Orewa College explosion update
The New Zealand Department of Labour has released a media statement about the prosecution reported on yesterday but
“The Department will not name either the parties or the specific charges until the charges reach court.”
This may be an indication of the political sensitivities of the prosecution.
A representative of the Orewa College Board of Trustees, Phil Pickford,was interviewed by New Zealand Radio on 21 December 2009. The interview is available online.
Pickford states that he is proud of the OHS systems that are in place at Orewa College and places Orewa in the top 10% of schools for OHS performance.
It is difficult for anyone to make public statements on an OHS prosecution without knowing who has been charged and with what.
From SafetyAtWorkBlog’s perspective, regardless of any action taken by the DoL, it would have been expected that both the school and the Education Department would have undertaken their own investigations in to the death of one of their own employees, if for no other reason than to stop a similar occurrence in other schools.
A TV report of the explosion from mid-2009 is available online.
CSR in firing line on asbestos compensation
SafetyAtWorkBlog has not reported on the asbestos compensation problems faced by James Hardie Industries directly because in 2009, the issue is one of corporate responsibility more so than workplace safety. The reality is that asbestos kills and victims deserve compensation. The fact that asbestos companies are avoiding their responsibilities is of little surprise.
In Australia, most of the focus has been on James Hardie due, principally, to its corporate conduct to the Australian stock exchange and its prosecution by the financial regulators. But another asbestos miner and building product manufacturer is at the Australian Courts in December 2009.
In some ways, CSR Limited is the more notorious asbestos manufacturer due to its operation of the Wittenoom asbestos mine. It could be said that CSR is the James Hardie of the 1980s.
According to a media report in the Sydney Morning Herald, CSR is planning to demerge but the Federal Court has been told that the Australian Securities & Investments Commission believes that insufficient allowance has been made in the strategy for asbestos compensation.
CSR is splitting its sugar and renewable energies divisions away from the building products division where the compensation is likely to sit. The sugar business will be called Sucrogen.
For those who do watch the corporate manoeuvrings of asbestos manufacturers, CSR’s actions should be familiar but those new to the issue should look beyond James Hardie to gain fuller appreciation of asbestos and capitalism.
For a global perspective on the whole industry it is hard to go past “Defending the Indefensible” by Jock McCulloch and Geoffrey Tweedale.
John Holland prosecution
The John Holland Group has featured several times in the SafetyAtWorkBlog in 2009. Any organisation as large as this Australian conglomerate who promotes their commitment to safety and whose Board Chair, Janet Holmes a Court, has such a high profile is going to draw media scrutiny. In fact, the evolution of the John Holland safety culture and the struggle to maintain such a culture as a company grows in profitability and complexity would make a fascinating case study.
On 18 December 2009, Comcare released details of its latest successful prosecution of John Holland. This time the company was fined $A180,000 over the death of a worker, Mark McCallum, at the Dalrymple Bay Coal Terminal in Queensland in May 2008. According to the media statement:
“Justice Collier stated that “It is clear that, despite the efforts taken by the respondent to implement a safe working environment, the operation involving the transportation unit was flawed in its original conception. The dangers were obvious from the start, relatively simple to avoid, but unrecognised and unaddressed in a manner which raises the objective gravity of the offence in these proceedings towards the higher end of the scale.” [emphasis added]
When a judge determines that the process was flawed from the very start, one’s expertise in managing an established practice safely should be critically reviewed. Such fundamental failures in a safety management system should cause any company to realise something is wrong in the way it is addressing safety needs, particularly in an economic climate that is bursting with new infrastructure projects for which one is competing.
The circumstances of the fatality are that
“A team of five John Holland workers were involved in moving large precast concrete decks to the end of a jetty under construction. The precast concrete decks were being transported on two jinkers that were being pushed by a front end loader. During this procedure, a worker’s foot became trapped under wooden scaffolding planks on the jetty, and he was fatally injured when he was run over by the wheels of the jinker.”
