AUSTRALIA'S meat and poultry industry is under review after a worker was decapitated while cleaning a fast moving machine at a Melbourne factory, ABC News reports.
In August this year, Sarel Singh, 34, was killed instantly when he was sucked into a machine and decapitated while working at a Baiada poultry processing plant in Melbourne's west.
A preliminary report on the workplace death, obtained by ABC's Lateline, found Australia's largest poultry manufacturer had breached occupational health and safety laws by not controlling risks at the plant, ABC News reports.
WorkSafe Victoria told Lateline the entire industry was now also under review.
It said, when it came to workplace safety, employers needed to do more than the bare minimum and that they were responsible for all of their employees.
Tim Kennedy from the National Union of Workers (NUW) was horrified by the incident.
"It is absolutely horrific in a civilised society that we have now the fact that these things still occur, it is just not acceptable," he said, according to ABC News.
Six weeks earlier, Lateline revealed Baiada was already under investigation over claims of unlawful and unethical treatment of its majority migrant workforce.
Singh's brother, Harry, said Sarel had immigrated from India four years ago in the hope of finding a better life in Australia. But he said his brother had found his job at Baiada "hell" and that he was planning on returning to India. "He used to say that life working at that place was like a hell. It's a very hard job and he was tired of that job. But due to the burden of the loans and debts over here and in Australia too, he had to work over there and he was struggling hard."
According to NUW, Sarel had just finished a four-hour shift when he was asked to go back and re-clean a pack line area. Sarel was standing on a ladder hosing the area down when he was swept into a machine and decapitated.
Mr Kennedy said Sarel was not familiar with the line and that the chain line should have been stopped while it was being cleaned.
"Over time what has happened is the company, to maintain production, to maintain the returns they want to get, has pushed the risk to workers by speeding that chain up so they have run the chain 20 to 40 birds per minute and people have been asked to clean it," Mr Kennedy said, according to ABC News. "The night on which Mr Singh was killed the chain was running at absolute capacity."
The WorkSafe Victoria report confirmed the line was operating at the top speed of 183 birds a minute and that "by not adequately controlling the risks associated with this plant, [Baiada poultry] is in contravention of the requirements of section 21(1) and 21(2)(A) of the occupational health and safety act," ABC News reports.
Lateline reportedly sought comment from both Baiada and Ecowize, the company contracted to clean the production areas of the poultry plant, but had received no response. Harry told ABC News he was in shock over his brother's death.
Saturday, December 4, 2010
'Only losers get bullied in the office'
IT is probably not the advice that anyone who has dealt with a workplace bully wants to hear.
But conflict resolution expert Gavan Podbury says that people who call themselves bullying victims are "losers" who need to learn how to resolve their own disputes.
Mr Podbury, a social Researcher and presenter, has conducted seminars around Australia teaching individuals and corporations how to communicate more effectively and deal with conflict.
"A lot of people talk about bullying these days (and) I'm going to be contentious and say that only losers call themselves victims," Mr Podbury said.
"Think about it – once you're in a position where you are complaining about being bullied, you’ve already lost.
"Australians need to acquire conflict resolution skills and they need to get the motivation to use them."
Mr Podbury said developing tools for positively resolving conflict is essential because relying on colleagues to solve your problems will earn you a bad reputation.
HOW do you deal with workplace bullies? Tell us below.
"Everyone says they won’t hold a complaint against you but they will," he said.
"It's easy to get a reputation as a whinger or a complainer, if you don't develop the skills necessary to deal with difficult people."
Bullying's high on workplaces
A report released by the Productivity Commission in August this year found that “the average cost of claims for work-related mental stress were much higher than the average cost for all workers’ compensation claims.”
The report took National Safe Work Australia (SWA) data showing a total of 5950 accepted or successful mental stress claims in 2007-08.
Australian Human Resources Institute head Serge Sardo said employers are responsible by law for preventing bullying in the workplace.
"There is also a strong moral obligation that is often neglected," Mr Sardo said.
He said that while many workplaces were becoming more effective at educating employees about bullying there were still problems "where the rubber hits the road."
"Even the most assertive, empowered and confident employee will not address bullying directly if they believe the culture of the organisation, particularly the leadership culture is not one that encourages employees to be assertive," he said.
"By allowing abusive managers to continue without reprimand because they achieve high sales … (you) send a clear message to employees that regardless of the espoused rhetoric, bullying remains tolerated in this organisation."
Dealing with bullies
According to Mr Podbury, recognising different personality traits is the first step to resolving a conflict.
"People basically are born with one of four quite different temperaments," he said.
"I refer to them as the blue, gold, green and orange temperaments. Most managers tend to have the green temperament - they are driven to achieve outcomes and are often insensitive to people’s needs and feelings."
Orange types need to have the opportunity to vary what they do, Mr Pobury said.
"Being in the same job for a long time is death to them… expect oranges to be always looking for something new - and preferably something active that has some adventure."
This contrasts with those with a blue temperament. They tend to be "natural people's people" who care deeply for others and are sensitive to their needs.
"Blues want you to say hello to them in the morning, and may be deeply offended if you don't," he said.
Finally, gold types tend to make up the vast majority of administration workers, Mr Podbury said.
"They are people who crave predictability and structure, (so you should) tell them what you want and leave them alone.
"Whatever you do, do not change the position of the goal posts - this upsets and alienates them. Golds who are under stress whinge a lot."
Top tips for dealing with conflict:
Lifeline - 13 11 14 (24-hour help line) www.lifeline.org.au
"Think about it – once you're in a position where you are complaining about being bullied, you’ve already lost.
Mr Podbury said developing tools for positively resolving conflict is essential because relying on colleagues to solve your problems will earn you a bad reputation.
HOW do you deal with workplace bullies? Tell us below.
"It's easy to get a reputation as a whinger or a complainer, if you don't develop the skills necessary to deal with difficult people."
"Even the most assertive, empowered and confident employee will not address bullying directly if they believe the culture of the organisation, particularly the leadership culture is not one that encourages employees to be assertive," he said.
- Remember the 3 As - for every situation you are in you can accept, alter or avoid the problem.
- Tell people what you can do, not what you can’t do – presenting solutions to an identified problem will help defuse the situation.
- Behaviour that's ignored is behaviour that's endorsed – most people will ignore a behaviour they disapprove of but complain to their friends or co-workers.
- Not all problems are solvable - sometimes you need to know how to cut your losses.
- Some problems are solvable but the solutions are not palatable - dealing with conflict means you will sometimes have to make hard decisions.
For support an advice contact can be made with the following organisations.
SANE Australia on 1800 18 SANE (7263) www.SANE.org
Beyondblue Info Line 1300 22 4636 http://www.beyondblue.org.au/
Friday, December 3, 2010
Ark Tribe victory
Thousands of cheering workers greeted Ark Tribe as he left the Adelaide Magistrates Court last Wednesday. Magistrate David Whittle had just announced his verdict – “not guilty” of the charges brought by the Australian Building and Construction Commission (ABCC). The scaffolder had endured 18 months of uncertainty and 11 court appearances. Six months jail had hung over his head as he became a target of the much-loathed building industry spy outfit.
Every step of the way to this victory, Ark had the support of his union (the CFMEU), the broader trade union movement and the community. The law in countries like Australia pretends that it operates in splendid isolation but there is no doubt that the judgement was achieved by the magnificent campaign waged to ensure that Ark was not sent to jail for sticking up for his rights in the workplace.
The original charges were laid when Ark refused to attend an interrogation to be conducted by the ABCC regarding a workplace meeting at a construction site at Flinders University in 2008. At the meeting, the workers had drawn up a long list of hazards that they wanted fixed for their own safety. A building worker dies nearly every week on Australian construction sites but the Howard era ABCC has not targeted shonky contractors or unsafe working practices: it has gone gunning for union members. Ark Tribe was going to be made an example for others – organise on the job and you will be hounded and punished.
