“Great win in the Supreme Court! No more naming and shaming for health and safety offenders in Queensland”

The Supreme Court decision is an appalling situation over which OHS professionals and regulators should be outraged.

Austin and other HSF lawyers authored a longer article on the case and totally miss the point of why OHS offenders should be named.  Shaming of offenders is a different matter.

The article explains how a decision under the Penalties and Sentences Act 1992 (Qld) may stop the OHS regulator in Queensland, Work Health and Safety Queensland, from listing the names of offenders on its website.

“Herbert Smith Freehills acted for the Applicant arguing that the Prosecution List website publication amounted to a permanent record and was contrary to the Act. Conversely, Workplace Health and Safety Queensland argued that the publication was intended to be an information sharing process to raise awareness of work health and safety laws which was temporary in nature being intended to appear for only five years.”

“There are many individuals and corporations, convicted in Queensland of a work health and safety offence with an order that ‘no conviction be recorded’.  Each of these parties can now require that the regulator remove their identifying details from any publication.”

A major purpose of OHS regulators is to raise awareness of the consequences of breaching OHS law with the intention that this knowledge may change the behaviour of employers and workers to workplace safety.  The public is already at a disadvantage by decisions in the Magistrate’s Courts not being publicly available.  The Queensland Supreme Court decision is a further reduction in the “state of knowledge” of the consequences of non-compliance.

State of Knowledge is a crucial element in determining what is “reasonably practicable” in controlling hazards at work.  For instance, WorkSafe Victoria writes that

“Knowledge about the hazard or risk, or any ways of eliminating or reducing the hazard or risk, must be determined objectively by reference to what the person concerned actually knows and what a reasonable person in the duty-holder’s position who is required to comply with the same duty should know.

What a person knows or reasonably ought to know is commonly referred to as the state of knowledge.” (page 3)

In a recently released report on safety leadership ACE Group wrote that knowledge of corporate OHS activity and failures is important in checking the backgrounds of contractors.

“Companies routinely pre-qualify subcontractors for experience, qualification and financial strength, but safety history and performance should also be a criteria. To evaluate subcontractor safety performance, companies should review their experience modification rates, their Bureau of Labor Statistics recordable and lost time incident rates, OSHA citation record and their overall safety culture and procedures. The pre-qualification of subcontractors should not stop with safety history and performance. It should include a review of the subcontractor’s own safety culture and how the company incorporates safety into its day-to-day operation.” (page 3)

The Queensland Supreme Court decision, over which Fiona Austin is so pleased, would limit access to important information on the OHS credentials of tenderers and contractors.  This is likely to also limit the effectiveness of due diligence obligations in recent Work Health and Safety laws.

I can understand a lawyer being happy with a “win” for their client but Fiona Austin’s celebratory tweet implies a shortsighted understanding of that win’s potential impact on OHS laws, safety management, and contractual obligations; but tweets can often lead to misinterpretation.

Work Health and Safety Queensland must take the issue further through an appeal to a higher court as the Supreme Court decision is a major threat to the OHS state of knowledge and a major impediment to Australian businesses knowing the consequences of non-compliance with OHS laws.

Kevin Jones

Lawyer Josh Bornstein is particularly critical of the politicisation of the amendments and believes this increases the instability or remedies available to victims of workplace bullying by increasing pressure on under-resourced OHS regulators.

The amendments are unlikely to reduce the incidence of workplace bullying in Australia as they address post-incident circumstances.

As the new legislation is being passed through Parliament, the industrial relations, political and legal context will dominate the media, primarily because the OHS profession in Australia has no voice of influence.  But it is also because for decades the OHS voice has resided largely with the trade union movement that, although genuine in its worker safety concerns, must accommodate other industrial agendas.  There seems to be few if any who are arguing for safety for safety’s sake.

Workplace bullying definitions in the amendments and other guidance material need additional legal clarity but not necessarily moral clarity.  The responsibility to provide a safe and healthy work environment, and/or one without risks, exists regardless of the definition of workplace bullying applied.

Humanity

Many of the risk factors associated with workplace bullying are well-known but are often seen as unchangeable business realities.  The calls for respect, dignity and increased humanity in workplaces and in management strategies are often ignored as is the emphasis on eliminating the hazard mentioned repeatedly by the very Minister who brought in the recent Fair Work Act changes, Bill Shorten.

Minister Shorten has acknowledged that, as with any legislative amendments, there are administrative and regulatory issues that require revision and resolution.  In the context of the Fair Work Act changes, Shorten has done well to address or acknowledge limitations and challenges.

Under these legislative amendments, workplace bullying will continue to exist.  It will be seen as an increasingly complex matter due to the difficulty of achieving resolution through the Fair Work Commission.  Workplace bullying will have the same damaging psychological effects on workers next year as it had last year, except that those who can affect change will be looking at the Fair Work Commission instead of at what they can do themselves to change their workplace cultures and their personnel manager practices.

Kevin Jones

“…will not be using quad bikes on its new farms, and is limiting use of the vehicles elsewhere, as it looks for a safer and more suitable alternative.”