The Federal Court judgement listed the safety deficiencies that John Holland acknowledged
“The respondent acknowledges that:
(a) its work method statement did not adequately identify the risks associated with the relevant work process, and did not adequately identify suitable control measures to remove or minimise those risks; and
(b) it did not carry out a plant hazard assessment with respect to the front and rear jinkers, which may have identified a requirement for a remote braking system or other controls on the jinkers for use by spotters and others; and
(c) it did not have in place a formal system whereby employees were certified as being competent in the use of jinkers; and
(d) it did not have in place a formal protocol or procedure for the use of radios to ensure that the transmitter of a radio message was able to be informed that the message had been received by its intended recipient and understood; and
(e) it did not have sufficient communication mechanisms in place to ensure that employees working out of sight of the loader operator and the rear spotter were able to communicate directly with spotters and the loader operator; and
(f) it did not ensure that an observer of a trainee jinker operator was also issued with a radio to directly communicate with the other members of the transportation crew responsible for the propulsion of the load; and
(g) it did not provide workers who were working out of sight of the loader operator or rear spotter with any form of alarm or safety device, other than a radio to alert other workers of the occurrence of an emergency situation; and
(h) it did not ensure that the clearance of obstacles in the path of the loader was done in a timely or effective manner, thereby requiring the front jinker operator to perform that duty during the progress of the transportation unit and whilst out of the line of sight of the loader operator.”
Mark McCallum’s death gained even greater media attention when unions challenged John Holland’s nomination for a safety award shortly after McCallum’s death.
Boiler death puts OHS spotlight on New Zealand Education Department
Reports are coming out of New Zealand that representatives of the Education Department are uncomfortable with being charged under the country’s OHS legislation following a fatal boiler explosion at Orewa College.
On 24 June 2009, a boiler exploded at Orewa College in Northland, New Zealand. Initial media reports said that the boiler was being repaired the day after a malfunction. Rough phone video taken by one of the students during the evacuation is available online.
Richard Louis Nel received burns to 90 per cent of his body and later died. A contractor, Robin Tubman, suffered a fractured skull and a shattered face.
The Department of Labour indicated shortly after the event that an investigation had begun but the Board of Trustees chairman Phil Pickford has questioned the delay in the prosecution. According to one media report, Pickford said:
“On December 24 it will be six months since the tragedy and here we are at the 21st… They have to prosecute within six months and they have left it to the last minute. Why? I could surmise why, but I’m sure there’s another way they could have done it.”
SafetyAtWorkBlog contacted the NZ Department of Labour on 21 December 2009 for further information about the prosecution. All the spokesperson would say is that “the outcome of the investigation is still being finalized”.
The belief that schools are not covered by OHS legislation is a common misperception in Australia and, from what one NZ SafetyAtWorkBlog reader says, New Zealand also. Partly this is because the education of children is seen as the principal focus by teachers and educators, to the exclusion of all else. Modern businesses and institutions have slowly learnt that this is not the case and that there are a wealth of obligations, legislative and social, that apply. Educational institutions are often slow to acknowledge this reality.
Another reason, which may stem from the first, is that government departments have been very hesitant to prosecute each other. This may also be supported by the political conflicts that could arise by one politician’s department taking action against another politician’s department. Politicians should not take the credit for departmental achievements and then not be held accountability for failings (although this seems to happen frequently).
In August 2007, The Education Department in Victoria was fined $A8,000 for ignoring the directions of a WorkSafe inspector. The media statement on the case illustrates a dismissive attitude to OHS issues.
Of more significance were issues at Merrilands College where “a Victorian principal accused of bullying has been removed from school and given a job in the Education Department after years of complaints by staff” according to The Age in July 2004. The issues at Merrilands had been occurring for some time:
“It was also revealed that the Education Department – which confirmed there had been “Worksafe (sic) issues” at the school in the past – had known about the allegations since 2000, when 12 teachers wrote to the department after a staff member died of a heart attack that some believed was linked to workplace stress.”
According to the same media report
“WorkCover recently issued an improvement notice against the department following allegations of bullying and harassment at two other schools in the northern suburbs.”
To some extent the Orewa College explosion is a more straightforward prosecution because the incident came from an equipment failure and did not relate to the teaching staff or students. The administrative staff are likely to be asked about maintenance schedules, particularly after other schools in the area had their boilers inspected with several found to be less than perfect. It is likely that the prosecution by NZ DoL will illuminate the plant maintenance procedures of secondary colleges but, perhaps of more long-lasting significance will be the attitudes of the education department and school representatives on show in court.
Coordinated raid on illegal workers in Australia
Illegal migrant workers are not a big problem in Australia. Those who are caught are usually working outside of the allowances of their tourist or student visas. Being an island nation and the bottom of the world, Australia does not have border protection issues to the extent of the United States or Europe.
That’s an odd way to begin an article, particularly one of occupational health and safety but there is a relevance.
