Migrant workers’ deaths on Christmas Eve
According to the Toronto Police, four workers died on December 24 2009 when the swing stage they were working on collapsed. A fifth man, Dilshod Marupov, is in hospital.
Media reports have identified the five workers as migrant workers and although the swing stage was at the thirteenth floor of an apartment complex, no-one was wearing safety harnesses.
A public statement was issued by the apparent owners of the apartment complex, 2058876 Ontario Ltd, expressing their sympathies for the “tragic jobsite accident”.
The workers have been identified as from Russia, Uzbekistan and Israel. The legality of their migrant status is still being determined although one report has identified two of the dead as refugees.
One media report on December 31, has identified the swing stage company as Metron Construction. The report states that concerns had been raised about the safety of the scaffolding being used by Metron several months before the deaths and that a stop work order had been issued. The order was lifted a week before the incident.
The orders pertained to the design of the swing stage. The media report makes no mention of the use or provision of safety harnesses.
The Ontario Federation of Labour (OFL) has called on the Attorney-General to launch a criminal investigation into the incident. Although OFL is not saying that criminal negligence applies in the swing stage deaths, it has used the incident to call on the Attorney-General for a more robust application of the Canadian Criminal Code.
“We would like to see you take more seriously the provision in the Criminal Code of Canada that gives your office the power to lay criminal charges if an employer causes death or serious harm due to negligence. This provision was put in place after the death of 26 men when the Westray Coal mine exploded on April 5, 1992 in Pictou County, Nova Scotia, so that negligent employers would not get away with workplace deaths. Corporations and their officers, for the first time, could be punished for failing to protect the health of their employees or the public. The Criminal code amendments, brought in by Bill C-45 in 2004 was pushed for by the Canadian Labour Congress, United Steel Workers, and family members of deceased miners. The amendments marked a significant shift in the liabilities of organizations for the failure of their senior officers to act.”
This is likely to rekindle the continuing debate over the application of Bill C-45:
“Every one who undertakes, or has the authority, to direct how another person does work or performs a task is under a legal duty to take reasonable steps to prevent bodily harm to that person, or any other person, arising from that work or task.”
Although the Bill, now section 217 of the Criminal Code, may have been created in response to political pressure, it has held out some hope for a strong enforcement approach for the Canadian OHS fraternity.
The inquiries into the unfortunate deaths of the four migrant workers and the spinal injuries of the fifth are still in early days but already raise a combination of questions about worker qualifications, contractor management and corporate accountability. Intense examination is also likely on the decision of the Ministry of Labour inspector to lift the stop work order on December 17.
Legal professional privilege and safety management
The Safety Institute’s OHS Professional magazine for December 2009 included an article (originally published in an OHS newsletter from Piper Alderman for those non-SIA members) about the application of legal professional privilege using a New South Wales Industrial Relations Commission decision as its basis (Nicholson v Waco KwikForm Limited). The case received considerable attention by OHS law firms.
The best summary of the decision was written up in the Regulations At Work newsletter:
“The NSW Industrial Court in this case held that certain documents were protected by legal professional privilege because the dominant purpose for their creation was to provide material to the defendant’s solicitors so that the solicitors could provide legal advice. The relevant documents were investigation notes and a report prepared by the defendant Waco Kwikform Limited’s national OHS manager, a handwritten statement from the project supervisor and a statement by a witness to the incident.”
For the layperson the important element in legal professional privilege is that it is a privilege not a rule or obligation, although the law firms go out of their way to promote the application of this privilege. To a large extent, the promotion of “LPP” (for short) contributes to the complexity of safety management and the growing perception that OHS law is primarily about “covering one’s arse” rather than preventing a recurrence of an incident.
Certainly LPP is an impediment to accountability for inept safety management. There are similarities with political parties and governments who hide behind loose interpretations of freedom of information or through emphasising the commercial-in-confidence of public-private-partnerships.
It could also be argued that the over-application of LPP encourages the personally and professionally hazardous action of whistleblowing. (The same edition of OHS Professional has a curious article on OHS whistleblowing that seems to relate more to reporting of minor OHS issues to regulators rather than “exposing the corrupt practices of others”, as defined by the Macquarie Dictionary.)
