Tag: WorkSafe

Prosecution results from fall through roof

On 22 October 2007, a commercial premise in Southbank, Victoria, was to undergo renovations which included replacing the asbestos roof with an iron roof.   Two men were employed as project managers and during the roof replacement, according to WorkSafe Victoria.

“…the dogman fell [through an unguarded shaft] a total distance of 8 metres and as a result he broke 3 bones of his right wrist and a fractured scapula as well as sustaining bruising to the body and serious lacerations to the head.”

On 16 October 2009, the Magistrates’ Court fined the specialist roofing company contracted for the task $A15,000.  The prosecution summary says that as the company specialised in roofing, the hazards of working on an asbestos roof, and unprotected edges, would have been well-known.

The two project managers were fined $A7,500 each as they were not sufficiently experienced for their project management roles.  The lack of fall protection for those working on the roof was of particular note according to the Prosecution Summary from WorkSafe Victoria.

More details on the prosecution are available from the WorkSafe hyperlinks in this article.

It would be interesting to run this prosecution summary as a hypothetical under the proposed National OHS Model law to provide a contrast between the old and new laws particularly on the following matters, although many more could be considered if further details were available:

  • who controls the workplace
  • competence
  • suitably qualified
  • role and enforcement of JSA’s
  • contractor management

Kevin Jones

Road worker seriously injured at worksite

The Ambulance Service of Victoria, Australia reported the injury to a roadside worker on 19 October 2009.  Below is part of their report:

A road worker is in a serious condition after being hit by a car in a road works area this morning.

Advanced life support paramedics from Jackson’s Creek were called to Derby Street in Pascoe Vale at 11.40am.  Paramedic Chris Collard said they arrived within six minutes to find the man lying on the road being helped by an off duty nurse.

‘It appeared the car had been driven into the road works area and hit the man,’ he said. ‘The 33-year-old man suffered a head injury, deep cut to the back of his head and some leg pain…. We encourage drivers to slow down while driving through road works, obey the signs and be wary of the workers on the road.’

Working only a metre or two from traffic, even in a domestic area, like the case above, presents well-known hazards, at least well-known to the workers.

WorkSafe Victoria undertook an education campaign on the issue several years ago.  The remaining website continues some good information although it is a little out-of-date.

In 2005, the Roads and Traffic Authority in New South Wales reported

“… there were 603 crashes at roadwork sites in NSW.  Ten people were killed and 356 were injured.  Injuries to road workers in NSW cost more than $100 million a year, but the financial and human toll could be much lower if drivers slowed down and observed road work speed limits.”

In around 2006, the Highways Agency in the UK began a short campaign on improving the safety of roadworkers,  Some background and the action plan is available online.  As with many government campaigns and plans, it is difficult to quantify the success.

Comments from a spokesperson for the Minister for WorkSafe, Tim Holding, in 2005 illustrate the dominant political position on anything related to road safety be it level crossings or roadworker safety – change behaviour and save the world – and yet behaviour is probably the hardest (and costliest) element in this equation to change :

“…people should stay within posted speed limits. “. . . people should concentrate at driving at or below the speed limit and . . . spend less time worrying about how many kilometres they can drive over the speed limit without getting fined…,”

In 2005 there was a minor political kerfuffle when it was revealed that speed cameras could not be recalibrated to lower speeds for application in roadwork sites.

From experience, Australia is yet to use the portable traffic light systems widely that have been applied in the UK for decades and yet the advantages are that it formally establishes buffer zones, removes flagmen from the role of frontline control and builds on a cognitive language that almost everyone has retained from early childhood – the red, amber, green signage.

Kevin Jones

Who is advising John Holland?

The person, Sir John Holland, died in May 2009.  The company, John Holland Group (JHG), is in danger of a shortened life if it continues to make bizarre decisions.

John Holland Group has been widely criticized by the union movement, principally for its decision to jump out of State OHS jurisdictions to the Commonwealth (Comcare) structure.  This was seen as a purely financial response to a politically sensitive  opportunity that was presented by the Liberal government of then-Prime Minister John Howard.  Comcare was seen as the insurer of the defence forces and public servants and, unions claimed, enforcement of OHS to an acceptable level was beyond the skills and resources of the administrative agency.

