Category: WorkSafe

John Merritt and ‘reasonably practicable’

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

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

Occupational violence in fast food restaurants and petrol stations

The Australian media has been abuzz over the last couple of days on several issues concerning violence.  Attention increases whenever there is video involved and the latest film of a bashing in Melbourne in a Hungry Jack’s store in the early hours of 13 July 2009 is getting a considerable run.

Most commentators are taking the bashing of 19-year-old Luke Adams as an example of “street violence”.  SafetyAtWorkBlog believes that the fact that this event occurred between customers in a workplace, raises questions about the obligations of retail store owners towards health and safety.

The case of Luke Adams again illustrates the reality that surveillance cameras can assist in the apprehension of criminals but does little to reduce the harm to employees and customers.  This seems to be contrary to the OHS principles in Australian OHS legislation.

SafetyAtWorkBlog would ask any retailers who choose to operate, particularly, during nighttime

  • Are the stores designed to reduce (hopefully eliminate) the risk of violent contact between customers and staff?
  • Are there restrictions on the age or gender of staff who work nightshift?
  • Is the first aid training provided to staff designed to accommodate the emergency treatment of severely injured customers?
  • Has the presence of a security guard been tried during nightshifts?
  • Would the company consider closing a store if the risks to staff and customers became unacceptable?

SafetyAtWorkBlog knows of at least one fast food restaurant in Melbourne that removed its public toilets because of the number of drug overdoses that occurred in the cubicles.  This store eventually closed its 24-hour store, partly, because of the unacceptable risk that developed.

The unfortunate linking of fast food restaurants with violent attacks is an issue of all-night trading as much as any other reason.  It was just over two weeks ago that a fight in the grounds of a Hungry Jacks restaurant in suburban Melbourne was reported and wrapped into the current topic of supposedly racist-based attacks against Indian students.

The attacks are not limited to Melbourne though.  A 19-year-old Korean student, Lee Joon–yub, was killed in Sydney in 2008 after being stabbed at a fast-food restaurant

AIC Service Station Violence coverThe risk of occupational violence, as it is more traditionally understood, is increasing according to findings released on 16 July 2009 by the Australian Institute of Criminology.  Its report, which also received some media attention from radio, finds that

“The incidence of service station armed robbery has steadily increased over the past decade. ….. This opportunistic targeting of service stations has been attributed to their extended opening hours, their sale of cigarettes and other exchangeable goods, their high volume of cash transactions and their isolation from other businesses. Widespread adoption of crime prevention measures by service stations, such as transfer trays, could help reduce their risk of being robbed…..”

The full report is worth reading closely from an OHS perspective as it identifies the characteristics of services stations (and maybe other all-night retail outlets) that are attractive to the opportunistic robber.  We should not dismiss armed robberies as only involving monetary loss to retailers as the study showed that “one-third of armed robbery victims…were individual”.

The AIC report also states that

“…minimal staffing on night shift is seen to increase the risk of armed robbery victimization for service stations.”

This brings in all the OHS advice and research concerning working alone or in isolation.  However there must be some sympathy for employers trying to recruit night shift workers for industries where violence is an increasing risk.

The mention of the hazard control measure of transfer trays is gratifying as it fits with a higher order of control measure in OHS parlance by providing an engineering control.  However this needs to be backed up by specific training for employees on what to do when required to render assistance outside the enclosed booth.

The application of transfer trays may be valid for fast food stores at nighttime by only offering a drive-thru service and further reducing the risk of customer violence against employees.

Pages from VWAHotspots_retail_10_10Regardless of the physical harm from work tasks arising from working in retail, WorkSafe Victoria advises of four control measures for what it describes as the psychological system of stress, bullying and harassment:

  • Your workplace culture and management should encourage open and effective communication.
  • Develop, implement and enforce clear policies and procedures that address bullying, occupational violence, harassment and work pressure in consultation with workers (including young workers) and management.
  • Where money is handled, put in place security measures to reduce the risk of occupational violence.
  • Training and procedures should include all staff at risk, including any casual or on hire workers.

Kevin Jones

Latest guidance on working alone

Western Australia’s WorkSafe has just released its latest guidance on working alone and it is the most practical look at the hazard from any OHS regulator in Australia.Working_alone cover

Importantly, it differentiates between “alone” and “remote”.  In 1995, when the Victorian First Aid Code of Practice raised the issue of isolation, there was considerable confusion.  How can someone in the metropolitan area be isolated or remote?