Every one of Ark’s court appearances drew large and vocal demonstrations. Protests were held in other Australian capitals and regional centres. Supporters even gathered in London to voice their support. Messages of solidarity were sent to the CFMEU from unions all over the world.
In the end, the magistrate found that the Deputy ABCC Commissioner had not conducted the investigation according to the relevant legislation and had not received lawful delegation from the Commissioner. This wasn’t a matter of “getting off on a technicality”, however.
The case showed that the ABCC was prepared to go beyond what the magistrate called its “significant and intrusive powers” under section 52 of the Act to get Ark Tribe and others like him.
The ABCC is reported to have spent around $1 million of taxpayers’ money on the exercise. It has now squandered $100 million on its war on building unions – money that should have been spent on urgent social needs including workplace safety.
The verdict is a victory but the campaign must go on. The legislation is still on the books and the ABCC will no doubt learn from this experience for next time. Its reputation has taken a hit but even more pressure must be built to make sure it is abolished and not restored in some other guise. Newly appointed ABCC Commissioner Leigh Johns expressed “sympathy” for construction workers for being singled out for attention by a body like the ABCC. “We don’t want his sympathy - we want equal rights,” CFMEU Construction and General national secretary Dave Noonan said.
The Gillard government tries to hide its shame over the issue by claiming a new body will be established within Fair Work Australia. It will still be a “tough cop on the beat” but will somehow shake off the appalling reputation of its forerunner. It will, in fact, be a rebadged ABCC. The Greens are set to challenge Gillard over the matter in parliament and have consistently called for the abolition of the ABCC. As things stand, the Liberals would vote with the government to thwart any such effort. The movement in the community must be strengthened to show that there will be a political cost to the major parties if the anti-union outfit is not given a fitting burial.
“Today’s verdict will see Australian unions redouble their efforts to have these unfair and unjust laws abolished. These laws criminalise legitimate industrial activity and deny building workers the right to silence,” ACTU secretary Ged Kearney said last week. It will be a challenge to do that without the focus of a case like Ark Tribe’s but it must be done so that others are not put through the hell suffered by that courageous construction worker.
Every step of the way to this victory, Ark had the support of his union (the CFMEU), the broader trade union movement and the community. The law in countries like Australia pretends that it operates in splendid isolation but there is no doubt that the judgement was achieved by the magnificent campaign waged to ensure that Ark was not sent to jail for sticking up for his rights in the workplace.
The original charges were laid when Ark refused to attend an interrogation to be conducted by the ABCC regarding a workplace meeting at a construction site at Flinders University in 2008. At the meeting, the workers had drawn up a long list of hazards that they wanted fixed for their own safety. A building worker dies nearly every week on Australian construction sites but the Howard era ABCC has not targeted shonky contractors or unsafe working practices: it has gone gunning for union members. Ark Tribe was going to be made an example for others – organise on the job and you will be hounded and punished.
Every one of Ark’s court appearances drew large and vocal demonstrations. Protests were held in other Australian capitals and regional centres. Supporters even gathered in London to voice their support. Messages of solidarity were sent to the CFMEU from unions all over the world.
In the end, the magistrate found that the Deputy ABCC Commissioner had not conducted the investigation according to the relevant legislation and had not received lawful delegation from the Commissioner. This wasn’t a matter of “getting off on a technicality”, however.
The case showed that the ABCC was prepared to go beyond what the magistrate called its “significant and intrusive powers” under section 52 of the Act to get Ark Tribe and others like him.
The ABCC is reported to have spent around $1 million of taxpayers’ money on the exercise. It has now squandered $100 million on its war on building unions – money that should have been spent on urgent social needs including workplace safety.
The verdict is a victory but the campaign must go on. The legislation is still on the books and the ABCC will no doubt learn from this experience for next time. Its reputation has taken a hit but even more pressure must be built to make sure it is abolished and not restored in some other guise. Newly appointed ABCC Commissioner Leigh Johns expressed “sympathy” for construction workers for being singled out for attention by a body like the ABCC. “We don’t want his sympathy - we want equal rights,” CFMEU Construction and General national secretary Dave Noonan said.
The Gillard government tries to hide its shame over the issue by claiming a new body will be established within Fair Work Australia. It will still be a “tough cop on the beat” but will somehow shake off the appalling reputation of its forerunner. It will, in fact, be a rebadged ABCC. The Greens are set to challenge Gillard over the matter in parliament and have consistently called for the abolition of the ABCC. As things stand, the Liberals would vote with the government to thwart any such effort. The movement in the community must be strengthened to show that there will be a political cost to the major parties if the anti-union outfit is not given a fitting burial.
“Today’s verdict will see Australian unions redouble their efforts to have these unfair and unjust laws abolished. These laws criminalise legitimate industrial activity and deny building workers the right to silence,” ACTU secretary Ged Kearney said last week. It will be a challenge to do that without the focus of a case like Ark Tribe’s but it must be done so that others are not put through the hell suffered by that courageous construction worker.
Aluminium processors continue to invest
Investment continues in major new aluminium production plants, while a new process could reduce the industry's huge energy bills. Sean Ottewell reports.
The Ma'aden-Alcoa joint venture has selected Wagstaff to supply the joint venture's vertical direct chill casting complex with t-ingot, rolling ingot, and extrusion billet casting equipment. The contract includes capital equipment and technology to produce aluminium rolling ingot and extrusion billet at the casting complex, currently under construction and scheduled to start production in 2013 in Ras Az Zawr, Saudi Arabia.
The greenfield smelter and rolling mill comprise the first of two phases in this super-project, which will leverage Saudi Arabia's bauxite and energy resources with Alcoa know-how, management expertise and support to create what the jv describes as the world's largest and lowest cost fully integrated aluminium manufacturing complex.
The rolling mill will be the region's first and one of the most technologically advanced in the world and will primarily produce can stock, end stock and tab stock for the regional market. It will have initial hot-mill capacity of between 250,000 and 460,000 metric tons per year.
The new contract for the casting complex supply includes Wagstaff leading edge ingot and billet casting systems, as well as integrated automated controls, which have been shown to deliver improved recovery rates, and higher levels of workplace convenience and safety. The casting facility will also feature Alcoa's advanced proprietary ingot casting technology which yields highly improved surface finish to rolling ingots with consequential gains in rolling efficiency and product quality.
"As a longstanding, dedicated supplier to global Alcoa casting facilities and with many successful greenfield installations in the Middle East and around the world, Wagstaff is uniquely positioned to provide precision, state-of-the-art direct chill casting equipment to the Ma'aden Alcoa joint venture, and to remain a constant resource from current equipment design activities through delivery, commissioning, operator training, post-startup technical support, and beyond," said Ray Kilmer, vice president, Alcoa Global Rolled Products.
Meanwhile, primary aluminium production at the Qatalum plant in Qatar is expected to recommence shortly. The plant had been shut down since 9th August when a power outage caused the cells to cool down and the liquid metal to solidify.
The clean-out of the 444 cells that were affected by the power outage, which lasted nearly five hours, is well underway. The Qatalum organisation has since, with the strong support of both owners, focused on preparing the cells for a safe and secure restart, investigating the causes and effects of the incident and implementing mitigating actions.
According to external and internal experts investigating the incident, the long-lasting outage was due to unexpected technical difficulties in restarting the power plant after it was closed down by an external earth fault, which also disrupted Qatalum's connection to the national grid in Qatar.
Despite strong efforts to restore power supply, the duration of the outage caused the cells to cool down and the liquids to solidify. The primary aluminium production was subsequently shut down. The root causes of the incident have been identified and are being rectified.
"I am pleased that Qatalum now is in the position to resume production shortly. It is of course most unfortunate that such a setback should hit us now, as we were in good progress of ramping up the plant towards full production. At the same time we are glad that the events did not lead to any injuries," says Abdulla Salatt, chairman of the board of directors.
