Safety At Work Blog

A South Australian colleague has pointed out some interesting elements in WorkCover SA’s review of employer incentives discussed earlier.

The following text are some of the aims of South Australia’s Workers Compensation and Rehabilitation Act.

(1) The objects of this Act are—

(a) to establish a workers rehabilitation and compensation scheme—

(i) that achieves a reasonable balance between the interests of employers and the interests of workers

(iv) that reduces the overall social and economic cost to the community of employment-related disabilities

(2) A person exercising judicial, quasi-judicial or administrative powers must interpret this Act in the light of its objects without bias towards the interests of employers on the one hand, or workers on the other.

My colleague points out that a review of employer incentives is well and good but what are the incentives for employees, given the objects of the Act concerning balance and bias?

She also criticises

“…the current incentive for employers of paying the first two weeks of the injured workers income payments if the employer supplies the claim agent with the employer section of the injury/incident report goes against the intent as outlined in Objects of the Act, as there is not any corresponding incentive offered to the injured worker.”

Whether the injury report is valid or useful is irrelevant to the incentive as it is the lodgment of the form that generates the incentive rather than rehabilitation action for the inured worker.

There is no doubt that the workers compensation scheme needed a review.  The recent Return-To-Work (RTW) conference in Adelaide had an atmosphere of hope after the introduction of the RTW coordinator requirements for businesses.

South Australia is different from most other Australian States where a single company handles workers compensation insurance, Employers Mutual.  Not only is there a huge lack of competition in South Australia but the government and the insurer are close.

There is also a political element with Paul Caica being given the portfolio in order to fix it.  In June 2009, the Minister announced a range of projects form a fair pool of funds but many of them are focused on the workers rather than providing structural change to the system.  It is hard not to speculate how workers may benefit if the insurance industry had competition.

The need for reform was clear as the South Australian workers’ compensation scheme was bleeding money but it must have been politically attractive to try to avoid an analysis of the system until the Federal Government started its national review of workers’ compensation system in a few years’ time.  It may have been the case that such a strategy was planned until the global financial crisis changed the public’s tolerance for government debt and the SA government had to act.

Kevin Jones

Since the end of the end of the public comment phase on Australia’s national model OHS laws, Safe Work Australia has been daily uploading submissions to their website.  Within the last lot of uploads was a block of around 100 submissions, all of which are marked confidential and have, apparently, been submitted by individuals.

One confidential submitter shares his name with a person who has been associated with some peculiar industrial relations behaviour.  In August 2009, during a heated industrial dispute concerning work on the West Gate Bridge, a trade unionist pleaded guilty to dangerous driving and to carrying a piece of pipe without lawful excuse, according to one media report.

A person with the same name is also listed in an order issued by the Federal Court of Australia in March 2009 that places restrictions on several people in relation to the West Gate Bridge project and the premises of contractor John Holland.

It is not possible to determine if this is a coincidence because the submission is confidential and submissions do not include contact details.  But if it is the same person, it is a shame that the OHS submission is not publicly available because a person who may have been involved in an intense industrial dispute and who may have been legally restrained would surely provide an interesting perspective on the relationship between OHS and industrial relations.

It is relatively easy to determine the politics of organisations that make submissions but when lodged by individuals political perspectives or professional connections cannot be determined, even when the submission is not confidential.  That such a large number of confidential submissions have been lodged is curious but due to due process, it is likely to remain so.

Kevin Jones

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Kevin Jones

The public submission period for commenting on the Australia’s OHS model laws has closed and the submissions are gradually being made available on the Safe Work Australia website.

At the time of writing there are around 15 submissions listed and Safe Work Australia has indicated that there are many more that are being sifted through at the moment.

Each submission had the option for the comments to be confidential.  Confidential submitters told SafetyAtWorkBlog that one reason for confidentiality was so that their comments did not reflect on their current employer.  This is understandable but also adds an allure to the submission.  It will be interesting to note which of the large associations apply confidentiality to their submissions.

