The report claims to have undertaken “a comprehensive review of published and unpublished data and testimony on the relationship between secondhand smoke and short-term and long-term heart problems”. It has looked at “animal research and epidemiological studies” and “data on particulate matter in smoke from other pollution source”.

The study was sponsored by the U.S. Centers for Disease Control and Prevention which has summarised the report on a new webpage. SafetyAtWorkBlog has been unable to obtain a copy of the full report.

The report is unlikely to help those safety professionals who need to control the hazard of secondhand smoke in the workplace. Legislation has been in some States of America for over thirty years identifying where people cannot smoke and around the world the major control measures are moving smokers outside and encouraging them to quit.

The IOM report seems to confirm the seriousness of the issue but provides no new ideas for control. This would be like producing a new research report that says mercury, lead or asbestos are harmful – like duh?

US OSHA provides some data on legislative interventions on tobacco smoke but new information on this hazard in the workplace setting is thin. The US Cancer Institute issued a monograph in 1999 defining ETS as

“…an important source of exposure to toxic air contaminants indoors. There is also some exposure outdoors in the vicinity of smokers. Despite an increasing number of restrictions on smoking and increased awareness of health impacts, exposures in the home, especially of infants and children, continue to be a public health concern. ETS exposure is causally associated with a number of health effects.”

More recent monographs are available at the Tobacco Control Research site.

The UK Health & Safety Executive provides this specific environmental tobacco smoke advice

Employers should have a specific policy on smoking in the workplace.
Employers should take action to reduce the risk to the health and safety of their employees from second hand smoke to as low a level as is reasonably practicable.
Smoking policy should give priority to the needs of non-smokers who do not wish to breathe tobacco smoke.
Employers should consult their employees and their representatives on the appropriate smoking policy to suit their particular workplace.

The status of workplace smoking and secondhand smoke in most westernised countries seems to have plateau-ed or perhaps got to the point where every control measure that is reasonably practicable has been done.

That people continue to die directly and indirectly from tobacco smoke illustrates the flaw in the reasonably practicable approach to safety legislation and management which is “so what do we do next?” Perhaps the attention being given to nano particles may help but is it the particulates in secondhand smoke that is the problem or the fumes themselves? Regardless, a new approach is needed to control this persistent workplace hazard. Shoving smokers onto the streets and balconies is not enough.

Kevin Jones

CFMEU, IPA, Gretley Mine – political lessons

Readers outside of New South Wales may vaguely remember that in 1996 four miners died in a coalmine in the Hunter Valley 0f New South Wales. They may also remember that the was some press about the prosecution of some directors of the mining company. It was one of those incidents and court cases that should have gained broader attention that it did.

As OHS stakeholders in Australia ponder the ramifications of the Government’s proposed Safe Work Bill, it is important to also ponder the legal legacy of the Gretley mine disasater. It may provide non-NSW and non-mining readers with a better understanding of the resistance to the new harmonised laws from the mining industry in both New South Wales and Western Australia.

On 15 October 2009, Andrew Vickers of the Construction Forestry Mining & Energy Union used the Gretley saga as a justification to call for the harmoinised legislation and support systems to allow for variations to meet the special needs of the mining sector.

cover PHILLIPS 5.04925E-210RETLEY On the other side of political fence, Ken Phillips of the Institute of Public Affairs, a conservative thinktank, produced a document about the politics of the Gretley saga. The publication was supported by a video, available below. Phillips’ paper is a useful illustration of business’ opinions of the unions and New South Wales’ OHS legislation. This legislation is a centrepiece to the ACTU and union movement’s concerns and opposition to many elements of the current draft Safe Work Bill.

Prominent sociologist, Andrew Hopkins, has written about the OHS management issues raised by the disaster and its aftermath.

SafetyAtWorkBlog believes that these political and safety resources can provide a primer to many of the issues being discussed in the current debate on OHS laws.

Kevin Jones

Changing weather conditions can present unexpected hazards

In the south-east corner of Australia, a drought has existed for over a decade. This week in Melbourne, it has rained on and off for several days, changing the way the community is feeling. Farmers are happy, owners of rain water tanks are happy, gardeners are happy, even commuters who have to relearn how to drive in the wet are less complaining.

Some months ago, I spoke to a mother whose two-year-old daughter had never seen a heavy rainstorm, thunder or lightning. Early last year, a colleague and I looked out of an office building window on a 13th floor and saw smoke swirling round the city. It turned out to be rain but we had not seen rain for so long that we mis-identified it.

This morning, I was removing money from an automatic teller in the street and I was dripped on from the leaking roof of the bank for the first time ever. A local chemist had buckets on its floor to catch drips from the ceiling that they had never seen before.

Yesterday, 15 October 2009, a concrete pumper at a housing development site in Coburg sunk in some mud just enough to swing the pump’s hose into a worker, killing him. Other media reports say that a stand of the pumper may have malfunctioned.

There are always many lessons from workplace deaths but one to be taken from this incident is that external factors to the actual tasks in hand must be considered. Those factors, in this case weather and soil stability, can change within a work period and this variability of environment must be watched and anticipated.

Mud on a construction site is not a new hazard. But if a hazard is not always present or regularly encountered, it is easy to give it less attention.

Kevin Jones

OHS is becoming criminal law in a social context

On 14 October 2009, Australian law firm Deacons hosted a breakfast seminar of the draft OHS model law proposed by the Australian Government. The speaker, Mike Hammond, expressed concern about many sections of the draft laws because they do not seem to fit how OHS law has been structured in Australia and the UK for over thirty years.

This is not to say the clauses and sections are worthless, useless or wrong, but the Government has not provided enough information on the rationale for the changes or the context for those changes so that those who need to use the law understand the law.