"Our prime objective is to prevent similar incidents in the future, and I am confident that we have technical solutions and routines in order to achieve this. The Qatalum organisation has put in a tremendous effort in mitigating the consequences of this unfortunate incident. Internal and external resources have been mobilised to ensure a safe and quick restart. Regional smelters provided support and shared expertise, equipment and materials," says Qatalum's ceo Jan Arve Haugan.
Qatalum's insurance coverage related to the incident is considered robust: "We have insurance related to property damage and loss due to business interruption and we are in a constructive dialogue with our insurers to determine the financial impacts of this incident," Haugan says.
Qatalum is a 50-50 joint venture between Qatar Petroleum and Norsk Hydro. When complete, it will be one of the most modern, energy-efficient and environmentally high-performing aluminium plant in the world, with an annual production capacity of 585,000 tonnes of aluminium. The plant has a total of 704 cells .
In Australia, Melbourne-based company Calsmelt has completed a 'concept proof' stage of technology development for its Thermical process. Calsmelt holds an exclusive worldwide license to the novel carbothermic smelting technology for aluminium production developed by the Australian company Thermical.
Calsmelt co-founder and interim ceo Dr Greg Smith described Thermical technology as a significant breakthrough for the production of aluminium at a significantly lower cost, and in a much more environmentally friendly manner: "Calsmelt is delighted that its work on the Thermical technology has now been proven to the point that within a couple of years we will be ready to build a first small, but commercially viable plant."
Calsmelt's chief scientist, co-founder and technology inventor Dr Yaghoub Sayad-Yaghoubi commented: "For around 70 years now, the aluminium industry has been searching for a suitable carbothermic technology to smelt aluminium in a similar manner to the way steel is produced. Such a technology would help it overcome the well-known limitations of the industry's current, pervasive electrochemical approach. While some promising approaches were considered over the last two decades, these were found to have significant shortcomings that prevented their commercial introduction. Our Thermical technology overcomes all of these limitations and finally creates real potential for the industry move to carbothermic smelting for aluminium - at a time when the industry is under economic and environment pressure."
He added: "We believe that Thermical technology will insure a competitive future for the aluminium industry by drastically reducing the costs and environmental footprint of metal production. Capital costs will be reduced by 77-80 per cent, while the operational cost will be lowered by about 40 per cent. Power consumption will be about 40 per cent lower. The currently troubling fluoride emissions found in the electrochemical process will be completely eliminated and the quantity of generated gases will be significantly lower. Thus, the global warming potential of the Thermical process will be 40-60 per cent lower than in the current electrochemical process."
The first stage of the Thermical process requires significantly lower temperature and does not produce any gas. Unlike the conventional process, therefore, it does not require a separate fume collection and treatment system at this stage. The second stage of the process operates at a lower temperature than conventional carbothermic processes, too, reducing cost of gas collection and treatment, while ensuring lower carbon content in the produced metal.
The Ma'aden-Alcoa joint venture has selected Wagstaff to supply the joint venture's vertical direct chill casting complex with t-ingot, rolling ingot, and extrusion billet casting equipment. The contract includes capital equipment and technology to produce aluminium rolling ingot and extrusion billet at the casting complex, currently under construction and scheduled to start production in 2013 in Ras Az Zawr, Saudi Arabia.
The greenfield smelter and rolling mill comprise the first of two phases in this super-project, which will leverage Saudi Arabia's bauxite and energy resources with Alcoa know-how, management expertise and support to create what the jv describes as the world's largest and lowest cost fully integrated aluminium manufacturing complex.
The rolling mill will be the region's first and one of the most technologically advanced in the world and will primarily produce can stock, end stock and tab stock for the regional market. It will have initial hot-mill capacity of between 250,000 and 460,000 metric tons per year.
The new contract for the casting complex supply includes Wagstaff leading edge ingot and billet casting systems, as well as integrated automated controls, which have been shown to deliver improved recovery rates, and higher levels of workplace convenience and safety. The casting facility will also feature Alcoa's advanced proprietary ingot casting technology which yields highly improved surface finish to rolling ingots with consequential gains in rolling efficiency and product quality.
"As a longstanding, dedicated supplier to global Alcoa casting facilities and with many successful greenfield installations in the Middle East and around the world, Wagstaff is uniquely positioned to provide precision, state-of-the-art direct chill casting equipment to the Ma'aden Alcoa joint venture, and to remain a constant resource from current equipment design activities through delivery, commissioning, operator training, post-startup technical support, and beyond," said Ray Kilmer, vice president, Alcoa Global Rolled Products.
Meanwhile, primary aluminium production at the Qatalum plant in Qatar is expected to recommence shortly. The plant had been shut down since 9th August when a power outage caused the cells to cool down and the liquid metal to solidify.
The clean-out of the 444 cells that were affected by the power outage, which lasted nearly five hours, is well underway. The Qatalum organisation has since, with the strong support of both owners, focused on preparing the cells for a safe and secure restart, investigating the causes and effects of the incident and implementing mitigating actions.
According to external and internal experts investigating the incident, the long-lasting outage was due to unexpected technical difficulties in restarting the power plant after it was closed down by an external earth fault, which also disrupted Qatalum's connection to the national grid in Qatar.
Despite strong efforts to restore power supply, the duration of the outage caused the cells to cool down and the liquids to solidify. The primary aluminium production was subsequently shut down. The root causes of the incident have been identified and are being rectified.
"I am pleased that Qatalum now is in the position to resume production shortly. It is of course most unfortunate that such a setback should hit us now, as we were in good progress of ramping up the plant towards full production. At the same time we are glad that the events did not lead to any injuries," says Abdulla Salatt, chairman of the board of directors.
"Our prime objective is to prevent similar incidents in the future, and I am confident that we have technical solutions and routines in order to achieve this. The Qatalum organisation has put in a tremendous effort in mitigating the consequences of this unfortunate incident. Internal and external resources have been mobilised to ensure a safe and quick restart. Regional smelters provided support and shared expertise, equipment and materials," says Qatalum's ceo Jan Arve Haugan.
Qatalum's insurance coverage related to the incident is considered robust: "We have insurance related to property damage and loss due to business interruption and we are in a constructive dialogue with our insurers to determine the financial impacts of this incident," Haugan says.
Qatalum is a 50-50 joint venture between Qatar Petroleum and Norsk Hydro. When complete, it will be one of the most modern, energy-efficient and environmentally high-performing aluminium plant in the world, with an annual production capacity of 585,000 tonnes of aluminium. The plant has a total of 704 cells .
In Australia, Melbourne-based company Calsmelt has completed a 'concept proof' stage of technology development for its Thermical process. Calsmelt holds an exclusive worldwide license to the novel carbothermic smelting technology for aluminium production developed by the Australian company Thermical.
Calsmelt co-founder and interim ceo Dr Greg Smith described Thermical technology as a significant breakthrough for the production of aluminium at a significantly lower cost, and in a much more environmentally friendly manner: "Calsmelt is delighted that its work on the Thermical technology has now been proven to the point that within a couple of years we will be ready to build a first small, but commercially viable plant."
Calsmelt's chief scientist, co-founder and technology inventor Dr Yaghoub Sayad-Yaghoubi commented: "For around 70 years now, the aluminium industry has been searching for a suitable carbothermic technology to smelt aluminium in a similar manner to the way steel is produced. Such a technology would help it overcome the well-known limitations of the industry's current, pervasive electrochemical approach. While some promising approaches were considered over the last two decades, these were found to have significant shortcomings that prevented their commercial introduction. Our Thermical technology overcomes all of these limitations and finally creates real potential for the industry move to carbothermic smelting for aluminium - at a time when the industry is under economic and environment pressure."
He added: "We believe that Thermical technology will insure a competitive future for the aluminium industry by drastically reducing the costs and environmental footprint of metal production. Capital costs will be reduced by 77-80 per cent, while the operational cost will be lowered by about 40 per cent. Power consumption will be about 40 per cent lower. The currently troubling fluoride emissions found in the electrochemical process will be completely eliminated and the quantity of generated gases will be significantly lower. Thus, the global warming potential of the Thermical process will be 40-60 per cent lower than in the current electrochemical process."
