Director accountability for OHS reinforced by NZ penalty

On April 5 2008, a cool store in New Zealand exploded killing one firefighter and injuring 7 others.  Icepak Coolstore Ltd, according to the fire services investigation report

“[had] very large quantities of combustible material contained in the expanded polystyrene construction panels and also in the foodstuffs stored.

“There were no compliant fire detection or protection systems or hydrants, and very limited firefighting water.”

In July 2008, the New Zealand Department of Labour (DoL) issued a media statement and fact sheet concerning the explosive potential of flammable hydrocarbon refrigerants.

Language warning on the video below

On 15 December 2009, a New Zealand Court penalised two companies and a director with fines totalling over $NZ390,000.  The DoL has issued a media statement about the prosecution results.

The many reports and inquiries into the explosion and fire are very informative but one element that the DoL wants to focus on is the penalty applied to the Director of Icepak Coolstore, Wayne Grattan.  He was

“fined $30,000 on one charge that he acquiesced in the failure of the company to take all practicable steps to ensure the safety of its employees while at work.”

The Department of Labour’s Chief Adviser for Workplace Health and Safety, Dr Geraint Emrys said (click HERE for audio):

“The prosecution against the director of Icepak should serve as a reminder to officers, agents and directors of organisations that they can be held personally accountable for the failures of their organisation.

“Mr Grattan was charged with acquiescing in Icepak’s failure in respect of obligations to its employees.  The outcome of the case against Mr Grattan reinforces the requirements of directors to be proactive in health and safety matters.”

As many Commonwealth countries have a strong commonality of law, the Icepak Coolstore case should be an important case study in many jurisdictions.

Kevin Jones

Tasmanian mine safety review

Safety in mines in Tasmania has received great attention in the aftermath of Larry Knight’s death at Beaconsfield gold mine.  On 13 December 2009, the Tasmanian Workplace Relations Minister, Lisa Singh released a regulatory impact statement and information paper on proposed amendments to the Workplace Health and Safety Act 1995.

This legislative package, according to the Minister’s media release:

“The proposed package considerably expands upon existing legislation, by including both general duties and hazard specific regulations for the mining industry.

“A key focus is the requirement for each mine to implement a health and safety management system, which must include risk management processes and procedures.”

Any OHS review should be welcomed but what is this trend of short periods of public comment?  There were many complaints of the Federal Government for short periods of review on national model OHS laws and now the Tasmanian Government wants responses by 14 January 2010!!??

Just one month for responses and that month includes Christmas holidays and New Year.  This brings the consultation period to around 19 working days.

A spokesperson for Workplace Standards Tasmania (WST) said that the various reviews and coronial reports over recent years have put pressure on the Government to improve mine safety legislation.  She also said that comments on the Regulatory Impact Statement is an important and necessary step in drafting the relevant legislation.

The spokesperson said that WST is effectively closed down between Christmas and New Year but has an emergency response.  Any enquiries from the public about the RIS will be handled by the WST Helpline on other working days untill relevant staff return.  The Helpline is being briefed on the RIS this week.

WST emphasised that the consultation on the legislative amendments has been occurring for months.  SafetyAtWorkBlog acknowledges this is the case but the Public Comment period is very tight.

The Minister, Lisa Singh, has said in her media release that

“I encourage comment from persons connected with the mining industry, including workers, mine operators and contractors.”

SafetyAtWorkBlog contacted the Minister’s Office and a spokesperson said that the timing of the Public Comment period is unfortunate but that the Government does not want to delay the process any longer than it has too.  She advised that the minimum time period for comments on an RIS is three weeks and that the comment window on this particular process is four weeks.

There is no accusation of a conspiracy here but the unfortunate scheduling highlights a legitimate conflict between the aims of an effective public comment phase and legislative development that seems endemic through Australian politics.

Kevin Jones

The future of the School of Risk & Safety Science

It was good to hear the President of the Safety Institute of Australia (SIA), Barry Silburn on the radio on 7 December 2009. The SIA has traditionally been very hesitant about going public on safety issues but clearly the potential disappearance of the School of Risk & Safety Science from the University of New South Wales is important to the SIA.

The closure of this school seems absurd, particularly, when the fact of its profitability is shown.

The university’s decision appears wrong and, from the evidence of the radio interview, it seems that the decision has occurred recently.  Dropping a school, regardless of the prominence claimed by the SIA, which has a problem with prominence of its own, is a harsh decision if there has not already been a consultative process or a strategic program for improvement and increased relevance.

