government – Page 110 – SafetyAtWorkBlog

Important victory for aircraft maintenance workers

The Department of Veterans’ Affairs may have to pay compensation to the maintenance crews of F-111 fighter planes. In the 1970s employees worked within the fuel tanks of the fighters with little, if any, PPE. In 2004 these workers were excluded from a healthcare and compensation scheme even though, according to one media report, evidence was presented that the workers had

a 50% increased risk of cancer
a two-fold increase in obstructive lung disease;
a two-and-a-half fold increase in sexual dysfunction; and
a two-fold increase in anxiety and depression.

One of the reasons the maintenance crews were denied compensation was that the Royal Australian Air Force (RAAF) had destroyed the maintenance records from before 1992.

An inquiry into the affair has received a submission from the commonwealth Ombudsman, John McMillan, and Labor MP, Arch Bevis, that strongly criticised the destruction and inadequacy of records.

In safety management, record-keeping is often seen, and dismissed, as “red tape”. The reduction of red tape is not the elimination of red tape and the reality of Australia’s increasing litigious legal system is that more records need to be kept, and for longer, than ever before.

Perhaps, the government, in its pledge to reduce red tape and business costs, should look at the lawyers’ insistence to business that the first port-of-call after an industrial incident is to call them so that everything becomes covered by legal-client privilege.

Perhaps it is the pressure to create paperwork than the paperwork itself that is the problem. In the case of the F-111 maintenance crews, regardless of the lack of paperwork, justice seems to be happening. It is just sad that so much pain and suffering had to be endured before getting close to a resolution.

Click HERE for a personal reflection on the health issues of the workers from one of Australian Rugby League’s champions, Tommy Raudonikis.

The right time to do something, or union shortsightedness

The title of this blog is deliberately positive because I find it hard to understand why, when union right-of-entry is such a hot political topic, a New South Wales Minister would defy Federal Court action and accompany union organisers onto a construction site against the wishes of the company who operates the site.

The legal action has been considerably drawn-out but Minister Phil Costa’s seems purposely inflammatory. In a report on the visit in The Australian on 12 November 2008, the Minister said he was given permission by Sydney Water and a building contractor. This confirms the confusion over control of a workplace that is being worked through as part of the National OHS Law Review panel. Who is the principal contractor? Who runs the site?

The minister says that permission was obtained from John Holland Construction and the company was accommodating. The media report did not say if there was any particular reason the minister visited although a media handler said it was a PR visit.

The CFMEU assistance secretary said the only way the union could get on site Was “as a visitor with the minister” and that OHS issues have been raised including dust, wetness and falling from heights.

The minister’s visit just confirms the beliefs of the New South Wales employers that the Labor government’s relationship with the unions is too friendly. There is some support for this perspective when the government chooses to keep Sydney Ferries out of the credit-rating fire sale, “after intense pressure from union leaders” according to one media report.

In a national context, Minister Costa’s visit illustrates the need for clarity on national OHS laws as John Holland moved from the state workers’ compensation system to the national version, Comcare, a couple of years ago. So not only did the visit raise matters of workplace control, there was jurisdictional problems.

Unless you are a construction union member in New South Wales, minister Costa’s actions had no positive result.

I have been a union member for several decades and support many of their initiatives but occasionally some in the union movement take short term gains and narrow interest over the bigger picture and the best interest of the whole union movement. Isn’t short-term gain over long-term benefit what the unions accuse the banks and the corporations of?

Mining fatalities and accountability

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.

Statements on Australia’s OHS review report

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,

“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.

National OHS Law Review – First Report released

The first report of the National OHS Law Review panel was presented to the Australian Government yesterday. The best initial assessment of the report can be found at a safety blog operated by Deacons law firm. In that report by Michael Tooma and Alena Titterton, the following points are made:

there should be a general duty of care for health and safety
“worker” is defined more broadly as ‘person who works in a business or undertaking’
“the Report recommends that a defined ‘reasonably practicable’ be built into the offence in the model OHS Act which reflects the current approach taken in all jurisdictions except New South Wales and Queensland.”
“The prosecution will bear the onus of proof beyond reasonable doubt on all elements of an offence”
Offences could be indictable and heard in front of a Judge and jury.
Increased penalties in line with those for environmental breaches – Corporation = $3 million, Individual = $600,000 Imprisonment – up to five years
An appeals process where cases could be taken to the High Court of Australia

“Reasonably practicable” remains a concept with a floating meaning for most business owners and OHS professionals. For a type of legislation that is intended to be readily understood by a layman, this legalese is disappointing however it is likely that clarification will come from the OHS regulators as it has already in some States. The review panel supports this type of clarification.