The first stage of the Thermical process requires significantly lower temperature and does not produce any gas. Unlike the conventional process, therefore, it does not require a separate fume collection and treatment system at this stage. The second stage of the process operates at a lower temperature than conventional carbothermic processes, too, reducing cost of gas collection and treatment, while ensuring lower carbon content in the produced metal.
Inquiry will look at cause, emergency response
A royal commission of inquiry into the Pike River disaster will look at the causes of the explosion and the initial response by rescuers.
Prime Minister John Key said yesterday the inquiry would be a royal commission, instead of the initially proposed commission of inquiry.
Although commissions of inquiry are usually used for disasters, Mr Key said on the Q&A television show he decided on a royal commission instead to show how seriously the government took the issue.
The miners' union, the Engineering, Printing and Manufacturing Union (EPMU), had also asked for a royal commission.
Royal commissions are seen as being the highest status of inquiry, although there are no differences in the powers held by the two types of inquiry.
"I think it's a demonstration to the 29 families that we are taking this inquiry absolutely seriously, that we are determined to get answers for those families," Mr Key said.
Cabinet is expected to approve the proposal today.
Mr Key said its terms of reference would be broad and were likely to include both the causes of the disaster and the initial response of rescuers.
He said it was still not known what caused the blast.
"But what I do know is that those very hard questions have to be asked and answered. Because in the end the future of Pike River and underground coal mining in New Zealand rests on this.
The commission of three will be led by a High Court judge, and is likely to include a mining industry expert from Australia.
The EPMU has asked for an expert in work rights and workplace health and safety to be the third commissioner.
The hearings are likely to be in Greymouth.
Department of Internal Affairs guidelines state inquiries into disasters should be held in a centre close to the scene to allow attendance by families and friends of those affected.
Mr Key said the inquiry could take months, but could be slowed down while other inquiries went on.
As well as a coronial inquiry, the Department of Labour, police, and Pike River all had inquiries in progress.
Mr Key said it was possible legal action would follow from those inquiries, such as police laying charges.
He did not expect the mine to reopen until the reasons for the disaster were known.
EPMU national secretary Andrew Little said the union requested a royal commission because of the higher status it was considered to have.
Mr Little said the union would appear before the commission, and expected to call its own expert evidence.
It was setting up a full legal team team for the inquiry, and he expected the union to represent the interests of miners and their families, regardless of whether the miners were union members or not.
Under the rules for commissions of inquiry, the commission itself may summons witnesses, and must also hear from people with an interest in the inquiry who request to be heard.
Labour leader Phil Goff agreed that somebody with the status of a High Court judge should head the commission, saying it was important to have somebody with the necessary expertise as well as independence.
He also agreed that bringing in an international mining industry expert was important because such a person would not be associated with the New Zealand industry.
Prime Minister John Key said yesterday the inquiry would be a royal commission, instead of the initially proposed commission of inquiry.
Although commissions of inquiry are usually used for disasters, Mr Key said on the Q&A television show he decided on a royal commission instead to show how seriously the government took the issue.
The miners' union, the Engineering, Printing and Manufacturing Union (EPMU), had also asked for a royal commission.
Royal commissions are seen as being the highest status of inquiry, although there are no differences in the powers held by the two types of inquiry.
"I think it's a demonstration to the 29 families that we are taking this inquiry absolutely seriously, that we are determined to get answers for those families," Mr Key said.
Cabinet is expected to approve the proposal today.
Mr Key said its terms of reference would be broad and were likely to include both the causes of the disaster and the initial response of rescuers.
He said it was still not known what caused the blast.
"But what I do know is that those very hard questions have to be asked and answered. Because in the end the future of Pike River and underground coal mining in New Zealand rests on this.
The commission of three will be led by a High Court judge, and is likely to include a mining industry expert from Australia.
The EPMU has asked for an expert in work rights and workplace health and safety to be the third commissioner.
The hearings are likely to be in Greymouth.
Department of Internal Affairs guidelines state inquiries into disasters should be held in a centre close to the scene to allow attendance by families and friends of those affected.
Mr Key said the inquiry could take months, but could be slowed down while other inquiries went on.
As well as a coronial inquiry, the Department of Labour, police, and Pike River all had inquiries in progress.
Mr Key said it was possible legal action would follow from those inquiries, such as police laying charges.
He did not expect the mine to reopen until the reasons for the disaster were known.
EPMU national secretary Andrew Little said the union requested a royal commission because of the higher status it was considered to have.
Mr Little said the union would appear before the commission, and expected to call its own expert evidence.
It was setting up a full legal team team for the inquiry, and he expected the union to represent the interests of miners and their families, regardless of whether the miners were union members or not.
Under the rules for commissions of inquiry, the commission itself may summons witnesses, and must also hear from people with an interest in the inquiry who request to be heard.
Labour leader Phil Goff agreed that somebody with the status of a High Court judge should head the commission, saying it was important to have somebody with the necessary expertise as well as independence.
He also agreed that bringing in an international mining industry expert was important because such a person would not be associated with the New Zealand industry.
Victorian employer fined $120K over death as horror week gets worse
WorkSafe Victoria has slammed a high-risk-industry employer - which has been fined over a workplace fatality - for failing to provide employees with the "highest possible" safety standards. Also in this article, a bad week for Victorian workplaces has gotten worse with three deaths.
Forestry employer Carter Holt Harvey Woodproducts Australia Pty Ltd (now part of BSG Holdings Pty Ltd) was on Tuesday fined $120,000 in the Magistrates Court over a January 2008 incident in which a 35-year-old worker was killed by a falling hoist.
The 1.5-tonne hoist was being used to stack timber into packs, when it became jammed by a piece of wood. When the worker dislodged the wood with a sledge hammer, the hoist fell and crushed her.
"We'd expect a company which is part of a major player in the forestry industry to be leading the way on health and safety; clearly this wasn't the case," WorkSafe head of health and safety Ian Forsyth said following Magistrate Fiona Hayes's decision.
"Timber milling is high-risk work, so employers need to be providing the highest possible level of protection for their workers."
Bad week gets worse
The decision (which is not available online) comes as WorkSafe Victoria investigates three workplace fatalities in separate incidents in the State in the space of a week.
As reported by OHS Alert last week, Forsyth declared that it was lucky no one was killed following four serious workplace accidents in four days.
Unfortunately, the meatworks employee whose head and upper body were crushed when the hydraulics of the "knocking box" he was cleaning were activated has since died of his injuries.
Several days later an electrician died from electric-shock injuries sustained while repairing a switchboard. And on Wednesday, an excavator operator was killed when his vehicle was swamped in a sand quarry collapse.
"In these three incidents, and in the workplace fatality [above], people went to work with the expectation of getting home safely at the end of the day," Forsyth said.
"Employers must take more action to understand and control safety risks in their own workplaces. As an absolute basic requirement, employers should be training and supervising workers, and taking all practicable steps to prevent safety incidents from happening."
WorkSafe spokesperson Michael Birt told OHS Alert that the Victorian workplace-fatality rate typically increased in the lead up to Christmas.
He said that during this busy period employers must take the time to ensure work is performed safely, ensure proper procedures are in place, and communicate with employees.
Birt noted that most people only hear about high-profile incidents in which workers are killed. But in addition to these, about 70 Victorian workers sustain life-threatening injuries every year, and nearly 29,000 workers' compensation claims are made.
The latter have a considerable human and commercial cost, he said, adding that employers that invest heavily in safety reap "enormous benefits".
Spending money on OHS not only reduces incidents and subsequent compensation and ongoing medical costs, but significantly reduces absences and establishes the organisation as an employer of choice, he said.
Forestry employer Carter Holt Harvey Woodproducts Australia Pty Ltd (now part of BSG Holdings Pty Ltd) was on Tuesday fined $120,000 in the Magistrates Court over a January 2008 incident in which a 35-year-old worker was killed by a falling hoist.
