Corporate responsibility – Page 14

D/O liability insurance gets to England’s High Court

Insurance policies for directors and officers (D&O) liabilities have yet to gain much application in terms of occupational health and safety penalties. But D&O insurance policies are in Australia and are established in other countries.

According to Wikipedia:

“Directors and Officers Liability Insurance (often called D&O) is liability insurance payable to the directors and officers of a company, or to the organization(s) itself, to cover damages or defense costs in the event they suffer such losses as a result of a lawsuit for alleged wrongful acts while acting in their capacity as directors and officers for the organization.”

A decision by the High Court in England throws further light on the application of D&O. Continue reading “D/O liability insurance gets to England’s High Court”

Do “enforceable undertakings” equal justice?

The issue of “enforceable undertakings” for breaches of OHS law receives an interesting interpretation in the Courier-Mail newspaper on 18 January 2010. “Enforceable undertakings” are unfairly described as “plea bargains” but the article does provide some comparisons to support the argument.

The first example provided where a worker was left a paraplegic sounds like a plea bargain in that there was a negotiated “agreement to avoid being brought the courts” but more information is required.

The second, concerning the injury to patrons at the Sea World theme park, is treated too briefly and is likely to involve issues of public liability. However the dollar comparison in this example may raise the need to ensure that any enforceable undertakings should be comparable in dollar value to the initial fine. Continue reading “Do “enforceable undertakings” equal justice?”

Health Department bans all employees from smoking at work

Most of the Australian media have reported on a memo to staff of the Australian Department of Health that only allows smoking while on meal breaks. Health Department employees are not permitted to smoke while undertaking departmental duties or “when representing the department in any capacity”.

Government authorities have long participated in smoking reduction campaigns which have succeeded in minimising smoking. Workplaces in Australia already have workplace smoking bans. So what’s caused the memo (a copy which has not been seen by SafetyAtWorkBlog) to be issued?

The principal reason seems to be to improve the “professional reputation of the department”. It has always been a ridiculous image to see Health Department employees crowding around departmental doorways smoking cigarettes. Continue reading “Health Department bans all employees from smoking at work”

Work/life balance needs to grow into sustainability

Just as government is reigning in the excesses of the financial sector over the last decade or so, there is a strong movement to pull back on the workload excesses. Some of this is through the work/life balance movement.

In terms of occupational health and safety, this movement has a strong base that is reflected in a lot of OHS legislation where individual employees have a responsibility to ensure they are working safely and not putting themselves at risk. This can be a very difficult obligation when one is working in an organisation that does not grant safety or mental health or its social obligations much weight.

Migrant workers’ deaths on Christmas Eve

According to the Toronto Police, four workers died on December 24 2009 when the swing stage they were working on collapsed. A fifth man, Dilshod Marupov, is in hospital.

Media reports have identified the five workers as migrant workers and although the swing stage was at the thirteenth floor of an apartment complex, no-one was wearing safety harnesses. Continue reading “Migrant workers’ deaths on Christmas Eve”

John Holland prosecution

The John Holland Group has featured several times in the SafetyAtWorkBlog in 2009. Any organisation as large as this Australian conglomerate who promotes their commitment to safety and whose Board Chair, Janet Holmes a Court, has such a high profile is going to draw media scrutiny. In fact, the evolution of the John Holland safety culture and the struggle to maintain such a culture as a company grows in profitability and complexity would make a fascinating case study.

On 18 December 2009, Comcare released details of its latest successful prosecution of John Holland. This time the company was fined $A180,000 over the death of a worker, Mark McCallum, at the Dalrymple Bay Coal Terminal in Queensland in May 2008. According to the media statement:

“Justice Collier stated that “It is clear that, despite the efforts taken by the respondent to implement a safe working environment, the operation involving the transportation unit was flawed in its original conception. The dangers were obvious from the start, relatively simple to avoid, but unrecognised and unaddressed in a manner which raises the objective gravity of the offence in these proceedings towards the higher end of the scale.” [emphasis added]

When a judge determines that the process was flawed from the very start, one’s expertise in managing an established practice safely should be critically reviewed. Such fundamental failures in a safety management system should cause any company to realise something is wrong in the way it is addressing safety needs, particularly in an economic climate that is bursting with new infrastructure projects for which one is competing.

The circumstances of the fatality are that

“A team of five John Holland workers were involved in moving large precast concrete decks to the end of a jetty under construction. The precast concrete decks were being transported on two jinkers that were being pushed by a front end loader. During this procedure, a worker’s foot became trapped under wooden scaffolding planks on the jetty, and he was fatally injured when he was run over by the wheels of the jinker.”

