Tag: union

Tasmania’s workers compensation changes pass

It is easy to forget that workers compensation is clicking along during this intense period of analysis of OHS laws.  Workers compensation legislation passed through Tasmania’s House of Assembly this week (it still needs to get through the Legislative Council).  The Minister for Workplace relations, Lisa Singh, highlighted the following components of the changes in a media release on 6 November 2009.

“The key reforms will:

  • Improve access to common law damages for compensation by reducing the whole of person impairment threshold from 30% to 20%;
  • Amend the first step-down to 90% of normal weekly earnings rather than 85% of normal weekly earnings;
  • Delay the operation of the first step-down, so that it comes into effect at 26 weeks of incapacity rather than 13 weeks;
  • Streamline the management of injury and illness to deliver better health and return to work outcomes for injured workers and lower costs to employers;
  • Foster and reinforce a return to work culture among employers, workers and other stakeholders;
  • Provide greater income security for injured workers by increasing the duration and reducing the “step-down” of weekly compensation payments for injured workers;
  • Increase lump sum compensation up to $250,000 for permanent impairment or death to levels more comparable to those provided in other states and territories;
  • Provide additional financial incentives for workers and employers to participate in rehabilitation.”

The reforms are based on the Government’s response to the recommendations of Victorian consultant Alan Clayton and the Return to Work and Injury Management Model developed by the WorkCover Tasmania Board.

Alan has been a prominent advisor on workers compensation to governments around Australia for some time.  His Tasmanian review and recommendations were in 2007 and are available online.  The Government’s response is also available.

The Minister has said

“With the range of views that were put forward during consultation I am confident that this legislation strikes the right balance of fairness for workers and their families and support for employers and business.”

Simon Cocker, of Unions Tasmania, said in response to the Bill:

“The Workplace Relations Minister is to be congratulated for pursuing these improvements which will ensure that injured workers are better supported when they return to work and are paid more appropriate rates of compensation while off work.”

“The step-down provisions that currently operate have been shown to be unfair and place injured workers and their families under financial stress at a time when they are often struggling to cope with the impact of a serious injury.”

“Delaying the step down and softening its financial impact is an improvement.”

The Australian Government paid considerable attention to the Victorian OHS Act  because it was the most recent review of that legislation.  If the government continues this trend, the Tasmanian changes may be very significant for the rest of the country.

Kevin Jones

UPDATE: 19 November 2009

Tasmanian workers’ compensation laws passed the Legislative Council on 18 November 2009.

Public Comments vs Petition – modern lobbying required

Recently SafetyAtWorkBlog noted that almost one quarter of the submission to the government on its proposed national model OHS law were from individuals and confidential.  There was a suspicion of bulk proforma submissions.

One example that is available through the publicly accessible submissions is a letter to the Minister, Julia Gillard, from the Dr Sharann Johnson, President of the Australian lnstitute of Occupational Hygienists.  The letter raises concerns over the omission of “suitably qualified” from the legislation.  It concludes

“I strongly implore you to reconsider your decision not to include a requirement for the providers of Occupational Health and Safety advice and services to be “suitably qualified” in the national new model OHS legislation.  lt would be disappointing to see this amalgamation of legislation miss the opportunity to make a significant impact on the standard of OHS advice provided to Australian industry and ultimately improve our health and safety performance at a national level.”

Similar concerns to Dr Johnson’s have been discussed elsewhere in  SafetyAtWorkBlog but on the issue of proforma submissions it is noted that three other submissions, Kevin Hedges, Gavin Irving and a personal submission by Dr Johnson, contain almost exactly the same text.

What these and other proforma submitters are producing is not a response to a draft document or a submission but a petition.  Petitions have existed for centuries and carry considerable political clout but putting in a cut-and-paste submission is unhelpful.  It signifies a united position but is not constructive.  A petition to the Government or specific ministers on a single issue, such as “suitably qualified”, may have had more influence if it included an influential number of signatories and was lodged at the appropriate time, in response to outrage over the particular matter.

There is no criticism of the content of the AIOH letters only of the method of delivery and strategy.  There are many more confidential submissions that have also applied a similar strategy.

SafetyAtWorkBlog contacted Safe Work Australia over the issue  and asked “How many proformas were used and who were they by?”  A spokesperson responded

“Of the 480 submissions received, just over 200 standard form submissions were received from union members, in five different proformas.  Each of the five forms contained similar comments.  In addition, we identified a small number of standard form submissions from one professional association.”

In developing better legislation, the influence on the process from “weight of numbers” is likely to be far less in this circumstance than would be gained through constructive and innovative suggestions.