Due to union pressure, John Holland Rail was dropped from the finalists for a national safety award in early 2009.  JHG probably came in for more criticism than other companies who also jumped because it is in the highly-unionised construction sector and their construction work is so public.

One of the advantages of moving to the Federal OHS scheme was that any prosecutions would occur in that jurisdiction and JHG has been prosecuted there.  JHG had several OHS breaches in 2005 and 2006.  It came under the Federal OHS law in March 2007.  In September 2008, Worksafe Victoria charged the company over one of the 2006 breaches.

According to a report in The Age on 14 October 2009, JHG

“issued a High Court challenge, claiming the charges were ”incompetent” because it was not liable for conviction under Victorian workplace law for offences committed before it came under the Commonwealth jurisdiction.”

John Holland v Vic Workcover Authority John Holland v Ins_High Court challenges are not cheap and the wisdom of the decision to contest the State actions was always questionable, doubly so now the High Court unanimously decided against JHG’s arguments.

The High Court challenge confirmed for many the impression that John Holland Group will try to avoid safety obligations, if possible, and that the move to a “softer” regulatory scheme was one of the reasons behind the move to the Comcare scheme.  The legal action undermines all of the positive safety culture messages that the corporation has issued.

JHG is involved with many new infrastructure and construction projects.  Harmonised OHS laws are set for 2011 which include the federal OHS laws under which Comcare operates.  Within a decade of taking up an opportunity for a “softer” regulatory regime, the advantage may be gone and the John Holland Group Board should ask themselves “was it worth it?”

Kevin Jones

HWCA could be influential in Australia’s workers’ compensation reforms

Australia and New Zealand have a small strategic organisation called the Heads of Workers’ Compensation Authorities (HWCA, pronounced “howca” by those in the know).  It is a regular meeting (some say “love-in”, others say “coven”) of the CEOs of the various workers’ compensation bodies in Australia and New Zealand.  Over the next five years, as the Australian Government begins to harmonise/reform the workers’ compensation system, HWCA will be important to watch.

In early October 2009, HWCA met and endorsed a coordination strategy, that has yet to be publicly released.  The main objectives of the strategy were noted in a media release (also not yet publicly available) to mark the latest meeting.

  • “To deliver best practice services to injured workers and employers to assist recovery: and
  • to build sustainable workers’ compensation schemes.”

The terminology of the first objective may provide a good indication of the type of organisation HWCA seems to be.  “Best practice services”???  “Best practice” is one of the worst corporate jargons being used at the moment.  This article at Wikipedia outlines the context of the phrase well.

“As the term has become more popular, some organizations have begun using the term “best practices” to refer to what are in fact merely ‘rules’….”

In other words, HWCA has a strategy to do what its member organisations should have been doing all along – enforcing the rules of good customer service and providing the best level of service to injured workers.

Perhaps it is the second strategic objective that best illustrates the aims of HWCA – to make sure that the workers’ compensation schemes do not lose money.

According to the communique that is released after every meeting (top points for open communication)

“HWCA agreed the Bio-psychosocial Rehabilitation Working Group would develop a national action plan regarding prevention of long-term disability and work loss, which will support the strategy.”

Prevention is the role of the OHS authorities in Australia and the Department of Labour in New Zealand.  Clearly HWCA will be discussing these strategic aims with those in charge of preventing injuries and illnesses.  But can the various WorkCovers and WorkSafes cope with biopsychosocial hazards?  Surely HWCA will also be talking with all the NGOs who lobby on depression, anxiety, fatigue, stress, wellness, happiness ………….. (Get ready for even more influence for BeyondBlue)

Consultation will also be needed with the various government departments involved with health promotion, public and occupational.  Not to mention the unions, employer associations and health professional bodies.

A strategy of such magnitude would require considerable resources and horse-trading through government ranks in all jurisdictions.  It is hard to see this being achieved through a meeting of Chief Executive Officers, and should such a strategy be pushed through individual workers’ compensation bodies anyway?