One employer association who is “loud and proud” of their submission is the Australian Chamber of Commerce and Industry.  The ACCI submission is currently available only from its website.  Below is what the ACCI’s Director of Workplace Policy, David Gregory,  says in a media statement that accompanied the release of the submission

“…[Gregory ] has rejected union claims that business groups are pushing for changes that would reduce health and safety rights for workers.

ACCI also urged Australia’s governments to work towards a truly uniform national OHS system with respect to the approach by OHS inspectors, regulators and the courts.”

“Employers want a model Act that delivers both improved workplace safety outcomes and an effective legislative framework that will encourage employers and workers to be proactive and collaborative in improving the safety of their workplaces.  Unnecessary prescription will ultimately serve only to distract and discourage both employers and employees from delivering safer workplaces.  ACCI has provided some positive suggestions in its submission that should be adopted to improve the operation of the Act.”

ACCI has strongly backed the reinstatement of a definition of ‘due diligence’ in the model Act, as the absence of a definition will mean that company officers will be unclear about their duty and how compliance may be achieved.

Employers have also identified a number of aspects of the model OHS Act which are open to potential misuse such as union right of entry, persons assisting health and safety representatives, and procedures for establishing multi-employer workgroups, which require redrafting to ensure that they are fair and balanced and do not undermine the safety objectives of the Act.

ACCI in its submission advocates that the maximum penalty for a corporation under the Act should be set at the current Australian maximum of $1.65 million, arguing that the proposed $3 million maximum will simply fuel a litigious and compliance-based approach to OHS.

Gregory’s first point addresses ideology more than anything else.  The trade union movement will always be suspicious and uncomfortable with any organisation that is willing to put productivity before safety.  The introduction of  the ACCI submission makes it clear that the focus of the submission is not on improving safety but on improving the management of safety, two very different OHS approaches.

Recently a new book from Federation Press, “Work and Strife in Paradise“,  a history of labour in Queensland illustrated how industrial harmony existed in that state for decades prior to the introduction of Robens-style legislation.  For a long time unions and employer groups knew where they stood ideologically and therefore could anticipate responses and could negotiate from stable philosophical platforms.  The industrial relations changes from the 1960s onwards complicated negotiations which did have some impact on OHS in that State.

[For the first time, to SafetyAtWorkBlog's knowledge, a chapter is included in a labour relations book on research into employer associations.]

One would have to expect a definition of “due diligence” to be included in the upcoming OHS Act is the employers are in favour of this.  The consensus in many OHS seminars is that such a definition is required.

The concerns over union rights is a hoary chestnut that has not been seen as a problem in Victoria where many of the suggested legislative features have originated.

The issue of penalties is a little hollow.  Many corporate executives are covered by Directors’ & Officers’ Liability insurance as much as is possible.  And fines do not generate litigation. The neglect of obligations and duties lead to prosecution and then penalties.

The ACCI submission states more clearly that

“…OHS breaches should generally be subject to civil rather than criminal penalties. Such an approach should be taken for the entire model OHS Act and not just selectively applied to aspects such as breaches in relation to union right of entry.”

It would interesting to know what ACCI’s position is on non-financial penalty options.

The impression obtained from the ACCI statement and submission is that they were principally intended for the audience of the ACCI membership.  ACCI has a seat at the Safe Work Australia Council discussion table through its representative Annette Bellamy.  It is suggested that it is here where the conservative and capitalist arguments on OHS laws will be put.

Kevin Jones

Recent a colleague was explaining to me how the cost of a project is ballooning and the project is generating a toxic workplaces by some managers not talking to other managers.  The disharmony is doing nothing to control the costs and the juvenile conduct of the managers is spreading the damage throughout the organisation.

