Revealing podcast on asbestos in Australia

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On 15 October 2009, Matt Peacock, a journalist with the Australian Broadcasting Corporation and author of a new book on asbestos and the James Hardie company, “Killer Company: James Hardie Exposed” spoke publicly at Trades Hall in Victoria.

Killer Company cover 001Peacock has allowed an edited version of his presentation to be used as a SafetyAtWork podcast which can be downloaded.  In the podcast he discusses the conduct of the James Hardie boss of several decades, John B Reid; the pervasive nature of asbestos throughout the Australian community; the surveillance of opponents by the company; the immoral public relations campaigns and, generally, the conduct of a corporation that knowingly sold a product that was toxic and harmful.

One blogger reviewed the book and said

“Killer Company” clearly shows that JH directors were criminally negligent and showed no humanity or compassion for their victims and no remorse for their crimes.

Peacock produced several reports on asbestos recently.  Video and transcripts of his reports can be accessed HERE.

Peacock has also been interviewed extensively about his book.  A video interview is available HERE

Kevin Jones

New approaches on OHS fines and penalties

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At the moment Australian OHS professionals, lawyers and businesses are preparing submissions to the Government on the harmonisation of OHS laws.  One of the areas that the Government is seeking advice on is penalties.  The Discussion Paper asks the following

Q17. Are the range and levels of penalties proposed above appropriate, taking account of the levels set for breaches of duties of care by the WRMC?

Q18. What should the maximum penalty be for a contravention of the model regulations?

Q19. The intention is that all contraventions of the model Act be criminal offences. Is this appropriate or should some non-duty of care offences be subject to civil sanctions e.g. failure to display a list of HSRs at the workplace, offences relating to right of entry?

The amount of  any fixed financial penalty is not a big issue in my opinion.  There is an assumption that the threat of a large financial penalty imposed on one company will encourage other companies to improve safety.  Is anyone seriously saying that all of the financial penalties imposed over the decades are in some way responsible for an improving level of safety in workplaces?  The motivation to improve safety comes from elsewhere.

The threat of large financial penalties send companies to seek ways of insuring against having to pay a fine.  Often it is cheaper to pay an insurance premium on the slim chance of being prosecuted and fined.  I acknowledge that this has been a corporate and risk management approach primarily but there are cases where such options are being offered to small business.

Large financial penalties, such as the then record fine to Esso over its Longford gas explosion, are easily paid with little OHS improvement resulting from the fine.  It can be argued that the negative corporate exposure from the resulting Royal Commission, a reulting class action and the media coverage resulting from its unforgivable treatment of Jim Ward were stronger motivators for improvement.

In most Australian States, there is not a crime of industrial manslaughter.  This issue has faded from the political agenda but it remains very much alive in England.  On 27 October 2009, the Sentencing Guidelines Council wrote the following:

“Companies and organisations that cause death through gross breaches of care should face punitive and significant fines, a consultation guideline published by the Sentencing Guidelines Council proposes today.

Fines for organisations found guilty of the new offence of corporate manslaughter may be measured in millions of pounds and should seldom be below £500,000.

The new sanction of Publicity Orders forcing companies and organisations to make a statement about their conviction and fine introduced under the Corporate Manslaughter and Corporate Homicide Act should be imposed in virtually all cases.

The consultation guideline proposes that the publicity should be designed to ensure that the conviction becomes known to shareholders and customers in the case of companies and to local people in the case of public bodies, such as local authorities, hospital trusts and police forces.  Organisations may be made to put a statement on their websites.”

The Council recommends a minimum financial penalty and a publicity order that has teeth. More on the publicity order is below.

Council member Lord Justice Anthony Hughes clearly states the purpose of financial penalties and it is not preventative.  He said in a media statement

“Fines cannot and do not attempt to value a human life – compensation will be payable separately in these cases.  The fine is designed to punish and these are serious offences so the fines imposed should be punitive and significant to reflect that.”

Penalties as a Percentage of Turnover

Hughes says that the Council rejected a Sentencing Advisory Panel proposal that I believe should be floated in the current debate on penalties in Australia, even though it is likely to be similarly rejected.

The Panel recommended the following

“In order to achieve an equal economic impact on offending organisations of different sizes, the proposed starting points and ranges for offences of corporate manslaughter are expressed as percentages of the offending organisation’s average annual turnover during the three years prior to sentencing.  The relevant turnover is that of the company convicted of the offence or, where the offending organisation is a holding company, the consolidated turnover of the group of companies of which it is the holding company.”