It is not as if the school does not have access to top talent.  Names familiar to Australian OHS professionals, researchers and regulators include

Professor Chris Winder

Dr Anne Wyatt

Dr Jean Cross

Michael Tooma

In the University of New South Wales’ Australian School of Business, there are several other prominent OHS academics.  Most familiar to SafetyAtWorkBlog are

Professor Michael Quinlan

Professor Stephen Frenkel

Barry Silburn (a video of Barry Silburn talking about the SIA is available online) accuses the University of New South Wales of sacrificing the safety profession for short-term gain:

“They’re not looking at the overall picture of OHS within Australia they’re looking at very short-term money considerations on their courses that they’re conducting within the university”.

This seems an odd accusation when compared with the fact that the school has made a profit two years running.

It seems to SafetyAtWorkBlog that the limitations of the University’s review are clear in the statement of Deputy Vice Chancellor, Richard Henry:

We had an external review of the Faculty of Science by a committee of internationally respected scientists and their recommendations to the university were that the Faculty of Science should concentrate on its strengths; areas such as maths, physics, chemistry, psychology, biology.

The university wants to focus on pure science rather than applied science after a  review undertaken by “a committee of internationally respected scientists”.   HMMMM?

OHS academics are often less dependent on government funding than other schools and departments because the skills and knowledge can be more readily applied in a practical way and they live closer to the economic realities of business and workplace safety.

Silburn’s accusations of greed are too narrow.  The safety profession can continue without the School of Risk & Safety Science.  There are many sources of OHS graduates still in Australia and, from the activity of the University of Queensland, these opportunities are increasing.

It seems that the university may have been too narrow in its selection of the review panel for the Faculty of Science.  But if we take the panel’s recommendations seriously, Richard Henry does not see the School of Risk & Safety Sciences as fitting in the Faculty of Science.  Surely it could fit in the university’s School of Organisation and Management.  Going from this School’s profile in the website:

“The School of Organisation and Management is a multi-disciplinary unit comprising 32 full-time academics.  Our mission in the School of Organisation and Management (O&M) is to conduct high quality applied research and to prepare students for employment in diverse organisational settings.  Our main areas of research and teaching include: Organisational Behaviour, International Business, Human Resource Management, Industrial Relations, and social and psychological aspects of Management.”

Anne Wyatt researches the psychosocial issue of workplace bullying.  Chris Winder researches occupational toxicology and his most recent academic paper is “Managing hazards in the workplace using organisational safety management systems: A safe place, safe person, safe systems approach.”

If the University of New South Wales cannot see the continuing relevance of its profitable School of Risk & Safety Science, it should perhaps get examined at its own School of Optometry and Vision Science.

Kevin Jones

The School of Organisation and Management is a multi-disciplinary unit comprising 32 full-time academics. Our mission in the School of Organisation and Management (O&M) is to conduct high quality applied research and to prepare students for employment in diverse organisational settings. Our main areas of research and teaching include: Organisational Behaviour, International Business, Human Resource Management, Industrial Relations, and social and psychological aspects of Management.

Legal advice and safety management

The legal commentaries have begun to appear following the release of Australia’s draft Work Health & Safety Act.

One of the first, as usual, is a response from law firm Deacons.  It should be noted before discussing the suggestions that in the last couple of months Australia’s OHS legal brains are now concentrated in this law firm since Barry Sherriff jumped ship from Freehills.  A month or two earlier, Sherriff’s protegé, Penny Stephens, left the firm and took several others with her to Hall & Willcox.  This brain drain sets Freehills’ OHS practice back considerably.

However, Deacon’s first missive on the new OHS laws has been released, under the bylines of Sherriff & Tooma, and identifies several issues.  The first, and very useful to know, is the definition of due diligence that is now included in the Act under Duty of Officers:

“…due diligence means to take reasonable steps:

(a) to acquire and keep up to date knowledge of work health and safety matters; and

(b) to gain an understanding of the nature of the operations of the business or undertaking of the body and generally of the hazards and risks associated with those operations; and

(c) to ensure that the body has available for use, and uses, appropriate resources and processes to enable hazards associated with the operations of the business or undertaking of the body to be identified and risks associated with those hazards to be eliminated or minimised; and

(d) to ensure that the body has appropriate processes for receiving and considering information regarding incidents, hazards and risks and responding in a timely way to that information; and

(e) to ensure that the body has, and implements, processes for complying with any duty or obligation of the body under this Act; and

Examples

A body’s duties or obligations under this Act may include:

  • reporting notifiable incidents.
  • consulting with workers.
  • ensuring compliance with notices issued under this Act.
  • ensuring the provision of training and instruction to workers about work health and safety.
  • ensuring that health and safety representatives receive their entitlements to training.

