Discrimination and OHS information in languages other than English

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One of the most ignored OHS obligations in Australian workplace is to provide safety information in a language other than English. Most workplaces in a multicultural society struggle greatly with this obligation and, more often than not, rely on employees to pass on OHS information to their colleagues in the employee’s language.

This translation is an integral part of a safety management system and needs to be well-considered when developing and operating a system. OHS professionals need to be assured that the correct OHS information is getting to where it is needed and understood at that point.

A recent discrimination case that illustrated these issues occurred in the New South Wales Administrative Decisions Tribunal (Tanevski vs Fluor Australia P/L [2008] 7 August 2008). The tribunal found that Fluor had indirectly discriminated against Mr Tanevski (a Fluor employee since 2003 and with 314 years as a supervisor in rail maintenance) by placing a literacy requirement on him that he was unable to meet and that the tribunal found to be unreasonable.

A safety report had highlighted the “management of low English literacy standards of personnel” as a high priority for improvement. Mr Tanevski had been demoted from his role as a supervisor over concerns about his literacy level in relation to complying with the requirements under its OHS management system. The tribunal found that the company’s concerns were legitimate but unreasonable as

“there was a feasible, low cost alternative which did not involve any increased risk to safety…[to].provide him with training on the new HSE system, instruct him on how to complete the necessary forms and assist him with the duties, such as writing statements and reports, which he was unable to perform”.

In other words, the company needed to support the operation of the safety management system by helping the people who need to use it.

There is also another point to make from an OHS management perspective. Should not the new HSE system have accommodated the known literacy needs of existing employees? Information in the decision says that Mr Tanevski was a five-year employee with the company and there were no concerns with his work performance, indeed testimonials spoke otherwise.

The New South Wales OHS Act 2000 states

“An employer must ensure the health, safety and welfare at work of all the employees of the employer.
That duty extends (without limitation) to the following:…
(d) providing such information, instruction, training and supervision as may be necessary to ensure the employees’ health and safety at work,…”

The Victorian OHS Act is more specific:

“An employer must, so far as is reasonably practicable—………..
(c) provide information to employees of the employer (in such other languages as appropriate) concerning health and safety at the workplace…….”

The rail safety legislation may have obligations specifically to that industry. Both OHS regulators, WorkCover NSW and WorkSafe Victoria, have guidance notes on how to provide OHS information in languages other than English. WorkSafe Victoria also lists the language needs of employees as a necessary element in any OHS training needs analysis.

The Tanevski case may also have been dealt with by WorkCover NSW but that the issue came up through legal action on discrimination in a non-OHS tribunal, illustrates that OHS professionals cannot rely only on information provided by the OHS regulators.

Contributors wanted

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SafetyAtWorkBlog has received a lot of compliments since it began in Janury 2008 and I am pleased at the increased reach of the blog and the variety of regular readers.  To keep the content fresh, I am looking for people with strong opinions on workplace-related topics to register as contributors. 

You made need a WordPress account but as these are free and very easy to set-up, I hope you won’t mind.  You can open an account at http://wordpress.com/

If you think that you have the time to provide, at least, one post each week, please contact me, Kevin Jones, at jonesk99 (at) gmail.com (excuse the spam avoiodance email address)

Australian CEOs and workplace safety

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One of the tasks I have in my consultancy is assisting the Safety Institute of Australia to promote their Safety In Action conferences.  As part of this I have been able to provide some videos from the May 2008 conference.  The videos are excerpts from the presentations of four of the chief executive officers and company directors who spoke of day one of the conference about their experiences with workplace safety issues at board level.

Dr Ziggy Switkowski
Dr Ziggy Switkowski

One speaker is Dr Ziggy Switkowski, current  chairman of the Australian Nuclear Science and Technology Organisation and former CEO of Telstra Corporation.  Dr Switkowski’s video is the longest and possibly the most interesting.  His manner is relaxed and chatty as he builds on some of the comments of the former speaker, Jerry Ellis.

 

  

Peter McMorrow
Peter McMorrow

Peter McMorrow, managing director of Leighton Contractors, was perhaps the most instructional in terms of safety management. I have written briefly about his full presentation before. In this video, he talks about his early engineering days, how he went clay pigeon shooting with a shotgun and hard hats and how he was too close to an explosive charge.  These tales contrasted well with his presentation of contemporary safety standards.

Glenn Henson of ExxonMobil speaks about accountability and the human role in safety, and Colin Blair, deputy CEO of Standards Australia, discusses how experienced a near miss in his early days as a young engineer.

