WorkSafe – Page 76 – SafetyAtWorkBlog

Workplace safety can be funny

This week workplace safety on a building site received a much needed dose of humour. The Australian show “ThankGod, You’re Here” had a comedian enter a pretend building site and have to face questions from an OHS inspector as if he was the owner of the site.

The sketch has added impact because of its timing. It is hard to imagine this occurring ten years ago in a society and industry where OHS compliance was less valued, when hardhats were considered optional and when brightly-coloured vests looked stupid. That the sketch is funny is a measure of how OHS regulation and enforcement has matured and just how successful the OHS regulators have been in changing the society’s attitudes to workplace safety in Australia.

Also, it shows something more illustrative of comedy, more true. In the sketch there are some wonderful stunts done by a small earthmover. Only last year there was outrage, and fines, over some forklift stunts done for real by a young driver in Melbourne. The environment makes the difference between laughter and outrage.

The success of the TV show’s concept is also indicated by the issue of the 12-year-old welder on the building site. The comedian, Merrick Watts, removes the issue of age by insisting the young boy is actually in his fifties and just looks younger.

WorkSafe Victoria, whose logo is worn by the pretend inspectors in the sketch, have said that they did not pay for brand placement and that the show did not belittle the work they do. In fact the show “actually showed that we have a job to do and that there are good reasons for it.”

Kevin Jones

Migrant worker safety

Recently one of the Australian boutique labour law firms ran a seminar on employment issues related to migrant workers. Australia has a history of using workers from the Pacific Islands, principally, in agriculture. Chinese have been working in Australia since the goldfields of the 1800s. New Zealanders are so frequent that the countries almost share an economy in some ways. Some labour is imported, other labour is invited or sought.

The global economic problems has exacerbated the difficulties many countries face with legal and illegal migrant workers. Australia is not immune. There may be less and less water in the country, certainly in the south, but it is still considered a land of opportunity by neighbours.

Workplace safety issues are perhaps the easiest to deal with in this labour sector as the employment status is not relevant to the obligation to provide a safe and healthy work environment.

The safety training, instruction and supervision matters are similarly unaffected by employment status. However it has always been a difficult part of an OHS manager and HR manager’s job to make sure that workers understand their obligations and duties. In Victoria, one of the first OHS Codes of Practice in the 1980s concerned providing OHS information in languages other than English. It was probably the most ignored Code of Practice of all.

Recently, WorkSafe Victoria has issued Compliance Codes. Following the recommendations and techniques in these codes implies compliance and can be wonderful for the small business sector. One of the new codes is on communicating in languages other than English This is a great start but there needs a much greater effort, almost a movement, for Australia to avoid the problems facing countries like England.

In late-March 2009, the UK law firm Irwin Mitchell reported the following statistics

The report [by the Centre for Corporate Accountability], which makes the figures public for the first time and was compiled following Freedom of Information requests to the Health and Safety Executive, shows that a dozen migrant workers died in the construction industry in the year 2007/08 – at least double the figure expected and a six-fold increase in the number who died just five years earlier.

The 12 deaths comprised 17% of the total number of fatalities in the sector last year – more than double the HSE’s estimate of migrants making up around 8% of the total construction sector workforce.

Migrant deaths in other sectors is also on the increase, with the number of fatalities of non-UK workers up from nine in 2005/6 to 18 in 2007/8 and the proportion also doubling from 4.1% to 7.9% in the same period, against figures showing that 5.4% of the total workforce comprises migrants.

No official information is currently available on the level of injuries to migrant workers, as the HSE does not record nationality in injury cases, though estimates put the figure as high as 11% – again, double the expected level.

Many workplaces have already dealt with safety issues with migrant labour. Crews in rail maintenance, for instance, are often on ethical lines so that colleagues educate each other. Often workplaces call on an established worker from a specific ethnic area to take the lead in supervising others and passing on OHS information. These adhoc processes still need to be verified as effective but have worked in many workplaces for decades.

A recent rumour posted to the Australian website Crikey.com illustrates the type of attitude to migrant workers and the mixing of concerns about safety and industrial issues.

