Should the OHS Profession be Regulated?

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There is a strong campaign to improve the level of professionalism in occupational health and safety in Australia.  Several safety-related bodies have achieved this already by being far-sighted and progressive, others have not.  Concerns over the inconsistency of health and safety advice spurred WorkSafe Victoria to coordinate the establishment of a Health & Safety Professionals Alliance (HaSPA).

However it is possible that even this very recent initiative is becoming outdated.

Lessons from Accountants

One of the models that HaSPA is following is that of the accounting profession.  Certification of this profession has existed for decades and has been supported by government as the preferred avenue for tax preparation and other similar financial measures.  The prominence and solidity of the qualification and the diligence of enforcement by the professional bodies is impressive but part of that sector will soon become regulated by legislation.

Legislation being considered by the Australian Parliament will, according to  media reports,

  • establish minimum standards for those professionals completing taxation returns;
  • maintain a registry of those suitably qualified;
  • improve the quality of advice of those not already in an accountancy professional body;
  • establish a national tax practitioner board;
  • introduce a code of professional conduct; and
  • develop civil penalties for certain types of misconduct by tax practitioners.

HaSPA has many hurdles to meet through its member bodies but there are several external to the process that should be considered.

Where’s the evidence?

Safety professionals are constantly advocating for evidence-based decisions.  Sometimes this comes from researchers who also have one eye on research grants but given that decisions should be based on evidence, is there evidence that safety professionals have provided poor advice in the past?  If so, where is it?

Buyer Beware

Also, is this so important?  OHS legisaltion throughout Australia stipulates that the principal responsibility for managing safety in the workplace resides wiht the employer.  The employer has an obligation to maintain a suitable state of knowledge of the hazards in their workplace and can seek advice from external advisers, should they choose.  Why should caveat emptor not apply in the case of safety consultants?

The debate on OHS professionalism can be seen as a tussle between caveat emptor and caveat venditor with the argument tilting toward emptor because of the employer obligations in OHS law.

The move to somehow regulate the safety profession is an acknowledgement that the profession, as a whole, has done a poor job of regulating itself and establishing its credentials in the marketplace.  

The business community is struggling with the global financial crisis showing that a free market leads to greed and chaos at the same time it is ideologically opposed to regulatory interference.  The government’s OHS legislation is being pushed as an update, not new, in order to minimise the opposition from business.  The business cost benefits are also being heavily promoted.  

Could an argument be made that workplace safety could be improved more quickly and more effectively through a national registration of the safety profession?  Accountancy is providing a model.  Private certification is available in North America.  Singapore already registers its safety professionals.  

Either way, let’s see some evidence.

Kevin Jones

Response to National OHS Law Review

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In the Australian Financial Review on 17 February 2009 (page 8 but not accessible online) Steven Scott reports that the Western Australian Treasurer Troy Buswell is in a stoush with the Federal government over OHS laws.  They are not.  Buswell is quoted as saying

“My view is that it’s much more appropriate to make sure you get it right…  We will not be supporting the establishment of Safe Work Australia until we are in a position to commit ourselves to the full harmonisation process.”

Buswell wants more time and more information.  He is also concerned about the (related) industrial relations changes.  Only last week, Buswell was at a Senate Committee supporting West Australian businesses.  The Treasurer’s stance is at least consistent and prepared for flexibility.

Michael Tooma, a labour lawyer with Deacons in Sydney, is reported as saying  that 

“These right of entry provisions could be used for ulterior purposes, either for a recruitment drive or as a way of causing industrial agitation….. It gives unions the right to use OHS as a Trojan Horse for the purpose of entry onto sites.”

In his initial analysis of the final report Tooma wrote

“The Panel took the view that union right of entry contributes in a positive manner to OHS compliance at a workplace level.  It recommended that the model Act provide right of entry for OHS purposes to union officials and/or union employees formally authorised for that purpose under the model Act.”

and that 

“These recommendations have the potential to industrialise the safety agenda.”

The review panel is acting on the fact that workplace safety is already industrialised and that those who continue to split to two areas are denying reality.  OHS cannot be managed successfully without also working with the human capital and industrial relations context.

The right-of-entry provisions in any legislation is a hotly contested ideological battle and there is plenty of evidence through the many submissions to many OHS and IR reviews of this.

Right-of-entry is not a threat of punishment and is readily avoided through workplaces having active and functional methods of consultation and safety management.

Similarly, concerns are being raised over the introduction of Provisional Improvement Notices (PINs) in some jurisdiction.  PINs are an acknowlegement of a breakdown in communication and a dysfunctional safety management system in the workplace.  In some workplaces PINs are never applied because everyone talks about safety in an open and accountable fashion.

Many of the concerns being raised over this final review panel report can be addressed by safety professionals and advocates publishing examples of how alarming legislative provisions have proven to be non-starters.  The power may be on the legal register but are infrequently applied.

When the new right-of-entry provisions were being introduced in Victoria, many lawyers and employer representatives said the world would collapse.  It hasn’t and the sensible control and oversight of the process is now recommended across Australia.

It is perhaps time for WorkSafe Victoria to re-emphasise the success of the right-of-entry management process it has operated under for several years.  John Merritt, CEO of WorkSafe Victoria has spoken very positively of the process.  An information sheet on the issues for employers is also available.

Kevin Jones

Draft guidance on musculoskeletal injuries in mining

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Any inquiry into musculoskeletal disorders (MSD) in any industry is of great interest to OHS professionals as MSD are the bane of the profession.

