Serious injuries can occur regardless of good OHS intentions

SafeWork South Australia has illustrated a situation that is common in Australian workplaces – no matter how hard one tries to ensure safety, things can still go wrong.  In a court case on 20 November 2009, four farm operators were fined over a foreseeable incident that cost a 20-year-old the sight in one eye as well a fractured skull and paralysis, from falling three metres.  According to a SafeWorkSA media release

“The incident occurred in May 2006 as the farmhand, aged in his early 20’s, was working on a large stock crate prior to mustering sheep for shearing. The crate had been borrowed from a neighbour. The farmhand had to stand on a small platform three metres off the ground and operate a manual winch to lower a ramp within the crate.
During this task, the winch handle forcefully struck the man in the face, after which he fell from the platform to the ground. This resulted in skull fractures and the loss of sight in his right eye, and spinal damage, which left him paralysed.”

The farmers had preventative management measures in place prior to the incident and have made considerable changes to the workplace to enable the worker to return to work.

The comments of Industrial Magistrate Stephen Lieschke in his judgement are worth noting

“While (they) believed they were being comprehensive in their safety improvements, they appear not to have given the same attention to the stock crate as to their own plant and equipment, probably because it was occasionally borrowed to them.”

The defendants were fined $A28,000, a hefty fine compared to some given out in the same jurisdiction.  This figure was after a higher than usual 30% penalty reduction.  Industrial Magistrate Lieschke applied the discount because of an “exceptionally high level of demonstrated contrition”.  The magistrate puts it this way

“General deterrence does require a substantial penalty due to the prevalence of serious injury from the obvious danger of unprotected work at height, and due to the need for employers to take a structured risk assessment and control approach to all work processes and plant.

As first offenders the defendants are each exposed to a maximum fine of $100,000. In my opinion a notional total penalty based on a starting point of a fine of $40,000 is appropriate after taking account of all the above circumstances. After reduction by 30% this results in an aggregate penalty of $28,000. This in turn results in a fine of $7,000 for each defendant.

I also record a conviction against each defendant.”

SafeWorkSA advised SafetyAtWorkBlog that they did prosecute the owner of the stock crate but that, in February 2009 also heard by Industrial Magistrate Lieschke, the charges were dismissed.
Also, the injured worker, Kerrin Rowan, received a worker achievement award from WorkCover in 2008 and clearly the support from the local community is important.

ROPS and Quad Bikes – the failure of ATV manufacturers and OHS regulators

The Hierarchy of Controls has some questionable OHS applications to psychosocial hazards but it applies very well to “traditional” hazards, those involving plant.  The Hierarchy also emphasizes that the first step in any hazard control is to consider whether the hazard can be eliminated.  But what happens when the designers of equipment and plant know that a design can be made safer but do nothing to improve it?

For almost two decades some Australian OHS regulators have provided rebates to farmers to fit roll over protective structures (ROPS) to tractors to prevent deaths and injuries to the drivers from rollover or flips.  In 2009, one would be hard pressed to find a tractor that does not have its safety features emphasised as a sales benefit.  ROPS on tractors have been compulsory since 1998 in most States.

On 17 November 2009, Workplace Standards Tasmania issued a safety alert which, like the New Zealand ATV guidelines, advocates helmets and not ROPS even though OHS legislative principles say that elimination of hazards is the aim. The Tasmanian safety alert outlines the reasons for the safety alert

“Recent information shows there are, on average, 15 fatalities a year associated with using quad bikes in the Australian rural industry sector. Many more people are injured.

A recent coronial inquest into seven fatal incidents involving quad bikes (two in Tasmania and five in Victoria) has sparked a renewed call for improved safety on quad bikes.

As a result, Workplace Standards Tasmania has adopted a policy of zero tolerance of breaches of duty of care responsibilities with quad bikes.”

“Zero tolerance of breaches of duty”?  The Tasmanian OHS Act places this duty on the designers of plant

(1) A person who designs, manufactures, imports or supplies any plant or structure for use at a workplace must so far as is reasonably practicable –

(a) ensure that the design and construction of the plant or structure is such that persons who use the plant or structure properly are not, in doing so, exposed to risks to their health and safety;…..

SafetyAtWorkBlog is awaiting comments from Workplace Standards Tasmania on the elimination of ATV rollover hazards.

As a terminological aside, there is a growing movement to rename All Terrain Vehicles as Quad Bikes because the fatality and injury data clearly shows that the vehicles cannot be driven in “all terrains”.