A Chinese owned mining project is advertising for a Bilingual (English Mandarin) Registered Nurse on their website [since removed]. The role is stated to be designed for liaison with Chinese workers and is required to have industrial safety knowledge, reporting directly to a company director? How many Chinese workers is this project bringing into Australia given the recent restrictions on 457s [migrant work visas], what about the requirement for foreign workers to have some competency in English, anecdotal evidence that building and construction labour rates are already decreasing and how would the unions view this approach to health and safety of foreign workers?

One OHS expert at the law firm’s seminar accepted that the language requirements were woefully inadequate and not suited for the workplace situation. It would be refreshing to see an OHS professional association begin lobbying the government on improving the language criteria for visa eligibility.

The unions would be equally concerned about the safety of any workers onsite, hopefully regardless of the workers’ union membership status.

Australia is in a lucky situation where many workplaces could continue to operate without migrant labour but the world and its economy is changing, and Australia will be dragged into the real world of the modern international workforce. It is lucky because it has the opportunity to prepare. It is such a shame that the preparation remains so thin.

Kevin Jones

Farmers creating dis-harmony in OHS legislation

Australia is undergoing a process of national harmonisation on workplace safety legislation. The government has played down the chances of State jurisdictions creating exemptions to, or variations of, OHS law. The message was that we are all “singing from the same song sheet”.

Even before model OHS legislation has been approved, the New South Wales Farmer’s Federation has wangled an exemption from the driver fatigue legislation in that state.

According to the President of the NSW Farmer’s Federation, Jock Laurie, the fatigue law was not about reducing or removing fatigue from the transport industry, it was about

“bureaucrats finding other ways to make life difficult for people”.

He is willing to even go on the record with the statement – Jock Laurie

As farmer and outspoken conservative Senator Bill Heffernan, said in Parliament on 22 September 2008, the legislation

“is designed to make driving safer and the work conditions better for drivers in Australia, and to harmonise the laws across the states.”

Yet he goes on to support the call for an exemption which results in weakening the harmonisation process.

It seems that farmers who drive trucks long-distances over many hours, particularly during harvest-time, do not have any relationship to the transport industry. The situation will now be that a petrol tanker driver on a country highway can operate under one set of national OHS and transport rules and a farmer delivering grain to a port operates with an exemption – all because maintainign a log book is unnecessary red tape!

This threat to the harmonisation process should have been jumped on by the Federal government.

However, it has to be said, that inadequate transport infrastructure investment has lead to the closure of country rail lines and increased the need for farmers to transport produce by road, thereby increasing the road risk to rural communities. Perhaps the farmers’ lobby groups realise they can’t change the big picture so are aiming for little targets.

Kevin Jones

WorkSafe Victoria’s plans for the future

At the Safety In Action Conference in Melbourne last week the CEO Of WorkSafe Victoria, John Merritt, told the delegates that over the coming weeks and months we will see the following:

The “Homecomings” series of workplace safety ads have been purchased by Washington State and will be broadcast shortly. Merritt expects the campaign to spread across the United States and, maybe, into Canada;
WorkSafe has developed fake vending machines for use at exhibitions and trade displays which display replacement body parts, fingers as USB sticks (pictured below);
WorkSafe will be introducing an advisory support scheme for the medium-sized businesses, modelled on the Small Business scheme;
A team of advisers is targeting poor-performing large employers. Merritt said that “50 large employers account for 11% of all injuries WorkSafe sees”;
A major street art campaign will be launched by the end of April 2009
A new series of ads to be run on regional and rural television based on local sporting legends as part of the country football and netball sponsorship;
The graphic young worker advertisements will be re-run at appropriate times. Merritt acknowledged that the ads have generated many complaints but are transmitting the right message to the target audience.

WorkSafe will also maintain their focus on the “jugglers” those business people or administrative staff that are essential to each organisation because they are in charge of dozens of business processes. WorkSafe surveys of the jugglers have shown that less than 10% of their time is spent on OHS matters, around 30% of them are trained in their tasks and most operate without support.

Kevin Jones

Global pressures on Australian workers compensation schemes

Around 18 months ago the Victoria Government launched WorkHealth, a health prevention program that would be funded from the interest generated from the pool of workers compensation funds. SafetyAtWorkBlog has previously questioned how the program will be funded when its income source is likely to have been severely reduced due to the global economic problems.