The 1.5-tonne hoist was being used to stack timber into packs, when it became jammed by a piece of wood. When the worker dislodged the wood with a sledge hammer, the hoist fell and crushed her.
"We'd expect a company which is part of a major player in the forestry industry to be leading the way on health and safety; clearly this wasn't the case," WorkSafe head of health and safety Ian Forsyth said following Magistrate Fiona Hayes's decision.
"Timber milling is high-risk work, so employers need to be providing the highest possible level of protection for their workers."
Bad week gets worse
The decision (which is not available online) comes as WorkSafe Victoria investigates three workplace fatalities in separate incidents in the State in the space of a week.
As reported by OHS Alert last week, Forsyth declared that it was lucky no one was killed following four serious workplace accidents in four days.
Unfortunately, the meatworks employee whose head and upper body were crushed when the hydraulics of the "knocking box" he was cleaning were activated has since died of his injuries.
Several days later an electrician died from electric-shock injuries sustained while repairing a switchboard. And on Wednesday, an excavator operator was killed when his vehicle was swamped in a sand quarry collapse.
"In these three incidents, and in the workplace fatality [above], people went to work with the expectation of getting home safely at the end of the day," Forsyth said.
"Employers must take more action to understand and control safety risks in their own workplaces. As an absolute basic requirement, employers should be training and supervising workers, and taking all practicable steps to prevent safety incidents from happening."
WorkSafe spokesperson Michael Birt told OHS Alert that the Victorian workplace-fatality rate typically increased in the lead up to Christmas.
He said that during this busy period employers must take the time to ensure work is performed safely, ensure proper procedures are in place, and communicate with employees.
Birt noted that most people only hear about high-profile incidents in which workers are killed. But in addition to these, about 70 Victorian workers sustain life-threatening injuries every year, and nearly 29,000 workers' compensation claims are made.
The latter have a considerable human and commercial cost, he said, adding that employers that invest heavily in safety reap "enormous benefits".
Spending money on OHS not only reduces incidents and subsequent compensation and ongoing medical costs, but significantly reduces absences and establishes the organisation as an employer of choice, he said.
Work continues on workplace safety
Consultations on the model work health and safety laws have entered their second phase with the Chair of Safe Work Australia, Tom Phillips inviting public comment.
The draft model Work Health and Safety Regulations and priority model Codes of Practice aim to achieve the best possible approach to health and safety for all Australian workplaces and will be released next month for comment.
Safe Work Australia is working in partnership with the Federal, State and Territory Governments in an effort to deliver harmonised work health and safety laws across the country by the end of December next year.
Mr Phillips said the public comment period – which would run for four months – would allow individuals and organisations to participate in the development of the model Work Health and Safety Regulations and priority model Codes of Practice and have their say.
“We need your views to ensure the model Work Health and Safety Regulations and priority model Codes of Practice are relevant to all Australian workplaces,” Mr Phillips said.
“Model work health and safety laws will allow organisations to effectively manage workplace safety and work to one set of laws regardless of how many States or Territories they are operating in.
“This will increase profitability and productivity and most importantly, lead to improved safety for workers and greater certainty for employers.”
The Workplace Relations Ministers’ Council endorsed the Model Work Health and Safety (WHS) Act last year.
To support the model WHS Act, Safe Work Australia has developed the exposure draft of the model Work Health and Safety Regulations, priority model Codes of Practice, a Discussion Paper and Consultation Regulatory Impact Statement.
The draft model Work Health and Safety Regulations and priority model Codes of Practice aim to achieve the best possible approach to health and safety for all Australian workplaces and will be released next month for comment.
Safe Work Australia is working in partnership with the Federal, State and Territory Governments in an effort to deliver harmonised work health and safety laws across the country by the end of December next year.
Mr Phillips said the public comment period – which would run for four months – would allow individuals and organisations to participate in the development of the model Work Health and Safety Regulations and priority model Codes of Practice and have their say.
“We need your views to ensure the model Work Health and Safety Regulations and priority model Codes of Practice are relevant to all Australian workplaces,” Mr Phillips said.
“Model work health and safety laws will allow organisations to effectively manage workplace safety and work to one set of laws regardless of how many States or Territories they are operating in.
“This will increase profitability and productivity and most importantly, lead to improved safety for workers and greater certainty for employers.”
The Workplace Relations Ministers’ Council endorsed the Model Work Health and Safety (WHS) Act last year.
To support the model WHS Act, Safe Work Australia has developed the exposure draft of the model Work Health and Safety Regulations, priority model Codes of Practice, a Discussion Paper and Consultation Regulatory Impact Statement.
Harmonised Regulations to be released in December, SWA confirms
Safe Work Australia has confirmed that the draft model Work Health and Safety Regulations and priority model Codes of Practice will be released for comment in December.
The public consultation period will last for four months, before a final "Regulations package" is handed to the Workplace Relations Ministers' Council for approval, most likely in June 2011.
Drafting the Regulations has reportedly been complicated and laborious, with Work Cover NSW health and safety boss John Watson - who represents NSW on the Safe Work Australia Council Strategic Issues Group - describing the process at the recent Safety Conference in Sydney as akin to removing your own teeth with a pair of pliers.
Watson implored all stakeholders to comment on the draft Regulations and Codes.
The OHS harmonization process was thrown into turmoil in October, with NSW Premier Kristina Keneally threatening to withdraw if the State could not retain union-led prosecutions and reverse-onus laws
The public consultation period will last for four months, before a final "Regulations package" is handed to the Workplace Relations Ministers' Council for approval, most likely in June 2011.
Drafting the Regulations has reportedly been complicated and laborious, with Work Cover NSW health and safety boss John Watson - who represents NSW on the Safe Work Australia Council Strategic Issues Group - describing the process at the recent Safety Conference in Sydney as akin to removing your own teeth with a pair of pliers.
Watson implored all stakeholders to comment on the draft Regulations and Codes.
The OHS harmonization process was thrown into turmoil in October, with NSW Premier Kristina Keneally threatening to withdraw if the State could not retain union-led prosecutions and reverse-onus laws
Thursday, December 2, 2010
No charges to be laid after death
A REPORT by the coroner and workplace safety officials has recommended no charges be laid following the death of Ipswich resident Christopher Fenton in a workplace incident last year.
Mr Fenton, 18, was crushed to death by the forklift he was operating on October 5 last year during a shift at Foodpartners, the meat-processing department at JBS Swift abattoir at Dinmore.
He had worked there for about six weeks according to his family, who had previously criticised investigators for not keeping them up to date on the progress of their report.
An investigation by Queensland Workplace Health and Safety (WPHS) officials was initiated straight after the incident and only recently wrapped up.
“A thorough investigation was undertaken by workplace, health and safety inspectors into this tragic incident,” a spokesman said in a statement.
“After full consideration of all the relevant factors of the matter by Workplace Health and Safety legal officers it was determined that charges would not be laid.”
They said Mr Fenton’s family are aware of the report’s findings but the confidential WPHS report will not be made public.
A Queensland Coroner’s report has also investigated the matter.
“The matter was investigated by the Coroner. The Coroner has finalised his investigation,” a spokesman said Mr Fenton’s mother Elizabeth Fenton and sister Rebecca Fenton said they still had concerns about the circumstances surrounding his death.
JBS Swift Australia said they will not comment on the report.
Mr Fenton, 18, was crushed to death by the forklift he was operating on October 5 last year during a shift at Foodpartners, the meat-processing department at JBS Swift abattoir at Dinmore.
He had worked there for about six weeks according to his family, who had previously criticised investigators for not keeping them up to date on the progress of their report.
An investigation by Queensland Workplace Health and Safety (WPHS) officials was initiated straight after the incident and only recently wrapped up.
“A thorough investigation was undertaken by workplace, health and safety inspectors into this tragic incident,” a spokesman said in a statement.
“After full consideration of all the relevant factors of the matter by Workplace Health and Safety legal officers it was determined that charges would not be laid.”
They said Mr Fenton’s family are aware of the report’s findings but the confidential WPHS report will not be made public.
