OHS – Page 198 – SafetyAtWorkBlog

Analysis of First Report of the National Model OHS Law Review

As more Australian OHS professional return to work after their Summer break, it will take several days to get through emails. Some of those emails are likely to include a mention of Australia’s review panel reports of model OHS law. The First Report has been out for over a month and the final report is due at the end of this month.

Other than a couple of statements by labour lawyers, the analysis has been relatively quiet, which makes the analysis by Professor Richard Johnstone a good way to remind us of the issues raised and the timetables for the review process.

In December 2008 The National Research Centre for OHS Regulation of the Australian National University released a Working Paper by Professor Johnstone entitled “Harmonising Occupational Health and Safety Regulation in Australia: the First Report of the National OHS Review”. Johnstone identified several important changes suggested by the review panel

“…..These two recommendations are operationalised by arguably the most important proposals in the First Report. These are the recommendations that the model Act impose a “primary” general duty upon a “person conducting a business or an undertaking” and owed to “workers” broadly defined and “others”; and that beneath this primary duty sits a series of specific classes of duty holders with more detailed duties which “flesh out” the primary duty of care, without excluding or limiting the primary duty. ” (page 17)

This concept has originated from Queensland and New South Wales but expanded by the panel and sets up a structure that underpins other elements, such as the duties of “corporate officers”.

In discussing the duties of officers, Professor Johnstone writes

“I urge the Panel to ensure that the definition of “corporate officers” is broad enough to include “shadow directors”, so that responsibility for contraventions by corporations of the general duties in the model Act can be sheeted home to entities such as holding companies and franchisors.” (page 32)

It has to be remembered that the review panel is focusing on law and not necessarily the practical safety management that operates from the legal obligations and is structured on compliance.

In terms of prosecutions Professor Johnstone identifies the following as one of the most important elements of the panel’s First Report

“There should be three categories of offences for each type of duty of care

a)      Category 1 for the most serious breaches, where there was a high level of risk of serious harm and the duty holder was reckless or grossly negligent;

b)      Category 2 for circumstances where there was a high level of risk of serious harm but without recklessness or gross negligence; and

c)       Category 3 for a breach of the duty without the aggravating factors present in the first two categories with maximum penalties that:

d)      relate to the seriousness of the breach in terms of risk and the offender’s culpability;

e)      strengthen the deterrent effect of the offences; and

f)       allow the courts to impose more meaningful penalties, where that is appropriate.”

The panel, or the government, will need to be careful in proposing this categorisation as there are already in Australia OHS professionals advocating a three-stage categorisation of personal damage. As George Robotham has listed the classes, developed by Geoff MacDonald :

“CLASS 1-Damage that permanently alters a persons life e.g. death, paraplegia, amputation of a leg, severe psychological damage.

CLASS 2- Damage that temporarily alters a person’s life e.g. fractured leg that repairs with no lasting impediment, deep laceration that has no underlying tissue damage and repairs without significant scarring

CLASS 3 – Inconveniences a person’s life.”

These are categorisations in very different contexts but may unnecessarily confuse the management of safety depending on which way the review panel goes and how the government responds to these concepts.

Johnstone’s paper is the best analysis currently available and should whet the appetites of safety professionals who should probably gird themselves for the more expansive Second Report due shortly.

Kevin Jones

The reality of First Aid

Many employees undertake first aid training because it is a relatively easy training program to arrange, it is cheap and it provides skills that can be applied outside the workplace.

But newly trained first aiders often leave training with an unrealistic feeling of empowerment. Regularly, small businesses regret the disruption caused by the first aider’s evangelism for safety, particularly if the first aider was trained to provide some generalist safety presence in the company. Similar disruption can result from health and safety representative training and perhaps that is why many small businesses are wary of this.

First aid trainers need to remind students regularly of the reality of first aid. This reality is shown in the death of a truck driver in an isolated part of Australia on 9 January 2009. First Aid is a terrific life-saving skill but the reality is that circumstances beyond one’s control may still result in a death.

In a class once, a student asked a first aid instructor what would happen if a farmer was bitten by a snake in an isolated part of the farm and the farmer had no first aid skills or kit. The trainer responded, “the farmer would die”.

The reality of living in a large country of isolated roads and small population is shown in the death of the truck driver.