On 1 April 2009 WorkCover in South Australia reported a half-year net loss of $313 million. WorkCover CEO Julia Davison said in a media release that

“the global crisis is, as expected, taking its toll. In the last six months stock markets have declined, investors have experienced significant losses, and interest rates have fallen significantly,” she said “Like all investors, WorkCover has been hit hard by the global financial downturn.”

Earlier in March 2009, the Chair of the WorkSafe Board Elana Rubin said

“the significant downturn on the world financial markets and reduction in interest rates had combined to drive a net loss of $1.42 billion for the half year. Whilst interest rate reductions are good news for those of us with mortgages, they have the opposite effect on our scheme – in the half year to 31 December 2008, the unprecedented level of interest rate cuts negatively impacted our net result by $645 million.”

On 1 April 2009 SafetyAtWorkBlog asked John Merritt why WorkHealth was not mentioned as part of his keynote presentation at the Safety In Action Conference. He reiterated the importance of the program in easing the recovery time, particularly, for manual handling injuries but acknowledged that the program’s funding source was based on interest

“from the [$600 million of the assets of the] workers compensation scheme over the next five years ….well there used to be interest from assets – there should be one day, there will be again – around $40 million each year for the next five years will be invested in worker health.”

It is good to hear that the WorkHealth program is going to continue but the fragility of the program’s funding should have been evident in the planning phase. Governments around the world are pulling back on government funded programs in a wide range of areas. Ideas that seem good in the good times are now looking like luxuries. It will be interesting to see if WorkHealth continues in the WorkCover area or moves to Health, where many of its critics have always said it belongs.

Kevin Jones

BHP Billiton deaths – government intervention

The West Australian government has taken the extraordinary step of talking directly to the senior management of Australian mining corporation BHP Billiton about the recent spate of fatalities at BHP’s worksites. The cynic would say that we now know the number of workplace fatalities that it takes to gain a Minister’s attention however, the fact that this high-level meeting is occurring is a clear indication of the severity of the issue. It may also indicate just how effective a union safety campaign can be. It is just regrettable the campaign is generated from multiple fatalities rather than preventive issues.

According to the Minister, Nick Moore

“Mines inspectors will now issue prohibition notices to BHP under the Mines Safety and Inspection Act 1994 – basically a stop work notice – for any breach of work practices or work place conditions that may constitute a hazard to workers.”

Mr Moore went on to say, according to one media article, “…the policy would remain in force until he had seen the report of a Section 45 review currently under way into safety management systems at all of BHP Billiton’s Pilbara iron ore mine sites.”

The article noted that

“The review, requiring independent engineering studies of BHP worksites to be carried out, is expected to be completed by April 30.”

BHP, meanwhile, has given guarantees of the following safety improvements:

Reduce site access;
Improve contractor management;
Enhance existing strategies to prevent excess working hours;
Move rail operations from the Mine Safety and Inspection Act to the Rail Safety Act;
Enhance traffic management standards, and;
Suspend all non-essential work outside daylight hours

Kevin Jones

Company directors and OHS obligations

Since the final report of Australia’s Review into Model OHS Law, discussion has been remarkably quiet. The ACTU was scheduled to meet for discussions on the report last Monday and no public statements have been made. Most of the labour law firms have been quiet also. It is fair to say that most are trying to digest the 480 page report.

But one employer group has provided an opinion piece in the business pages of The Age newspaper on March 2 2009. The article says little that is new but it is mischievous in some of its comments.

John Colvin, CEO of the Australian Institute of Company Directors, writes of his concerns about increased exposure for the Institute’s members. Colvin is concerned that upcoming OHS laws may be unprincipled and counterproductive.

The Model OHS Law report has said that it supports the statement of OHS principles as are already in place in the Victorian OHS legislation. According to WorkSafe Victoria

“The Act sets out the key principles, duties and rights in relation to occupational health and safety. The general nature of the duties imposed by the Act means that they cover a very wide variety of circumstances, do not readily date and provide considerable flexibility for a duty holder to determine what needs to be done to comply.”