The issue of migrant workers came up following a media statement from the Department of Immigration and Citizenship on 14 December 2009.
“…..10 people [working]on a farm at Carcuma, near Coonalpyn in the South Australian Mallee region [were detained]….
[the group contained] eight Thai and two Lao nationals who are now expected to be removed from Australia. …
Six of those located were unlawful non-citizens, two were student visa holders and two held tourist visas. …..
All are suspected of working illegally on the farm and investigations will now be conducted into their employment.”
Often illegal workers are exploited and accommodated in harsh living conditions, particularly in countries where the trafficking of migrant workers also occurs.
During harvest time in Australia, farmers often struggle to obtain a sufficient workforce and accommodation of sorts is often provided.
A spokesperson for DIAC told SafetyAtWorkBlog that in this particular raid no other administrative agencies were involved although when the issue under investigation concerns matters other than immigration, a joint investigation is conducted.
If any breaches of other laws are observed the relevant agencies are informed. In this instance the workers were housed on the farm and there seemed no need to raise any issues with any other agency.
The spokesperson would no provide any further information such as the type of farm, whether the workers were provided through a labour-hire firm or whether any action was to be taken against the farmer for employing illegal workers.
Coordinated Approach
As Australia moves to harmonisation of its OHS laws AND harmonisation of its OHS enforcement policies, it may be useful for the Government to begin to review its immigration enforcement policies so that safety aspects are also included as a regular inspection criteria.
In Victoria it is common for the OHS inspectors to accompany raids on illegal brothels and construction sites, for instance, where illegal migrant workers are suspected.
In the early 1990s Worksafe Victoria coordinated raids throughout the Melbourne suburbs over dangerous goods. The Hazardous Chemicals Audit Team included officials of the water authority, fire services, port authority, local council, OHS regulator and other relevant bodies. Premises where notified 24 hours before an audit was conducted. The premises were identified by a number of measures. The Victorian Audit-General mentioned HCAT in 1998 in relation to one concentrated area of chemical storage:
11.13 Since 1991, the operations at Coode Island have been the subject of considerable inspection activity. Joint-agency inspections conducted by the Hazardous Chemicals Audit Team soon after the fire identified 400 matters requiring attention, including a number of issues raised by the Metropolitan Fire Brigades Board. A follow-up of those inspections by the Occupational Health and Safety Authority in February 1992 disclosed that the majority of issues had been addressed. Audit was advised that the Authority has since completed further inspections of the site and has provided a range of technical advice to site operators.
Some companies felt this approach was heavy-handed but others found that an inspection focussing on one are of business operation allowed for a more coordinated approach. There may have still been too much red tape at that time because any penalties were handled by the individual agencies.
The current Government’s attack on business red tape in a climate of harmonisation may make this coordinated audit approach more practical. Either inspectors should be trained in the enforcement of a range of laws or, without considering cost and jurisdiction, a team of specialist inspectors should be used.
[Kevin Jones provided administrative support to HCAT but never participated in an audit]
Quad bike safety sensitivities
The quad bike safety issue is hotting up on a range of fronts in Australia with the trade unions taking an active interest, meetings between bike manufacturers and safety designers, and the SafetyAtWorkBlog email box filling up with background content and opinion.
One of these emails reminded me of some court action that was taken in 2005 by Honda against the Victorian State Coroner, Graeme Johnstone. Johnstone only recently retired from the position after many years and over that time there were fewer more ardent safety advocates, particularly not any that had the same broad audience and media attention.
In 2005 Johnstone was conducting an inquest into several quad-bike related deaths. At one point he approached a witness outside of the Coronial process to seek their assistance in a training course. Representatives from Honda took exception to this and began court action in the Supreme Court of Victoria to have him dismissed from conducting the inquests.
Justice Tim Smith found Johnstone remained open-minded and impartial throughout the inquest but the unreported judgement available online illustrates some of the tensions of the time and continue to exist to this day.
The judgement mentions the purpose of the inquest:
“The major disputed issues in the inquest relevant to the present application were the following:
- whether the lack of roll-over structures on their ATVs caused the death of Mr Crole and Dr Shephard
- whether roll-over structures should be installed on ATVs
- whether the question of the provision of roll-over structures for ATVs should be investigated further.”
In describing the context of Johnstone’s contact with the witness, Dr Raphael Grzebieta, the judgement hints at the Coroner’s inquest findings (which are not available online)
“In addition, notwithstanding Dr Grzebieta’s conclusion that Dr Shepherd and Mr Crole [the deceased] would have been saved by the fitting of the roll bars and that this would be sufficient to justify a recommendation that they be fitted, the coroner expressed a provisional view that:
“My view at the moment is that it does not give me enough to recommend roll-over protection.””