My colleague told me that if only the existing, long-standing purchasing and project policies had been followed this situation would not have occurred.  One person did not do their job properly and made a decision that was not substantiated by the policy.  The decision was not checked, for whatever reason, and the project is in serious jeopardy.

Many readers may recognise a similar scenario but often these become very muddy due to office politics, office allegiances etc.  But it is often easier to understand big issues by looking at small cases.  Douglas Law firm posts small court decision reports every so often that summarise OHS matters well.  One of the latest concerns

“In Inspector Phillip Estreich v Hannas Civil Engineering a contractor suffered electric shock when cutting through a conduit pipe which was supposedly empty.

There was a documented safety system where before performing excavation work, a number was to be called which provided information on underground pipes and cabling.  On the day in question the number was not called and the supervisor merely visually inspected the area.  The risk of harm was reasonably foreseeable as electric cables were usually found in orange conduit pipes.  The contractor was left unsupervised to cut the pipes, and had no experience in the area.”

This case is a useful thumbnail that illustrates the consequence of small decisions.

Perhaps, OHS professionals should look to ancient wisdom for current enlightenment.  An old rhyme that I learnt as a child regularly pops into my head when I read about OHS problems.

“For want of a nail the shoe was lost.

For want of a shoe the horse was lost.

For want of a horse the rider was lost.

For want of a rider the battle was lost.

For want of a battle the kingdom was lost.

And all for the want of a nail.”

Kevin Jones

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

“The key reforms will:

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

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

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

The Minister has said

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

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

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

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

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

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

Kevin Jones

The global financial crisis has highlighted many business management issues.  Probably one of the most contentious is executive remuneration which is based on the question “should executives receive performance bonuses when the company is not performing well, ie. not returning profits to shareholders?”  But underpinning even this question is one of accountability.

Business leaders, commentators, lawyers and politicians are comfortable in discussing financial and corporate accountability but extend that discussion to other areas of business and they respond with a confused stare or outright dismissal of the proposal.

This week, the Australian Financial Review newspaper ran a page one story: “Revealed: directors face harsher liability penalties.”  [None of the AFR articles are freely accessible online] The article revolved around Australian Government plans to “break an impasse between state governments over proposals to harmonise conflicting commonwealth and state directors’ liability laws.”

As should not be surprising from a business paper, the discussion centred on financial and corporate governance issues but OHS obligations were floating behind all of the business-speak.  This was particularly obvious with this paragraph:

“Federal ministers have expressed concerns that onerous directors’ liability rules increase the cost of directors’ insurance and discourage them from taking board seats.”

This paragraph shows that the first response to any corporate trouble is insurance.  This cowardly response is short-sighted and contributes to the unnecessary growth in litigation which the directors regularly complain and which increases the cost of liability insurance premiums.

It is also an acknowledgement that the introduction of new rules does not address the behaviour intended, it leads to investigating ways of avoiding accountability for one’s actions.

The second point of that paragraph is that people are more likely to refuse to participate than to undertake sufficient education that would allow them to perform the job better and with less risk.  The response should not be “it’s too risky so I won’t do it” but “let’s get better informed so that my decisions are more valid and the risk is reduced”.

It is clear that lawyers are running the agenda when semantics enter the argument.  The AFR article goes one to say “there are fears about confusion over the distinction between executive and non-executive directors”.  This confusion comes from the main concern of directors being to cover one’s arse rather than focusing on the job at hand and the corporate purpose.

The AFR article makes no mention of OHS but the accompanying article “Duty weighs heavily” by reporters James Eyers and Annabel Hepworth does.  Eyers and Hepworth look back through several decades of law reform investigations and reviews to show the history of similar director concerns.

But it is a more recent statistic that is the nub of the article.  A Treasurysurvey of directors from top Australian listed companies, in conjunction with the Australian Institute of Company Directors, found that

“…71 per cent of those surveyed had declined taking board seats mainly because of their fears of personal liability, while 46 per cent had resigned from a board position because of the issue.”

