“Reasonably Practicable” - alternative perspective

A developing sticking point in the review of Australia’s OHS laws is the inclusion or otherwise of “reasonably practicable”. This is an important legal concept but less so for safety management.

Safety management is an aim and legislative responsibility and compliance is ill-defined. “Reasonably practicable” was an acknowledgement of the difficulty in complying with a benchmark that changed in relation to a broad range of criteria, not the least of which was that compliance varied with each government OHS inspector who attended the workplace.

Why the concept is important in terms of the review is that the most jurisdictions have the concept in OHS law but New South Wales does not. As I have said elsewhere in this blog, OHS in New South Wales is in continuous dispute. It is worth reading a NSW perspective on the matter and one of Australia’s most prominent OHS lawyers, Ron McCallum, wrote on the matter in his submission to the NSW OHS Review whose submissions were recently released on line.

Professor McCallum places the issue in contrast to legal determinations based on “beyond reasonable doubt” and looks at the origin of “reasonably practicable” in British and NSW OHS law. McCallum points out that

In section 53 of the 1983 [NSW OHS] Act it set forth the words “reasonably practicable” and expressly stated that it was up to duty holders to prove on a balance of probabilities, that they had done all that was reasonably practicable. Section 53 became section 28 of the Occupational Health and Safety Act 2000 (NSW) … The weakness in this approach was that the words “so far as is reasonably practicable” were not contained in the general duties which were absolute in nature. This gave duty holders less guidance on what was required of them to ensure safety at places of work.

McCallum agrees with including “as far as is reasonably practicable” in the general duties of the NSW OHS Act but

I disagree with the portion of this recommendation which seeks the repeal of section 28 of the Occupational Health and Safety Act 2000 (NSW) which would mean that the prosecution would bear the onus of proof with respect to “so far as is reasonably practicable”. The standard of proof for the prosecution with respect to “so far as is reasonably practicable” would be beyond reasonable doubt because “reasonably practicable” will be an element of the crime. When this onus of proof requirement is coupled with paragraphs (a) and (d) of the suggested definition of “reasonably practicable” taken from the Victorian Act, this adds greatly to the task of the prosecution because these paragraphs focus upon the actual or imputed knowledge of duty holders. As I have shown through the examples [in]this submission, these changes will place significant hurdles on prosecutors which are in my view unwarranted.

Professor McCallum’s submission was for a state-only OHS review and is dated December 2006. His submission to the National OHS Law Review is not yet available but it will be interesting to read his drawing on a bigger canvas.

Professor Ron McCallum AO, Blake Dawson Waldron Professor in Industrial Law and Dean of Law, Faculty of Law, University of Sydney

Australian Workplace Injury Statistics

On 15 July 2008, the Australian government released the 2005-2006 Compendium of Workers’ Compensation Statistics Australia. I am pleasantly surprised that although the number of fatalities is never at an acceptable level the trend data is very positive in terms of safety management.

Some key findings and trends reported in the Compendium include:

Preliminary data for 2005-06 shows there were 231 compensated fatalities, 93 per cent of which were men.

Preliminary data for 2005-06 reports the transport and storage industry accounted for the largest number of fatalities (41), followed by construction (33) and manufacturing (28).

Trend data results showed all industries experienced a fall in incidence rates of injury and disease between 1997-98 and 2004-05, with the greatest falls being in the priority industries of mining (45 per cent decrease), construction (27 per cent decrease), transport and storage (20 per cent decrease), agriculture, forestry and fishing (19 per cent decrease) and manufacturing (18 per cent decrease).

Reflecting Australia’s ageing labour force, the proportion of claims for employees aged 45 years or more increased from 33 per cent in 1997-98 to 39 per cent in 2004-05.

Such decreases in these major industries should be applauded. Certainly the background to the statistics should be analysed for a proper consideration but the mining results are terrific given that the sector is booming in Australia with new mines opening frequently and is suffering a shortage of skilled labour. Colleagues of mine in that sector have been crowing about the improvements for some time and they seem to be supported by this compendium.