Here is the penalty table

Manslaughter table

Lawyers argue extensively about the use of manslaughter in relation to deaths in workplace but the public jumps across the legalese by repeatedly asking how the death of their loved one is not manslaughter when the actions of a director or company led directly to the death?  No level of legal explanation is going to counter this need for accountability, some would say revenge.

Similarly the penalty rate listed in the table above is easier for the public to understand conceptually compared to a judge’s or lawyer’s explanation of why a financial penalty for a workplace death was less than the maximum.

Sentencing options are complex and SafetyAtWorkBlog has no legal contributors but on 30 October 2009 within a public discussion period on national OHS laws and at the end of Safe Work Australia Week, it seem thats penalties imposed from a percentage of turnover may be an attractive concept to many safety advocates and one that needs to be considered in the Australian context.

Publicity Orders

On the issue of publicity orders, many Australian jurisdictions have had this option for a while.  Indeed, the issue of enforceable undertakings is getting a broader hearing after some of the recent actions by Comcare against John  Holland Group and others.

It is always important to look at the most recent actions and decisions in OHS law and regulation from outside one’s own jurisdiction so that innovations are not overlooked.  It seems that the Sentencing Advisory Panel has looked at lots of  jurisdictions in making the following requirements.

The Sentencing Advisory Panel listed specific requirements of a publicity order to be applied within a specified timeframe:

  • a quarter-page advertisement in a local or regional newspaper, in the case of an organisation operating in one area; or
  • an eighth-page advertisement in three specified national daily newspapers, in the case of an organisation operating nationally; and
  • an eighth-page notice in a relevant trade publication; and
  • a prominent notice in the organisation’s annual report (also in electronic format where applicable); and
  • where applicable, a notice on the homepage of the organisation’s website for a minimum period of three months.

The panel also closed a possible (out) for offending companies.

” The making of a publicity order does not justify a reduction in the level of fine imposed on an organisation for an offence of corporate manslaughter.”

The ads on home pages, local newspapers and trade publications (if there are any) seems very reasonable but the media option that may be most influential is the inclusion in the company’s annual report.  Acknowledging a workplace death and expressing regret in an annual report is admirable but “a prominent notice in the organisation’s annual report” goes straight to the shareholders who often have the ear of the corporation.  Just look at the influence being applied by them at the moment on executive salaries.

Now is the right time for Australia to consider alternative OHS penalty options.

Kevin Jones

Combining safety and RTW awards

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Finally, a State-based safety awards night that has both OHS and Return-to-Work awards.  On 27 October 2009, Workplace Health & Safety Queensland held its annual safety awards night as part of Safe Work Australia Week.  In a media release, the Minister for Industrial Relations, Cameron Dick, said

“The inaugural Return to Work Awards are run by Q-COMP – the statutory authority that oversees workers’ compensation in Queensland – to showcase the state’s top employers who understand the importance of helping injured workers make a successful return to work.”

It is curious that other States do not also have combined awards.  The logic of the combination would, perhaps, be easiest for Victoria as the Victorian Workcover Authority handles rehabilitation through VWA as well prevention through WorkSafe Victoria.  The combination may be simpler for those States that have a single insurer for workers compensation.

It is noted that one workers compensation insurer in Victoria, xchanging (formerly Cambridge), has conducted its own awards for several years.  (The author was a judge of these awards several years ago)  The judging process was tripartite with applicants from a pool of the insurer’s clients.  Whether an insurer would relinquish such a role is unknown but the opportunity for State recognition of RTW performance should be attractive.

It should also be noted that winners of State OHS awards are also nominated for national OHS awards conducted by Safe Work Australia.

SafetyAtWorkBlog has questioned the plethora of OHS awards nights in the past as Australia has a fairly small industry and as OHS and workers compensation laws are becoming harmonised, it seems sensible for Safe Work Australia, or the Australian Government more generally, to start harmonising the award processes.  Just imagine how many corporations would be champing at the bit to receive an award for safety that covers all aspects of their safety management.  It would be an award for leadership that may just be warranted.

Kevin Jones

WorkSafe Victoria Awards winners

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On 29 October 2009, WorkSafe Victoria held its WorkSafe Awards event at  the Palladium Room at Melbourne’s Crown Casino.  SafetyAtWorkBlog attended as a guest.  All the winners were deserved and there are short profiles of some of the winners below.