The role of mobile telecommunications in the article is a distraction and relates more to the current political and commercial disputes between the Australian government and the telecommunication providers, than to the truck driver’s injuries.

The article may lead to discussion on the poor emergency resources in rural and outback Australia.

First aid and emergency response has been revolutionised by mobile phone technology over the last 20 years. Mobile phones have caused us to find lost bushwalkers and to get emergency ambulances to accident scenes much quicker. Thankfully, a quicker emergency ambulance response shortens the time needed applying first aid.

It is a truism that no matter how much training we have, or how much technology we can access, death is a reality of life.

Safety challenges for English pantomime

Today, the UK Daily Mail published an example of the mish-mash of safety management problems that are confusing the public about what an OHS professional does.

An amateur Christmas pantomime is confused by the plethora of safetyand health obligations being placed on them by, it is assumed, a variety of regulators. Let me speculate on what may be behind some of the issues.

“scenery is free from sharp edges” – a good set designer, even an amateur one, should already have this aim as part of their skills. Backstage in theatrical productions is notoriously dark and often full of people, round the edges of scenery is not an unreasonable expectation.

The theatre company chairman says that the facility is not the best.

“Mr Smith, 59, a training manager, also claims that Brierley Hill Civic Hall’s backstage facilities are ‘poorer than Cinderella’s kitchen’ making it all the more difficult to meet the health and safety requirements.”

Ice cream and milk temperature is a matter of food safety. These can easily be managed by the facility manager providing suitable refrigeration. If the facility is a regular venue for theatrical productions it is not unreasonable to expect the venue to be fit-for-purpose. Graeme Smith says that the company has already solved the issue to some degree:

“The 100-strong am-dram group, which was first formed 60 years ago, has also bought a freezer because it does not trust the reliability of the venue’s, Mr Smith said”

Clearly, Mr Smith has as many problems with the venue as he does with the safety needs of his production.

Climbing a beanstalk with a harness – many theatrical productions have incorporated harness into aerial effects or revised their sets and direction to depict climbing without physically climbing 30 feet. This is a pantomime and it involves acting so act like you’re climbing a beanstalk.

Chaperoning children – mothers of stage children have been doing this for years. The nature of backstage may require supervision of children to reduce the hazards of dozens of excited children causing problems and creating hazards for other stage workers. Depending on the layout of the facility the dressing rooms may some way from the stage, perhaps through public areas, and supervision is not an unreasonable expectation.

“do not enter the props storage area” – all workplaces have areas that restrict unauthorised access for good reason. Supervision may be the best available control measure for the circumstances. The article refers to pyrotechnics. If these were to be used in this production and the pyrotechnics were stored in the props area, entry restriction would be more than reasonable.

“inform the audience before the performance if pyrotechnics are to be used.” It is peculiar that the audience is informed as pyrotechnics should be configured to operate with no risk to audience, actors, or stage staff. If the reason for this advice is fire safety, then this relates again to the suitability of the facility itself, to fireproofing, fire exits etc. Given the fires that have resulted from unsafe use indoors of pyrotechnics over the last few years, increased warnings seems appropriate.

I am not sure about the need to identify curtain users but the need to prevent people falling into the orchestra pit is obvious. It is implied that this would only occur outside of productions and rehearsals and, in that case, this would be the responsibility of the facility manager. Boarding up the pit may be an excessive control measure and alternative barriers may be appropriate. Again this also relates to the initial design of the facility.

There are enough hints in the article to show that the suitability of the Brierley Hill Civic Centre for theatrical productions needs to be reviewed. Many of the theatre company problems seem to be to accommodate design and layout deficiencies.

The Australian theatrical union issued safety guidelines for live theatre productions in 1999

The HSE and the Association of British Theatre Technicians has safety guidelines on pyrotechnics and a range of other publications related to theatrical productions.

Clearly there is no “idiot’s guide to amateur productions” but there may be a need for such a publication. The experience of the Brierley Hill Musical Theatre Company shows how one small event can be bombarded by attacks from all sides when all the company wants to do is put on a pantomime. Theatrical productions have always been big management challenges and health and safety has always been part of this process.

It was a fantasy sixty years ago when Judy Garland and Mickey Rooney could put an elaborate stage show together overnight in the movies. It remains a fantasy.