As Australia is likely to go through similar public comment phases on a raft of OHS regulations and documents over the next 12 months, assuming the Government does not shelve the project.  It is important for the proforma submitters to review their strategies and, perhaps, establish more direct contact through lobbying the relevant Ministers in each State and Federally, on behalf of their large (?) membership. In this way the Government would be familiar with the various organisations, would understand the background to those organisations’ arguments, and would then anticipate the innovative solutions that OHS organisations, professionals and experts, would put forward.

This strategy has worked for the unions and business groups for decades.  It may be time for a new strategy for some groups that combines reliable techniques like petitions with personal contact to be followed up by a knock-out submission at the right time, perhaps supported by a broadly distributed media statement.

Kevin Jones

The “suitably qualified” challenge on OHS

A quick survey of some of the public submissions on the development of Australia’s model OHS Act illustrates the challenges facing the government after it decided not to include a requirement for only people who are “suitably qualified” in OHS to provide advice to business on workplace safety.

Organisations across the political spectrum have spoken in favour of including “suitably qualified” but “suitably qualified” is in the eye of the beholder.  Several labour and trade union organisations believe that health and safety representatives (HSRs) are “suitably qualified” or “suitable qualified” people should assist HSRs in their work.

The Queensland Council of Unions says

“The WRMC [Workplace Relations Ministers Council] committed itself to a Model Act of the highest possible standards. In order to achieve this, the appointment of suitably qualified persons based on the Queensland model should be reconsidered and the recommendations of the Review implemented.”

Queensland’s OHS legislation had a system of Workplace Health and Safety Officers who were required by every company that had over 30 employees.

The Australian Council of Trade Unions said a PCBU [person conducting a business or undertaking] should

“…employ or engage persons who are suitably qualified in relation to occupational health and safety to provide advice to the PCBU concerning the health and safety of workers of the PCBU.”

The Australasian Meat Industry Employees Union says there should be an “employer obligation to engage a suitably qualified person to assist in H&S”.

Others see “suitably qualified” as a criterion that limits who would qualify for an OHS Entry Permit and what their powers can be.  Wesfarmers Industrial Safety wrote:

“We contend that OHS Permit Holders must be competent to provide OHS advice and must provide a valid reason to justify entry, the only valid entry criteria being to assist the resolution of a reasonably suspected, specified contravention of the Health and Safety Act.   To be effective they must comply with and support site/organisational procedures to enhance site health and safety outcomes and must not intentionally and unreasonably hinder or obstruct any business/undertaking or intentionally intimidate or threaten any business/undertaking or employee.

Suitably qualified in this context must also contemplate that they must not disclose information obtained in accordance with the OHS permit for any purpose other than to assist the resolution of the suspected contravention and must not take copies of documents: if serious concerns exist the Regulator can be requested to attend the site, they will request copies of relevant documents if required.

Additionally, the OHS permit holder and any organisation they represent must be held accountable for the actions taken by the OHS Permit holder.”

There are several challenges for the Australian Government on this issue of “suitably qualified”.  Firstly, it needs to decide whether it can reverse its decision not to include a “suitably qualified” element into the legislation.  To do this it would need to acknowledge that the reasons for exclusion do not match the sensitivities of the community.  This could be embarrassing but also indicate a flexibility and capacity to respond to community concerns.

The government also needs to determine where “suitably qualified” fits.  Should and HSR be suitably qualified or should this only reflect the OHS professionals?  In both cases it puts the governmental up against the commercial training organisations and the university educators (the OHS professional associations have far less clout).

Some academics see the lack of the inclusion of “suitably qualified” as providing a lower level of workplace safety.  Many of these submissions see “suitably qualified” as existing well above the level of HSRs to the professional level.

Professor Mike Capra of the University of Queensland, and other tertiary educators made the following plea:

“We the undersigned Professors of Occupational Health and Safety strongly recommend that the words “suitably qualified”* be inserted as appropriate in the model legislation in relation to the acquisition of advice regarding the health and safety of workers.

Our recommendation is based on the continuing high cost to the community in dollar terms and human suffering in relation to both work place (sic) injury and workplace induced illness which often has long latency and serious medical consequences.

Addressing such serious issues requires properly qualified professionals. The professional practice of OHS management requires skilled professionals with a sound foundation in the physical and health sciences as well as a strong knowledge base in the core OHS areas of health, safety, ergonomics, law, hygiene and toxicology and OHS management systems.

The universities across the country are offering professional entry programs at undergraduate and post graduate levels that are developing the OHS workforce. To sustain this workforce and ensure continued reduction in the societal cost of workplace injury, illness and death there must be recognition of the professional basis of OHS practice and it is imperative that this recognition is reflected in the harmonised legislation.