Hammond had five major concerns with the proposed law in the Victorian context:

Person conducting business or undertaking vs employer

Officers’ duty to exercise due diligence

Failure to acknowledge “Control” as issue of first principle

Abrogation of right to silence and privilege against self-incrimination for individuals

Unions able to cause work to cease

Hammond is, of course, looking at the laws from a lawyer’s perspective and not that of a safety professional or business operator but he raised some excellent points, some of which have been discussed previously in SafetyAtWorkBlog.

The coverage of the proposed OHS laws is so broad as to include anywhere where work is conducted. Tooma, a partner of Hammond at Deacons, touched on this impractical definition in some of his statements. The way some work is done in 2009 is radically different from 1985 for example, mainly due to technology.

This blog article could be written on a kitchen table, in a cafe, on a park bench or a desk in an office. Each of these would be workplaces because work is being undertaken however if the article is being written on a laptop in a cafe, at the moment, the cafe owner would have no OHS obligations on my actions. There would likely be public liability and safety issues, particularly if the laptop was also plugged into the cafe’s power supply, for instance, but the cafe is only a workplace for the employees of the cafe. Under the draft Safe Work Act (or Bill), if the customers are working there, the cafe owner would have OHS obligations for them. The customers, the workers, of course would have their own OHS obligations as they do now.

Hammond made the point that the new proposed laws dispense with the legal relationship of employer and employee. This fundamentally changes the coverage of OHS legislation. As I put it to Hammond at the seminar, the changes remove the “occupational” from the OHS law. It has become a criminal law in a social context.

Hammond sees no reason to change the employment relationship to the extent proposed if the aim is to encompass the new varieties of work activity and workplace. He believes that these circumstances can still be met specific provisions to deal with the new varieties of work whilst maintaining the fundamental employer- employee relationship. Business and society would then be able to better understand some of the changes because the context would be within what has been understood for decades as “work”.

The proposed Safe Work Bill is trying to be too much too quickly and will set back OHS gains a long way. OHS has accrued considerable social awareness and acceptance. The legal principles of a safe workplace and safe work have been largely embraced by the community. Australia has not experienced the “OHS has gone mad” campaigns waged in the United Kingdom but if this law proceeds as it is, government will not be able to manage it, business will dismiss it through frustration, and the community will think (rightly) that OHS is a joke. Safety professionals and OHS regulators will be seen as sucking the sense out of what used to be sensible.

Mike Hammond has seen criminal law reacting to changing social circumstances. He said that this proposed law is attempting to set a social agenda and a dangerous precedent.

Kevin Jones

Where is the human right to safe work?

Australia is in the middle of a debate about the possible introduction of a charter or bill of human rights. The debate has been invigorated by the presentation to the Federal Government of a consultation report on human rights.

Occupational safety is often said to be an issue of human rights but this seems to be a secondary action inferred from labor rights rather than a specific statement. Below are a selection of the articles in the United Nations Universal Declaration of Human Rights that may relate to safe workplaces:

Article 1 – All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.

Article 3 – Everyone has the right to life, liberty and security of person.

Article 7 – All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.

Article 23 – 1. Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.

Article 24 – Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay.

The closest one would get to a specific right to “safety at work” would be Article 23 – 1 where there is a right to “favourable conditions of work”. Favourable is a term that is not seen in OHS legislation or discussions but may tie in with the Australian Government’s concepts of Fair Work.

Article 25 – 1 refers to “the health and well-being” but the following examples place this clearly in the social, non-workplace context.

Article 25 – 1. Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.

One could argue that the right to a “standard of living” may include the qualitative elements of a safe working environment but a standard of living – usually income, education and, sometimes, access and quality of health care – is not the “quality of life” which includes safety.

The report referred to above again does not have an overt statement that people have a right to a safe workplace but it does say, in its summary, that introducing a Human Rights Act

“…. could generate economic benefits, reducing the economic costs associated with policies that do not protect the lives and safety of Australians.”

This language may get a sympathetic ear from the Government in its context of a review of OHS legislation.

But no-one is making the case for a right for a safe workplace.

The argument that a specific right is not required as the state and national OHS legislation places clear obligations on employers and employees does not hold water as similar obligations are in other legislation and some of those sectors are advocating for human rights.

It should be clear from this article that SafetyAtWorkBlog is not a lawyer or a human rights specialist. But what the Government is looking for is discussion on the potential impacts of a Human Rights Act and it is clear from much of the contemporary discussion on occupational health and safety that the overlap between OHS and social safety is increasing very quickly, in the opinion of SafetyAtWorkBlog, quicker than the legislations and laws can cope.

In the past the trade union movement would take the running on human rights as part of their social charter but, as has been said in other SafetyAtWorkBlog articles, the trade unions still remain focused on the material interests of work, primarily, and are currently lobbying on OHS in Australia, primarily, from an industrial base.

The labour lawyers are debating the intricacies of the proposed OHS laws rather than the big picture, the context of the OHS laws in the broader legal and social fabric. Perhaps this is considered a dead area of examination and discussion. Once a law is introduced or a precedent set, lawyers tend to adjust their analytical thinking to fit. Safety professionals and commentators have the luxury to think more broadly.

The safety professional associations are remarkably quiet on the whole idea, preferring to bow to their legal advisers while at the same wondering how they can find relevance in the evolving social context of OHS.

If readers of SafetyAtWorkBlog can shed any light on the human right for safe work, please submit comments below.

Kevin Jones

Category: workplace

Prosecution results from fall through roof

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Two forklift cases in Australia – one death and one fine

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Evidence of heart attacks due to secondhand smoke

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CFMEU, IPA, Gretley Mine – political lessons

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Changing weather conditions can present unexpected hazards

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OHS is becoming criminal law in a social context

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Where is the human right to safe work?

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