A Queensland Coroner’s report has also investigated the matter.
“The matter was investigated by the Coroner. The Coroner has finalised his investigation,” a spokesman said Mr Fenton’s mother Elizabeth Fenton and sister Rebecca Fenton said they still had concerns about the circumstances surrounding his death.
JBS Swift Australia said they will not comment on the report.
Focus on training and retraining staff slashes injury rate by 81%
A Western Australian employer that invests heavily in training and retaining employees and subcontractors - even when work is scarce - has slashed its injury frequency rate by 81 per cent.
Several years ago, Park Engineers founder Giulio Azzalini and his son Gary realised their health and safety system "wasn't up to scratch", and spared no expense updating it, the company's workshop and HSE manager Geoff Collins told OHS Alert.
Collins says that after professional consultants were engaged to develop and implement a customised system, he was granted the freedom - and the budget - to fine-tune it.
The resulting system was announced the best private-sector safety and health management system at Western Australia's recent Work Safety Awards.
"I've got an unlimited budget," Collins says. "If there's a safety thing or a new initiative out in the market there's no questions asked. I'm allowed to just go for it. When you've got your support from senior management like that, it makes your job so much easier."
These days, the company places a strong emphasis on training employees and subcontractors and encouraging staff to come forward with concerns.
When a hazard is reported, "no matter how big or small", it is taken seriously, and the employee is congratulated. When Park Engineers won another safety award last year, thank-you jackets were given to all workers, including contractors and office staff. The company also provides benefits such as prescription safety glasses.
In the past six years, accidents and incidents have dropped significantly and morale has improved, Collins says. The injury frequency rate has dropped from 31.7 per million hours worked to 6.1, workers' compensation premiums have dropped from 7.75 per cent of payroll to 2.25 per cent, and days lost have fallen from 38 to 5.
But "the biggest benefit" for the company, he says, is the low turnover of staff and subcontractors.
Several years ago, Park Engineers founder Giulio Azzalini and his son Gary realised their health and safety system "wasn't up to scratch", and spared no expense updating it, the company's workshop and HSE manager Geoff Collins told OHS Alert.
Collins says that after professional consultants were engaged to develop and implement a customised system, he was granted the freedom - and the budget - to fine-tune it.
The resulting system was announced the best private-sector safety and health management system at Western Australia's recent Work Safety Awards.
"I've got an unlimited budget," Collins says. "If there's a safety thing or a new initiative out in the market there's no questions asked. I'm allowed to just go for it. When you've got your support from senior management like that, it makes your job so much easier."
These days, the company places a strong emphasis on training employees and subcontractors and encouraging staff to come forward with concerns.
When a hazard is reported, "no matter how big or small", it is taken seriously, and the employee is congratulated. When Park Engineers won another safety award last year, thank-you jackets were given to all workers, including contractors and office staff. The company also provides benefits such as prescription safety glasses.
In the past six years, accidents and incidents have dropped significantly and morale has improved, Collins says. The injury frequency rate has dropped from 31.7 per million hours worked to 6.1, workers' compensation premiums have dropped from 7.75 per cent of payroll to 2.25 per cent, and days lost have fallen from 38 to 5.
But "the biggest benefit" for the company, he says, is the low turnover of staff and subcontractors.
Tune in to employer goals or fail, safety professionals warned
OHS professionals must be "tuned in" to their employer's goals - and refrain from badgering executives with minutiae - if they're to have any hope of developing a successful workplace safety culture, says a safety manager of 32 years' experience.
Stan Sexton, who is the Western Australian Public Transport Authority's (PTA's) corporate manager safety, told OHS Alert that while many OHS professionals believe the "whole world revolves around safety", it isn't always at the forefront of executives' minds.
"They've got competing priorities," he says, adding that the PTA's number-one concern is conveying four million passengers a week.
"What I do with any employer is try to get safety as a thread.
"You've got to be tuned into the ultimate outcome of the organisation, threading safety into [its] corporate governance."
It is critical, Sexton says, to develop healthy working relationships with executives and chief officers and to show boards how safety can protect their interests and "underpin the service delivery or commercial objective they're trying to achieve".
But safety personnel who are "obsessed with minutiae" (an electrical cord left on a walkway, for example) at the expense of the company's interests "will not get the executive's ear" and "will not achieve anything".
"Without commitment at the top you will not be successful," he says.
"A safety professional [must be] tactically astute. It's no use just dealing with the cable across the floor. You've got to get an understanding of how to take an organisation forward."
Reduce workers' comp costs and increase morale
Sexton, who has been an OHS professional for more than three decades in both Australia and his native UK, says developing a successful safety culture is not an exact science, and that it can take years of hard work to perfect a formula.
He says it took him about six years to develop the formula he now uses, which has produced results.
During his time with the Manchester Police in England, LTIs fell by 74 per cent in four years, he says. And the PTA, where he now works, won the 2009 Western Australian Work Safety Award for best public-sector OHS management system (see Western Australia announces...).
Other benefits of a strong OHS culture include reduced absences and workers' compensation costs, and increased morale, Sexton says.
He says he believes that while morale "is a subtlety", it reduces stress-related conditions and increases employee commitment.
"If you look after [employees'] welfare... and invest in them, you will get a positive return in productivity, attendance at work [and] reduced accidents."
Sexton also recommends appointing a safety champion among the "working people" within each division, to ensure "everyday" safety and risk-management issues are dealt with.
Executive buy-in is crucial, but if you fail to "engage the hearts and minds of your people at the coal face" you're unlikely to succeed, he says.
Supervisors must embody OHS
Sexton says the final piece of his "equation" is getting supervisors and managers onboard.
"You've got to get the managers and supervisors applying and embodying [OHS] principles every day," he says.
According to Sexton, safety professionals should say to supervisors, "Look, don't be afraid of safety, but make sure it is a consideration and a thread in your everyday work; out of all the subjects you deal with, the one that will come back to bite you is safety."
On a gloomier note, Sexton says Australia has one of the worst OHS records in the developed world, and more must be done to improve it.
"Australia is a great country, but there's a darker side," he says.
Stan Sexton, who is the Western Australian Public Transport Authority's (PTA's) corporate manager safety, told OHS Alert that while many OHS professionals believe the "whole world revolves around safety", it isn't always at the forefront of executives' minds.
"They've got competing priorities," he says, adding that the PTA's number-one concern is conveying four million passengers a week.
"What I do with any employer is try to get safety as a thread.
"You've got to be tuned into the ultimate outcome of the organisation, threading safety into [its] corporate governance."
It is critical, Sexton says, to develop healthy working relationships with executives and chief officers and to show boards how safety can protect their interests and "underpin the service delivery or commercial objective they're trying to achieve".
But safety personnel who are "obsessed with minutiae" (an electrical cord left on a walkway, for example) at the expense of the company's interests "will not get the executive's ear" and "will not achieve anything".
"Without commitment at the top you will not be successful," he says.
"A safety professional [must be] tactically astute. It's no use just dealing with the cable across the floor. You've got to get an understanding of how to take an organisation forward."
Reduce workers' comp costs and increase morale
Sexton, who has been an OHS professional for more than three decades in both Australia and his native UK, says developing a successful safety culture is not an exact science, and that it can take years of hard work to perfect a formula.
He says it took him about six years to develop the formula he now uses, which has produced results.
During his time with the Manchester Police in England, LTIs fell by 74 per cent in four years, he says. And the PTA, where he now works, won the 2009 Western Australian Work Safety Award for best public-sector OHS management system (see Western Australia announces...).
Other benefits of a strong OHS culture include reduced absences and workers' compensation costs, and increased morale, Sexton says.
He says he believes that while morale "is a subtlety", it reduces stress-related conditions and increases employee commitment.
"If you look after [employees'] welfare... and invest in them, you will get a positive return in productivity, attendance at work [and] reduced accidents."
Sexton also recommends appointing a safety champion among the "working people" within each division, to ensure "everyday" safety and risk-management issues are dealt with.