(f) to verify the provision and use of the resources and processes referred to in paragraphs (c) to (e).”

This should provide more tips to OHS professional associations about where their services fit in general business obligations but it also sets the bar much higher for professionals in how they must upgrade their own OHS skills to match expectations.

Curiously, Deacons continues with issues of concern with the Act which have little to do with improving worker safety.  Several items hark back to the OHS Model Act Review Panel which has little more than historical interest nowadays but may reflect the fact that Barry Sherriff was a Review Panel member.  The list of concerns further supports SafetyAtWorkBlog’s position that safety law often masquerades as safety management.

Deacons concludes its update with the following “7 steps”:

“There are 7 steps that every business needs to undertake to prepare for this new era in Work Health and Safety regulation:

  • Legal risk analysis…
  • Review contracts …
  • Implement interface coordination plans …
  • Develop robust consultation processes …
  • Develop dispute resolution processes …
  • Develop processes on right of entry and regulatory rights and obligations …
  • Develop an OHS Corporate Governance Statement …”

Unsurprisingly, the first two involve assistance from one’s legal advisers.  SafetyAtWorkBlog recommends that businesses wait and see what support documentation is supplied by the OHS regulators first as it is they who determine the parameters for OHS compliance.

Businesses need to remember that the Work Health & Safety Act is not yet law and, in fact, has a long way to go before States introduces this law into their own jurisdictions.  Western Australia is still objecting to the law so it is unclear if this Act will ever be introduced without substantial change.  So until then keep following the local OHS legislation but keep both ears open in anticipation of the future.

OHS debate is over, says Deputy PM

Deputy Prime minister and Workplace Relations Minister, Julia Gillard, has told the Australian Financial Review (only available online to subscribers) that the OHS law changes were finalised at the recent Workplace Relations Ministers’ Council.

Gillard again rejected the trade union movement’s concerns about weakened worker protection.  The Minister emphasised that substantial economic benefits would flow to business as a result of increased administrative efficiencies.

However, the likelihood of a nationally harmonised OHS system seems as far away as ever with the West Australian Government continuing to refuse to apply the new laws which it sees as too friendly to the unions.

Significantly, the Australian Government has backed down from its earlier threat to penalise any governments that do not support the changes.  This lets the WA Liberal Government off the hook and provides the New South Wales Liberal Party with an easy platform option for the 2010 State election.

The conservative forces in Australia can take heart but Minister Gillard’s position has the union movement facing difficult decisions.  It has strongly funded a campaign against elements of the OHS laws and branded the laws as “second-rate safety”.  It now needs to decide whether to give up the campaign totally as a lost cause or to pare it back so that, over time, the campaign fades away, as did the industrial manslaughter campaign of around five years ago.

The ACTU has expressed disappointment but must have realised, privately at least, that some union powers, considered to be extreme by business and industry groups and over which the business complaints have been load and long, were going to be sacrificed in any harmonisation process.

Former Prime Minister and ACTU President Bob Hawke achieved many industrial relations reforms in the early 1980’s by pushing “consensus”.  This negotiation process had strong similarities to the current OHS harmonisation however big C Consensus is now rarely spoken by the Australian trade union movement.  One of the few contemporary outings was when current ACTU Secretary Jeff Lawrence, who expressed the disappointment above, speaking about industrial relations said on 14 June 2007:

“I’m tough enough but I’m also a person who likes to work by consensus”.

To operate constructively at the big tripartite table of OHS, the unions will need to accept a defeat and gain whatever they can from the new rules.  This is doubly important in the lead-up to the planned harmonisation of workers compensation.  Australia will see some fiery union rhetoric when harmonisation threatens to reduce the income and entitlements of workers who are already injured.

Kevin Jones

“Suitably qualified” looks dead

In many submissions to the Australian Government’s development of a Model OHS Act, there was a request, sometimes passionately made, for the inclusion of a legislative provision for “suitably qualified” OHS advisers.

This week’s Communique from the Australian, State, Territory And New Zealand Workplace Relations Ministers’ Council (WRMC) included no mention of “suitably qualified”.  So where does this leave the safety professionals?  What is the future of the WorkSafe-promoted Health & Safety Professionals Association?