The New South Wales Dept of Primary Industries (DPI) is requesting public comment on a new MSD guidance for the mining and extractive industries.  Below is some text from the media release

Industry comment is being sought by the Musculoskeletal Disorders (MSD) Working Party on the guidance document The Management of Musculoskeletal Disorders in the Mining and Extractives Industry.

The benefits of the guide are that it;
• Facilitates sites taking planned preventative measures;
• Uses the capacities that already exist and;
• Provides effective tools for sites to use.

Comments are welcome on the guidance through the DPI website by close of business 27 March 2009.

Kevin Jones

pages-from-management-of-msd-in-mining-guidance-circulation-for-comment-document

National OHS Review – initial comments

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Several OHS colleagues on an international discussion forum have expressed some opinions on the final report of the Australia’s National Model OHS Law review.

Safety Alerts

One asked that better and more frequent safety alerts be published by the regulators and that those reports be based on fatalities, injuries and near misses.  

There is an inconsistency of  incident reporting in Australia.  For instance, emergency service departments have different ways of notifying the media of incidents.  Most rely on regular (multiple times each day) visits to their websites.  This option doesn’t work unless one has tracking software or are doing nothing else.  Several distribute email bulletins on a daily basis.  Most of the bulletins deal with traffic incidents, floods or bushfires, but several also report on emergency incidents to individuals and, although not explicit, many occur in workplaces.

Incident alerts from emergency services are good because it is a service that OHS regulators and enforcers also receive and act upon.

For many years, various Australia safety organisations have published OHS solutions databases or, initially, folders.  The maintenance of these have fluctuated over the years in relation to technological change and political interest.  It is pointless trying to establish a fixed-point or hard-copy library when the Internet is now the primary resource tool.

It should be added that considerable information can be garnered from court reports of OHS prosecutions however, the Magistrates’ Courts do not provide publicly accessible court reports so any matters heard at that level are rarely reported, except by someone who is sitting in the court.  To gain a proper understanding of the OHS legislative process, coverage of all levels of legal action should be encouraged.

Risk Management

Another colleague expressed concern about the use of “risk” throughout the report.  Below is a section of the report that explains the review panel’s approach:

“In Chapter 30, we discuss the role of the risk management  process in the model Act.  As we noted in our first report, risk  management is essential to achieving a safe and healthy work  environment. We found that risk management is implicit in the  definition of reasonably practicable, and as such, need not be  expressly required to be applied as part of the qualifier of
 the duties of care.  Further, as we discuss in this report, risks  can be successfully managed without mandating hazard  identification and risk assessment in all cases, particularly  where the hazards are well known and have universally  accepted controls.

 Therefore we recommend that the model Act should not  include a specific process of hazard identification and risk  assessment, or mandate a hierarchy of controls, but that the  regulation-making power in the model Act should allow for the  process to be established via regulation, with further guidance  provided in a code of practice, as is contemporary practice.
 The application of risk management process should however be  encouraged…” (page xviii)

Throughout the review process the Victorian OHS Act was the most influential piece of legislation and that Act removed the previous requirement to assess workplace risks to determine the most appropriate control measure.  WorkSafe Victoria had, for years, advocated in its publications and guidelines to “Find-Assess-Fix”.  The “Assess” was dropped in many instances as the suitable control measure had been well-established just not widely applied.  

The WorkSafe position was in response to those business operators who may say “I don’t care how hazardous the bloody thing is just fix it!”  It was hoped that this would save time and “unnecessary” paperwork, and that other State jurisdictions would take the same approach.  None did, and the removal of “Assess” confused businesses and safety professionals as it is a major inconsistency with the Australian Standard on Risk Management.

WorkSafe tried to calm the confusion by saying that they still though assessing risks was a good idea for many new and developing hazards, just that assessment could be done away with as a legislative requirements in most instances.

It seems like the National Review Panel supports the Victorian approach to risk assessment.  Not so long ago, the New South Wales government subsidised a lot of training for farmers and others in the agricultural sector on risk assessment.  Now it will have to re-explain.

The other concern with the panel’s approach to risk assessment is that it sees risk management as fitting within “reasonably practicable”, a concept that SafetyAtWorkBlog is not convinced helps in managing safety.  “Reasonably practicable” is a concept that is defined and refined through prosecutions and court processes, therefore, it can change and it is best interpreted by lawyers.  OHS legislation was designed to be readily understood by the layman for where the responsibility for safety sits with the employer and, to a lesser extent, the employee.  As soon as law firms are brought into the process, information is locked away under lawyer-client privilege, the cost of safety skyrockets and any safety management lessons are delayed until the court case is heard (or not heard) years later.

It should be remembered that the National OHS Model Law was about the law relating to workplace safety not the implementation of safety management.  It is this differentiation that needs to be constantly pushed to the government to avoid workplace safety becoming a management task that cannot be undertaken without a lawyer watching intently over one’s shoulder all the time.

Kevin Jones

Eye injury statistics for workplaces

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In early February 2009, the Australian Institute of Health and Welfare released a statistical report on eye injuries in Australia.  There was a small chapter on eye injuries that occurred in workplaces.  Seeing as how the readers of SafetyAtWorkBlog love statistical reports, some of the data is presented below.

For further data, and graphs, it is recommended you download the report.

According to the report, Eye-related injuries in Australia,

 A total of 8,640 workers compensation claims with eye injury or disease as the primary diagnosis were contained in the NOSI database for the period July 1999 to June 2005.

Median time lost because of eye injury in total decreased from 2.0 weeks in 2000-01 to 1.6 weeks in 2004-05. In 2004-05, injuries described as ‘eye: other and multiple’ resulted in the longest median time loss (2.0 weeks).