These concerns largely deal with false market rumours, manipulating securities prices, criminal cartels, consumer protection laws and others.  It is this company that the importance of taking responsibility for OHS should be pushed by the safety advocates but it seems that the business and corporate contexts of OHS are only ever discussed by the corporate lawyers.  And yet, OHS professionals complain about not getting heard at Board level.  Perhaps what is needed is one of these OHS professionals to take a business degree so that OHS can be described in terms business understand.

Of course the risk is that OHS may be found to be contrary to all the basic capitalist concepts and that the only way it can be applied in a business is for the application of legal “wriggle room” from the concept of reasonably practicable.

On 6 November 2009, Bob Baxt (a partners with law firm Freehills and the chair of the law committee with AICD) responded to the Eyers and Hepworth article with a personal opinion describing directors and senior managers already in the “firing line” from the corporate regulators.  He seems to see this as unfair but those executives are in the “firing line” because they are suspected of doing the wrong thing.

Baxt describes the “reverse onus of proof” as an “obnoxious device” and he may be right but he needs to consider why such a provision was introduced in the first place – business managers were not complying with their legislative obligations, they were avoiding responsibility, taking short cuts for personal wealth, having workers die and then winding up the company to avoid prosecution.

Too many business professionals focus on “cause and effect” and see injustice.  Yet if they looked a little further back and analysed the “causes” a bit more carefully they may just see that in many cases the regulatory changes have come about as a result of their own misdeeds.

The analysis of capitalism that resulted from the global financial crisis has faded very quickly as the markets rebound.  Companies are applying the same behaviours that led to that crisis.  Most business analysts and executives talk about leadership as the be-all and end-all but we should not be lead in the same direction as in the past as we are likely to end up in the same place.  True leadership is about accepting mistakes and heading in a fresh direction where such mistakes cannot be repeated.

Those who are bleating about how corporate executives are being bludgeoned by regulation and accountability need to get out of the leafy middle-class suburbs and the office buildings with bayside views and take some time to reflect on how we came to be in such an economic mess and why workers continue to get injured, maimed and killed.  It may just be that accepting responsibility is the new foundation required to build a humaneand profitable future.

Kevin Jones

The Australian State of Victoria has been in a fortuitous position with a Coroner, Graeme Johnstone, who was a staunch advocate of safety in the public and workplace spheres.  Johnstone was a strong and physical presence at many conferences and in the media.  Indeed, it would be difficult to find a more obvious and influential safety advocate in Australia over the last twenty years.

Johnstone retired recently due to ill-health.  From 4 November 2009, his successor, Jennifer Coate, will be sitting in an official Coroners Court and the supportive legislation should provide even greater support to safety advocates.

Ruby Haouchar, Hon.Rob Hulls MP, Judge Jennifer Coates (State Coroner), James Heywood, Christine Nixon, Murray Hall (IT @ VIFM)

According to a media release issued in support of the Court, there are several important legislative changes.

• The power of the court to make recommendations to any Minister, public statutory body or entity relating to public health and safety and the administration of justice. Previously recommendations could only be made to Ministers.
• Importantly, any Minister, public statutory body or entity either receiving or  [sic] the [sic]of a recommendation must now respond in writing within three months stating what action will be taken (if any) as a result of the recommendations. This has never been required before and is an Australian first.
• All inquest findings, coronial recommendations and responses to recommendations will be published on the internet, unless otherwise ordered by a coroner. This is the first time in Victorian coronial history that a requirement to publish inquest findings has been enshrined in legislation.
• A new power for coroners to compel witnesses to testify without the risk of self incrimination. The court will now be able to issue a certificate excusing evidence heard by the court from being used to incriminate witnesses in other court proceedings.”

On the first point, how much different would have been the approach to level crossing safety with this authority?  Would the faulty design of some level crossings have been changed more quickly?  Of course, recommendations are still only recommendations but by referring to statutory authorities and others, there is likely to be less direct political spin and, perhaps, greater accountability.