WorkSafe Awards 2009 004The first award was for the Health & Safety Representative of the Year, won by Phyl Hilton.  Hilton was clearly honoured by the award and in his acceptance speech acknowledged that good OHS laws are “socially progressive” – a position that is rarely heard outside of the union movement or from non-blue-collar workers.  It is an element missing from many of the submission currently being received by Australian Government in its OHS law review.

Hilton presented as genuine and his commitment to the safety of his colleagues was undeniable.  Significantly, he thanked several WorkSafe inspectors for their support and assistance.  WorkSafe would have been chuffed but the comment which reinforced safety as a partnership.

WorkSafe Awards 2009 001The Best Solution to a Health and Safety Risk was given to Bendigo TAFE for a machine guarding solution.  Guards have become an unfashionable hazard control solution and often now seem to rely on new technology.  The chuck key guard was as hi-tech as an interlock device but one that the users of the lathes, almost all young workers, would not need any involvement with.  If chuck key remains in the place, the guard is out of position and the machine cannot start.  Simple is always the best.

The combination of beer and safety is a heady mix for Australians so the keg handler had a cultural edge on the other award finalists in the  category, Best Solution to Prevent Musculoskeletal Injuries.  The keg mover and the keg stacker seemed to be two different devices WorkSafe Awards 2009 002and it would have been great to have a single device but the stacking option was particularly interesting.  Many pub cellars are cramped and being able to stack beer kegs in a  stable fashion is attractive, and sensible.  The cross-support that is placed on top of each keg was, perhaps, the standout feature.  One can almost see the staring at the top of the keg by the designers and the creative cogs turning.  The best solutions always seem to be those where one asks “why didn’t I think of that?”

WorkSafe has placed a lot of attention on safety in the horse racing industry, particularly, as injuries received by jockeys and the killing of injured racehorses are in public view and therefore are highly newsworthy.

WorkSafe Awards 2009 003The attraction of this winner of Best Design for Workplace Safety is that the inventor has looked beyond PPE for jockeys to what a jockey is likely to hit when falling of a racehorse at speed.

The OHS law drafters should take note that this innovation has come from looking at “eliminating a hazard, at the source”, an important terminology omitted from the last Australia OHS law draft.  Would there have been the same level of innovation if the racing industry had done what was “reasonably practicable”?  It is very doubtful.

This post has focussed on individual achievement and physical solutions to hazards.  The awards for OHS committee and safety management systems are not detailed here as they are more difficult to quantify but for completeness, the Safety Committee of the Year went to RMIT – School of Aerospace, Mechanical and Manufacturing Engineering, Bundoora East, the Best Strategy for Health and Safety Management went to the Youth Justice Custodial Services – Department of Human Services, Parkville for its program in Clinical Group Supervision.

Some of these solutions need to be viewed to fully understand their merit and it is hoped that SafetyAtWorkBlog will be able to post the videos of the winners and, more importantly, the other finalists, shortly.  Certainly the other finalists in the solutions categories deserve almost as much recognition.

Kevin Jones

WorkSafe Awards 2009 005

Health and Safety Representative of the Year

Recipient: Phyl Hilton – Toyota Motor Corporation, Altona

Phyl, who works as a toolmaker at Toyota’s Altona Plant, has been a health and safety representative for 10 years. Representing 27 members in the trades department within the Press shop, he takes a leading role in identifying opportunities for safety improvements in his workplace. Using a practical and collaborative approach, Phyl has played an integral part in many initiatives, including the design and construction of weld bay facilities, the procurement of portable fume extractors and the development of press plant policies in English and Japanese. Phyl was also part of the Traffic Management Control Working Party and the Working at Heights and Trades Hazard Mapping projects. He is committed to developing and driving safety knowledge among Toyota apprentices and actively mentors and coaches fellow health and safety representatives.