Each of these speakers were asked about what motivated their interest in workplace safety.  These casual introductions to their main presentations reminded us in the audience that early work experiences, intense or humourous, do provide a structure or shadow to how senior managers in major corporations approach safety.

Until the end of August 2008, the videos will only be accessible at www.siaconference.com.au to those who sign up for a regular conference newsletter.

New work accommodation for Torres Strait nurses

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In February 2008, a nurse was raped in her remote house on Mabuiag Island.  The accommodation was provided as part of her occupation and risk assessments have identified that the house was not secure, poorly maintained and, in my opinion, unsafe. Previous SafetyAtWorkBlog posts on this issue are available HERE.

Stephen Robertson, Minister for Health
Stephen Robertson, Minister for Health

On 19 August 2008, the Queensland Minister for Health, Stephen Robertson, officially opened primary health centres on both Warraber and Erub Islands.

The Warraber Island facility cost $A4.45 million and includes:

  • two, two-bedroom staff accommodation units
  • expanded clinical areas
  • a dental chair
  • a conference room.

The $6.84 million Erub Island facility includes:

  • a three-bedroom doctor’s residence
  • two, two-bedroom staff accommodation units
  • expanded clinical areas, including a dental chair, a morgue, and a conference room for video conferencing.

The media release emphasizes a feature rarely mentioned:

“Both centres have secure accommodation units to ensure the safety of local health staff.”

Theses costs are for upgraded clinics with very good facilities and housing is only part of the projects.

Beth Mohle, Assistant Secretary with the Queensland Nurses Union, told me today that the official opening of these facilities had been delayed for several months due to the difficult of providing a reliable electricity supply to the clinics.  These facilities had been planned for a considerable time, well before the February 2008 attack.  In fact the previous facilities on Erub Island had been so bad that the facility was condemned.

Beth said that the new clinics had been assessed by the union’s OHS officer in March 2008 and found to be very suitable.  There were several minor security issues but the union was generally happy with the clinics.

A formal maintenance schedule for the facilities has been committed to be the government.

Beth said that the remaining outstanding issue for negotiation with Queensland Health is the operation of duress buttons for its members. However a trial of a satellite-based system through Skynet Mobile Communications is under way where the community police will be informed immediately of any problems.  

The underlying challenge for all OHS issues in Torres Strait seems to be the remoteness.  Many of the islands have no mobile phone communication coverage and nursing staff have only recently received automobiles.  Previously wheelbarrows were used for transporting equipment on the islands.

To update readers about the circumstances of the nurse who was attacked on Mabuig Island, the case against the attackers is still before the Courts.  The nurse is no longer working in that profession and she has a WorkCover claim relating specifically to the effects of the attack.  

Beth Mohle spoke optimistically about the progress made on the campaign to improve housing and facilities in these remote communities but we must remember the unnecessarily unsafe conditions that workers were expected to operate in.  The future may be hopeful but much of this hope is built on pain and trauma.

OHS harmonisation could create disharmony

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OHS experts have said that the Victorian OHS legislative structure is leading the way in being a major influence on the National OHS Model Law Review. A leaked email, reported in the 15 August 2008 edition of the Australian Financial Review, has John Merritt, CEO of WorkSafe Victoria, calling for a summit before the end of 2008 at which tough enforcement policies are to be discussed with his counterparts from other Australian States.

His call seems to be in response to an equivocation on OHS harmonisation that would allow States to have different ways of applying national OHS laws. This flexibility has been flagged for some time and has the potential to allow just as much jurisdictional confusion and overlap in a new structure as there is currently.

The leaking of the email does not help the process of OHS legislative review but it does identify a potential weakness in the national OHS model law review process if the government is not decisive. The Rudd government has been in for less than 12 months and has applied a rapid pace of legislative review. Several reports and recommendations have already been released with the impact of wet lettuce. For instance, Bracks’ automotive industry review has cost a lot of money for minor tweaks to the status quo unless you are a conservative voter who chooses an imported vehicle.

Whatever the government’s response to the OHS law review, it needs to be one that will stand the test of time, as the UK’s Roben’s review has since the early 1970s. It also needs to be brave enough to see OHS law as independent from industrial relations law. Too often OHS is the tail to the IR dog. The OHS and IR Acts are separate legislation even though the application of the laws overlap at the shopfloor.

We have to remember that harmonisation is the sum of many different voices making up a song, not everyone singing the same tune at the same time. Perhaps the the wrong goal was aimed for at the start of the process.