The differing positions on quad bike safety mirror the Australian debate.  Landcorp will remove or limit the use of quad bikes just as did the New South Wales’ National Parks & Wildlife Service.  The Motor Industry Association argues against crush protection devices just as has the FCAI in Australia.  Charley Lamb of Lincoln University echoes Australian academic researchers and believes:

“The argument that rollover protection killed riders was “rubbish”. It was the same argument brought up during past debates on fitting safety frames to tractors, or about making seatbelts in cars compulsory…”

Lamb also said that CPDs were not the “ultimate solution” .

Curiously David Crawford, CEO of the Motor Industry Association is reported to have said “…quad bikes had been mainly designed for recreation”.  This is a very odd comment and seems to ignore the workplace vehicles made, sold and promoted by some of its own members.

It seems that Landcorp is responding to the new understanding of risk presented by quadbikes but also to the preferences and requests of some of its property managers.  Responding to the hazards presented by quadbikes and assessing the risks is a requirement of the workplace health and safety laws in New Zealand so Landcorp’s risk management strategy has some legislative justification.  As is reported in the media report

“… Landcorp had introduced a set of rules restricting the use of quads to what was safe. Restrictions had been put on areas such as towing, weight carrying and the type of terrain the vehicles were used on.”

These are administrative risk controls in conjunction with the engineering controls provided by CPDs.  From an occupational health and safety perspective, it is hard to argue against this sensible combination of safety.

New Zealand and Australia share much of the research on OHS issues and it will be interesting to watch how New Zealand responds to the recommendations coming from the Australian Government’s current quad bike investigations.

Kevin Jones

This is an ideological position more than anything else and the evidence is thin in much of this short book but there is considerable power in the description of the manipulation of occupational health and safety regulations and oversight during the political privatisation of the NZ rail sector.  Many countries have privatised previously nationalised, or government-owned, enterprises usually on the argument of productivity and efficiency increases.  Armstrong argues that these arguments were used to justify breaking the trade union dominance of the rail industry.

But more directly relevant, Armstrong argues that the NZ government is partly responsible for rail worker deaths due to its decision to exempt the privatised rail sector, under the control of Tranz Rail, from the Health and Safety in Employment Act 1992 by a clause (6H) in the Transport Services Licensing Amendment Act (no 3) 1992.  This regulatory sleight of hand, Armstrong argues, generated a reduction in workplace safety by excluding HSE inspectors from that industry and restricting union influence.  Armstrong quotes section 6H:

“If a rail operator or any other person complies with the provisions of this Act [TSL Act] or of the operator’s approved safety system then, in respect of the matters governed by those provisions, such compliance shall be deemed to be compliance with the provisions of the Health and Safety in Employment Act 1992.” (page 18)

Red Tape

In this current era of red tape reductions, it may make sense to remove a potential duplication of duties between two pieces of legislation but every regulation has a form of regulatory enforcement and  Armstrong believes that the NZ government chose regulations that had the weakest of safety obligations. She writes that

“The exemption won by NZR would eventually result in a worker-fatality record eight times that of the national average – 39.3 deaths per 100,000 workers compared with 4.9.” (page 18)

In a major warning to other similar OHS jurisdictions, Armstrong says that a Select Committee recommended to Parliament

“…that NZR need only describe its proposed safety system, rather than actually provide it to the safety regulator.” (page 21)

After the new TSL Act came into effect the OHS regulator, the Department of Labour, was “sidelined”.

“The employer could now set its own safety rules, and could vary them as it wished.  It was not obliged to present its entire safety system to officials from the Ministry of Transport and the Land Transport Safety Authority, who regulated transport safety.  It did not have to take all practicable steps to manage hazards at work: it needed only to take whatever steps it deemed reasonable, considering their cost.  The standard of ‘safety at reasonable cost’ was now set by the employer. Railway workers and their families would pay the cost from this point onwards.” (page 22)

This is a regulatory position that many industry associations in other jurisdictions may envy but the freedom associated with this system, Armstrong argues, increased worker fatalities.

The situation was only addressed with a political change when in 1999, the Labour Party gained power in New Zealand and in 2000 the Minister for Labour, Margaret Wilson, announced an inquiry in the fatality rate in the railways.  The inquiry led to many changes, including the repeal of section 6(H).

Cultures

According to Tamika Simpson in her chapter of an earlier book (now out of print,  ISBN 0-86469-405-9) “Occupational Health and Safety in New Zealand – Contemporary Social Research”, Tranz Rail’s submission to the Wilson Inquiry

“…argued that ‘cultures’ made it difficult for them to change work practices and attitudes of workers in order to improve safety… In reply the Inquiry said Tranz Rail ‘will … need to reexamine management attitudes to ensure that, at critical times, front-line managers do not place a greater priority on maintaining productivity than on safety’ (Ministerial Inquiry, 2000: 45).  That is, in essence the Inquiry found that it was ‘management attitudes’ rather than poor workplace culture that needed to be changed.” (page 182)

The Wilson Report was released in 2000 and Minister Wilson said:

“”Workplaces need to develop a culture of safety based on mutual respect, trust and understanding. Efforts have been made towards this end by Tranz Rail and are documented in the report. But it is clear that the law needs to be changed to simplify the message about safety.”