This leads to the second point, timelines.  Any meeting, action item, control measure or even correspondence, should have a timeline for response.  This will allow the families of victims a hook on which they can hang their dissatisfaction with government inaction.  Of course, there is usually no guarantee that correspondence is publicly accessible but to bullet point three.

Not only will inquest findings now be easily accessible to the public, the government responses mentioned above will be made available on the Coroner’s website.

Around ten years ago I was writing a book on occupational health and safety in the sex industry in Australia.  I requested details form the Coroner’s office of deaths in this industry.  I received many pages of decisions which helped considerably in determining whether deaths occurred at work or in relation to work.

Several years later, I put in a similar request for information on dairy-related deaths in support of a WorkSafe Victoria guidance with which I was assisting.  The level of detail provided then was a line or two on each incident.  It was enough to prepare a rough data table but was woefully unhelpful in the preparation of case studies of work-related fatalities.  The accessibility allowed under the new laws will allow for a greater, and more public, understanding of the contributing factors to death which should lead to greater options for elimination or control.

The Coroner is clearly enthusiastic about her new powers.  In the media release Coates says

“This new legislation will better enable the court to thoroughly examine and investigate the different types of deaths reported to us so we can help prevent similar deaths from occurring.  Of real significance is the requirement that any body or entity receiving a recommendation must respond to us. This will be a real mechanism for change to public safety and we expect enormous benefits for the Victorian community to follow,” she said.

Judge Coate said publishing inquest findings, recommendations and responses on the internet would make public statutory authorities and entities more aware of their responsibility to respond to coronial findings.

“The new response requirement means the recommendations of a coroner cannot be selectively pursued or ignored. This is an important gain for the public safety and administration of justice for our community”

She said the publication of inquest findings, recommendations and responses on the internet would also make the coronial process more accessible to families who experience the death of a loved one investigated by the court.

“We have gone to great lengths to ensure our new practices under the Act recognise and have regard for the families and friends of a loved one who has died.  That includes acknowledging the distress of families and their need for support and a recognition that different cultures have different beliefs and practices surrounding death.”

SafetyAtWorkBlog wishes Coroner Coates all the best and will be keenly watching the progress.

Kevin Jones

A special guest for the Safe Work Australia events in Queensland was Matthew Gill, former Beaconsfield Gold mine manager.  According to a media statement from the Government

“Matthew Gill who was the public face of the Beaconsfield mine rescue will speak about how he immediately took control of the emergency and then implemented rescue operations for the three missing miners,” [Workplace Health and Safety Queensland Executive Director, Dr Simon Blackwood] said.  “Mr Gill maintained an unwavering commitment to the safety of the people conducting the rescue and to the trapped miners.

“He oversaw the rescue teams which battled 24 hours a day for 14 days to release the two miners trapped almost 1km underground. Mr Gill will relive the emotional story of finding Larry Knight’s body and having to talk to his family afterwards.

“Previously he has been involved with mine rescue at rock falls at Mt Lyell in Tasmania and in Papua New Guinea, but Beaconsfield was the first time that he had such ‘hands on’ involvement.”

Matthew Gill has a lot of skills to share on disaster management and media handling but a lot of that skill seems to come about after the rockfall in 2006 that killed Larry Knight.

Prior to that time, in 1995 to 1997, Matthew Gill was the Responsible Officer for the mine.  From 1997, Gill appointed other people to undertake the role that is required by legislation.  Sometimes there were three people in the role at the same time.  Professor Michael Quinlan was quoted in the Coroner’s report saying that

“……….the very notion of appointing a Responsible Officer would have little meaning unless that person so appointed exercised overall control of the workplace and could therefore make critical decisions in relation to OHS not simply recommend them, be part of them, or make decisions but not others than might affect safety. For example, as Responsible Officer Mr Ball was a participant in decisions on mine design and mining methods – decisions that have a critical effect on the safety of underground workings – but he was not the only or final decision maker.”