The data can be downloaded HERE

The crash of Blackhawk 221 and safety culture

The Australian’s government’s report into the crash of a Blackhawk helicopter on the deck of the HMAS Kanimbla in November 2006, in which two defence personnel were killed, has been released by Air Chief Marshal Angus Houston.

According to media statements

“The principal and overarching finding of the Board of Inquiry was that the cause of the crash of Black Hawk 221 was pilot error by the aircraft captain,” Air Chief Marshal Houston said. “Justice Levine stated that the principal finding, however, could not be viewed in isolation nor blame attributed to a highly experienced and well-respected Black Hawk pilot.

“This accident was the regrettable result of a number of factors coming together which culminated in this tragic incident.  There was a gradual adoption of approach profiles which, on occasions, exceeded the limits of the aircraft.  Other factors included a ‘can do’ culture in the Squadron, inadequate supervision, the pressures of preparing for operations, the relocation of the Squadron and a high operational tempo.”

Amongst the control measures introduced following the Blackhawk 221crash and an earlier incident, the Army issued a new risk-management policy in October 2007.  It provides “commanders with clear instructions on how to conduct risk management on operations and in training.”

Ultimately, good has come from the results of the Blackhawk crashes.  The decision to release this report, provide audio of the press conference and considerable inquiry background, is commendable. However, as reflected in the Air Chief Marshal’s comments above, and expanded upon in the must-hear podcast (35Mb MP3), safety management standards had slipped over time.  He is keen to emphasise that the crashes need to be seen in a broader organizational context, as any incident investigation should.

But, in my opinion, that broader context remains damning.  The Defence Forces should, through their strict hierarchical system and regimented decision-making, be an exemplar of safety and risk management.

It is always the case that we should learn from our mistakes but it seems, as in the private sector, that those organizations with considerable safety resources who are best equipped to avoid problems continue to experience them.

With many workplace investigations the excuse for incidents that is frequently trotted out – poor safety culture – is becoming a term of reduced relevance.  The failure of a safety culture is not an “act of God” although the phrase, safety culture, is being used in the same manner.  It implies that there was only so much that could be done but it also indicates that prior to any incident not enough was done.

Safety improvements through hindsight have become the mainstay of contemporary management.  If there is a stuff-up, acknowledge the fact and promise restitution.  Don’t accept responsibility. Don’t admit liability.  In fact, don’t mention the incident, only mention what improvements one intends to make.

The depressing part of a no-blame investigation is that it can feel so unsatisfying.

Climate Change Green Paper - OHS role

At the moment I am watching Senator Penny Wong  releasing the Australian government’s green paper into climate change reduction, focussing on an emissions trading scheme.  Some OHS professionals have disputed the relationship between environmental management and safety management.  In practice there has always been an overlap in the disciplines and increasingly in management pocesses, auditing and standards.

The Green Paper  has a direct OHS impact in the mining industry where fugitive emissions now need to be measured for climate change purposes as well as for health and safety compliance. Section 5.4 of the Summary of Preferred Positions states

The following sources would have minimum standards for emissions estimation methodologies imposed from the commencement of the scheme:
* electricity sector emissions (as required for the National Greenhouse and Energy Reporting Scheme and the Generator Efficiency Standards program)
* perfluorocarbon emissions (from aluminium production, as is current business practice and used for the National Greenhouse Accounts)
* fugitive emissions from underground coal mines (as currently mandated by state safety regulations for the large majority of mines).

The issue of climate change and the government’s emphasis on business impacts means that we need to reassess some of our amentiies, facilities and work methods to accommodate increased risks from climate change.  The Green Paper describes several ways that climate change will change how we work.  For instance when assessing the integrity of our building facilities we need to reconsider the structural tolerances as the report says

In our built environment, a 25 per cent increase in wind gust speed can lead to a 550 per cent increase in damage costs for buildings, with risks to human safety, largely because building or engineering standards have been exceeded.

