Category: workplace

Successful appeal in finger injury case

SafetyAtWorkBlog mainly keeps away from referring to specific court decisions on OHS Prosecutions because, to a large extent, these are decisions of law rather than safety management.  The judgements also require clear legal interpretation so that any management lessons of the judgement can be extracted.

Another reason is that SafetyAtWorkBlog intends to be a FREE conduit for OHS discussion and news. We don’t agree that blogs should refer to information that can only be accessed through subscriptions.  That approach renders a blog advertising which is contrary to what we believe a weblog should be.

In this context some readers may be interested in reading the judge’s decision in an appeal case that has appeareed on several Australian OHS sites in the last day.

According to a judgement in the South Australia Industrial Court:

Adelaide Industrial Labour Service Pty Ltd (AILS)… is a labour hire company which employed John McCutcheon on 19 May 2005. At the time Mr McCutcheon was eighteen years old and had no trade qualifications or experience.
On 19 May 2005 AILS sent Mr McCutcheon to work for Dagenham Pty Ltd (trading as Link Plus) as a labourer.
On 20 May 2005 Mr McCutcheon whilst operating a pipe bending machine which was unguarded, sustained serious finger injuries to both hands. Mr McCutcheon had not received adequate instruction or training to operate that machine.
Dagenham was charged with a breach of s 19(1) of the Occupational Health Safety and Welfare Act 1986 (the Act) and was sentenced on 18 December 2006 by Ardlie IM to a penalty of $12,000, discounted on account of its guilty plea to $9,000.

The court has reduced the fine by $3,000 and has found that the Industrial Magistrate in the initial case made a defective decision.

The full decision is available for download HERE

Likely Process of State OHS Legislation

As part of the COAG meeting in early July 2008 the Ausralain governments have signed an Inter-Governmental Agreement for Regulatory and Operational Reform in Occupational Health and Safety. For those of you interested in how the replacement body for the Australian Safety & Compensation Council will operate and be funded, this is the blueprint.

However, part of the agreement on OHS reform does not sit right with the commitments we have heard from the government over the last 6 months or so.  Perhaps our interpretations and expectations were a little unrealistic.

Part 5 of the inter-governmental agreement says

PART 5 – OCCUPATIONAL HEALTH AND SAFETY REFORM
5.1 Model OHS Legislation
5.1.1 The Parties commit to work cooperatively to harmonise OHS regulation through the adoption and implementation of model OHS legislation.
5.1.2 The Parties support the National Review into Model Occupational Health and Safety Laws, announced by the Commonwealth Minister on 4 April2008.
5.1.3 Model OHS legislation will comprise a model principal Act supported by model OHS regulations and model codes of practice. Model OHS legislation will be developed by [ASCC replacement body] in accordance with the terms of this Agreement.
5.1.4 The development process for model OHS legislation will allow for interested persons to make representations concerning any proposed model legislation. Prior to submitting any proposed model legislation to WRMC, [ASCC replacement body] will give due consideration to any representations duly made to it and make such alterations to the proposed legislation as it sees fit.
5.1.5 The Parties agree that a national compliance and enforcement policy will be developed to ensure a consistent regulatory approach across all jurisdictions.
5.1.6 For the purpose of ensuring that model OHS legislation applies throughout Australia, each Party to this Agreement will, subject to its parliamentary and other law-making processes, take all necessary steps to enact or otherwise give effect to model OHS legislation within its jurisdiction within the timeframes agreed by WRMC.
5.1.7 For the purposes of subclause 5.1.1, the adoption and implementation of model OHS legislation requires each jurisdiction to enact or otherwise give effect to their own laws that mirror the model laws as far as possible having regard to the drafting protocols in each jurisdiction.
5.1.8 The adoption and implementation of model OHS legislation is not intended to prevent jurisdictions from enacting or otherwise giving effect to additional provisions, provided these do not materially affect the operation of the model legislation, for example, by providing for a consultative mechanism within a jurisdiction.
5.1.9 [ASCC replacement body] will make model OHS legislation publicly available on its website when it is agreed by WRMC. [ASCC replacement body] will hold and maintain all original copies of agreed model OHS legislation, including any subsequent amendments.

Clearly, there is not going to be one OHS Act and jurisdiction for Australia.  Many OHS organisations and businesses advocated for a single administrative structure but there was always the Constitution in the way.  The Workplace Relations Ministerial Council (WRMC) has suggested that each State structures its own OHS legislation “subject to its parliamentary and other law-making processes” (5.1.6 above)

Certainly States could not implement something that conflicts with the core obligations and conditions but the quote above clearly allows State politics to affect OHS operations within the State.  However you look at there is clearly room for the States to move.