Five recent fatalities involving quad bikes, mentioned in the safety alert, should spark some investigation into whether the design of the plant contributed in any way to the fatalities.  Yet the safety alert makes no mention of design other than, tenuously, encouraging farmers to make sure

“…your quad bike is properly maintained and used according to the manufacturer’s specifications.”

This is a reasonable statement but if it was possible to make the vehicle safer, to save one’s own life and livelihood, by adding a ROPS, why wouldn’t you?

The manufacturer’s specifications are certain to be suitable to that quad bike but what if the quad bike design is itself not “fit for purpose”?  Plenty of other machines and vehicles are being redesigned to accommodate poor or inappropriate driver behaviour.  What makes quad bike so sacrosanct?

Victoria had a major opportunity for reform in this area through a parliamentary inquiry into farm deaths and injuries in August 2005.  Many farm safety advocates had high hopes for major change on ATV safety but design changes were not recommended.

According to the farm safety report

“Some witnesses suggested that roll over protection structures for ATVs should be made compulsory. Others, particularly representatives on behalf of the ATV industry, argued that fitting of a roll over protective structure to an ATV would adversely affect the handling and utility characteristics of these vehicles.”
Extensive research was undertaken by the Monash University Accident Research Centre which found
“…that, in the event of an ATV accident, “if the occupant is adequately restrained [with a suitable safety harness] within a protective roll over structure, the severity of [injuries caused during] the roll over event is dramatically reduced.”
Contrary evidence on ROPS was presented on behalf of the vehicle manufacturers.  The Parliamentary Committee understandably found
“To the Committee’s knowledge, there is no existing example of a roll over protective structure device that satisfies requirements for driver protection without substantially reducing the handling characteristics of ATVs. This report cannot, based on available evidence, make any recommendations concerning the fitting of roll over protective structures to ATVs.”
The UK’s Health & Safety Executive in 2002 undertook a detailed survey on the issue of ROPS and, among many recommendations said
“The use of the “safe cell” technology offers a number of imaginative approaches as alternatives to traditional structures, particularly for smaller machinery, and should not be overlooked.  Their contribution could be invaluable if relevant techniques were validated and became legally acceptable.”
Farmers, equipment manufacturers and OHS advocates are understandably confused when there is conflicting information (but then uncertainty breeds stagnation which is likely to advantage those who do not want change).
An investigation into ATV safety funded by the New Zealand Department of Labour in 2002 provided the following conclusion

“… it appears that the risk of using ATVs is significant, however there are some possible measures that could be put in place to reduce injuries, particularly those that are more severe and/or fatal. It seems that appropriate training is the most promising factor particularly because of the strong impact human behaviour has on the outcomes of the accidents.

In addition, the high risk for a fatal outcome when ATVs are rolled over, pinning the driver Reducing Fatalities in All-Terrain Vehicle Accidents in New Zealand underneath, suggests that further consideration and research is needed regarding the use of ROPS and/or any other measures that can prevent an ATV from rolling over.”

One Australian manufacturer accepted the challenge and has designed a ROPS for ATVs that shows enormous promise. QB Industries has developed the Quadbar, a passive roll over protection structure.  A demonstration video is available to view online.
It is understood that the Australian distributors of ATVs are not supportive of the safety innovation of QB Industries.  Apparently the distributors believe that the Quadbar increases the risk to the rider and that the safety claims are misleading.  The distributors are also concerned that the Quadbar may jeopardise the manufacturer’s warranty.
These concerns may be valid but surely these need to be independently tested and, if the device saves the lives and limbs of farmers and other riders, incorporated into the design in such a way that the vehicles become safer, regardless of the actions of the individual.  After all, the safer design of motor vehicles has progressed substantial from the days of Ralph Nader’s investigations in the 1960’s to such an extent that safety is a major sales strategy.
One independent test conducted for QB Industries by the University of Southern Queensland reported this about the QuadBar:
  1. The Quad Bar did not impede rider operation of the quad bike during normal operation (based on limited riding by the Chief Investigator).
  2. In low speed sideways roll over, the Quad Bar arrests the roll over and prevents the ATV from resting in a position that could trap and asphyxiate the rider.
  3. In higher speed sideways rollover, the Quad Bar impedes the roll over and prevents the ATV from resting in a position that could trap and asphyxiate the rider. In all tests the Quad Bar provided some clearance between the ground surface and the ATV seat so the rider would be unlikely to be trapped in this space.
  4. In all back flip tests, the Quad Bar arrested the back flip and the quad bike fell to one side.
  5. There were no conditions where the ATV with the Quad Bar fitted rested in a position that was more detrimental to rider safety than the ATV without protection.
If this device did not exist, the advocacy of helmets as the best available safety device  may have been valid but this design has the potential to eliminate the hazard and not just minimise the harm.  Surely it is better to have a farmer walk away from an ATV rollover that to break a neck or have a leg crushed.
The battle that QB industries has had, and continues to have, with quad bike vehicle manufacturers is beginning to reveal tactics by the manufacturers that are reminiscent of those of James Hardie Industries with asbestos and the cigarette manufacturers over lung cancer.
The approach of the OHS regulators to ROPS for ATVs must be reviewed because the dominant position seems to be that helmets are good enough, that no one is striving to eliminate the hazard or and that the Hierarchy of Controls does not apply.
QB Industries has followed the OHS principles and has designed a ROPS that warrants investigation, and the support and encouragement of OHS regulators.  The longer this investigation is ignored, the more people will be killed and injured when using these vehicles.  To not investigate this design would be negligent.