Interestingly, the report says on “the primary duty of care” that it “should not include express reference to control” and that

‘Control’ should not be included in the definition of reasonably practicable.

The panel says that “control” will be discussed in the second report as will the definition of a “workplace”.

The Deacon’s authors remind us that reports of this type are not automatically implemented by governments and that the review process has several months to run.

The report needs to be read carefully by OHS professionals as the recommendations will set the scene fro OHS law in Australia for, perhaps, decades. Also, going beyond the list of recommendations allows readers to see which of the issues considered were contentious and which had uniform acceptance.

The trade union movement is yet to release public statements but according to one media report, Geoff Fary of the Australian Council of Trade Unions is

“disappointed that a qualified duty of care would continue to rest with the employer”.

That same report is headed “Prison time for unsafe bosses” raising the spectre of industrial manslaughter. That does not seem to be case and may say more about the readership of The Australian or the politics of the sub-editors. However, it will be interesting to see the responses of the employer associations over the coming days.

Young Worker Safety – Part 3

Several colleagues have pointed to a young worker safety website that was established in Canada several years ago, http://www.notworthit.ca/ . The site, part of the WCB’s Young Worker campaign, won an award from American Association of State Compensation Insurance Funds in their annual Communications Awards in 2007.

There are remarkable similarities to The Pain Factory, even to the point of encoruaging young workers to tell their own stories. The similarity is, perhaps, justified when considering the safety message is aimed at the same demographics, however it shows that originality is rare in occupational health and safety promotions. Certainly the use of internet videos is a marked difference between the sites but the success of NotWorthIt should be remembered if The Pain Factory is also put forward for advertising or communications awards.

WorkSafe CEO, John Merrit is a strong advocate of his organisation’s young worker campaign.

Worker’s Compensation Funds and global financial problems

(Particularly) since the fall of Lehman Brothers, the returns on investments throughout the world have dived. Australia has been relatively unaffected but the signs are starting to look bad and if it wasn’t for China and India buying the country’s resources, Australia’s economy would more closely resemble Europe and the United States.

Martin Hamilton-Smith talking with listeners on 5AA radio

This turmoil provides a free-kick for opposition political parties who can question governments on their economic performance and foresight. For some time the South Australian opposition leader, Martin Hamilton-Smith, has been attacking in just this manner. Last week the WorkCover Corporation released its annual report. It happened to be during a sitting of Parliament so question time was peppered with WorkCover-related questions.

Often, the discussion is empty argy-bargy but Liberal Party leader Hamilton-Smith asked the most important question based on the 2008 Annual Report.

Can the Minister for Industrial Affairs explain to the house why WorkCover Corporation’s income from investments appears to have fallen by a quarter of a billion dollars in one financial year?

One has to remember that that Annual Report covers 2007-2008 and the financial crisis has only really cranked up in 2008. WorkCover Corporation lost $238 million. WorkCover Minister Paul Caica responded by blaming global problems so Hamilton-Smith asked another question, how much has been lost in the current financial year?

Paul Caica, understandably, did not have those figures available but the question highlighted the importance of chronology in the management of workers compensation funds. When the international investment market started to fail, how did the fund managers of WorkCover Corporation react?

This will become increasingly important as other State Governments in Australia begin releasing their departmental annual reports over the next few months. The Victorian Government has a habit of releasing their annual reports in such a way that adequate scrutiny is impossible. The honour and trustworthiness of governments will be shown by how open and accountability they can be in the next 12 months.

But don’t allow them the easy “out” of blaming the global financial crisis for underperformance. In the area of workers compensation, it is our premiums that provide them their economic base.

Tag: government

Important victory for aircraft maintenance workers

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The right time to do something, or union shortsightedness

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Mining fatalities and accountability

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Statements on Australia’s OHS review report

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National OHS Law Review – First Report released

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Young Worker Safety – Part 3

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Worker’s Compensation Funds and global financial problems

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