For those safety professionals who wish to pursue the “suitably qualified” matter below is a list of the members and attendees of the latest WRMC meeting  (taken from the Communique) for you to follow-up.  However, it may be quicker to accept the reality and plan for professional credibility with the legislative crutch.

Kevin Jones

Apologies:

Accident Comp changes put to Victorian Parliament

According to the WorkSafe Victoria website, changes to the Accident Compensation Act were introduced to the Victorian Parliament on 10 December 2009.

WorkSafe is very confident that the changes will be passed.  The summary only talks about “when” the bill is passed.  There is every likelihood it will be passed but the summary has a tinge of arrogance to it.

A summary of the proposed changes is available online.

It all sounds positive and most of it seems about financial improvements.  There are always concerns when a government move from prescriptive- to performance-based practices.  The summary describes the Return-To-Work benefit:

“Prescriptive return to work requirements will be reframed as performance based duties to improve flexibility.”

Usually this sort of change is a red flag for rorts and abuse.

The summary does say that enforcement activities will be increased:

“The Return to Work Inspectorate will have a wider range of tools to improve the effectiveness of compliance activities in relation to return to work obligations, maintaining a fair and consistent application of the law.”

However with the government’s recent spate of administrative mistakes, sloppiness and oversights exposed through the Auditor-General’s reports, accountability in this important area will need to be carefully watched.

The Minister for Workcover, Tim Holding‘s speech to the Bill’s second reading concluded (according to the draft Hansard):

“This bill providers (sic) fairer and better benefits to injured workers and their dependents, recognises that getting injured workers back to work is a central pillar of the scheme, and provides greater transparency for employers in their interactions with the scheme.  The benefit enhancements in this bill are financially responsible, affordable, and consolidate Victoria’s position as the leader in workers compensation in Australia.”

Kevin Jones

OHS law and safety management

Regular readers will be aware that SafetyAtWorkBlog holds the belief that OHS legislation is not the same as managing workplace safety.  Safety can be managed without recourse to law (this is what many mean when they say that “safety is just common sense”) but legislation provides some parameters in which that management occurs.

The Australian Council of Trade Unions has issued a call for tougher OHS laws and used workplace fatality statistics as the basis.  Tying the two issues together serves a political purpose but avoids the fact that a range of economic, political, social and even environmental issues can affect how workplaces manage safety.

The media statement issued on 11 December 2009 says:

“A sharp rise in work-related fatalities last year shows that proposed new workplace health and safety laws need to be strengthened, not watered down, say unions.

There were 177 fatal injuries in workplaces in 2008-9, according to newly released statistics from the national regulatory body, Safe Work Australia. This is an 18% increase from the previous year…. [hyperlink added]

ACTU Secretary Jeff Lawrence said the increase in fatalities was disturbing at a time when proposed changes to Australian workplace safety laws would result in a weakening of protections and rights.

“A double-digit increase in workplace fatalities in one year is shocking,” Mr Lawrence said. “Each of these victims is someone’s partner, parent, son, daughter or friend.  The Federal, state and territory governments will make significant decisions about new national health and safety laws today.  If any evidence was needed that requirements for employers to provide a safe workplace need to be toughened, this is it. We urge the federal and state governments to make workers’ safety their highest priority.”

The ACTU is doing what it should by serving the needs of its members but the push for union prosecutions of OHS breaches is only one part of its social charter.  The aim of improving safety can be best achieved by motivating union members and establishing a dialogue with the general community, which includes business, small and large.

Is the day far off when we may see joint statements from unions and employer groups on the issue of workplace safety?  Can politics be put aside for the benefit of improving safety?  Comments welcome.

Kevin Jones

“Best Practice…First Aid”? – not sure

First aid is one of the most neglected areas of workplace health and safety but, when required , vital.  The neglect comes from it rarely being integrated into the safety management system and on relying of the advice from first aid training and equipment suppliers.  “Why shouldn’t it be relied on?  They’re the experts.”

In a previous career I worked for a first aid equipment and training provider in various roles.  A major task was to visit workplaces and assist them in determining their first aid needs.  Over the years that I undertook this role I came to the general conclusion that first aid kits were almost always over stocked in comparison to what was needed. (Assessing the first aid needs of 28 McDonalds restaurants in 2 days was fun, at first)

In relation to first training, most companies had insufficient first aiders and those they had were trained fair beyond the needs of their workplaces.