The Federal Court judgement listed the safety deficiencies that John Holland acknowledged

“The respondent acknowledges that:

(a) its work method statement did not adequately identify the risks associated with the relevant work process, and did not adequately identify suitable control measures to remove or minimise those risks; and

(b) it did not carry out a plant hazard assessment with respect to the front and rear jinkers, which may have identified a requirement for a remote braking system or other controls on the jinkers for use by spotters and others; and

(c) it did not have in place a formal system whereby employees were certified as being competent in the use of jinkers; and

(d) it did not have in place a formal protocol or procedure for the use of radios to ensure that the transmitter of a radio message was able to be informed that the message had been received by its intended recipient and understood; and

(e) it did not have sufficient communication mechanisms in place to ensure that employees working out of sight of the loader operator and the rear spotter were able to communicate directly with spotters and the loader operator; and

(f) it did not ensure that an observer of a trainee jinker operator was also issued with a radio to directly communicate with the other members of the transportation crew responsible for the propulsion of the load; and

(g) it did not provide workers who were working out of sight of the loader operator or rear spotter with any form of alarm or safety device, other than a radio to alert other workers of the occurrence of an emergency situation; and

(h) it did not ensure that the clearance of obstacles in the path of the loader was done in a timely or effective manner, thereby requiring the front jinker operator to perform that duty during the progress of the transportation unit and whilst out of the line of sight of the loader operator.”

Mark McCallum’s death gained even greater media attention when unions challenged John Holland’s nomination for a safety award shortly after McCallum’s death.

Kevin Jones

Unique company response to confined space penalty

In 2007, according to the ABC news site,

“42-year-old Geoffrey Johnson [died after he] inhaled toxic fumes from paint stripper when he was cleaning the inside of a large chemical tank”.

On 16 December 2009, his employer, Depot Vic P/L, was fined half a million dollars over this breach of the OHS legislation.

Initial reports say that the company is no longer in business but it

“told the court is had put aside money to pay the fine.”

Wow. What happened to phoenix companies? – the business scourge that closes down to avoid paying outstanding debts and, often the costs associated with a worker’s death, and then starts up again under a different structure.

That a company will pay a fine for an OHS breach years after ceasing business seems a remarkable and admirable act.

Hyde Park Tank Depot’s assets were purchased by the Scott Corporation several months after Mr Johnson’s death, according to information SafetyAtWorkBlog obtained from Scott Corporation. The current business and website listing was not operating at the time of Mr Johnson’s death.

WorkSafe Victoria provided background to Mr Johnson’s death in a prosecution summary in April 2009. The full summary gives a clear indication why the fine was so high.

“Depot Vic Pty Limited (formerly known as Hyde Park Tank Depot Pty Ltd) undertakes cleaning, repair and maintenance of ISO containers for the chemical industry. ISO containers are confined spaces, being portable tanks used to transport chemicals. The tanks are usually cleaned purely by hydro-blasting, but on occasion the tanks were required to be cleaned more thoroughly.

The system of work was such that when this situation occurred, the cleaning of the tank required 2 stages. The first stage involved the application of a cleaning agent, usually a product known as ‘Selleys Renovators Choice’ stripper (which is not a dangerous good).

The second stage then involved the use of hydro-blasting on the internal walls to remove the stripper and clean the wall. The company’s work instructions required that a confined space permit be issued and that appropriate PPE be worn.

On 16 August 2007, an employee of Depot Vic Pty Limited died whilst attempting to remove latex from the internal walls of a 25,500 litre ISO tank. The deceased had entered the tank and instead of using the ‘Selleys Renovators Choice’ stripper, had used a product known as ‘Paint Stripper Gel GS 125’ that was suited to clean external components only (and not the inside of the tank). The label of this product contained safety directions such as “do not breathe vapour” and “use only in a well ventilated area”. This product is a dangerous good ‘class 6.1 (toxic substance) of packing group 111’. It is also a hazardous substance according to the criteria of the Australian Safety and Compensation Council.

The deceased was located in the tank in an unconcious (sic) state, and when retrieved from the tank did not regain conciousness. An expert analysis of the atmosphere inside the tank concluded that that (sic) there was a lethal concentration in all or part of the tank (10 litres of the dangerous good was used). At the time of the incident a confined space permit was not issued, the deceased was not wearing respiratory protection, gloves or a harness, and there was no ‘spotter’ in place to supervise the latex removal works.

Further, there was a lack of training and supervision of employees in relation to the work procedures for confined space entry.”

Kevin Jones

Tag: Corporate responsibility

D/O liability insurance gets to England’s High Court

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Do “enforceable undertakings” equal justice?

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Health Department bans all employees from smoking at work

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Work/life balance needs to grow into sustainability

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Migrant workers’ deaths on Christmas Eve

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John Holland prosecution

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Unique company response to confined space penalty

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