Mining fatalities and accountability

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The 11 November 2008 edition of The Australian includes a page 2 story where the previous manager of the Beaconsfield Mine has been called on to be held responsible for the management failures that led to the death of Larry Knight in 2006.  The call was made by counsel for Larry Knight’s family and the Australian Workers’ Union in a submission to the Tasmanian inquest into the fatality.

According to the media report, the wrong decision was made in trying to stabilise the working area of the mine and that the risk assessment process was inadequate.  The latter comment should be of considerable interest to OHS regulators and safety professionals.

The importance of the Tasmanian Coroner’s findings are illustrated by comments in the submission by the counsel for the mine.  The media report says that 

“…Dr Neal tells the Coroner the mine had done all it reasonably could to guard against the risk of rockfall and to manage the mine’s notorious seismicity.” [emphasis added]

This is particularly important when considering the introduction of “reasonably practicable” into the OHS legislation throughout the Australian States being considered by the National OHS Law Review.

It is regrettable that the to-ing and fro-ing in the inquest is not getting as much media attention in the non-mining states, as there have been many risk management and accountability issues raised.  The media is likely to wait until the findings of the Coroner, Rod Chandler, and focus on the result rather than the journey.

There was a similar experience in New South Wales with the inquiry that followed the drowning of four mine workers at the Gretley mine in November 1996.  The information did not resonate to the rest of Australia except through the mining sector, yet there were important lessons from the inquiry.  Most OHS professionals, if at all, would recollect the prosecution of Gretley mine managers on matters of culpability, rather than the death of the four workers.

When the Tasmanian Coroner hands down his findings in the near future, it will be very useful to consider them in the light of the earlier reports, assessments and papers, among many others, listed below. 

SafetyAtWorkBlog is a strong advocate of learning new OHS management practices by looking beyond one’s field of expertise.  OHS professionals, safety managers and risk managers need to watch the action in Tasmania and other jurisdictions for themselves and not rely on a small group of OHS lawyers to bring matters to their attention and advise them how to avoid their responsibilities.  Accountability is a moral and legal responsibility.

Holding Corporate Leaders Responsible by Andrew Hopkins

The Impact of the Gretley Prosecutions by Andrew Hopkins

Mine Safety – Law, Regulation, Policy by Neil Gunningham

A submission by the Tasmanian Minerals Council on CRIMINAL LIABILITY OF ORGANISATIONS – ISSUES PAPER NO 9, JUNE 2005 to the Tasmanian Law Reform Institute

N Gunningham, ‘Prosecution for OHS offences: deterrent or disincentive?’ (2007) Sydney Law Review, 29 (3), pp 359-390.

R Guthrie and E Waldeck, ‘The liability of corporations, company directors and officers for OSH breaches: a review of the Australian landscape’ (2008) Policy and Practice in Health and Safety 6(1),
pp 31-54. 

N Foster, ‘Mining, maps and mindfulness: the Gretley appeal to the Full Bench of the Industrial Court of NSW’ (2008) Journal of Occupational Health and Safety – Australia and New Zealand 24(2),
pp 113-129.

Maintaining professional standards by looking outside the discipline

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I am a great believer that solutions to hazards in one industry can be applied or adapted to other industry sectors.  Regular readers of SafetyAtWorkBlog are aware of the cross-referencing between general workplace hazards and some solutions from the sex industry.

However, solutions can come from other countries as well, and not just from the United States.  Last week, a car bomb set off by Basque separatists in the University of Navarra in the northern city of Pamplona resulted in 248 people being treated for respiratory trouble, coughing and nausea from inhaling unidentified gases.  A university spokesperson, Javier Diaz, reportedly said that the fumes were generated by repair works that “are related to the terrorist attack.”

This occurred seven years after the 9/11 attacks in New York and after the resultant and widespread reporting of persistent health issues suffered by relief workers and emergency services personnel.  Yes, fumes are different from airborne particles of asbestos but the hazard, and the control mechanisms, are similar.  The lessons of exposure by emergency workers in disasters are obviously still to be learnt.

This morning, 10 November 2008, we wake up to a Russian submarine disaster that immediately reminds us of the tragedy of the Kursk in 2000.  Overnight 200 submariners and shipyard workers were affected in  the K-152 Nerpa submarine from exposure to freon gas.  Three servicemen and seventeen civilians have died.  Initial reports say that the gas was released when the fire extinguisher system was activated.

Russian submarines off the east coast of Russia can easily be dismissed by newspaper readers and business professionals as largely irrelevant but the media has said that 

“A Russian expert has reportedly said that a lack of gas masks among too many untrained civilians may have elevated the death toll in the submarine.”

Does insufficient PPE and training sound familiar? The release of gas in a restricted area?