However this movement will be tempered by having amendments and new legislation “approved” by the WRMC and then have each of the States amend their own OHS legislation to accommodate the other State’s changes, in order to keep close to national uniformity

5.5.2 Any Party that proposes to amend its legislation or introduce new legislation so as to materially affect the operation of model OHS legislation will submit the proposed amendments or new legislation to WRMC for decision. Each Party agrees that it will not progress implementation of any such amendment or such new legislation unless WRMC has endorsed the proposed amendment or new legislation.
5.5.3 Where WRMC approves an amendment to legislation or new legislation that affects the operation of the agreed model OHS legislation, all Parties will (unless otherwise agreed by WRMC) undertake all necessary steps to introduce appropriate changes to their legislation with a view to ensuring that OHS legislation remains nationally consistent.

In no way does any of this diminish the level of political activity related to OHS law making over the next few years.  In fact I would be surprised if the lobbyists are not revising their strategies now.

The structure sounds workable while there is a friendly relationship between State and Federal governments.  If one of the States changed to a conservative government the timelines or processes could vary considerably.  There has already been persistent questioning about New South Wales Premier Morris Iemma’s tenure over the last week.  For the reform process to work, the NSW Labor Party would need to provide a strong leader before the next election so as to avoid a conservative government.  New South Wales has some of the most (according to business groups) draconian OHS legislation.  If a Liberal government came into power, and with a clear mandate, OHS will become a battleground.

Employer concerns over National OHS Review

In February 2008, I interviewed  Garry Bracks of the Australian employer association, Employers First.  Garry has been prominent in the industrial relations and OHS debates for some time and it was a pleasure to finally catch up with him.

The podcast of the interview illustrates some of the general concerns of employers with the government’s announce review into OHS law.

Issues leading up to Varanus Island pipeline explosion

Adjunct Professor Geoff Taylor recently emailed me with his concerns about the pipeline explosion on Varanus Island.

Media reports in Western Australia over the last few weeks raised serious questions about the gas crisis. Some may say that it is easy to be wise after the event, but the government had ample opportunity to be wise before the event, and develop a plan to keep a close watch on the engineering integrity of energy suppliers’ plant and an emergency plan for the state and nation. There presumably would be a safety case on file for Varanus, for example, and safety cases include contingency plans.

Prof. Andrew Hopkins wrote a book Lessons from Longford that reported on the contributing factors to the Longford gas explosion ten years ago, which left Melbourne without gas.

Here more recently we have had vibrations in the Dampier-Perth pipe, the Woodside electrical substation problem in January which cut gas supply, the National Offshore Petroleum Safety Authority (NOPSA) concerns reportedly expressed to Apache in April,  and the prohibition notice NOPSA issued to the Four Vanguard FPSO off Barrow Island reported in May.

In fact it has reportedly emerged that the WA government has a critical infrastructure protection committee advising the Premier. The police had also apparently looked at Apache, from the point of view of a terror attack primarily, in 1993 and 2001, and provided advice to the company.

It is vital that the state government’s energy ministry takes a keener and more sustained interest in these matters in the future, as they clearly can affect not just WA firms and residents, but the state and national economies, and Australia’s overseas customers.

Clearly better coordination between NOPSA, WA Resources Safety (both of which find it hard to keep staff), the energy ministry and the Premier’s committee is vital. The state’s energy system cannot be run continuously at near full capacity, because there will be outages and shutdowns for maintenance.

The advent of peak oil has highlighted the critical nature of hydrocarbon supply to our way of life, and that and the need to address the greenhouse effect also require a clear national and state energy and urban design strategy, for a state and nation so far designed around cheap fuel.

Geoff is the co-author of some excellent OHS books, particularly Enhancing Safety.

Independent okay for New Zealand’s sex industry

In 2000, sexworkers advocates in Australia published “A guide to best practice – Occupational health and safety in the Australian sex industry”. They tried for some time to have OHS authorities accept it as an industry-based code applicable to that particular State. As far as I know, they were unsuccessful but many of the elements of the guide have been picked up in various laws and licensing conditions since then. An updated soft version of the guide is available online, along with guidelines from other jurisdictions. (My edition of Safety At Work concerning the sex industry is still available as a free download)

I was reminded of this today when I saw a report from New Zealand about sexworker safety. It was reported that two Women’s Institute members from England have undertaken a world tour of brothel districts to determine the impact of local laws on prostitution. They were very impressed by New Zealand’s sex industry.

I am very impressed that an institution like the Women’s Institute undertook this activity. The realist approach to an activity that will never go away speaks volumes for how an organisation unfairly stereotyped is establishing a contemporary relevance.

Disclaimer: I treasure the WI Cookbook I purchased in the Lake District on my honeymoon over 20 years ago. It’s much better than some of the modern books that rely on manufactured ingredients.

Construction site deaths and union calls for manslaughter charges

Last weekend two Queensland workers fell 26 storeys from swing scaffolding to their deaths.  They were patching concrete on a building from a platform similar to those used by high-rise window cleaners. According to a 24 June 2008 ABC news report: “The Construction, Forestry, Mining and Energy Union (CFMEU) says the men were wearing harnesses…

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