This differentiation between managerial attitudes and cultures may have been a notion from over a decade ago but deserves more consideration particularly in the context of comments from other inquiries into other industries, fatalities and disasters since the time of the Wilson Inquiry.

Armstrong’s booklet includes some fascinating information but begs to be developed into a larger and deeper analysis of the politics of safety regulation,  management, and enforcement, especially since the Pike River disaster and subsequent Royal Commission (which is briefly mentioned).  However, such a book should not be limited to New Zealand or perhaps should be a companion to similar analyses by Professor Andrew Hopkins.

The booklet is a good example of how something tangible can be quickly produced and launched in order to remind us of recent history, to prick our consciences and to warn us of future political machinations int he area of workplace safety.

Kevin Jones

The government believes such changes will reduce “red tape” but only in the narrow context of workers compensation.  The Work Health and Safety Act expands the definition of worker but another piece of legislation in the same State restricts it.  Inconsistencies of concepts are likely to lead to duplications, confusion and arguments that may generate as much unnecessary business and legal costs as the initiatives were intended to save.

One example of confusion of worker definitions can be found in the licenced brothel industry.  For years the brothel owners and their lobbyists have clung to the ATO definition of worker refusing to acknowledge the broader definition of worker under OHS laws.  Issues, such as safety and worker welfare, are seen as non-monetary and therefore of secondary importance.

There is also a focus on various types of business insurance, of which workers compensation is the most relevant here.  Insurance compensates for injury and does not prevent harm but insurance is an accepted, or unavoidable, business cost.  It can be managed, minimised or, sometimes, manipulated but it “stays on the books” and the accounts.  The cost of workers compensation is not enjoyed but it is understood by business.

Keeping the worker defined by an economic relationship allows a business owner to have their closest professional relationship with their financial officer rather than with operations or, heaven forbid, the safety manager (if they have one).  It allows for some to see workplace injury as an SEP, “someone else’s problem”. That someone else could be the Return-To-Work Coordinator, the Workcover agent, the human resources officer, the part-time paymaster, but most commonly, the worker.

The brothel worker case discussed in an earlier SafetyAtWorkBlog illustrates how a focus on workers compensation, instead of on the harm prevention of OHS, can lead to extended pain and disruption to the worker, legal costs, reputational damage and workers compensation costs.  Most of these business costs can usually be avoided by good safety management and the valuing of workers, what many describe as a business’ most important asset.

By hanging on to an ATO definition of worker because it fits how one wants to manage one’s personnel and ignoring other legal and social obligations is an unsustainable, short-sighted and immoral stance.  The Queensland Government  may think it is helping businesses and reducing red tape by applying the ATO definition of worker to its workers compensation arrangements but it is also encouraging the business sector to look at managing an incident instead of managing a hazard.  It weakens the authority (such as it is) of the recently introduced Work Health and Safety laws.

Kevin Jones

Media Misunderstanding

One example of a careless  headline is in the Herald Sun newspaper for 11 May 2013, “$20 million Budget boost to stop workplace bullying“.  The Australian Government’s changes to the Fair Work Act do not prevent bullying, it only provides further options for remedy.  OHS is principally about preventing harm and the Fair Work Act changes do not help in this aim.

Also the article states

“Bullying costs the economy $36 billion a year in lost productivity.”

This is technically correct but removed from the context of the original (2000) research, a context discussed in an earlier SafetyAtWorkBlog article. Also the original cost estimates did not specify that the costs related only to productivity.

Liberal Party Policy

But to the Liberal Party IR policy.  The section on workplace bullying states:

“The Coalition believes that bullying is unacceptable in any workplace. It is a risk to health and safety and can have very serious, life-long consequences.

Although bullying is an occupational health and safety matter, Labor has promised to amend the Fair Work laws to include bullying. The Coalition will support Labor’s proposed changes to address workplace bullying but only if it is clear that a worker has first sought help and impartial advice from an independent regulatory agency, and further, the changes are expanded to include the conduct of union officials towards workers and employers.” (page 8)

The party needed to start with a moral stance and does so but should be reminded that the Australian Parliament is also a workplace and much of the conduct of parliamentarians from all political parties on the floor of Parliament could fit the most recent definition of workplace bullying – “Repeated unreasonable behaviour directed toward a worker or group of workers that creates a risk to health and safety”.  The Liberal Party may be focusing on heavy-handed union officials but a little self-analysis on bullying would be prudent.

The statement acknowledges  that the Liberal Party sees workplace bullying as an OHS issue with real risks to health and safety.  This is significant because often the reality of workplace bullying has been scoffed at.

The Liberal’s conditional support for the Fair Work Act changes requires a worker to seek “impartial advice from an independent regulatory agency”.  The intention seems to be that such agencies are those already operating in States and territories but the Federal Workplace Relations Minister, Bill Shorten, has agreed that these are under-resourced to deal with workplace bullying.  The Herald Sun article mentioned above anticipates additional funding in next week’s Federal Budget but, if the rumour is correct, it is the Fair Work Commission and not State OHS regulators that will get the money.

In effect, the Liberal Party is agreeing with the Australia Labor Government.  Bipartisanship is almost always a positive but the original changes proposed by the government remain a post-incident action.  People will continue to be psychological harmed by workplace bullies under these new arrangements, now supported by the Liberal Party.  State OHS regulators will continue to be under skilled and under-resourced to assess and assist with workplace bullying reports.