The Victorian Coroner continues to be active in investigating quad-bike related deaths as seen in this newspaper article from earlier in 2009. A related article quotes John Merritt, WorkSafe’s executive director as saying:
“This inquest came about as a result of a terrible spate of fatalities in the past two years… WorkSafe’s position on this is clear. It believes that a quad bike is like any piece of farming equipment and those who use them need the appropriate training to be able to use them safely.”
If a quad bike is like any other piece of farming equipment, the equipment designers would be reviewing their designs to minimise the risk of injury as the field bin and silo manufacturers have, or the milk vat designers have or the windmill manufacturers have or, indeed , as have the tractor manufacturers who actively promote the safety features of their new tractors.
The unreported Supreme Court judgement provides a good indication of the major players in the quad bike safety discussion, particularly the expert witnesses for and against.
Many of the issues are resurfacing because safety and work practices continue to change and the only satisfactory resolution is when hazards are controlled and harm is reduced and, hopefully, eliminated. 2010 in Australia looks set to be a year when quad bike safety gets a good going over once more.
Barry Sherriff talks about the Work Health and Safety Act
Boardroom Radio often has interesting speakers on topical issues. On 11 December 2009, they interviewed Barry Sherriff who recently joined the Australian law firm, Deacons. The interview is of general interest and reflects many of the issues raised by Australian labour lawyers elsewhere.
Barry is an OHS law expert and was a member of the panel that reviewed Australia’s OHS legislation in 2008/09 in order to steer the development of a model OHS law. That process was completed in mid-2009 and the Government took on most of the recommendations. Effectively the Government started a second separate process – the development of legislation based on a range of information, advice and public submissions.
Many recent submissions to the Government in this second phase harked back to earlier findings. Many issues raised in the Model OHS Act Review, such as the issue of “suitably qualified” OHS advisers, are dead. As Barry’s interview shows, contemporary thinking provides forward momentum and it is up to all of us to keep our state of OHS knowledge current.
Unique company response to confined space penalty
In 2007, according to the ABC news site,
“42-year-old Geoffrey Johnson [died after he] inhaled toxic fumes from paint stripper when he was cleaning the inside of a large chemical tank”.
On 16 December 2009, his employer, Depot Vic P/L, was fined half a million dollars over this breach of the OHS legislation.
Initial reports say that the company is no longer in business but it
“told the court is had put aside money to pay the fine.”
Wow. What happened to phoenix companies? – the business scourge that closes down to avoid paying outstanding debts and, often the costs associated with a worker’s death, and then starts up again under a different structure.
That a company will pay a fine for an OHS breach years after ceasing business seems a remarkable and admirable act.
Hyde Park Tank Depot’s assets were purchased by the Scott Corporation several months after Mr Johnson’s death, according to information SafetyAtWorkBlog obtained from Scott Corporation. The current business and website listing was not operating at the time of Mr Johnson’s death.
WorkSafe Victoria provided background to Mr Johnson’s death in a prosecution summary in April 2009. The full summary gives a clear indication why the fine was so high.
“Depot Vic Pty Limited (formerly known as Hyde Park Tank Depot Pty Ltd) undertakes cleaning, repair and maintenance of ISO containers for the chemical industry. ISO containers are confined spaces, being portable tanks used to transport chemicals. The tanks are usually cleaned purely by hydro-blasting, but on occasion the tanks were required to be cleaned more thoroughly.
The system of work was such that when this situation occurred, the cleaning of the tank required 2 stages. The first stage involved the application of a cleaning agent, usually a product known as ‘Selleys Renovators Choice’ stripper (which is not a dangerous good).
The second stage then involved the use of hydro-blasting on the internal walls to remove the stripper and clean the wall. The company’s work instructions required that a confined space permit be issued and that appropriate PPE be worn.
On 16 August 2007, an employee of Depot Vic Pty Limited died whilst attempting to remove latex from the internal walls of a 25,500 litre ISO tank. The deceased had entered the tank and instead of using the ‘Selleys Renovators Choice’ stripper, had used a product known as ‘Paint Stripper Gel GS 125’ that was suited to clean external components only (and not the inside of the tank). The label of this product contained safety directions such as “do not breathe vapour” and “use only in a well ventilated area”. This product is a dangerous good ‘class 6.1 (toxic substance) of packing group 111’. It is also a hazardous substance according to the criteria of the Australian Safety and Compensation Council.