Kevin Jones

“Illegal” asbestos use in the Australian Navy

The defence forces operate with a different understanding of risk and safety. In the past there are many instances where soldiers lives have purposely been sacrificed for the greater good. This has been an integral part of many “heroic” battles.

The Australian federal OHS authority, Comcare, is at the forefront of a clash between occupational safety and armed services culture. The Age newspaper has revealed the Australian navy’s continued use of chrysotile asbestos in its ship and navy bases years after the substance was banned for use. The newspaper says that a risk assessment report has found

..”the risk to personnel was significant, exposure to asbestos was almost certain and the consequences were “potentially catastrophic”.”

OHS standard practice is to identify the control of hazards in line with the Hierarchy of Controls which seems to have been done as the newspaper reports

“A ban on the use of and import of asbestos-containing materials in Australia came into force on January 1, 2004. But the ADF [Australian Defence Force] requested and won an exemption [page 5 of the SRCC 2005-06 Annual Report] to continue using chrysotile asbestos parts until 2007 on two strict provisos: that the parts were “mission-critical” – meaning their absence would ground equipment and jeopardise a mission – and that no non-asbestos replacement parts could be found.”

So the hazard can’t be eliminated or substitutes found. That’s the first two levels of the hierarchy down. The report goes on to assert that the (in)action of the Navy could be illegal and says the exemptions were renewed for another three years (page 81 of the SRCC Annual Report 2007-08)

The remaining levels of the control hierarchy are not addressed in recent media reports or documents available through Comcare’s website but the continuing cases of asbestos-related diseases reported by the lobby groups would indicate that personal protective equipment may not have been used or used appropriately.

Most organisations are aware of the hazard of asbestos if not how the hazard relates to the specific circumstances. The Navy cannot claim this as it has specifically claimed exemptions for the hazard.

The current Defence Minister, Joel Fitzgibbon, took action on the defence force’s use of asbestos products almost 12 month’s ago and even though it was reported that he gave the Defence chiefs a “dressing down” over the issue, circumstances seem not to have improved.

“But Defence Minister Joel Fitzgibbon, who first accused the Defence Force of lethargy in its efforts to remove asbestos in 2007, when he was in opposition, said despite the massive cost of ridding the ADF of asbestos, its continued use was unacceptable.”

For those who habitually argue that worker safety is not affordable, the Minister’s quote above shows commitment. Sadly it is these types of comments that can come back and haunt politicians.

It is suspected that the Minister or the Navy is receiving letters about non-asbestos gaskets from keen equipment suppliers as you read this blog. But that raises the problem of the labyrinthine issues of defence equipment procurement. Perhaps the fact that anti-asbestos campaigner and former trade union leader, Greg Combet, is now the Parliamentary Secretary for Defence Procurement may fast-track the issue. It is hoped that on the issue of asbestos in the defence forces, Greg speaks up soon.

Kevin Jones

Australian 2008 workplace statistics

Every year newspapers and organisations undertake a “year in review”. OHS regulators are no different. As more statistics become available of the next few weeks, SafetyAtWorkBlog will provide the latest OHS statistics for 2008. The most recent are below.

Western Australia

According to a media release by WorkSafe WA:

“In 2005/06, WA recorded 12 traumatic work-related deaths and 25 in 2006/07. There were 27 fatalities in 2007/08. In addition, every year around 19,000 Western Australians suffer an injury or illness serious enough to have to take time off work.”

Eleven of these fatalities have occurred since 1 July 2008

Victoria

According to information provided to SafetyAtWorkBlog by WorkSafe Victoria:

There were 21 work-related deaths in calendar 2008 compared with 22 in 2007 and 29 in 2006.
Deaths in 2008 occurred in building construction (four), transport and agriculture (three each), timber, electrical linesmen (two each). There were also fatalities involving forklifts, the meat industry, retail, firefighting, roadworks, warehousing and manufacturing (one each).
The 10 year average is 28.4 deaths/calendar year. There were 39 fatalities in 1999, the highest in that period. Lowest was 2004 with 18.
The 5 year average is 24 with a high of 30 in 2004, the highest in that period.
29,087 [WorkCover] claims last financial year compared with 28,550 in the previous. There were 77 life threatening injuries in the last financial year compared with 66 in 06/07.