As Steve Bell, a senior associate  with Herbert Smith Freehills, said at a breakfast seminar recently, the Fair Work Act changes establish another “avenue for remedy” on workplace bullying.  Bell said that some legislative changes, particularly those relating to “reasonable management action”, are likely to create a future legal “battleground” in workplace bullying cases.  It is unlikely that such a legal battle will help with the psychological rehabilitation of of the bullied worker.

The focus on post-incident remedy was not the main intention of the government when it established the Parliamentary Inquiry into Workplace Bullying.  The terms of reference for that inquiry gave equal weight to prevention and:

• “…procedures to influence the incidence and seriousness of workplace bullying”;
• “…improve coordination … to address and prevent workplace bullying”;
• “…enhancing protection against and providing an early response to workplace bullying;” and
• “..a sufficient deterrent against workplace bullying”.

But the prevention of harm seems to have been lost in the political debate from all major political parties in Australia.

Kevin Jones

In the letter Peter Cash of Norton Rose Australia says that his client HondaMPE believes that a sticker on each Quadbar identified as a “compliance plate” may misled or deceive ”members of the public and, in particular, prospective purchasers of your device”, and potential purchasers of Honda quad bikes.

The wording of the sticker is:

“COMPLIANCE PLATE

Certification/ fitment contact

Manufacturer 118 Industries

http://www.quadbar.com

7 Margaret St Clifton, Qld Aust.

MAXIMUM VEHICLE WEIGHT 300kg

Model/ Serial Number

401-IS/00040″

SafetyAtWorkBlog is not in a position to dispute the contents of the letter but, although the complaint may be legitimate, it is a curious action to be taken by HondaMPE.  The company is not making any claims about the safety or otherwise of the Quadbar product.

Honda has been involved in a campaign about CPDs and quad bike safety for some years.  They, and their industry representatives, the Federated Chamber of Automotive Industries, have lobbied their dealers over the fitting of CPDs and supported and distributed posters against CPDs. But the letter above mentions none of these concerns.

It appears that Honda objects to the Quadbar sticker being labelled as a “compliance plate”.  After years of objecting to the existence of CPDs such a letter, on such an issue, seems to be pedantic and petty.  Honda may be right but why has it chosen a sticker with possibly inaccurate wording to be THE matter that has generated a lawyer’s letter, with a mention of possible “legal proceeding”, to an Australian manufacturer of a device that is claimed to save the lives of farmers. Very odd.

Kevin Jones

Workplace Access & Safety height safety consultant Aaron Carratello on a walkway built for access to HVAC equipment at Mt Eliza Business School

It was when Simon Murray put himself in the witness box and imagined what a judge would say that investing in walkways and guardrails became a ‘no brainer’.

The property and facility manager of the Melbourne Business School was faced with an important decision: whether to install extra roof anchors and static lines or shift towards more passive forms of fall prevention.

Roof anchors were cheaper initially, while the walkways and guardrails offered a far lower lifetime cost but, in the end, price was not the issue.

“A judge would ask whether we had done what was ‘reasonably practicable’,” Mr Murray says, “and if we’d only installed roof anchors and static lines to reach our HVAC equipment, the answer would have been ‘no’.”

The decision came after many hours of research into height safety regulations, prompted by the results of an annual roof safety anchor certification inspection in 2011.

“We thought our fall prevention equipment was all in order but the annual inspection flagged a couple of issues and I sought a second opinion. The first audit report focused on administrative controls, ladders, static lines and anchor points. The second one by Workplace Access & Safety put the emphasis on walkways and guardrails. Presented with such different recommendations, I had to do my homework.”

“I have a good grasp of OHS but height safety is a whole new kettle of fish. I had to reconcile the differences between the two reports with what the law had to say.”

In fact, the uniquely prescriptive hierarchy of controls that applies to safe work at heights turned out to be an invaluable tool for Mr Murray. The hierarchy stipulates passive controls like walkways wherever reasonably practicable in preference to those that demand greater user skill, like harness-based systems.

“The further we investigated it, the more aware we became of the risks associated with roof access,” Mr Murray said. “We kept tightening the administrative controls until, finally, we suspended access to the roof. You can get away with that for a couple of months but not forever.”

“It was my role to advise the School’s Executive Committee of their realistic risk. The school is guided by top people from across Melbourne’s business community and once they realised the situation we were in and the risks that it posed, it was obvious to the committee what had to be done.”

The Melbourne Business School’s Mt Eliza Campus is the home of Mt Eliza Executive Education, which lays claim to Australia’s number one ranking for Executive Education in the years 2008 to 2012. Mr Murray says the school was determined to honour its ethos by doing the “right thing”.

In keeping with the hierarchy, Mr Murray considered moving the air conditioning units to ground level but found that the age and heritage listing of the 19^th century building made success unlikely. In any case, access to the gutters still need to be made safe.

“It was a big job coming up to speed with our obligations but I was reassured by the guidance of Workplace Access & Safety,” he says. “Over the years, I’d been reading journal articles written by its managing director Carl Sachs, who is one of Australia’s leading advisors on height safety and is involved in drafting the governing standards. When it comes to height safety, it’s hard not to know about Carl.”