The Tasmanian coroner Rod Chandler,agreed that there should be only one Responsible Officer and that the legislation be amended to reflect this.

Media reports of the inquest into Larry Knight’s death reported that after rockfalls in October 2005 and various risk consultants’ reports Matthew Gill undertook some remedial work on the mine and in February 2006, Gill declared the mine safe to restart mining.  The decisions made on the basis of those consultants’ reports came under close scrutiny in the coronial inquest.

On 10 November 2008, AAP’s Paul Carter reported the following:

Lawyer Kamal Faroque [representing the Knight family and the Australian Workers' Union] told Coroner Rod Chandler in Launceston that Allstate’s management failures contributed to Mr Knight’s death…. Mr Faroque said mine manager Matthew Gill was ultimately responsible for deficiencies in the mine’s ground supports.  “It is submitted that deficiencies in ground support contributed to the Anzac Day rockfall which killed Mr Knight,” he said.

He also said there was no reasonable basis for Allstate to conclude that it was safe for workers to return to the area after two earlier rockfalls.

“Mr Gill accepted responsibility for the decision to recommence stoping in the western zone following the October (2005) rockfalls,” Mr Faroque said.  Stoping is a mining method in which underground chambers are opened up deep beneath the surface.

Mr Faroque said the risk management process conducted following the October 2005 rockfalls was inadequate.  “It is submitted that these failures are a sound foundation for a finding that Allstate contributed to the death of Larry Knight,” Mr Faroque told the court.

There is no doubt that Matthew Gill was integral to the successful rescue of Brant Webb and Todd Russell but Gill had been employed at the mine for over a decade before the fatal rockfall and therefore was also involved with the decision-making leading up to the rockfall.  The decisions made by the company over many years should be analysed to see the combination of bad, poor, or short-term decisions that ultimately led to Larry Knight’s death and the entrapment of his colleagues.

The rescue of Webb and Russell is an exciting tale with a happy ending and at least one book and several long articles (even a school lesson plan) have been written about this.  The most lasting lessons for safety professionals, mine managers and business operators would be what contributed to the bad decisions leading to Larry Knight, Brant Webb and Todd Russell being in an unsafe working environment during a rockfall.

This is a more complex story that requires knowledge of geology, the stock markets, corporate accountability, OHS and mine safety regulations.  If this story had been Matthew Gill’s presentation during Safe Work Australia Week, it would have been worth travelling to Queensland to hear.

Kevin Jones

In late October 2009, there were several OHS court cases in Australia that raise issues that need to be kept at the forefront of the thoughts of safety managers, safety professionals, workers and business owners.

Amputation

One case in South Australia identified the need to have sufficient detail in policies and procedures for workers to be safe.  The comment of Industrial Magistrate Michael Ardlie is particularly important.

Beerenberg Pty Ltd was fined $A9,000 dollars for breaching OHS law

“The incident happened in May 2007 at the company’s Hahndorf premises. A female employee was operating a mincer as part of the process of producing green tomato chutney.

The court was told that at the conclusion of the task, the employee switched off the machine but noticed a piece of tomato hanging from the mincer plate. She went to flick the piece off, but in doing so lost the tip of her index finger.

SafeWork SA’s investigation concluded that the woman’s finger had gone through one of the holes in the mincer plate and come into contact with the cutting blade behind, which was still winding down after the machine was switched off.

The fingertip could not be reattached, but the woman returned to work with the business after five weeks. Aside from the cosmetic appearance, there remains some numbness in the finger.

In his penalty decision today, Industrial Magistrate Michael Ardlie acknowledged that while there was a safe operating procedure written and a warning sign in place, these measures alone were insufficient.