These principles are

4. The principles of health and safety protection

(1)    The importance of health and safety requires that employees, other persons at work and members of the public be given the highest level of protection against risks to their health and safety that is reasonably practicable in the circumstances.

(2)    Persons who control or manage matters that give rise or may give rise to risks to health or safety are responsible for eliminating or reducing those risks so far as is reasonably practicable.

(3)    Employers and self-employed persons should be proactive, and take all reasonably practicable measures, to ensure health and safety at workplaces and in the conduct of undertakings.

(4)    Employers and employees should exchange information and ideas about risks to health and safety and measures that can be taken to eliminate or reduce those risks.

(5)    Employees are entitled, and should be encouraged, to be represented in relation to health and safety issues.

The article is mischievous in a number of areas. Colvin mentions how the current laws vary from state to state. He mentions that

“Some carry personal criminal liability for directors, even where they may not have had any personal involvement in a breach. In some states, they reverse the onus of proof, removing the presumption of innocence, and offer narrow legal defences and limited appeal rights.” (my emphasis)

Colvin is talking primarily about New South Wales, the State that everyone agrees has the OHS law that is most onerous for employers. However, the New South Wales union movement has been remarkably quiet and flexible on the issue of its OHS laws. There has been some rhetoric for the benefit of its members and to retain some ideological “face” but the union movement across Australia is coming to accept the reality of better OHS outcomes from nationally harmonised legislation.

Repeatedly the National OHS Law Review panel stated that it has based its decisions on the structure of the Victorian legislation as, for one reason, it has undergone the most recent legal review. Colvin’s focus on New South Wales OHS law is outdated, reflective, and unhelpful.

Colvin mentions a survey that found

“..more than 65 per cent said the risk of personal liability occasionally made them take an overly cautious approach in the boardroom and another 13 per cent said this happened frequently. Almost two-thirds felt this had inhibited an optimal business decision to a medium to high degree.”

This indicates that the risk of being prosecuted on OHS breaches is being discussed at board level – great result. Whether this translates to the board improving the OHS performance of their company is doubtful as Colvin’s article implies that directors are looking at ways of avoiding responsibility and liability rather than accepting the reality of their OHS obligations and working to improve them.

Colvin says that

“Directors should not be held criminally liable for a company’s misconduct simply because they are a director.”

Directors are not prosecuted for OHS breaches because of their status or position. They are prosecuted because of the decisions that they make and the ramifications of those decisions. If a director is dismissive of OHS issues and palms them off to someone else in the organisation and an incident occurs, should not the director be called to account for why they considered the safety of their workers to be unimportant, even when for over thirty years directors and executives have had responsibility for OHS compliance?

Colvin believes that holding directors accountable implies that directors have more control over the actions of their employers than they do. Current business and management theories promote the position that directors should be more in touch with what is happening on the shopfloor. The theories promote informed leadership and an increased awareness of how the company and its people work, they promote a level of engagement that creates a positive workplace culture and displays leadership. Colvin seems to be encouraging the opposite.

He ends his article with

“More fundamentally, it unfairly treats directors more harshly under the law than the rest of the community.”

He misunderstands the application and aims of OHS law. All people in a workplace have a responsibility to ensure a safe and healthy workplace for themselves, for employees and for members of public on and off their worksites. Directors have more detailed obligations, but not less, because they have control of production and benefit more from the success of the company than do the employees.

Ultimately, Colvin’s article reflects the misunderstanding of OHS that directors and companies have had for decades. Companies need to realise that the best performing companies in OHS, and those with the best productivity, are those that have embraced their obligations for safety and have incorporated the principles within their own culture.

The review into model OHS law has indicated the way of the future and company directors would be well-served to realise this and get on board. Being left behind will benefit no one, especially the shareholders.

Kevin Jones

Category: WorkSafe

Workplace safety can be funny

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Migrant worker safety

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Farmers creating dis-harmony in OHS legislation

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WorkSafe Victoria’s plans for the future

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Global pressures on Australian workers compensation schemes

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BHP Billiton deaths – government intervention

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Company directors and OHS obligations

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