Executive buy-in is crucial, but if you fail to "engage the hearts and minds of your people at the coal face" you're unlikely to succeed, he says.
Supervisors must embody OHS
Sexton says the final piece of his "equation" is getting supervisors and managers onboard.
"You've got to get the managers and supervisors applying and embodying [OHS] principles every day," he says.
According to Sexton, safety professionals should say to supervisors, "Look, don't be afraid of safety, but make sure it is a consideration and a thread in your everyday work; out of all the subjects you deal with, the one that will come back to bite you is safety."
On a gloomier note, Sexton says Australia has one of the worst OHS records in the developed world, and more must be done to improve it.
"Australia is a great country, but there's a darker side," he says.
Employers desperate for certainty amid harmonisation squabble
NSW Business Chamber boss Greg Pattison has rejected claims that union-led prosecutions have contributed to the State's improving workplace safety performance, and says employers are desperate for some certainty around harmonisation.
Pattison told the Safety Conference in Sydney yesterday that it was apparent - when he participated in a debate on the model OHS Act at the same conference a year ago - that the harmonisation process would not be smooth sailing.
He said following NSW Premier Kristina Keneally's recent threat to withdraw from the process if NSW could not retain third-party prosecutions and reverse-onus laws, it appeared harmonisation would either:
Proceed without NSW;
Proceed with NSW and an amended Work Health and Safety Act;
Collapse; or go ahead as planned.
"I'm still backing it to go ahead as planned," Pattison said. The argument that these NSW provisions produced the best safety outcomes didn't "stand up to scrutiny".
He said OHS in NSW had improved, but that this progress had "nothing to do... with these two things".
Unions NSW secretary Mark Lennon, who also spoke at the conference, disagreed, saying that union-led prosecutions, while used sparingly, had significantly improved safety in NSW and other jurisdictions.
He said that after the Finance Sector Union successfully prosecuted some of Australia's biggest banks - for OHS breaches - following a string of armed robberies, the banks invested more than $100 million in security and safety improvements nationwide.
In 2002, before the prosecutions, there were 102 bank robberies in NSW, he said. There have been four so far this year.
"Now is not the time" to remove provisions that can have such a positive effect on public policy, Lennon stressed. "We as a union movement do not walk away from reform. But reform and harmonisation are not necessarily the same thing."
Pattison warns of "jurisdictional creep"
Pattison warned that while it was still uncertain "what compliance will look like under the new system", the proposed January 2012 kick off was "starting to seem very near".
Australia's 860,000 employers need to be brought up to speed, he said. "It's a huge job."
But employers were reluctant to invest time and money in transitioning to the new system when there was so much uncertainty over what, exactly, that system would be, Pattison said.
Employers want to know "what it's going to be, not what it might be", he said.
"We've got to work this out as soon as possible."
Pattison also warned that there was a risk of post-harmonisation "jurisdictional creep" if the new laws were not applied or enforced consistently across jurisdictions.
"That [consistency] is going to be hard to achieve, but it is so critical," he said.
"If harmonisation isn't realised operationally, then it's harmonisation in name only. There's a possibility of jurisdictions drifting apart, and that has to be guarded against."
Pattison told the Safety Conference in Sydney yesterday that it was apparent - when he participated in a debate on the model OHS Act at the same conference a year ago - that the harmonisation process would not be smooth sailing.
He said following NSW Premier Kristina Keneally's recent threat to withdraw from the process if NSW could not retain third-party prosecutions and reverse-onus laws, it appeared harmonisation would either:
Proceed without NSW;
Proceed with NSW and an amended Work Health and Safety Act;
Collapse; or go ahead as planned.
"I'm still backing it to go ahead as planned," Pattison said. The argument that these NSW provisions produced the best safety outcomes didn't "stand up to scrutiny".
He said OHS in NSW had improved, but that this progress had "nothing to do... with these two things".
Unions NSW secretary Mark Lennon, who also spoke at the conference, disagreed, saying that union-led prosecutions, while used sparingly, had significantly improved safety in NSW and other jurisdictions.
He said that after the Finance Sector Union successfully prosecuted some of Australia's biggest banks - for OHS breaches - following a string of armed robberies, the banks invested more than $100 million in security and safety improvements nationwide.
In 2002, before the prosecutions, there were 102 bank robberies in NSW, he said. There have been four so far this year.
"Now is not the time" to remove provisions that can have such a positive effect on public policy, Lennon stressed. "We as a union movement do not walk away from reform. But reform and harmonisation are not necessarily the same thing."
Pattison warns of "jurisdictional creep"
Pattison warned that while it was still uncertain "what compliance will look like under the new system", the proposed January 2012 kick off was "starting to seem very near".
Australia's 860,000 employers need to be brought up to speed, he said. "It's a huge job."
But employers were reluctant to invest time and money in transitioning to the new system when there was so much uncertainty over what, exactly, that system would be, Pattison said.
Employers want to know "what it's going to be, not what it might be", he said.
"We've got to work this out as soon as possible."
Pattison also warned that there was a risk of post-harmonisation "jurisdictional creep" if the new laws were not applied or enforced consistently across jurisdictions.
"That [consistency] is going to be hard to achieve, but it is so critical," he said.
"If harmonisation isn't realised operationally, then it's harmonisation in name only. There's a possibility of jurisdictions drifting apart, and that has to be guarded against."
Forest industry retaliates with protest
The forest industry has conducted its own protest in response to action by anti-logging campaigners on the New South Wales far south coast
Around 15 industry representatives campaigned at Bega yesterday while activists were appearing in court in connection with a series of blockades in the Mumbulla State Forest earlier this year.
The CEO of Timber Communities Australia, Jim Adams, says workers and their families have faced harassment and vilification for years.
And he says there is concern the protesters can undertake dangerous stunts with no ramifications.
"The first question is who's in control of the workplace once a protest occurs," he said.
"The activities that occur then present a significant risk to safety, not only of our own members but also of the protesters themselves, and also the police who have to come and deal with it.
"We believe the Workcover Authority should be inspecting the protest activities and ruling on those safety issues."
He says it is the responsibility of Workcover to investigate.
"We haven't been able to generate interest within the Workcover Authority to look at that question for us," he said.
The case into the forest protest activities has been adjourned.
Ten people faced Bega Local Court charged with about 30 offences after their attempts to stop logging east of the town.
The case was moved to the region from a Sydney court earlier this month, when the activists argued they should not be expected to travel long distances for the hearing.
They will appear again next month.
They say their approach is the only way to raise awareness of native forest harvesting.
Around 15 industry representatives campaigned at Bega yesterday while activists were appearing in court in connection with a series of blockades in the Mumbulla State Forest earlier this year.
The CEO of Timber Communities Australia, Jim Adams, says workers and their families have faced harassment and vilification for years.
And he says there is concern the protesters can undertake dangerous stunts with no ramifications.
"The first question is who's in control of the workplace once a protest occurs," he said.
"The activities that occur then present a significant risk to safety, not only of our own members but also of the protesters themselves, and also the police who have to come and deal with it.
"We believe the Workcover Authority should be inspecting the protest activities and ruling on those safety issues."
He says it is the responsibility of Workcover to investigate.
"We haven't been able to generate interest within the Workcover Authority to look at that question for us," he said.
The case into the forest protest activities has been adjourned.
Ten people faced Bega Local Court charged with about 30 offences after their attempts to stop logging east of the town.
The case was moved to the region from a Sydney court earlier this month, when the activists argued they should not be expected to travel long distances for the hearing.
They will appear again next month.
They say their approach is the only way to raise awareness of native forest harvesting.
Thursday, November 4, 2010
Harmonisation “dead in the water”
Tuesday 26 October, 2010
With the NSW Government indicating that it will not support the existing model Work Health and Safety Act, OHS harmonisation in its current form “is dead in the water”, according to OHS legal expert Michael Tooma.