To achieve true reform of workers’ compensation and to resist the substantial pressure that is likely to come from the Australian and international insurance companies, the Australian government is going to need considerable negotiating skills.  Because of the involvement with the financially influential insurance companies, it is doubtful the intended reforms will be achieved. (HWCA already has discussions with the “Heads of Compulsory Third Party Insurers” according to the communique)

Almost as a post-script, it is noted that Greg Tweedly, CEO of WorkSafe Victoria, takes over the chairmanship of HWCA from the CEO of WorkCover NSW, Jon Blackwell.  Tweedly is a very busy CEO and will become more so, if the rumour proves true that he will be joining the National Board of the Safety Institute of Australia.

As the chairmanship moves from New South Wales, so will HWCA’s administrative support.  The next HWCA meeting is scheduled for 5 February 2010 and will be coordinated through the Victorian Workcover Authority or Comcare.

Kevin Jones

Working in heat – still contentious

Australians associate working in hot conditions as outside work although the occupational hazard of heat is just as relevant in bakeries and foundries.  OHS regulators and safety lobbyists often try to include too much in their heat-related strategies – heat stress, skin cancer, hydration, dust, and a range of other hazard combinations related to specific industries.

What the community and many workers want is a defined unsafe temperature limit.  Some will remember being allowed to take their school ties off when the temperature reached 38 degrees Celsius (100 degrees Fahrenheit).  But OHS legislation, more often than note, focuses on the system of work and this allows for work in excessive temperatures as long as the system can ensure this is safe.

Legislatively, this position is understandable but it is not what people want or expect.

The issue was raised recently at the Trade Union Congress in September 2009 in England in a discussion on working temperatures.  Pauline Nazir, representing the Bakers, Food and Allied Workers’ Union, said

“The question is why there is no maximum temperature and why has the Health and Safety Executive and the Government have consistently dodged calls for similar protection for those who work at the higher levels of temperature?  It is a big question for a big organisation, but one that the Health and Safety Executive has failed to answer logically despite years of pressure.  While they have failed to act, workers suffer the consequences, year in and year out.

It seems illogical that we have regulations that limit the temperatures at which cows and pigs can be transported around the country, but offers no protection other than the general health and safety legislative offerings.  It is true that if you move livestock in Britain, there is a maximum level of 35 degrees Centigrade within the carrier, but poor old human beings can regularly carry out physical and strenuous work at temperatures that far exceed these levels.  Why have we failed to get the Health and Safety Executive to act?”

Pages from guidance 1rking -346317709n 2.945398e-266at3The variety of factors contributing to excessive heat at work is probably the reason for lack of progress on the hazard.  There are many organisations advocating prevention of harm from working in heat but they all have their own funding models, costs, agendas and “sub”hazards.  Nazir’s call for the Health & Safety Executive to do something sounds unfair but the common activity she is referring to is working in heat so it is not unreasonable to expect an OHS regulator to coordinate resource and, perhaps, research.

Coordinated safety action is expected of business operators to ensure these hazards are controlled but that operator would need to read up to a dozen brochures, codes, guidances or policy statements to get close to achieving a situation that employees would consider safe.

It may never be appropriate for an OHS regulator to state a defined (un)safe temperature (the hygienists would argue safe working conditions) but what can be achieved is guidance that pulls together the multiple hazards and control measures so that achieving a safe workplace is as easy as can be.

WorkSafe Victoria has started along this path with a (thin) guidance and more generic terms of discomfort and illness but there is a need for a much more comprehensive guide.

Kevin Jones

UPDATE: 9 October 2009

A reader has pointed out a podcast by the Canadian Centre for Occupational Health and Safety from the July 2009 that explains some of the justification for not issuing a specific working in heat benchmark.

Harmonised OHS laws – winners and losers

Andrew Douglas, an Australian OHS and employment relations lawyer, has followed up some his points made in a podcast on 2 October 2009 in an article available on his firm’s website.

Part of the article says

So what is different about the Model Act and how will it be interpreted? When interpreting an Act you always turn to the objects of the Act. Courts look at the provisions in dispute through the lens of the objects. For example, the Victorian OHS Act merely looks towards providing a safe place of work for workers and the public and makes it clear that interpretation should be directed by the principles of OH&S. It includes an object to work together without specific mention of the unions. Contrast this with the Model Act (MA). The objects include:

  • The primacy of a safety management system
  • Consultation including unions
  • Rather than being compliance focussed the objects are expansively drafted to include:

“The principle that workers…should be given the highest level of protection.”