Safety photos

Many online safety professionals get the occasional email asking whether there is a repository of safety photos that can be used in support of safety programs.  The enquiries come from all over the world and the easy answer is there isn’t one.

There are many reasons for this.  One is that almost all of the photos taken by OHS regulators are produced for legal purposes and have legal restrictions.  Similarly photos taken of incident sites by companies are usually for evidence.

The best  safety photos are those photos that are not taken for safety purposes but standard work photos that show safe work practices.  Yet few companies take photos of their workplaces purely to record how work is undertaken.

Recently the European Agency for Safety & Health At Work ran a contest for the best safety photo in Europe.  The winner has been announced for a photo entitled “Beekeeper” by Christopher Azzopardi.

Copyright - EU-OSHA, www.osha-photocompetition.eu

The Agency also has a gallery of the top 100 images received for the competition which are recommended for viewing.

The reuse of images are subject to legal restrictions so please check with EU-OSHA.

In SafetyAtWorkBlog’s experience, safety professionals should have a camera with them during inspections or walkrounds, not to catch out workers doing the wrong thing but as a record of how the workplace operates.  Just as audits can provide snapshots of processes so images are snapshots of the “way things are done”.

Kevin Jones

Crushed finger leads to claim and Court

Regularly in OHS  submissions to the government and on OHS discussion forums, safety professionals state that industrial relations should be kept separate from workplace safety issues.  In a perfect world ? Possibly, but there was a court decision on 13 November 2009 in Australia that shows that this separation is not possible in the modern world.

According to a media statement from WorkSafe Victoria:

Concrete panel supplier, The Precast Company, pleaded guilty in the Dandenong Magistrates Court on Friday 13 November to failing to provide an injured worker with suitable employment as required under Victoria’s workers compensation legislation.

The Court heard that the injured worker was employed as a crane operator when he suffered a crush injury to his finger. He attended Dandenong hospital and 5 days later was certified as being fit for alternative duties.

Two weeks later, he left work early on a Friday to attend his doctor. When he returned to work the following Monday he was informed that he had abandoned his employment and had no right to be there.

At the time, the company defended its action stating the worker had not been dismissed, but instead had walked out of the workplace half way through the day without reason.

As the injured worker had an accepted workers compensation claim, The Precast Company, in dismissing the injured worker, had failed to provide suitable employment despite the worker being certified as fit for alternative duties. Under the State’s workers compensation laws, an employer is required to provide employment to an injured worker who has a capacity for work.

The company pleaded guilty to one charge of failing to provide suitable employment and was fined $2,500 without conviction and agreed to pay costs of $1,500.

WorkSafe’s own summary of court action provides more details:

The defendant company operates in the building and construction industry. It has declared annual remuneration of about $2 million and has 45 full-time employees.  An employee working as a crane operator suffered a crush injury to his finger on 1 April 2008 and was issued with a certificate of capacity certifying him ‘unfit for all duties’ from 2-4 April and fit for alternative duties from 5-16 April. The worker returned to work on 7 April on light duties.  He left work early to attend a doctor’s appointment and returned to work on 14 April and continued light duties. He saw his doctor on 17 April and was issued a further alternative duties certificate from 17 April -1 May.