The deceased was located in the tank in an unconcious (sic) state, and when retrieved from the tank did not regain conciousness. An expert analysis of the atmosphere inside the tank concluded that that (sic) there was a lethal concentration in all or part of the tank (10 litres of the dangerous good was used). At the time of the incident a confined space permit was not issued, the deceased was not wearing respiratory protection, gloves or a harness, and there was no ‘spotter’ in place to supervise the latex removal works.
Further, there was a lack of training and supervision of employees in relation to the work procedures for confined space entry.”
Director accountability for OHS reinforced by NZ penalty
On April 5 2008, a cool store in New Zealand exploded killing one firefighter and injuring 7 others. Icepak Coolstore Ltd, according to the fire services investigation report
“[had] very large quantities of combustible material contained in the expanded polystyrene construction panels and also in the foodstuffs stored.
“There were no compliant fire detection or protection systems or hydrants, and very limited firefighting water.”
In July 2008, the New Zealand Department of Labour (DoL) issued a media statement and fact sheet concerning the explosive potential of flammable hydrocarbon refrigerants.
Language warning on the video below
On 15 December 2009, a New Zealand Court penalised two companies and a director with fines totalling over $NZ390,000. The DoL has issued a media statement about the prosecution results.
The many reports and inquiries into the explosion and fire are very informative but one element that the DoL wants to focus on is the penalty applied to the Director of Icepak Coolstore, Wayne Grattan. He was
“fined $30,000 on one charge that he acquiesced in the failure of the company to take all practicable steps to ensure the safety of its employees while at work.”
The Department of Labour’s Chief Adviser for Workplace Health and Safety, Dr Geraint Emrys said (click HERE for audio):
“The prosecution against the director of Icepak should serve as a reminder to officers, agents and directors of organisations that they can be held personally accountable for the failures of their organisation.
“Mr Grattan was charged with acquiescing in Icepak’s failure in respect of obligations to its employees. The outcome of the case against Mr Grattan reinforces the requirements of directors to be proactive in health and safety matters.”
As many Commonwealth countries have a strong commonality of law, the Icepak Coolstore case should be an important case study in many jurisdictions.
Tasmanian mine safety review
Safety in mines in Tasmania has received great attention in the aftermath of Larry Knight’s death at Beaconsfield gold mine. On 13 December 2009, the Tasmanian Workplace Relations Minister, Lisa Singh released a regulatory impact statement and information paper on proposed amendments to the Workplace Health and Safety Act 1995.
This legislative package, according to the Minister’s media release:
“The proposed package considerably expands upon existing legislation, by including both general duties and hazard specific regulations for the mining industry.
“A key focus is the requirement for each mine to implement a health and safety management system, which must include risk management processes and procedures.”
Any OHS review should be welcomed but what is this trend of short periods of public comment? There were many complaints of the Federal Government for short periods of review on national model OHS laws and now the Tasmanian Government wants responses by 14 January 2010!!??
Just one month for responses and that month includes Christmas holidays and New Year. This brings the consultation period to around 19 working days.
A spokesperson for Workplace Standards Tasmania (WST) said that the various reviews and coronial reports over recent years have put pressure on the Government to improve mine safety legislation. She also said that comments on the Regulatory Impact Statement is an important and necessary step in drafting the relevant legislation.
The spokesperson said that WST is effectively closed down between Christmas and New Year but has an emergency response. Any enquiries from the public about the RIS will be handled by the WST Helpline on other working days untill relevant staff return. The Helpline is being briefed on the RIS this week.
WST emphasised that the consultation on the legislative amendments has been occurring for months. SafetyAtWorkBlog acknowledges this is the case but the Public Comment period is very tight.
The Minister, Lisa Singh, has said in her media release that
“I encourage comment from persons connected with the mining industry, including workers, mine operators and contractors.”
SafetyAtWorkBlog contacted the Minister’s Office and a spokesperson said that the timing of the Public Comment period is unfortunate but that the Government does not want to delay the process any longer than it has too. She advised that the minimum time period for comments on an RIS is three weeks and that the comment window on this particular process is four weeks.
There is no accusation of a conspiracy here but the unfortunate scheduling highlights a legitimate conflict between the aims of an effective public comment phase and legislative development that seems endemic through Australian politics.
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