For OHS professionals everything is relevant to making the best decisions possible for clients and employers.  The trick is to allocate the appropriate level of relevance to the information.  Risk managers and OHS professionals need to filter information from the widest possible pool of knowledge in order to provide the best advice.

We are not all Russian shipyard workers in a just-built submarine but, increasingly, we could be helping people from the rubble of a collapsed building, or helping in the aftermath of a natural disaster or a terrorist attack, or advising on a fire safety procedure and safe design of buildings.  We need to read, listen and digest so as to maintain and improve our personal core body of knowledge.

Legal summary on OHS Review report from Mallesons

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Mallesons is the next Australian OHS law firm to issue a statement on the first report by the National OHS Law Review panel.  The report is not much more than a summary, as commentary is kept to a minimum.

What is interesting is that they mention the alternate sentencing options of 

  • adverse publicity orders
  • remedial orders
  • corporate probation
  • community service orders
  • injunctions
  • training orders, and 
  • compensation orders.

As with the monetary and custodial sentences, if these become included in the law it does not mean that the will be applied very frequently, if at all.

Adverse publicity orders seem peculiar and outdated as they usually apply solely to the print media.  With the growth of the internet and with most companies having websites of some sort, it would be useful to vary such orders to include longevity and reach, rather than a single ad in a newspaper that does not remain in the public mind for long.

Now there is an opening for a safety-monitoring weblog.

Statements on Australia’s OHS review report

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According to today’s The Australian, Australian trade unions has “panned” the first report by the National OHS Law Review.  Here is what the ACTU Assistant Secretary Geoff Fary said,

Geoff Fary
Geoff Fary

 

“We are pleased that the Panel Report has recognised that breaches of OH&S laws are criminal rather than civil matters. These recommendations are a step in the right direction, but need to go much further to protect working people by tightening up the rules on employers’ duty of care to their workforce.

“There is a real need to address the carnage that is taking place in workplaces by increasing fines and tightening up employers’ duty of care, but we are concerned that in NSW and QLD injured workers and their families will lose out because they already have laws that squarely put the onus of proof on employers when they allegedly breach the law.”

“Unions believe that the ability to fine companies a percentage of the turnover would be a better deterrent, because even a $3 million fine is a drop in the ocean for some big corporations. At the moment employers can get fined more for breaching trade practices law than for being found guilty of contributing to employees being killed or maimed in their workplace.

“The courts should also be encouraged to use the maximum penalties. At the moment they don’t.

“Unions will continue to campaign for laws that put an unqualified duty of care on employers to provide a healthy and safe workplace.”

For balance, below are the relevant statements from Mr Scott Barklamb, Director of Workplace Policy
with the Australian Chamber of Commerce & Industry:

“Whilst there is significant detail to be analysed across the report’s 75 separate recommendations, the review panel appears to have taken a sound approach on critical issues such as ensuring that the core safety obligation on employers is limited to doing that which is reasonably practicable, and that the prosecutor must bear the onus of proving any breach of OHS law beyond reasonable doubt.”

Michael Tooma, a partner with Australian law firm Deacons, was commenting on a survey that his firm undertook which indicated that the respondents would prefer a “clean sheet” approach to OHS regulations in this country rather than trying to reconcile laws from nine jurisdictions.  

At this point in the review process, any change in direction is highly unlikely and may not fit with the Review Panel’s terms of reference.  The risk in doubts about the process is that an unstable OHS legislative structure could be imposed on Australia that nobody will be happy with and, of course, longevity and continuing relevance is an important consideration in legislative development.

The cautious comments by Scott Barklamb are wise in that the really contentious elements of reform are due in the second report on broader OHS matters due in early 2008.

Advertising safety

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SafetyAtWorkBlog has received some terrific comments on the various marketing strategies for addressing the safety of young people at work and in their private (public) lives.

A colleague of mine in Western Australia remains sceptical of the type of imagery employed but below are two other comments:

”   thanks for your posting on the alcohol campaign, you are quite correct – these are the kinds of advertisements that connect with the younger set – they have grown up in a world of gore (video games, movies, TV shows that show more and more). Older people don’t understand this – just a generation gap thing.”

“I think it is an excellent way to reach our youth. If it only saves one teenager from a life of over-drinking or saves one innocent life on a highway, it has met the purpose.”

As with many safety campaigns, the measurements of success are often difficult to find.  OHS regulators point to declining fatality and injury figures but these, sometimes, don’t stand up to scrutiny.  With awareness campaigns of this type, performance indicators are crucial, and should be reported publicly.

Branding strategies are okay but their aims are limited and raising one’s awareness of something does not, in itself, change behaviour.  Awareness needs an extra spur for action to occur.  That is why I look forward to the next stages of these campaigns.   Let’s hope they build on their good work rather than tweaking a failing strategy.