“(The measures) did not specifically warn employees of the dangers presented by the moving parts of the mincer after the mincer had been turned off… the procedures in place did not go far enough.”

Since the incident, the company has fitted a purpose-built distance guard as well as an interlock that shuts the machine down once the guard is removed.”

Magistrate Ardlie fined the defendant $9,000 this being its first offence.

Crushed Fingers and Guarding

The same Industrial Magistrate as above, McArdlie, had to deal with a very different case.  Whereas Beerenberg was facing its first offence, OE & DR Pope are on their fifth.

“SafeWork SA prosecuted OE & DR Pope Pty Ltd after investigating an incident at its Wingfield printing plant in March 2007.

A 34-year-old male employed as a machine operator, suffered crush injuries to three fingers of his right hand, which were caught between moving rollers.  While he returned to work after three weeks, he suffered residual sensitivity problems, and left the business in December 2007 for unrelated reasons.

The court was told that the operator had attempted to clean dry spots from a roller without stopping the machine, and was able to gain access to the moving parts through a 70mm gap in the guarding.  Furthermore, the employee’s usual assistant was not available leaving him to perform two roles on the machine.  The supervisor who also should have been present was elsewhere on the premises at the time.

In his decision on penalty handed down today, Industrial Magistrate Michael Ardlie noted that the machine involved had replaced another involved in a previous injury, but that a risk assessment failed to identify the problem which ultimately occurred:

“Whilst the defendant prior to the incident did assess the machine, installed a guard and introduced a Standard Operating Procedure, the steps it took were inadequate.”

The court was told that this was the company’s fifth offence dating back to 1998, and all previous incidents resulted in similar injuries from similar circumstances.

Therefore, being a subsequent offence under the Occupational Health Safety and Welfare Act 1986, the defendant faced a maximum fine of $A200,000. Magistrate Ardlie fined the company $A40,000.”

Fifth incident in just over ten years – “similar injuries from similar circumstances”.  The reduced fine of $A40,000 seems a little odd in this context.

There are several elements that are disturbing in this case – ineffective guarding, excessive or conflicting workload and absent work supervisor.

Overhead Hazards

Just as falling in some workplaces is as “easy as falling of a log”, so it is that many people forget to look up.  A court case in Western Australia has fined Shrigley Drilling Contractors $A40,000 after one worker was shocked and another burnt when their drilling rig tilted into high-voltage overhead powerlines in 2006.

“Laurence Victor Shrigley – trading as Shrigley Drilling Contractors – pleaded guilty to failing to ensure that the workplace was safe and, by that failure, causing serious harm to another person and was fined in the Perth Magistrates Court this week.

In May 2006, Western Power had contracted Outback Power Services to perform works and construct a voltage regulator at Eneabba. Outback Power had contracted Mr Shrigley to perform drilling works.

On May 17, Mr Shrigley and an electrical contractor were engaged in drilling holes with a drilling rig underneath power lines. The position in which the drilling contractor chose to place the rig required him to raise the mast very close to the power lines.

In repositioning the rig, the left-hand outrigger was raised and the mast tilted towards the power lines. The mast touched the power lines and Mr Shrigley received an electric shock and was thrown backwards from the drilling rig.

Another man, who was driving the truck that carried the drilling rig and was working with Mr Shrigley on a voluntary basis, also received an electric shock serious enough to set his clothing on fire. He sustained burns to around 60 per cent of his body.

The court heard that no formal pre-start meeting had been held before the work commenced, and no directions were given for the work, with the exception of where the holes were required to be placed.

Mr Shrigley had not checked whether the power lines were live, or attempted to make any arrangements for the power in the area to be isolated.”

The features in this case include contractor management, using a volunteer,  inadequate preparation, and inadequate number of workers (apparently, no spotter).

It is understandable that cynicism is rampant in the safety profession when the same work practices lead to injuries in the 21st century just as they did in the 20th and sometimes in the 19th.

Kevin Jones