As a result – all interpretations of the MA should be considered “aspirationally” rather than “compliance focused”.

The third dot point will be manna for those “best practice” advocates but clearly it will be very difficult to “comply” with this legislation.  That raises the question of whether one of the major political aims of the harmonisation processes – to cut red tape and thereby reduce compliance costs – can really be achieved.  Or is the compliance cost being made easier for the corporate few at the cost of the small business “many”?

A small but significant omission in the MA aims is “to eliminate hazards, at the source…”  This aim in the Victorian Act was extremely useful in advising companies to keep analysing risks in order to get to the core contributory factors on incident and hazards.  This motivation disappears in the MA with its focus on “reasonably practicable”.

“Reasonably practicable” allows business operators to consult on whether the control measure reaches what stakeholders feel is adequate and then stop.  “Close enough is good enough and, if not, WorkSafe will tell us.  If it is way off, WorkSafe may prosecute.”  This is lazy safety management.

Looking for the source of the hazard to eliminate it keeps business improving its state of knowledge on safety, looking for new solutions for difficult hazards.

Douglas identifies the winners and losers with this new proposed legislation:

Winners

  • “Business that crosses borders will have one regime to comply with. That is simpler, cheaper knowledge and easier to train operational staff/increased flexibility.
  • Unions – expanded rights of entry, locked into consultative mechanisms and cheaper to train in OH&S – across Australia flexibility.
  • Regulators – shared knowledge, resources, and training.

Losers

  • Small to middle size businesses who cannot afford the new documentation boom that follows duty compliance and whose officers will lack the knowledge and time to positively comply.”

It will be interesting to see the submissions from the small business sector, if available, over the next few weeks.  Similarly, the employer and industry associations will need to show how they represent the range of business interest of all their members and not just the multi-state companies.

The recent stats quoted by SafetyAtWorkBlog that showed a high degree of ignorance on harmonisation changes by most businesses are understandable because if you operate in only one State, why would harmonisation bother you?  Now the MA is out, the state impacts of the national program are becoming clearer and more worrisome.

Kevin Jones

[Please note that in this article WorkSafe is used as a generic term representing OHS regulators across Australia]

Safety Institute gets a seat at the OHSAC table

SafetyAtWorkBlog has been informed that the current CEO of the Safety Institute of Australia (SIA), Gary Lawson-Smith, has accepted an invitation to join the WorkSafe Victoria’s OHS Advisory Committee (OHSAC), as a representative of the SIA.  This is a terrific win for the SIA as it adds a degree of legitimacy to the organisation’s developing professionalism.

Lawson-Smith has had a long administrative role in the airline and air safety sectors and was a Carlton footballer for a short time.  He has no formal OHS qualifications but an OHS qualification is not a prerequisite for OHSAC.

Also, it is understood that the OHSAC position is conditional on Lawson-Smith keeping the CEO role with the SIA.  If he leaves, the SIA could nominate someone else for the role.  SafetyAtWorkBlog notes that Lawson-Smith had advised the SIA National Board previously that he was not renewing his contract at the end of 2009 but he is believed to have been talked out of this decision.

Several other OHSAC appointments have also been rumoured.  It is understood that the “tenure” of one of the two independent representatives, both who have been on the committee since its inception, has not been renewed.  It seems odd that one independent representative is “let go” and the other retained.  It would be interesting to know the reasons for departures from the Committee as much as the reasons for new members.

Whether the SIA appointment is a direct replacement is unclear.  Whether the SIA is to be one of the two independent representatives (as required under the Victorian OHS Act 2004 (Division 6 Section 19) is also unclear.

The Act requires

“2 independent persons who the Minister considers have appropriate expertise and experience in occupational health and safety”

The SIA Victoria Division has a number of very prominent OHS academics and practitioners but, even though OHSAC reports to a Victorian administrative agency, it is understood that the Victorian WorkCover Minister, Tim Holding’s, letter was to the Safety Institute’s CEO, a national position.