Satisfying the hierarchy of controls, Melbourne Business School adopted Workplace Access & Safety’s recommendations and fitted large spans of walkways and guardrails across its tiled roof, providing air conditioning technicians access to plant directly from the walkway.

“Our HVAC contractors tell me this is now one of the safest places they work on,” says Mr Murray. Ironically, Mr Murray is pleased that the air conditioning technicians alone have commented on the installation.

“Although the building is heritage listed, when it came to OHS, we don’t worry about aesthetics and nobody visiting the school seems even to have noticed the guardrail – I guess people expect it on buildings these days.”

As an added bonus, roof leaks will be minimised with less foot traffic on the fragile tiles but Mr Murray says the biggest side benefit of the passive fall prevention design is its simplicity.

“A harness-based system demands a very complex set of administrative controls managed by a specialist qualified height safety manager, emergency rescue plans, detailed inductions and ongoing inspections and certification. That’s very difficult and expensive to do properly – you’re committing to high costs indefinitely – whereas our inductions take no time at all.”

“I’d advise other facility managers to educate yourself about height safety. Glean the information from compliance codes and regulations and ask for help from experts, your peers and colleagues. It’s vital to have an idea of the risks at your site and communicate them effectively to the decision makers you advise. Most of all, find a solution that’s safe and manageable because anything else is a false economy.”

“It is widely recognised that strong safety leadership is integral to work, health and safety performance in any organisation.” [emphasis added]

Later he writes

“There is little doubt that safety leadership is a prerequisite to a positive safety culture in any organisation.”

These equivocations may indicate authorial caution on the part of Michael Tooma but  they could illustrate that the role of safety leadership still remains open to question.

Tooma, provides an example to support his understanding by referring to Aurecon Hatch‘s general manager, Ross Parslow, saying

“A key element of building a safety leadership culture has been our focus on distributing leadership and ownership of safety. We have established safety leadership teams at the group level, major project level and workgroup level.”

How is Parslow’s “safety leadership culture” different from being a respected and diligent business manager?  How are the “safety leadership teams” different from the longstanding obligation to consult with all levels of a workforce on occupational health and safety issues?  Is it necessary to build a new way of managing safety with a new lexicon when it may have been possible to achieve similar change by using existing legislative and managerial concepts of consultation, committees and hazard management?

Parslow’s safety leadership teams are reminiscent of many of the elements of industrial democracy and traditional (ie. Robens) consultative OHS models.  It is interesting to wonder whether much of what is considered safety leadership is really a type of “occupational democracy” based on frequent OHS discussions, shared values and collaborative decision making.

(It is also worth noting the interchange and blending of language and concepts in much of the safety leadership/culture discussion.  There is a looseness about terminology that obfuscates the message and the OHS profession already has a struggle with clarity of concepts and language.)

Tooma spends a considerable amount of the article discussing the findings of the 2011 survey by the Australian Institute of Management and the Safety Institute of Australia.  These surveys are, at best, indicative so the weight given to the 2011 Business of Safety Survey is a little surprising.  Tooma concludes his article with a call for a realignment.

“While the top echelon of management in Australia views itself as providing the safety leadership necessary to develop and foster an effective safety culture in its organisations, workers down the chain are not convinced.  Managers must do more than talk about safety: they must provide visible safety leadership.”

But will safety leadership lead to an increased level of safety?  What Tooma seems to be saying is that a change of action and attitude in senior management will change the behaviours of those lower in the organisational structure.  This may be the case in middle management and supervisors but the same level of change is required to those directly on the shopfloor, factories and coalfaces.

Safe Work Australia suggested, in its latest OHS National Strategy, that one leadership outcome is that

“Organisational leaders foster a culture of consultation and collaboration which actively improves work health and safety.” (page 9)

But consultation and collaboration have been legislative obligations for decades.  Does having to restate such a belief indicate that such techniques  and obligations have failed since their introduction in the 1970s and 1980s?

It is unclear whether Tooma is suggesting senior executives display their safety leadership along the organisational communication lines or jump across the structure from the head office to the worker.  Tooma says the AIM/SIA business survey indicates

“…significant disagreement between senior management and specialist safety personnel in relation to evaluating performance and priorities on WHS [work, health and safety]“

But is the problem with the senior executives or the safety personnel?  Where does the misunderstanding of safety leadership sit?  Tooma’s conclusion indicates that the safety leadership message is not travelling to the required workplace levels.  So there is either something blocking the communication of these values and concepts or there is something fundamentally wrong with the message being communicated – safety leadership itself.

Tooma mentions that

:…Trevor Kletz’s 2001 review and analysis of 20 major industrial accidents identified poor management at the root of all incidents.”

But poor management is not the same as inadequate safety leadership, and Kletz’s analyses are primarily on the process industries and not in others which are likely to have different historical and cultural bases.  Kletz’s long history in process safety is admirable, if not legendary, but applying his conclusions into other industrial sectors is difficult.