* Suitably qualified to be determined, as in other professions, by the relevant professional association and industry standards.”

Mike is very committed to improving health and safety of the Australian workforce and it is clear that the moral imperative is king.  But it must also be noted that education thrives on the recognition of qualifications and a legislative requirement for suitably qualified OHS professionals would strengthen the case for the viability of tertiary OHS courses which, according to some sources, are in a perilous state.

One submission questioned the sense or practicality of having an HSR trained in safety beyond the skills of the PCBU.  Shaw Idea wrote

“….the Model Act should require PCBUs to obtain advice from suitably qualified advisers. It is inconsistent to require HSRs to be trained, but not require PCBUs to either be trained or be advised by those with competence in relevant areas. The OHS consequences of incompetent or ill-informed actions by employers are far greater than the consequences of HSR actions.”

The OHS training industry has done themselves a disservice for decades by not having a formal OHS management course for safety or business managers.  There is a big difference between training an HSR to manage upward to the employer and training a manager to manage the safety of a workforce.  Leaving executive training to the tertiary sector has exposed a large vocational hole in business management of workplace safety.

It must also be stated that the editor of SafetyAtWorkBlog also made a submission to the Australian Government in which “suitably qualified” was discussed.  Below is the relevant section:

“Many safety professionals are concerned that “suitably qualified” has been omitted for the proposed legislation.  I think the reason given for its omission is poor but I do not support those who advocate the inclusion of the concept.  The push has been particularly strong from Victoria and through a couple of OHS professional associations.  No evidence has been made publicly available for the need for such a concept.  It is something Victoria has had and it is loathe (sic) to relinquish. Good OHS advice is available from good OHS advisers and caveat emptor should apply on OHS advice as with any other.

The “suitably qualified” advocates like to compare themselves to other professions like medicine yet it is recommended even from within the medical profession that second opinions be sought.  The safety profession does not advocate this very sensible suggestion.”

Kevin Jones

Working remotely does not mean it has to be unsafe

Australia is a big country and people work in very remote locations.  However OHS obligations do not apply only when it is convenient.  The law and duties apply equally wherever work is undertaken.

One example of safety improvements for remote work has been illustrated by the Community & Public Sector Union (CPSU).  On 10 November 2009 CPSU informed its members of amendments to the “Remote Travel Standards Operating Protocols”.  Some of those changes include

“Travel is twin engine aircraft is usual practise, but staff may be required to fly in single engine aircraft from time to time.  Employees will have the choice not to fly on a single engine aircraft if they have legitimate concerns for their personal safety.”

This acknowledges that in the Outback there are not always options but that union members can exercise whatever is available.  This also supports the individual’s OHS obligation to keep themselves safe.

Vaccinations for Hep A and B will be offered to employees before their first field trip, during orientation to remote servicing.

This is a standard travel safety option but often applied only for international travel.  To offer this domestically is sensible.

The union has also managed to introduce a

Dedicated section in the post trip report for all OH&S issues, including issues in office accommodation, and living quarters.

Traditional wisdom is “be seen, be safe” but this also applies to reporting an OHS matter.  If a form does not state that OHS is included, then it is increasingly likely that an incident or issue will not be reported.  Organisations also cannot be seen as deterring the reporting of hazards and incidents.

The next option is curious and a trial seems appropriate

Management agreed to a 3 week trial beginning the 6 December 2009 for the use of personal alarms in case employees are confronted with acts of customer aggression, or other dangers in the field. Management will be asking staff for feedback on this, which will inform their decision on whether to provide or not provide personal alarms to employees into the future.

The issues of safety when travelling remotely have been negotiated for many months and the CPSU website posted regular updates on negotiations.

CPSU members and public servants need to travel to remote locations to provide a range of services.  For instance, Centrelink’s Annual Report for 2008-09 says that

“Centrelink Mobile Offices, including the Murray-Darling Basin Assistance Bus, continued to travel around rural Australia to provide information and assistance to farmers and small business owners, their families and rural communities.”

These mobile offices covered 40,000 kilometres in one year.

Australia is a big country and urban safety professionals and policy makers need to be regularly reminded that a desk in an office is not a default workplace.

The “Remote Travel Standards Operating Protocols” are not publicly accessible by SafetyAtWorkBlog will provide a link, whenever possible.

Kevin Jones

Where is the evidence of OHS misuse for IR purposes?

The mainstream press has dipped into some of the submissions to the Australian Government on its harmonisation of OHS laws.  Kirsty Needham reports on the submissions in the Sydney Morning Herald.