On 18 April the worker left work around midday to attend his doctor’s later that afternoon when he was issued with another certificate. At this stage he had still not submitted a claim form. When he arrived for work on 21 April he was told that he had abandoned his employment and had no right to be there. He went home and soon after sought legal advice. He lodged a claim for compensation that day which CGU accepted.

The defendant company’s director wrote to WorkSafe stating that the worker was not dismissed but had abandoned his employment on 18 April 2008. The director was overseas on that date and his explanation is based on what other staff have told him. The foreman provided a statement to a circumstance investigator that on 18 April the worker “just walked out of the workplace half way through the day. He would not provide a reason. As far as I was concerned he was abandoning his employment at this time.”

On 23 June 2008, the date that the worker’s claim was accepted, he was issued with a certificate of capacity certifying him fit for alternative duties until 21 July. By dismissing the worker the defendant company failed to meet its obligation to provide him with suitable employment once his claim had been accepted.

These are the only public details available at the moment but clearly effective communication was not occurring between the employee and the company.  Sometimes circumstances that involve safety become a more complex industrial relations issue which may lead to Court, no matter how hard you try to compartmentalise them.

Annual holidays get a TV makeover

Regardless of concerns over the veracity of data, Tourism Australia’s “No Leave, No Life” campaign is continuing to develop its media presence.

The Seven Network announced this week that “No Leave, No Life” will form the basis of a television program to be broadcast from 5 December 2009.  As is the nature of TV shows, when a new successful format is found, it can travel around the world. So, be warned.

The rationale of the “No Leave, No Life” tourism campaign is that employees hold on to their annual leave entitlements and amass many weeks’ leave.  The employer groups have supported this campaign, principally, because this reduces the salary reserves each company must carry to cover the entitlements.Individually, employees can convince themselves that they are indispensable.  The risk, from the workplace safety perspective, is that the individual is not accessing the mental health and stress relief that can come from being away from a workplace for several weeks.

Having no break from work mode can unbalance one’s life and put considerable strain on personal and family relationships.  Just like adequate sleep can have productivity benefits, so can taking annual leave on a regular basis

There is also the organisational benefit that can come from breaking the routine.  Just as individuals may come to believe they are indispensable, so an organisation can come to rely too heavily on individuals.  A healthy corporate system should be able to cope with the absence of any staff member or executive for a short period of time (the period of annual leave).

Business continuity would dictate that a business can continue without key people permanently.  Coping without these people for a short period each year can be considered a trial run of continuity.

In relation to the new television program the Seven Network advised SafetyAtWorkBlog that each episode is structured around the removal of a worker who has a large amount of annual leave from their workplace for a holiday within Australia (hence the Tourism Australia support).  The viewer appeal, other than watching someone else have a good time, is that a comedian is used to fill the role of the holidaying staff members.  The show is likely to illustrate several points – no one is indispensable, a regular holiday is an important individual activity, and, although not indispensable, the employee and their effort is valued by the organisation.

The show will follow people from these occupations:

  • a paediatric nurse in a cardiac ward;
  • a sales manager in a brewery
  • an ambulance paramedic; and
  • a charity events manager.

The OHS role and benefits of regular leave are not as overt in the program as they could be but that is not he purpose of the program.  It is clearly a program that would not have existed without the Tourism Australia campaign.  It has been designed to encourage Australians to take holidays and to holiday within Australia.

It is hoped that if and when people return to work refreshed they may realise how important regular leave is to their own wellbeing and mental health but having stress management or career burnout as a motivation for the employees themselves to take leave would have been more instructional.

Of course, it should be pointed out that businesses are doing themselves no good by allowing for the accumulation of excessive leave in the first place.  In fact, it could be argued that by not enforcing the taking of leave the companies are increasing the stress of their employees and contributing to the social dysfunction that can result from such a work.life imbalance.

Kevin Jones

Unpaid overtime is the new danger money

In Australia there is increasing pressure to work more hours than what one is paid for. Many different organisations use this fact to push for various improved benefits, in many circumstances the statistics are used in support of wage improvements.

But working beyond contracted hours will certainly affect one’s work/life balance as there are only so many hours in the day and if work dominates one’s life, family time or rest will be sacrificed. The imbalance leads to a range of negative psychological and social actions. An article in Wikipedia on working time summarises this.