Business continuity is going to undergo a revolution in criteria to be considered far beyond what we experienced with increased terrorist risks.

Workplace Safety Inspector Ad

WorkSafe Victoria has launched a new advertising campaign emphasising its role as an OHS inspectorate (click image below to view).  The emphasis fits that of WorkSafe’s CEO, John Merritt, who has pledged mre inspectorate resources and enforcement in the future.

The ad is clever in its structure by relieving the boss’ tension over an expected WorkSafe inspector visit and then reinforcing the surprise nature of many WorkSafe visits.  The ad is also very well acted but I wonder about the effectiveness of the message as a TV ad.  Not being privy to WorkSafe ad strategies, I would have thought that billboards in and around industrial sectors with the boss’ worried face may be more effective.

One small point though, the female worker being asked about office cabling is too stereotypical.  However I acknowledge that having a female machine operator may have distracted the focus from the main message.

Still from new WorkSafe inspector ad

OHS Law Review and the International Labour Organisation

Several submissions, from those currently publicly available, to Australia’s National OHS Law Review have referenced OHS conventions of the International Labour Organisation (ILO). It is early days in the process of assessing submissions and one would expect more details on ILO Conventions to come from submissions of the ACTU and ACCI, both members of the ILO.

Current references are to the ILO definitions related to OHS and ILO Convention 161: Occupational Health Services Convention 1985 (not ratified by Australia)

I would add a couple more that are more recent and perhaps have a broader and more relevant application:

• Promotional Framework for Occupational Safety And Health Convention, 2006 (No. 187); and
• Promotional Framework for Occupational Safety And Health Recommendation, 2006 (No. 197)

At the May 2006 ILO meeting these frameworks were proposed and Australia’s representative was in favour of the OSH Convention. According to the report from the Committee from Safety and Health, the discussion covered

The representative of the Secretary-General introduced the subject for discussion by the Committee. In 2003, the International Labour Conference had adopted a Global Strategy on Occupational Safety and Health (OSH) in order to tackle the enormous humanitarian and economic cost of work-related accidents and diseases globally. The promotion of a national preventative safety and health culture, and a systems approach to occupational safety and health were central to this strategy, which covered five key areas for action:

the promotion of occupational safety and health through awareness raising and advocacy (of which the annual World Day for Safety and Health was an example);

ILO instruments;

technical assistance and cooperation;

knowledge development, management and dissemination; and

international collaboration.

…….The Government member of the United Kingdom, speaking on behalf of the group of Industrialized Market Economies (IMEC) not part of the European Union, [Australia, Canada, Japan, New Zealand and the United States] fully supported the development of the proposed framework, which they considered should complement rather than replicate existing instruments. He stressed that the new instruments should help both member States that were developing their occupational safety and health systems, as well as those with already mature systems, and by doing so raise the profile of occupational safety and health nationally. He also believed that the new instrument should be strategically-oriented, principles-based and outcome-focused, and cautioned against reopening issues already discussed and agreed at the first discussion of the instruments in 2005.

One ILO OSH document that I think should also be reread in light of the new Australian Government’s new agenda is the Guidelines on occupational safety and health management systems ILO-OSH 2001. The national structure advocated in the guidelines seems to fit very well and allows for the restricted flexibility in law making at State level allowed for in the recent decisions of the Coalition of Australian Governments meeting. The guidelines say

Tailored guidelines, reflecting the overall objectives of the ILO guidelines, should contain the generic elements of the national guidelines and should be designed to reflect the specific conditions and needs of organizations or groups of organizations, taking into consideration particularly

I strongly recommend those who are interested in the current national OHS review to look at the complete document.

a) their size (large, medium and small) and infrastructure; and

b) the types of hazards and degree of risks.