Needham reports on basically the submissions of the Australian Chamber of Commerce & Industry and the Australian Council of Trade Unions – the ideological opposites on safety regulation.  She quotes ACCI’s David Gregory:

“There is no doubt that health and safety has been used as an industrial relations issue on plenty of occasions … we want to put reasonable boundaries around those entitlements.”

cover V01Summary_PressFinalThis position is always attached as a myth by the unions but it is an accepted fact in the minds of employers, OHS professionals and many workers.  The Royal Commission into the Building and Construction Industry in 2003 found that

“in the building and construction industry throughout Australia, there is…..widespread use of occupational health and safety as an industrial tool.”

“The types of inappropriate conduct which exist throughout the building and construction industry include….the use by a union of occupational, health and safety (OH&S) issues as an industrial tool, intermingled with legitimate OH&S issues;”

“Occupational health and safety is often misused by unions as an industrial tool.  This trivialises safety, and deflects attention away from real problems.  Unions have a legitimate interest in the safety of their members.  This should not be altered.  However, the scope for misuse of safety must be reduced and if possible eliminated.”

“Misuse of non-existent occupational health and safety issues for industrial purposes is rife in the building and construction industry.  Genuine occupational health and safety hazards are also rife.”

A major source of evidence for the repeated statement of fact is mentioned in the final report from February 2003 was an “OH&S case study (Tas).”.  SafetyAtWorkBlog is trying to obtain more details on this.

One example of the evidence that is readily available relates again to the Royal Commission.  The Commission undertook an investigation into industrial disputes a the construction site of The Age newspaper in Tullamarine.  The Commission reports

“the evidence from Mr Judson [Wayne Judson is a Director of Probuild] will be that during the negotiation of the project agreement (which was a period where any industrial action between Probuild and the unions would have been unprotected) there were many occasions when safety walks and OH&S issues were used as a device by the unions to pressure Probuild and Fairfax to agree to the project agreement and nominated shop stewards.

The potential misuse of OH&S raised, not of course for the first time in this Commission, is a very serious matter. To misuse OH&S debases the currency of safety. ‘Crying Wolf’ often enough on enough sites creates the risk that no one knows whether a safety claim is about something real and important or whether it is simply a means of supporting the latest industrial demand.”

Some of Commissioner Cole’s comments on the debasement of safety are sound but the “evidence” is from the builder and may not constitute the reality, only opinion in a submission to an investigative body.  The Commissioner carefully labels the issue “a potential misuse”.

SafetyAtWorkBlog would say that the fact of misuse of OHS issues for industrial purposes may be an example of the establishment of a fact through “crying wolf”, to use the Commissioner’s term.  The frequent statement of a belief does not establish a fact.

Also, to some extent, the construction industry hogs the OHS limelight in much of the tripartite consultation.  This is because of the industrially charged nature of construction in Australia and the fact that construction sites are usually highly visible to public.  The construction industry is an important economic driver but perhaps this prominence is masking some of the other OHS issues that the Government needs to consider.

As the Australian Government proceeds in its harmonisation of OHS laws and as it reads the hundreds of public submissions, there should be a red flag on each mention of the misuse of OHS for industrial purposes so that assertions are not misread as facts.

Kevin Jones

Asbestos is an example of immoral economic growth

The financial newspapers often refere to a BRIC group of countries or, rather, economies.  This stands for Brazil, Russia, India and China and is used to describe the forecasted economic powerhouses for this century.  But there is also the risk of economic growth without morality.  India is a case in point and asbestos can be an example.

Pages from india_asb_time_bombThe health hazards of asbestos have been established for decades but only officially acknowledged more recently.  One would expect that when some countries ban the import, export and manufacture of a product that other countries may suspect that something may be amiss.

In the introduction to the September 2008 book “India’s Asbestos Time Bomb” Laurie Kazan-Allen writes

“Historically the burden of industrial pollution has reached the developing world much faster than the fruits of industrial growth” writes Dr. Sanjay Chaturvedi.  This statement is well illustrated by the evolution of the asbestos industry in India.  In the frantic rush for economic development, there has been a pervasive lack of concern for the health of workers and the contamination of the environment.  Sacrificing the lives of the few for the “good” of the many, the Indian Government has knowingly colluded in this sad state of affairs.”

Kazan-Allen is a longtime campaigner on asbestos.  In 2001 she put this question to the Canadian Medical  Association Journal.

“Chrysotile has caused and is continuing to cause disease and death worldwide. It is hypocritical for Canada to continue to produce chrysotile when it is not prepared to use it domestically. If chrysotile is unsuitable for Canadian lungs, how does it become suitable for Korean, Indian and Japanese lungs?”