The lack of clarity and definition around safety leadership is worsened when regulatory codes and guidelines advocate safety leadership without explaining the OHS regulators’ understanding of such concepts.  Barry Sherriff, attempted an explanation in 2011 as part of the OHS harmonisation process but a plain English translation, with case studies, is required.  Also Sherriff’s reference point was the Work Health and Safety laws that have not been applied in all Australian States and are increasingly being played with in those States that have adapted them.

Tooma has provided a very useful contribution to the discussion about safety leadership.  But the discussion requires more clarity, more definition and more consistency. (It has to be said that Tooma does provide some of this in his longer form writings and books.) But with so many consultants and business advisers spruiking value-based safety, safety leadership and other products aimed at the C-suite, it is difficult to cut through to the level of clarity required to say definitively that safety leadership saves lives and reduces injury.

Kevin Jones

I appreciate the thanks I receive for writing this blog but if you wish to republish anything other than excerpts, please contact me.  The copyright statement that accompanies every SafetyAtWorkBlog is not for decoration and will be enforced as much as it can.

Just please ask for permission.  I am not unreasonable.

Please remember that I am a freelance writer and you are welcome to commission me to write OHS articles for you exclusively.

Kevin Jones

ACTU President Ged Kearney addresses the event. (image: VTHC)

The President of the Australian Council of Trade Unions (ACTU), Ged Kearney, spoke briefly at the Workers Memorial Day ceremony in Melbourne Victoria on 29 April 2013.  Kearney reiterated the call for industrial manslaughter laws in Australia echoing the statements by the ACTU’s Michael Borowick yesterday and the ACTU media release.

“There is still unfinished business, beginning with the need for industrial manslaughter legislation to be enacted in all jurisdictions. Why is it that in Australia you can cause someone’s death by action or inaction and be very confident that you will not go to jail? That is the only way to send this message home: no worker should die on the job.”

However details to justify this call for industrial manslaughter laws seem thin.  The trade union movement needs to take care that mentioning industrial manslaughter laws is not used to fill the gap when lost for words, policies or initiatives on OHS. This weekend’s call for industrial manslaughter needs an explanation of how such laws fit in the new regime of Work Health and Safety laws.  Is the penalty already there but under a different name?  When should such a category be applied?  Is ‘reckless endangerment” insufficient?  And how can industrial manslaughter laws penetrate the managerial labyrinthine structures of the modern corporations so that the laws are not only applied to small business, as has occurred in England?

Perhaps, it is the mentioning of industrial manslaughter laws that is the point and not the laws themselves.  Certainly a decade ago when such laws were mooted across Australia, OHS gained a very high profile.  But the response did not lead to greater safety actions in workplaces.  It often lead to senior executives looking for an “out” through insurance or restructuring or distancing themselves. With the new WHS laws emphasis on due diligence, does industrial manslaughter still fit?  This is the type of question that the ACTU should be answering.

Kearney also pointed out that there are greater advances in OHS under Labor governments (but apparently not on industrial manslaughter laws!).  Some would argue this point but there is no doubt that a Labor government provides a better audience for trade union lobbying and better support for the roles and presence of OHS representatives in workplaces.

Brian Boyd

VTHC Secretary Brian Boyd addresses the crowd (image: VTHC)

The Secretary of the Victorian Trades Hall Council, Brian Boyd, was more sedate in his speech this morning than in previous years and focused principally on attacking those who are complaining about OHS red tape.  Sadly he didn’t  explain what he understands red tape to be.

Boyd says the employer associations see red tape as something that impedes productivity and profitability.  They see OHS regulations (“What they hate the most”) as red tape and OHS generally “as a problem and not an obligation”.  He sees this red tape criticism as criticising “the government of the day” as the generator of red tape.

This criticism may be sound if employer associations believe OHS regulation is red tape.  It has been over ten years since Garry Brack said on morning television that OHS regulation is unnecessary.  Expressions of such extremism have not been heard in Australia publicly for many years and one should acknowledge that employer associations and their representatives were present at the National Workers Memorial ceremony in Canberra yesterday.  Some of them have also been strong supporters of OHS research and innovation such as on the corporate impact of a workplace fatality and the application of restorative justice in the OHS context.

The reality may be that employers perceive workplace safety as onerous and generating red tape when it may be that the administration of safety systems is poorly understood or badly managed or handled by inexperienced and poorly qualified safety people or handled as an add-on to another role such as that of a part-time paymaster (a real situation).

Boyd may have been referring to statistics released by the Australian Institute of Company Directors last week that said that a recent survey of company director sentiment found there was

“growing concern about the amount of regulation and red tape, which jumped from seventh to be ranked the equal second most significant economic challenge facing Australian businesses…” “According to the Index findings, directors believe that the level of red tape and board time spent on regulatory compliance has increased over the last 12 months, with regulation surrounding workplace health and safety and employing workers rated as having the highest impact on productivity.”

This concern sound serious but is it valid?.  To date there is still no clear explanation of what red tape is.  The closest was a statement by Victoria’s Red Tape Commissioner John Lloyd in January 2013.  Lloyd  considers red tape to have a:

“…broad definition – it’s not just the laws, regulations, rules, codes, it’s the whole range of government requirements placed on business and people in Victoria…”

He also sees his role as looking why red tape is there:

“….what’s the purpose of the requirement, the regulation, the rule or the form or whatever – what purpose does it serve and is that end of any use, does it serve any purpose for government, does it add any value and what is the cost”.