Granted most of these workplaces were not high risk organisations or in isolated locations,  mostly they were in urbanised areas.  But it was also this fact that generated most of the oversupply of equipment.

I was reminded of my many years in that role in the 1990s when SafeWork SA announced the release of its “Approved Code of Practice for First Aid”. (The Code will be available on the SafeWork SA website in a couple of days, and I will review it then)  This Code comes into effect on 10 December 2010 which means a busy 12 months for most South Australian OHS professionals.

According to SafeWork SA’s media statement, the new Code:

  • provides a more contemporary and best-practice approach to first aid
  • gives workplaces more flexibility to tailor their first aid arrangements to suit their type of business
  • better aligns South Australia with provisions interstate.

SafeWork SA’s Executive Director, Michele Patterson, says

“An extensive two-year consultation by SafeWork SA revealed that existing workplace first aid kits were often too big, not relevant to the individual workplace needs, and resulted in considerable wastage……”Under the new Code, first aid kits can be smaller, will cover more types of injuries and should reduce wastage.”

The capacity for tailoring first aid kits to the needs of the workplace has been allowed in Victoria for almost twenty years.  New packaging and configurations were designed by suppliers,  – cloth pouches, wall-mounted plastic boxes, back packs…   But the contents and packaging was determined in relation to the manufacturers costs, more than the needs of the client.

Here is my first aid kit.  A pair of disposable gloves, a disposable resuscitation faceshield, a ziplock bag to keep them in and a mobile phone.  Everything else should be determined by need.

If you don’t remember that first aid is “emergency medical treatment”, you will be ripped off by equipment providers.

Of course it is possible to provide first aid without even this amount of equipment.  The above package is purely personal protective equipment to stop infectious liquid passing between the injured and the first aider.  There are plenty of cases of people who have no access to this PPE still saving lives.

Patterson says that a benefit of the Code is that it brings South Australia’s first aid training levels up to the standards of the other States.  This is relevant for some workplaces but most will wait to see what the national OHS harmonisation process produces and then apply that.

But Patterson says something that holds more wisdom than she expected.

“The more people trained in basic first aid who may be able to keep a person alive until an ambulance arrives – the safer both our workplace and communities will be.”

Here is the core of first aid.  The skills are basic, usually stop the bleeding and keep someone breathing.  I used to refer to this as “plug them and puff them”.  If a first aider achieves these two aims on an injured person until an ambulance arrives, they are fulfilling their tasks.

The other vital element is “until an ambulance arrives”.  Most workplaces are in urbanised locations with good emergency response.  Victoria has a targeted ambulance response time of around 15 minutes and over the last couple of decades the ambulance service has been supplemented by emergency medical services from the fire brigade.

Too many workplace first aid courses teach people how to immobilise a broken leg.  In most circumstances, a broken leg will be treated by ambulance officers.  Only yesterday a high school student attending an end-of-school function broke their nose.  The supervising teacher did the correct action and called an ambulance.  I am sure the boy’s parents also supported the decision.

Companies may consider the skills gained from a five-day first aid training course to be worthwhile for those employees who have children or bushwalk but in relation to workplace first aid, they were overtrained.  First aid courses have been trimmed from the standard workplace first aid course of fifteen years ago but as long as one signs up to an off-the-shelf training course, there will be training elements that are not required.

The last nugget of wisdom from Michele Patterson’s statement above is that the more people trained the better.  Imagine if everyone on one office floor were training in basic first aid.  There would always be a first aider present in the workplace, regardless of the hours of work.  No juggling of this level first aider and that level, or training additional people to cover the absences of the designated first aiders.  The emergency first aid response would the fastest possible and therefore the survival rate would be the best achievable.

Teach everyone in the workplace to “plug them and puff them” and you will be looking after your own health too.  For if you keel over and stop breathing, you will have at least one first aider at your side within a minute.  More likely you’ll have more than one and two-person CPR is very effective.  In this circumstance “reasonably practicable” may increase the level of first aid response rather than diminish OHS standards as it usually does.

It is also worth considering what provides the best first aid coverage in your workplace one first aider trained to a high level (who may be away on the day they’re most needed) or five first aiders trained only in CPR.  The cost would be about the same but which scenario provides the better emergency response and which scenario is more likely to provide compliance.

Kevin Jones

UPDATE – 11 December 2009

SafeWorkSA has identified the August 2009 First Aid Code of Practice on its website as the version which will apply from 10 December 2010.