It is also important to realise that LPP is
Australia has gone further in some of its legislation to rename the privilege to “client legal privilege” in order to “reflect the fact that it is a right of the client.” Significantly the legal industry continue to refer to the privilege as “legal professional privilege” – the power of jargon.
It seems that the role of LPP in safety management is almost one of timing. Deacons law firm (Norton Rose from tomorrow) in relation to the Kwikform decision says
“Involving lawyers in the immediate aftermath of a critical incident will assist in establishing privilege for communications arising from the investigation.”
The SIA article by lawyers in Piper Alderman, says that LPP
“does not extend to communications or documents prepared prior to seeking legal advice or before legal proceedings are anticipated.”
This last comment perhaps indicates why lawyers promote a close relationship with businesses throughout the safety management process – LPP can be applied at any point in the safety management process “if legal proceedings are anticipated”.
Law firms with a good OHS practice know when to intervene or assist and when to let a business run. Safety management works best when a business owner accepts their legal responsibility for a safe and healthy workplace and fails when an owner keeps feeling the need to ask a lawyer for their (costly) opinion. Safety professionals and OHS regulators are often pushing against the creep of many in the legal industry. (WorkSafe Victoria has just released a position statement on answering questions that addresses LPP in one particular jurisdiction and is far more useful that most of the legal opinions on LPP and OHS)
The best advice for finding legal services is the same as for buying a plasma television – do your research into what you really want, look around for the best deal (not necessarily the cheapest), use it only when you need it and make sure there is an extended warranty for manufacturing faults.
HSE Chair’s review of 2009
Judith Hackett, Chair of the UK Health and Safety Executive (HSE), reviews the performance of the agency in the December podcast produced by the agency. Transcript is available online
The podcast provides a positive outlook for the HSE which one would expect. Hackett talks about the need for the HSE to dispel the myths that have been promoted throughout the media and the lack of credibility of the regulator discussed by many in the UK, such as Jeremy Clarkson. Addressing these issues is an important long-term goal that could have been avoided if the communication strategies of the HSE over the last couple of decades had been different.
Government departments in England must contend with a largely combative tabloid press that in most countries is absent. However, the tabloid press has existed for a long time and government departments and authorities should have had a media strategy that could have responded quickly to OHS criticisms and ridicule. Moreover any media strategy should not be reactive but one that educated the media about the reality of industrial incidents and the relevance of psychosocial hazards to OHS.
Many of the media reports on “silly OHS” show actions and decisions by people who have not been adequately informed and go off half-cocked. OHS regulators are now trying to address misperceptions that would not have developed if the regulators had been more engaged with the press earlier.
Many absurd actions and decisions are not motivated by OHS concerns but by the fear of being sued under public liability. SafetyAtWorkBlog has a strong fear that OHS regulators around the world will regret the day when the direct safety of the public from work processes was encompassed under OHS legislation.
Safety is more than common sense
“Common sense” is a phrase regularly used to describe workplace health and safety. More often than not the term is used dismissively. This is part of the reason that the OHS profession struggles for legitimacy and why there is a constant sense of frustration in the profession and OHS regulators.
Safety may be seen as common sense but common sense is also the reason behind shortcuts that lead to death and injury. (Look at the Darwin Awards for the effects of common sense)
Common Sense should be banned from the safety professional and business lexicon as it does not illuminate a problem nor explain the reasons for a decision or action.
Common Sense inhabits the same realm as “occupational hazard”. Both terms do more harm to OHS management than help.
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.
Safety photo article reproduction
A very popular posting at SafetyAtWorkBlog has been Col Finnie’s piece on taking photographs for OHS purposes. An edited version of Col’s article was published, with authorisation, in the 19 November 2009 edition of Accident Prevention e-News which is now available online.
Our thanks goes to editor Scott Williams, firstly, for reading SafetyAtWorkBlog and secondly for going through due process in seeking a reprint of the blog article.
Col has been an important addition to the small group of SafetyAtWorkBlog contributors and we hope to see more of his articles in 2010.
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]
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