Just as with the current business lobbying over productivity, so red tape needs defining.  As happens in OHS, often the risk is discussed without first understanding the hazard.  It is the job of the OHS regulators and organisations like the trade unions to identify exactly what red tape is.

Kevin Jones

“By erecting this monument, we tie the lives and memories and families of thousands of Australians to this place.  We stand here in this place as a mark of respect from a civilised community as an expression of failure and regret.  That’s what all memorials are, and this one is no different.  This is a symbol of the mourning for those lost too early from our tribe Australia.”

Speaking at the inauguration of a memorial allows people to be more reflective and sombre but a national memorial allows an opportunity to address a national audience (although it seems that only Canberra’s newspapers and the ABC are interested) and Shorten did so.  In his speech he asks the:

“…captains of industry, and I ask union leaders, and I ask workers…do not accept poor OH&S standards quietly.

Do not accept near enough is close enough.

Do not accept silence about health and safety standards.

Too often it ends up in the prolonged silence a place like this generates.”

One SafetyAtWorkBlog reader pointed out that government needs to work to these standards and expectations also.

The ABC news report allows Shorten to reiterate the Australian government’s commitment to addressing workplace bullying but he seems to be edited before expanding on this comment.  The ACTU raises the issue of industrial manslaughter laws which is a curious comment as it is understood that the new Work Health and Safety laws around most of Australia already have the same type of punishments and penalties that industrial manslaughter laws would have.  The only thing missing is the title of “industrial manslaughter”.

It is also noted that the Australian Capital Territory, where the national memorial was unveiled, already has industrial manslaughter laws.

SafetyAtWorkBlog is attending the Victorian memorial this morning and will be reporting on the event later today.

Kevin Jones

Business leaders seem to be incapable of understanding that they have the  power to reduce what they see as OHS red tape by changing their behaviours, perhaps by embracing and implementing safety leadership.

Many politicians and commentators have linked recent factory explosions and collapses around the World Day for Safety and Health at Work on 28 April.  As quoted in The Guardian, Tom O’Connor, executive director of National COSH.

“But as companies decry regulations and emphasize profits over safety, workers pay the ultimate price…”

O’Connor could easily have replaced “profits” with “productivity” but he does link worker welfare to the arguments against red tape and regulations.

In 2011 Fiona Haines explored this paradox of regulation in a book of that title.  Her analysis

“…suggests the limited effectiveness of regulation is caused by two different factors. First, regulation as the quintessential instrumental form of policymaking is both politically and technically attractive, but can be thwarted when the risk to be reduced is not amenable to narrow, targeted interventions.  Nonetheless, regulation may remain popular as it allows claims that progress has been made and that, this time, the lessons from tragedy have been learnt.   Secondly, the analysis here suggests that even when regulation can be effective in avoiding catastrophe it needs sufficient political support to ensure its implementation but not overweening political intervention that prevents the regulator framing the regime in the optimal direction.” (page 3)

On Haines first point, it is suggested that work stress and workplace bullying may be one of those hazards that is not “amenable to narrow, targeted interventions.”

On her second point it is clear that regulation may be created as a politically attractive “fix”, particularly after a disaster, but that the aim of the regulation will not be realised without ongoing political will.  It is perhaps in this context that one can argue that workplace safety regulation always has a political or industrial relations context and to control or eliminate a hazard successfully requires safety professionals and OHS regulators to understanding that context.

Henderson may argue that workplace safety will always have an economic context as well as political or industrial and this is acknowledged by most safety professionals but the size and type of economic impact is not always a burden or cost as Henderson would say.  I would argue that seeing OHS as an additional business cost is a fundamental misunderstanding of basic business management.

Safety is only an additional cost if that unavoidable cost was not considered in the earliest steps of developing a business management plan or undertaking proper due diligence.  The cost of safety is a cost of operation and can be quantified in operational estimates of productivity and output  at the business design stage but business is usually seen in terms of productive quantities and not the quality of production.  Safety management and safety regulations must apply a broader pool of concerns, particularly the human element.

Haines writes that

“To be successful, regulation must embrace actuarial, sociocultural and political risk reduction through a common regulatory project.” (Page 7)

All these elements must be considered and balanced as well as they can but whether this is dependent on a “common regulatory project” is debatable.  Such a project encourages the dominance of regulation as a political and social tool. More sustainable change may come from the re-emphasis of social values, recently mentioned by Minister Bill Shorten in Brisbane and again, today, in Canberra, those of dignity, trust and respect.

Kevin Jones

“…has called on the designers and manufacturers of quad bikes to urgently reconsider improving the design of quad bikes so they are not prone to roll over.”

This sounds a sensible and safe suggestion but independent Australian research is still to be completed on whether these work vehicles are prone to roll over as a result of their design, and not simply driver (mis)behaviour.

Hoy notes that people continue to die whilst riding quad bikes and is quoted saying:

“We cannot sit by and watch people being killed and seriously injured by these vehicles. Everyone has a responsibility for quad bike safety but it must involve a safer product. We need to ask ourselves how much a life is worth opposed to the cost of a crush protection device.”