  • Undertaking an assessment of first aid needs of a multi-storey building which has cleaners or nightshift working at 2am.
  • Working alone in a petrol station in an outer suburb.
  • (Sadly) showing a potential client a new property in a new real estate development on the fringes of the city.
  • Security guard walking the perimeter of an industrial site
  • Delivering pizzas at 3am
  • Home visits from medical specialists

The WA definition of “alone” is very useful and needs to be kept front-of-mind in OHS policy and procedure production.  It could be used in the review process of existing policies and prores to ensure their applicability.

“A person is alone at work when they are on their own, when they cannot be seen or heard by another person, and when they cannot expect a visit from another worker or member of the public for some time.”

The working alone guidance identifies four industry types that require special support for working alone:

  • Agriculture
  • Pastoral
  • Forestry
  • Mining

Although SafetyAtWorkBlog advocates low-tech control options as much as possible (usually because of increased reliability) thankfully this guidance discusses mobile phones, satellite communications, GPS locators and other communications devices.

Kevin Jones

OHS crime alert

Media -0x1.8b5ce0p-63lert- 52392336nal[1] - crimeIn late June 2009, WorkSafe Victoria tried a new approach to raising the awareness of the criminal status of OHS breaches through producing a formatted media alert and placing an ad in the daily newspapers.

It is unclear how else the “flyer” will be distributed other than through the WorkSafe website.  Indications are that a hard copy of the alert for distribution through WorkSafe offices is not planned.

The ad, pictured right, refers to the prosecution of Rapid Roller over the second serious lathe incident at that workplace in 12 months, the most recent resulting in a death.

Kevin Jones

Trained first aiders in “low risk” microbusinesses

WorkSafe contacted me today concerning some issues raised in a previous post concerning their first aid information. Some small tweaks have been made to that post but one point required elaboration.  There is some dispute over whether low risk micro businesses require a trained first aider.   Below is my position.

FIRST AID NEEDS ASSESSMENT

The First Aid Compliance Code discusses a first aid needs assessment.   In our experience of assessing scores of workplaces, large and small, for first aid needs (including over 28 McDonald’s restaurants but that’s another story), we are convinced that a workplace that relies on others to provide an acceptable level of emergency first aid response would expose the employer to avoidable legal issues.   Unless, of course, one relies on “as far as is reasonably practicable” after someone may have been seriously injured or died on your premises.  It is doubtful that the relatives of the deceased would be so forgiving.  (Consider the actions of concerned relatives following the Kerang court case decision.)

Ask yourself, is it better to have a trained first aider on site just in case, or rely on an ambulance being readily available and render no assistance?

Time is crucial in an emergency, with the risk of a person’s condition becoming more serious the longer treatment is delayed.  Emergency ambulances, even in metropolitan areas, can be delayed and, in an emergency, waiting with an unconscious and/or non-breathing person will seem an eternity.  Any delay in rendering appropriate first aid treatment will complicate proving that an appropriate duty of care was applied in the circumstance.

The Australian Resuscitation Council has made its guidelines available online. For those interested in establishing an appropriate level of first aid response for their workplaces, the guidelines are recommended to read.  But more importantly is the need to have suitably trained first aiders on site, particularly after an assessment of the workplace’s  first aid needs has been conducted.  A first aid kit is next to useless if CPR is required.

Of course, the need for first aid is minimised if all the other OHS matters are dealt with first in an orderly safety management system.

Kevin Jones

Flawed first aid information

First Aid Complaince CodeSome time ago WorkSafe Victoria issued Compliance Codes on a number of workplace safety issues.  One was concerning First Aid.  The Compliance Codes were intended to replace Codes of Practice which had been around for decades.

The previous major change to workplace first aid was in 1995 when the First Aid Code of Practice was reviewed in Victoria.  Other Australian States vary between prescriptive and non-prescriptive first aid guidelines.

On 31 May 2009, WorkSafe released a factsheet on first aid for low risk micro businesses.  A low risk micro business is explained in the factsheet as those that

  • employ fewer than 10 people
  • are located where medical assistance or ambulance services are readily available
  • are businesses that don’t expose employees to hazards that could result in serious injuries (eg serious head injury, de-gloving, scalping, electric shock, spinal injury) or illnesses that may require immediate medical treatment.