Prominent ergonomist, Professor David Caple, is an independent OHSAC member well known to SafetyAtWorkBlog.  Caple takes his advisory role seriously by encouraging Australian safety professionals to raise any OHS concerns with him so that he may be able to provide a broader experiential context to some of the WorkSafe Board’s initiatives.  He makes an annual appearance at the Central Safety Group in Victoria to encourage a broad range of input.

One of OHSAC’s legislative  functions is to

“to enquire into and report to the Authority’s Board of Management on any matters referred to it by the Board in accordance with the terms of reference given by the Board; and

advise the Board in relation to:

  • Promoting health and safe working environments: and
  • The operation and administration of this [OHS] Act and the regulations…”

The significant element of OHSAC is that it is only reactive to the WorkCover Board.  If the Board does not seek opinions, effectively, OHSAC has nothing to do.  The Victorian Trades Hall Council, in its 2008 submission to the Model OHS Law Review, expressed great concern about OHSAC

“The Occupational Health and Safety Advisory Committee (OHSAC) is established by s 19 of the Occupational Health and Safety Act 2004 (OHSA 2004).  However, this body has limited functions and no reporting line to the Minister.  Other than a specific role for OHSAC in the development of ARREO training, the OHSAC is limited to reporting to the Board on matters referred by the Board.  It has no capacity to ‘set the agenda’.”

“The Committee has met only 9 times since March 2005 and other than resolving the training issues relating to ARREOs, which is a specific requirement of OHSA 2004, the Committee has not been given the opportunity to deal with any strategic issue in any meaningful way.”

“Decisions of the Board on OHS are not transparent. The Board operates without the involvement of key stakeholders and relies on the “good will” of the Chair and CEO to relay information to the Board and back to the OHSAC. It is unacceptable for decisions relating to the VWA as a regulator of OHS to be inaccessible to scrutiny.”

SafetyAtWorkBlog is always concerned about the transparency of organisations associated with the promotion of safety and there is very little public information available about OHSAC.  Even the membership of the committee is taking SafetyAtWorkBlog some time to put together.  This may be due to the committee membership being updated, as indicated by the SIA’s inclusion, but even the previous committee membership is proving hard to collate form public sources.

The issue of transparency and communication is directly relevant to the OHSAC participation of the Safety Institute of Australia.  SafetyAtWorkBlog has heard that all committee representatives of the SIA, nationally and divisionally, are obliged to sign a Deed of Confidentiality.  Whether this applies to the SIA’s CEO is unclear as Gary Lawson-Smith is not listed as an official member on the National Board.

Some would assert that even if OHSAC did report to OHS stakeholders and members of the OHSAC representatives, they do not do anything of real interest.

The concerns over OHSAC are not restricted to Trades Hall, one of the few public members of OHSAC.  Parliamentarian Bob Stensholt undertook an administrative review of the 2004 OHS Act and expressed the following thoughts about OHSAC:

“Although I note WorkSafe’s comments that OHSAC has not been frequently required to consider key strategic issues because they have not arisen, I am of the view that the Committee is not operating as well as it could be.  There is a lack of conviction regarding the potential effectiveness of OHSAC from all stakeholders.  This impedes the Committee’s ability to work effectively as a representative stakeholder group.”

“It seems OHSAC has primarily been treated as an ‘information sharing’ committee by WorkSafe.  I do not believe this is what was intended by Parliament when the Bill became law.  Rather than merely providing OHSAC with its business plan for any particular financial year after it has been settled (for example), WorkSafe should also be prepared to engage OHSAC on key strategic issues as they arise in the rolling out of Strategy 2012, rather than just providing the Committee with updates as to how Strategy 2012 is tracking.  A primary consideration for WorkSafe in making OHSAC more effective should be to ensure it adopts”

If the WorkCover Minister, Tim Holding, is reviewing the membership of OHSAC in response to some of these concerns, his action is to be applauded, but, at the moment, OHSAC looks ineffective and of limited use.

The Victorian Government’s response to the Stensholt report referred Stensholt’s recommendations on OHSAC to the Victorian WorkCover Authority’s Board of Management for consideration.  OHSAC works to the direction of this very Board.

Gaining a seat at the OHSAC table remains a major feather in the cap of the SIA and the years of lobbying undertaken by a number of SIA officials should not be dismissed.  The size of the feather in the cap, however, depends on who one talks to.

Kevin Jones

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