“In contrast, a work week that is too long will result in more material goods at the cost of stress-related health problems as well as a “drought of leisure.”  Furthermore, children are likely to receive less attention from busy parents, and childrearing is likely to be subjectively worse.  The exact ways in which long work weeks affect culture, public health, and education are debated.”

Australia has yet to have the debate on the matter of working hours that has been seen in Europe and England but the issue exists very much in Australia, although it has yet to gain any traction.

According to a media report by the Australian Council of Trade Unions a new research report by the Australia Institute

“… found that each year, the average full-time Australian worker does 266.6 hours of unpaid overtime, or an extra six-and-a-half working weeks…. The think tank estimates that through unpaid overtime, workers are forgoing a total of $72.2 billion in wages or 6% of GDP.”

The Australian Institute report found the following

  • Forty-five per cent of all Australian workers, and more than half of all full-time employees, work more hours than they are paid for during a typical workday.
  • Unpaid overtime is more common among people who work a ‘standard’ business workday (that is, not shift work) and among white-collar workers.
  • Workplace culture is a dominant contributing factor, with 44 per cent of people who work unpaid overtime saying that it is ‘compulsory’ or ‘expected’ and another 43 per cent saying that it is ‘not expected, but also not discouraged’.
  • Across the workforce, the average employee works 49 minutes unpaid during a typical workday.
  • Full-time employees work 70 minutes of unpaid overtime on average, while parttime employees work 23 minutes.
  • Men work more unpaid overtime than women (63 minutes versus 36 minutes a day). Men with young children work a great deal more than women with young children (71 minutes compared with 30 minutes).
  • Unpaid overtime increases with income: people in low-income households work an average of 28 minutes of unpaid overtime a day compared with 61 minutes for people in high-income households.
  • When asked what would happen if they didn’t work unpaid overtime, most say that ‘the work wouldn’t get done’, suggesting that the demands placed on employees are too much for many people.
  • A majority of survey respondents who work additional hours said that if they didn’t work overtime they would spend more time with family, and many said that they would do more exercise.

The report clearly states that allowing “unpaid overtime” has a strong cost in social and individual health but there is an OHS perspective that over gets overlooked due to public health and industrial relations dominating the issue.

In a media statement from October 2009, as an example, Deloittes quoted some scientists, in support of a anti-sleep device, on statistics that have been bandied around for some time:

“…scientists equate fatigue to blood-alcohol levels: if a person has been awake for 18 hours, it’s the equivalent of having a .05 level of alcohol in their body; if they have been awake for 21 hours, it’s equivalent to a.08 level.”

There are several further examples on negative health impacts in the Australia Institute report.

It can be strongly argued that by allowing, or expecting, “unpaid overtime”, employers may be encouraging workers to travel home while impaired and that employers are creating a work/life imbalance by requiring “unpaid overtime”.   Certainly it could be argued that even during unpaid overtime, the cognitive function of the employee is less than expected, or even have the worker unfit for work.

Arguing about unpaid overtime clearly makes the debate one of money not safety or wellness or the social contract, and this is the argument’s inherent weakness.

Arguing for compensation for “unpaid overtime” is arguing for “danger money” – how much money will a worker accept in order to keep working into the unhealthy and dangerous hours beyond their regular contracted hours?  This type of argument disappeared almost twenty years ago in Australia when the Australian awards system was reformed to remove allowances in relation to working at heights, picking up roadkill, or working in excessive heat.   It was agreed that “danger money” was inappropriate and that OHS principles demanded the risks involved with these tasks be reduced rather than “paying workers” to place themselves at risk.

ACTU Secretary Jeff Lawrence, in his media statement in support of Go Home on Time Day, and The Australia Institute in its media statement on its report both underplay a major point in the debate on working hours when they argue in economic terms.  Lawrence says

“If the work demands are too much to complete in a normal working day, then employees should be paid for their extra hours, or their employer must hire more staff.”

The institute mentions wellness in passing but emphasises in its media release

“..the 2.14 billion hours of unpaid overtime worked per year is a $72 billion gift to employers and means that 6% of our economy depends on free labour.”

Employing more staff is preferable but removing the culture of unpaid overtime is far more important.   Arguing on the basis of economics, ie “being paid for their extra hours”, may expose the worker to greater risk of injury or illness at the workplace or on the way home.   Quality of life, work/life balance and personal health and safety are stronger arguments for “going home on time”, arguments supported by The Australia Institute and the Australian Greens.

Kevin Jones