Best Design for Workplace Safety

Recipient: Bendigo Regional Institute of TAFE, Bendigo

Initiative: Lathe Chuck Guard

Bendigo Regional Institute of TAFE works with students and apprentices to prepare them for the workforce. An incident highlighted the risk of an operator forgetting to remove a key from the chuck on a lathe before turning it on. Working on lathes is a normal part of work in many businesses within the manufacturing industry. The chuck can spin at 1000rpm or more and this could cause the key to fly out from the machine with high force, creating a projectile that could result in serious injury to the operator or others close to the lathe. The Lathe Chuck Guard protects the operator by refusing to close if the key is left in the chuck. The guard is interlocked to ensure the lathe can only be started with the guard closed. Having a guard assists with providing a safe work environment within the TAFE workshop. The Lathe Chuck Guard is a simple, cheap, yet effective, way of reducing the risk of projectile keys. It is adaptable for a range of lathes across industries and will benefit other educational facilities and the wider manufacturing industry.

Best Solution for Preventing Musculoskeletal Injuries

Recipient: Cherry Constructions and Workright Safety Solutions, Seaford

Initiative: Keg Handling System

The Keg Handling System is a mechanical aid system to assist the hospitality industry. It consists of a keg lifter, trolley, ramp and stack safe crosses and is used for handling beer kegs. Keg handling has been a major issue in hospitality for several decades and is traditionally done by hand without the use of mechanical aids. The Keg Handling System seeks to improve the way kegs, which can weigh up to 67kg, are handled and reduce the risk of injury. The keg lifter can lift a keg, manoeuvre it into position and lower it to the floor or on top of another keg with minimal effort from the operator. The trolley can pick up a keg from any position so that it doesn’t have to be moved to meet the trolley. It has a locking device so the keg is fixed to the trolley. The stack safe crosses allow the kegs to ’nest‘ into each other, stopping them from toppling. The major risks associated with handling beer kegs are musculoskeletal injuries to the back, shoulders and arms, and crushing injuries. The automated and easy-to-manoeuvre system is readily used in small spaces and by a range of staff. This design can also be adapted for other industries to aid in lifting and transporting many items including gas bottles, oil drums and even large pot plants in nurseries.

Best Design for Workplace Safety

Recipient: Racing Victoria (Flemington), Dan Mawby and Delta-V Experts (North Fitzroy)

Initiative: Running Rails

Running rails have been a safety issue in the racing industry for many years, causing serious injuries to jockeys and horses involved in collisions. Track staff have also been hurt due to the manual handling required to set up and move rails. Designed and invented by Dan Mawby, tested by Delta-V Experts and used by Racing Victoria, this new lightweight durable UV-rated plastic running rail is a welcome replacement for the solid aluminium rails currently in use. The major improvement is that the horizontal rail doesn’t break from the impact of weight-bearing objects – instead, it elevates, springs and bends on impact. The design and flexibility of this rail system also has the ability to steer a horse back on track should light contact be made, therefore avoiding injury. The new Running Rail is in place at Flemington and Caulfield Racecourse and some training facilities.

Senator calls for Senate hearing on the safety of posties

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Senator Steve Fielding is the head of the Family First Party, the smallest political party in Australia’s Parliament at the moment.  Fielding is one of the handful of senators who hold the balance of power in the parliament and therefore has more political influence than a party of the size of Family First usually has.

On 19 October 2009, as a result of evidence given at a Senate inquiry by a representative of Australia Post, Senator Fielding said, in a media statement:

“There are serious allegations staff have been forced back to work simply to sit in a room to watch television so managers can get their bonus for having lower lost injury time figures,” Senator Fielding said.  “This is outrageous and puts the health of workers at risk because of some greedy managers.

“No wonder Australia Post won an award last month for its rehabilitation of injured workers if it’s fudging the numbers.  There’s an obvious conflict of interest between InjuryNET, which looks after the doctors that Australia Post sends its workers too, and Australia Post itself.

“Dr David Milecki, who is a consultant to Australia Post’s return-to-work program, also runs InjuryNET.

“Australia Post even admitted that this contract did not go through an independent process – there was not even a tender process.

“We need a senate inquiry urgently to make sure Australia Post employees are being looked after and that they’re aren’t being taken advantage of by dodgy managers who are more interested in their bonuses.”

SafetyAtWorkBlog contacted Australia Post to gauge some reaction.  A spokesperson says that Australia Post will be cooperating fully with any Senate inquiry.

Every country has its fair share of eccentric politicians.  The current feeling is that Steve Fielding is Australia’s.  But regardless of character or competence, the Senator has authority and a responsibility to investigate the concerns listed above.

This is a developing story but one that may relate a little to issues raised in the recent SafetyAtWorkBlog about awards nights.

Kevin Jones