I am not a knowledgeable enough student of international standards to provide a persuasive argument about the role of ILO conventions, recommendations and guidelines and their applicability to Australia. However there are considerable benefits in not reinventing a wheel simply to maintain one’s own little patch. Smaller, less resourced, nations in this world have satisfactory and functioning OHS legal regimes and enforcement strategies based solely on ILO documentation. If Australia needs to fit into the global IR and OHS community it could do a lot worse than poring over the ILO documents.

If only a few of the 100-plus submissions received by the review panel cross-reference ILO initiatives, the findings of the review panel will be all the poorer; and the intellectual isolationism of Australia will be equally poor.

 

Is OHS a joke? - Update

On the internet more and more worksite videos are appearing, several are gruesome, some are instructional but most are portrayed humourously. Previously in SafetyAtWorkBlog I have discussed the public’s attitude to OHS and inspectors as removing the fun from work activities and life in general.

The latest video that has crossed my monitor illustrates a visit to an unsafe trench by an Oregon OSHA Inspector. The video is self-explanatory but watch how the video has been presented on the online video program, the jeering by the studio audience and the comments by the compere.

Could sexual abuse by priests be a breach of OHS law?

In early July 2008, serious accusations about the management of sexual abuse claims by the Australian Catholic Church came to the public attention.  Considerable debate on this current round is available in the Australian media but the ABC show Lateline started the running on the matter.  A useful starting point is an ABC news report on the initial claims.

This week I was conducting some OHS update sessions for a client in which I outlined that one of the objectives of Victoria’s OHS legislation is to

“protect the public from the health and safety risks of business activities”.

And there is a legislative obligation on employers to

“not recklessly endanger a person at a workplace”.

There is a further obligation on employees, in relation to workplace safety and the safety of the public to

“take reasonable care for self and others”.

I put the question to readers – could the sexual misconduct of priests be a potential breach of OHS law?

Coroner to investigate safety management of Beaconsfield mine

A front page report in the The Australian on 9 July 2008 is reassuring safety professionals who had hoped for OHS management details from the Tasmanian Coroner’s inquest into the death of Larry Knight at the Beaconsfield mine.

According to the report

Coroner Rod Chandler yesterday ruled against the mine’s submission that he should simply adopt the findings of the official Melick report into the Anzac Day rock-fall in 2006 that killed Knight and trapped colleagues Brant Webb and Todd Russell underground for 14 days.

Mr Chandler also ruled against the mine’s fall-back position that any inquest should be limited to geo-technical issues.

Instead, he ruled he would also examine risk management at the mine, which was criticised by an expert’s report, the mine’s “financial situation” and the role of Tasmania’s work safety watchdog.

This puts the inquiry iinto the realms of the Sago mine investigation and many other mine fatality inquries.

The full inquest resumes on 22 July 2008.

Domestic violence and workplace stress

Today, prominent New Zealand sports broadcaster Tony Veitch has admitted striking a previous girlfriend whose back broke in the incident.  The issue of domestic violence is outside the approach of SafetyAtWorkBlog but Tony Veitch has identified some contributory factors to his actions - workload, stress and medications.

Media coverage of Tony Veitch’s admissions will be dominated by the issues of domestic violence and the money that he paid his girlfriend to keep the matter out of the media.  In this blog’s context, questions should be asked about his employer’s, TVNZ’s, appoach to stress management and excessive working hours, and Tony Veitch’s own decision to accept working conditions that he says contributed to his violent acts.

As with the many politicians who resign due to workload and stress and who develop a sudden desire to “spend more time with the family”, and those CEO’s who take a year off to reestablish a work-life balance after amassing a personal fortune, and the television broadcasters who strike out at girlfriends, the contributions to domestc violence by work environments should be assessed so that other workers do not have to suffer and partners are not assaulted.

A balanced ABC news report on the Tony Veitch’s apology is available HERE.  A New Zealand talkback radio session on the issue is available HERE. 

Additional information on the issue can be found HERE