A foundation of public health and workplace safety management is that bad practices, immoral practices, are corrected, not accommodated.  At some point the exploitation of others for the financial betterment of a few must end. Could that lead to a “compassionate capitalism” or is that just another term for “socialism”?  These semantics are being argued at the moment in the United States over health care but the question needs to be asked globally, just as it is on climate change and on the financial markets.

The global implications of poor OHS management and practices needs to be placed on the policy agenda not only of the ILO, United Nations and trade union movement, but the business groups, and professional associations who need to develop their social charters.  If those voices are not added to the debate, safety will also be a fringe issue and it is too important for that.

Kevin Jones

EHS workshop report and Australian nanoparticles reports

In October 2009 a workshop was held on worker safety by the  Worker Education and Training Program (WETP), a part of the US National Institute of Environmental Health Sciences.  Many of the topics raised in the workshop – REACH, Globally Harmonized System (GHS) of Classification and Labeling of Chemicals, and nanotechnology would be issues or hazards familiar to most SafetyAtWorkBlog readers.

EffectivenessReport coverThis report on the workshop, released in November 2009, is highlighted here because it is a very good example of a basic report on a workshop that makes the reader regret that they couldn’t be there.  This respond encourages readers to make the extra effort for the next set of workshops – a major benefit of such reports and, sometimes, the main reason.

The mention 0f nanotechnology is a good link to two new reports on the issue released by Safe Work Australia on 4 November 2009.

Engineered nanomaterials: Evidence on the effectiveness of workplace controls “explores the effectiveness of workplace controls to prevent exposure to engineered nanomaterials.”  According to a media release on the reports this report found:

  • “current control and risk management methods can protect workers from exposure to engineered nanomaterials
  • enclosure of processes involving nanomaterials and correctly designed and installed extraction ventilation can both significantly reduce worker exposure to nanomaterials, and
  • a precautionary approach is recommended for handling nanomaterials in the workplace.”

Pages from ToxicologyReview_Nov09The lack of available health effects data has directly led to the precautionary position in recommendations but it is good to see that the hierarchy of controls (old technology) is being applied to new technology. The report gets to a point of recommending a combination of

“…controls [that] should provide a robust regime through which nanomaterials exposure to workers will be reduced to very low levels.”

The bibliography in this report is also excellent and includes a comparative table of the research reports and papers analysed.

Engineered nanomaterials: A review of toxicology and health hazards was a literature review that  reports:

  • “there is no conclusive evidence to suggest that engineered nanomaterials have a unique toxicity. However, sufficient toxicity tests have not yet been conducted for most engineered nanomaterials
  • nanoparticles tend to be more bio-reactive, and hence potentially more toxic, than larger particles of the same material, and
  • carbon nanotubes are potentially hazardous to health if inhaled in sufficient quantity.”

Nanotechnology is a difficult area of OHS study as there is so much research material coming through that it is (probably more than) a full-time job just to stay current.  The literature review into toxicology makes a point that it is important to remember in this field.

“A wide variety of in vitro and in vivo experimental protocols have been used to assess biological responses to NPs, some of these yield more useful data for occupational risk assessment than others.  Some are potentially misleading.” [emphasis added]

The second of these reports was a good introduction to the general issues of health risks but must be stressed that these reports deal with engineered nanoparticle(s) (ENPs) which are defined as

“A nanoparticle with at least one dimensions between approximately 1 nm and 100 nm and manufactured to have specific properties or composition. “

Increasing research into any issue almost always leads to a fragmentation of the discipline into subsets.  That research into engineered nanoparticles is different from regular nanoparticles needs to be remembered.  As the report itself says

“…the major thrust of the research is in relation to identifying potential hazards for assessment of occupational safety since working with ENPs is likely to be where most exposure occurs. In contrast to ambient particulate air pollution, where health effects have been observed and research has been aimed at discovering the causative agents and mechanisms, the reverse is true for ENPs.”

Tom Phillips AM, chair of the Safe Work Australia Council said , in a media statement,

“Safe Work Australia has requested that the National Industrial Chemicals Notification and Assessment Scheme undertake a formal assessment of carbon nanotubes for hazard classification to clarify regulation of these nanomaterials.

“We have also requested that CSIRO develop guidance for the safe handling and disposal of carbon nanotubes, which will be a useful resource for OHS managers.”

It is good to see Safe Work Australia (now an independent statutory body) take one of the ACTU recommendations from its 2009 factsheet.

Kevin Jones

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