Kevin Jones

UPDATE – 7 January 2009

A spokesperson for WorkSafe WA has told SafetyAtWorkBlog that WorkSafe’s statistical experience varies from that in Victoria in the context of workplace injuries over the Summer break. January is historically a month with a low rate of workplace injuries. This may be due to the number and type of West Australian industries that close down for January or that workers are on leave for around two weeks in January.

Statistics on workplace injuries are notoriously difficult to compare from one Australian State to another and SafetyAtWorkBlog would argue OHS would be seen as more directly relevant by the community if statistics accurately reflected the level of work-related injuries and illnesses rather than being based on workers compensation claims and fatalities. It certainly would change the strategic targets and enforcement processes if illness was accurately assessed.

Various Federal governments have promised to attend to statistical incompatibility over decades and it is hoped that the potential national consistency of OHS laws may also resolve the need for accurate and relevant workplace statistics.

Drug abuse at work – podcast interview with Professor Steve Allsop

The editors of SafetyAtWorkBlog produced SafetyAtWork podcasts several years ago. These interviews deserve some longevity even though some of the references have dated. In this context, SafetyAtWorkBlog is re-releasing a podcast from September 2006 on the management of drugs in the workplace. (The podcast is available at SafetyAtWork Podcast – September 2006 )

Professor Steven Allsop is a leading researching on the use of drugs at work and socially. Steven is also the Director of the National Drug Research Institute. In this interview he discusses amphetamine use, how to broach the issue of drug use with a worker and drug policies in industrial sectors.

Please let SafetyAtWorkBlog know of your thoughts on this podcast.

Kevin Jones

Mobile Phones and Driving

Work tools, such as the company car and the mobile phone, can be fun and functional but when used at the same time, the combination is deadly.

According to media reports a study by the Federal Department of Transport survey of 1500 drivers has shown that

[in Victoria] about 61 per cent said they had used a mobile while driving, up from 47 per cent in 2005…. More than one-quarter admitted reading a text message while driving, while 14 per cent said they had sent one.
Yet 42 per cent of drivers nationally supported any law banning the use of hands-free mobiles while driving.
Victoria Police caught more than 1800 drivers for mobile phone offences during the holiday period.

SafetyAtWorkBlog has mentioned previously that road safety research rarely logs whether a vehicle is being used for work purposes. The full survey report is not yet available and, to a large extent, the media reports have focused on activities related to the Australian h0liday season – alcohol use as well as texting.

When it is available, SafetyAtWorkBlog will report on any data that could indicate the use of work vehicles as it is inaccurate to simply use road safety data as an overlay of occupational activities.

The use of company vehicles is a complicated area due to the status of the vehicles changing depending on whether the vehicle is a “pool vehicle” or whether the vehicle is able to be used for private purposes. The one vehicle could be both a work vehicle and private vehicle at different times of the day. This is the challenge for OHS professionals – to deal with a workplace and an employee who is neither of these 100% of the time. Unless this status is clarified, any potential policy on mobile phone use whilst driving remains problematic. Yet the hazard remains.

WorkSafe Victoria released a safe driving guide in November 2008 that acknowledges the hazard but clearly leaves it up to the employer to determine the appropriate policy:

The TAC (Transport Accident Commission) and WorkSafe recommend that hands free calls be kept to a minimum and reserved for emergency type calls.
Handheld mobile phone use is illegal and should not be considered under any circumstances while driving. Texting or reading texts or caller ID should not be done at any time whilst driving.

Without definitive advice from regulatory bodies but with mounting evidence of the heightening risk of injury and property damage, it will be a brave company that bans the use of mobile phones whilst driving (the ideal OHS control measure). However, this is one of the risks faced when evidence of hazards is called for but we don’t like the evidence.

Tag: OHS

Analysis of First Report of the National Model OHS Law Review

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The reality of First Aid

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Safety challenges for English pantomime

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“Illegal” asbestos use in the Australian Navy

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Australian 2008 workplace statistics

Western Australia

Victoria

UPDATE – 7 January 2009

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Drug abuse at work – podcast interview with Professor Steve Allsop

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Mobile Phones and Driving

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Western Australia

Victoria

UPDATE – 7 January 2009

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