Quad bike designers and manufacturers have been emphatic in their position that rollovers are, primarily, the fault of driver behaviour and that crush protection devices are likely to contribute to rollovers or exacerbate worker injuries from rollovers.

A Safe Work Australia spokesperson has advised that Rex Hoy’s media statement has resulted from his frustration with the continuing fatalities related to quad bike use.

Prominent OHS professional and contributor to SafetyAtWorkBlog, Dr Yossi Berger provided this comment on the Safe Work Australia statement:

“Generating definitive decisions for workers’ safety when academics, experts and activists are not in agreement is a difficult and very distressing business. I’ve been through it with asbestos (repeatedly) , synthetic mineral fibres, various chemicals and pesticides, the Toyota skid-steer that killed many workers before dumb Toyota woke up to the obvious… too many, too many occasions, mate, to detail in here. In the end my main decision criterion has been whether I’d be comfortable if someone I loved was exposed to the specific hazard; like my wife of nearly 50 years.

I’ve delved in some depth into some 24 different sources of information about quad bike safety, including reading two entire PhDs on the subject. I’ve also read a lot of the research material the industry says it depends on. I’ve had a real go, and talked in detail with many forensic engineers.

And I don’t say this lightly: But I’ve come to the view that the industry is simply being dishonest. And their agents (representatives) are being placed in an untenable position of supporting very poor science and deliberate misinformation. Let me repeat this: deliberate misinformation is taking place.

It’s a breath of fresh air to see Safe Work Australia, through Rex Hoy’s statement, tackle the single most important matter of safety of quad bikes. The device that may very quickly save lives. There’s been too much talking and deliberate ‘manufacturing’ of uncertainty, trying to defend the indefensible, (easy to do – you want to hear about the moon landing theories!?) Not unlike the tobacco and asbestos industries.

If my children (who seldom take any bloody notice of my advice), or my wife were to get on a quad bike I’d not want them to listen to the terribly flawed advice the manufacturers try to ‘sell’. I cannot say this clearly enough: the industry and their agents are misinforming their distributors and the public.

Is this fraud? In my view, maybe; to do with their fear of retrospective liability. But probably not at the local, Australian level, where the agents are ‘treated like mushrooms’.”

Hoy references Minister Bill Shorten’s Quad Bike Safety Forum but the pressure on quad bike manufacturers is not only coming from government OHS bodies. In late March 2013, the Australian Competition and Consumer Commission issued a statement concerning quad bikes, only this statement addressed the lack of rider training and the selection of the right bike for the rider.

At a doorstop interview this morning Minister Shorten said, in relation to trade union conduct against a major construction company:

“we need to be straight and say that workplace safety is an issue which, unless people are talking about it, pushing it, complaining about it, it never seems to attract the attention it is.”

Over the next few days, leading up to the  World Day for Safety and Health at Work,  there will be plenty of talk about occupational health and safety however the commitment of those talkers will be judged by the actions they take after this weekend.

Kevin Jones

The memorial has been coordinated by the National Capital Authority who has established a website for this memorial. The website will have live coverage of the inauguration ceremony at 11.00am AEST.

The intriguing part of the inauguration ceremony is that speeches are limited to around 5 minutes, if that, and the focus will be on the memorial and its significance.  Political statements may occur off site or prior to the event but that is the case with every event that includes politicians.

The inauguration is a public event and Canberrans are encouraged to attend but the committee has also invited a good cross-section of workplace safety advocates with representatives from

• Work Injury Resource Connection
•  Asbestos Diseases Foundation of Australia
• Workplace Tragedy Support Group
• The Workplace Tragedy Family Support
• Bernie Banton Foundation
•  Asbestos Diseases Society of Australia
• Industrial Deaths Support and Advocacy Inc

It would be good to see official representatives of the Safety Institute of Australia, the National Safety Council of Australia and Safety In Workplaces Australia and others at this ceremony.

It is noted that Safe Work Australia is holding the National Safe Work Australia Awards in the early evening of April 29. It makes sense to coordinate such an event with the workers memorial day but at previous awards nights  the significance of the day has rarely been acknowledged.  A minute’s silence would be quite telling.

The purpose of Australia’s memorial is

• “serve as a reminder of the importance of workplace safety and the need to continue to work together as a nation to improve health and safety performance and prevent work-related incidents, accidents and disease
• honour and pay tribute to all of the working Australians who have lost their lives to work-related accidents, incidents or disease
• provide a place to reflect and remember the sacrifice of all such workers who have lost their lives
• recognise and celebrate the vital contribution and significant achievements of Australian workers in building this nation
• provide a focal point for International Workers’ Day held 28 April each year.”

Dean Mighell, ETU, addressing the Workers’ Memorial Day rally in Melbourne 28 April 2010

Several Australian States should emulate locating their workers memorials in apolitical locations.  Victoria’s memorial is located in the grounds of the Victorian Trades Hall, a contentious location which encourages topical political statements from union representatives (as pictured right) about workplace safety and even, in the past, sloganeering for upcoming elections.   The focus of any commemoration should be on those we have lost and a dignified ceremony can be just as motivating as any political rallying.

Kevin Jones