First Aid for Low Risk Micro BusinessesSome examples of low risk micro businesses were included in the factsheet –  “retail shops and outlets, offices, libraries and art galleries” Why a one page information sheet for this sector was deemed to be needed is a mystery?  I asked WorkSafe several questions about this factsheet

  • What was the rationale for the production of this guidance for this sector? Given that the Compliance Code is specifically referenced.
  • Is retail really a low-risk micro-business?
    • What about the use of ladders?
    • Young workers?
    • Working alone or unsupervised?
    • Occupational (customer) violence?
    • Petrol stations?
    • Convenience stores?
    • Night shift security needs?
    • Knife cuts from removing stock from boxes?
    • Manual handling?
  • First aid kits are required but not first aid training. In the case of respiratory failure a first aid kit is next to useless for CPR.
  • Why is only St John Ambulance referenced on the guidance?

The factsheet misunderstands first aid by placing low risk microbusineses into the “paper-cut” sector.  This is doing micro-businesses a dreadful disservice.

TRAINED FIRST AIDER

Shortly after the First Aid Compliance Code was released St John Ambulance broadcast an email about workplace first aid compliance.  In that email St John wrote:

Low risk organisations (office, libraries, retail etc) should have at least one qualified First Aider for 10 to 50 employees…

The May 2009 fact sheet makes no mention of the need for a trained first aider but WorkSafe’s own Compliance Code states this as a compliance element.

A low-risk micro-business may not generate the potential hazards that WorkSafe lists in its definition above but employees in these businesses do have to respond to the injury needs of their customers.  In these times of public liability and the expansion of OHS obligations to include customers, neighbours, and others who are affected by work processes.

WorkSafe itself describes an employee’s duty of care:

“All workers have a duty of care to ensure that they work in a manner that is not harmful to their own health and safety and the health and safety of others.”

The omission of a trained first aider is unforgivable.  What would an employee do if a client collapses in the foyer of a convenience store with a heart attack or chokes on the food that they have just purchased?  What would one do if a stab victim stumbles into the only open retail outlet, perhaps a petrol station, at 2.00am? How would that petrol station attendant  treat someone who has had petrol accidentally splashed in their face?

These matters cannot be treated by a person who is untrained in basic first aid who only has a first aid kit available.  Training for all workers who work alone or in isolation in micro-businesses is a basic element of compliance, one that WorkSafe fails to list in its latest workplace first aid factsheet.

EMERGENCY NUMBER

Almost as unforgivable is that the factsheet makes no reference to the Australian emergency number of 000.  One of the first actions to be performed in a workplace where someone is seriously injured is to call for an emergency ambulance.  While waiting for the medical authorities, and if safe to do so, first aid should be rendered. WorkSafe needs to remember that CPR requires training and that a first aid kit is next to useless in this type of situation.

ST JOHN AMBULANCE

It is curious that only St John Ambulance is listed on the factsheet for further information.  There are many first aid equipment and training providers in Victoria.  It would have been fairer to either recommend all providers or none at all.

[UPDATE: WorkSafe has advised SafetyAtWorkBlog that they will be addressing the St John Ambulance and 000 issues raised.]

COMPLIANCE CODES

On 18 September 2008, the WorkSafe website described the First Aid Compliance Code as covering

“…first aid arrangements including first aid needs assessment, first aid training, first aid kits and first aid facilities.”

In a media statement at the time on compliance codes generally WorkSafe Executive Director, John Merritt was quoted:

“The codes were developed after extensive consultation with industry, employers, employees, governmental agencies and the community to provide greater certainty about what constitutes compliance under the OHS Act.”

“The codes include practical guidance, tools and checklists to make it easier for duty-holders to fulfil their legal obligations.”

Mr Merritt added that: “These codes will provide Victorian employers, workers and Health and Safety Representatives with certainty and assistance in meeting their responsibilities.”

The Compliance Codes are aimed at the many dutyholders yet one of the rationales for the new single sheet guidance is that dutyholders (employers) do not read Compliance Codes.  It seems that the Codes are now principally read by OHS professionals and advisers.

(This position may be one of the reasons WorkSafe is pushing so hard for a truly professional OHS structure through its HaSPA program – the establishment of an OHS middleman between the rules and their application in the real world.)

It is a considerable change to the readership the Compliance Codes were aimed at and is a substantial change from the Codes of Practice which, in the case of First Aid, were handed out to all first aid trainees, included in information kits for health & safety reps, and were read by dutyholders and integrated into their OHS management practices.

The significance of Compliance Codes and Codes of Practice at the moment is that these documents are to be part of the Federal Government’s move to harmonisation of OHS laws.  (Some eastern States have already begun joint publication of guidances). Variations in these documents, often the most referred-to OHS documents in workplaces across the country, will undercut the aim of harmonisation – the reduction of business compliance costs through harmonised OHS requirements.  If the practical application of laws are not harmonised, the aims will never be met and the process could be seen as seriously flawed.

Kevin Jones

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