NSW Premier Kristina Keneally recently said she would only support a national OHS regime if it allowed unions to retain the right to prosecute employers for work safety breaches and that the onus of proof remain on employers to show they exercised due care.
These are two key issues that have driven OHS reform in the first place, according to Tooma, who heads up the national OHS practice of law firm Norton Rose.
There can be no harmonisation across Australia if NSW and WA have opted out of the reforms, he said.
“There isn’t going to be consistency across the board. This is something that the business community has been lobbying for, for about three decades. It’s quite a significant blow to the reform agenda,” said Tooma, who was speaking during a boardroom radio broadcast.
Tooma added that the process for delivering harmonisation has been flawed from the outset.
“It’s always been vulnerable to precisely these developments – people changing their minds, opting in or out of the regime – despite the appearance of delivering uniformity in legislation.”
However, he said the federal government had the option right at the outset – and still does – to introduce one set of federal OHS laws across Australia by using its external affairs power and corporations power, as set out in the constitution.
“I call on the federal government to rescue the process of harmonisation to deliver on the benefits promised to the business community through the reforms in this area, by introducing in the federal parliament, federal laws that cover the field that reflect the model that has been agreed to by the states and territories in this area,” Tooma said.
“It’s the only way you deliver lasting, stable reform in relation to occupational health and safety.”
Tooma said he can’t see Premier Keneally backing down at this stage, so the only thing that would change NSW’s position is a change of government.
“I’m not entirely sure that the existing model can deliver harmonised OHS laws that withstand the tests of change of government and change of policy,” he said.
“I’m afraid I’m a pessimist and I think the whole process is doomed to failure,” said Tooma, who noted that there were numerous precedents for failed attempts to introduce national model laws in other areas.
“I hope that I’m wrong on this issue, I hope that despite what appears to be a fatal flaw in the model, that is pulls through and we have harmonisation,” said Tooma.
“But I’m afraid that it doesn’t look good for harmonisation.”
Interesting times ahead!
With the NSW Government indicating that it will not support the existing model Work Health and Safety Act, OHS harmonisation in its current form “is dead in the water”, according to OHS legal expert Michael Tooma.
NSW Premier Kristina Keneally recently said she would only support a national OHS regime if it allowed unions to retain the right to prosecute employers for work safety breaches and that the onus of proof remain on employers to show they exercised due care.
These are two key issues that have driven OHS reform in the first place, according to Tooma, who heads up the national OHS practice of law firm Norton Rose.
There can be no harmonisation across Australia if NSW and WA have opted out of the reforms, he said.
“There isn’t going to be consistency across the board. This is something that the business community has been lobbying for, for about three decades. It’s quite a significant blow to the reform agenda,” said Tooma, who was speaking during a boardroom radio broadcast.
Tooma added that the process for delivering harmonisation has been flawed from the outset.
“It’s always been vulnerable to precisely these developments – people changing their minds, opting in or out of the regime – despite the appearance of delivering uniformity in legislation.”
However, he said the federal government had the option right at the outset – and still does – to introduce one set of federal OHS laws across Australia by using its external affairs power and corporations power, as set out in the constitution.
“I call on the federal government to rescue the process of harmonisation to deliver on the benefits promised to the business community through the reforms in this area, by introducing in the federal parliament, federal laws that cover the field that reflect the model that has been agreed to by the states and territories in this area,” Tooma said.
“It’s the only way you deliver lasting, stable reform in relation to occupational health and safety.”
Tooma said he can’t see Premier Keneally backing down at this stage, so the only thing that would change NSW’s position is a change of government.
“I’m not entirely sure that the existing model can deliver harmonised OHS laws that withstand the tests of change of government and change of policy,” he said.
“I’m afraid I’m a pessimist and I think the whole process is doomed to failure,” said Tooma, who noted that there were numerous precedents for failed attempts to introduce national model laws in other areas.
“I hope that I’m wrong on this issue, I hope that despite what appears to be a fatal flaw in the model, that is pulls through and we have harmonisation,” said Tooma.
“But I’m afraid that it doesn’t look good for harmonisation.”
Interesting times ahead!
Wednesday, October 27, 2010
"Common-sense" approach to safety set to lift "bureaucratic burdens"
Tuesday, 26 October 2010 1:25pm
The UK could be on the brink of shedding some of the heavy obligations applied to low-hazard workplaces, in an attempt to free employers from "unnecessary bureaucratic burdens" associated with safety obligations.
The Prime Minister's health and safety advisor, Lord Young of Graffham, who has drafted a series of "common-sense" safety recommendations, says the standing of health and safety in the eyes of the public has never been lower.
"Last year over 800,000 compensation claims were made in the UK... and there is a growing fear among business owners of having to pay out for even the most unreasonable claims," he says in the "Common sense, common safety" report.
"The incentives for claiming compensation have to change. The system must be fair and proportionate without placing an excessive financial burden on the losing party."
A key to reform is the insurance industry, says Lord Young. "Insurance companies should draw up a code of practice on health and safety for businesses and the voluntary sector. If the industry is unable to draw up such a code, then legislation should be considered."
Further, companies and personal injury lawyers should be prevented from advertising in a way that suggests people "can easily claim compensation for the most minor of incidents and even be financially rewarded once a claim is accepted".
Consultants adopt "overcautious" approach
According to Lord Young, risk-based principles contained in UK safety legislation have been "eroded" by an overly-prescriptive, compliance-driven approach.
A "climate of fear" has been compounded by health and safety consultants - many without any professional qualifications - "who have a perverse incentive to take an overzealous approach to applying the health and safety regulations", he says.
"As a consequence they employ a goal of eliminating all risk from the workplace instead of setting out the rational, proportionate approach that the Health and Safety at Work etc Act [1974] demands."
Lord Young says there should be a system of accreditation for health and safety consultants and a web-based listing for employers.
Processes should also be put in place to ensure their assessments are proportionate, he says.
Low-risk workplaces should have fewer obligations
Only about three per cent of all workplace injuries in Great Britain involve offices, and no office workers died as a result of accidents at work in 2009, says Lord Young.
Even so, low-hazard workplaces are obliged to carry out the same written risk assessments as high-hazard workplaces.
The UK should take the lead in ensuring EU health and safety rules for low-risk businesses "are not overly prescriptive, are proportionate and do not attempt to achieve the elimination of all risk", he says.
Further, employers should be exempt from conducting "unnecessary and intrusive" risk assessments for employees working from home in a low-hazard environment.
Self-employed people in low-hazard businesses should also be exempt from conducting risk assessments, he says.
Welcoming Lord Young's report, the Prime Minister said "good, straightforward legislation designed to protect people from major hazards" was all too often "extended inappropriately".
"We simply cannot go on like this," he said, pledging to carry out all of the recommendations.
Well this would be a welcome certainly to SME with low risk within Australia. Let's hope it catches on very quickly and we can get back to managing risk in a practical manner and not through the administrative wonderland which is what has been created.
The UK could be on the brink of shedding some of the heavy obligations applied to low-hazard workplaces, in an attempt to free employers from "unnecessary bureaucratic burdens" associated with safety obligations.
The Prime Minister's health and safety advisor, Lord Young of Graffham, who has drafted a series of "common-sense" safety recommendations, says the standing of health and safety in the eyes of the public has never been lower.
"Last year over 800,000 compensation claims were made in the UK... and there is a growing fear among business owners of having to pay out for even the most unreasonable claims," he says in the "Common sense, common safety" report.
"The incentives for claiming compensation have to change. The system must be fair and proportionate without placing an excessive financial burden on the losing party."
A key to reform is the insurance industry, says Lord Young. "Insurance companies should draw up a code of practice on health and safety for businesses and the voluntary sector. If the industry is unable to draw up such a code, then legislation should be considered."
Further, companies and personal injury lawyers should be prevented from advertising in a way that suggests people "can easily claim compensation for the most minor of incidents and even be financially rewarded once a claim is accepted".
Consultants adopt "overcautious" approach
According to Lord Young, risk-based principles contained in UK safety legislation have been "eroded" by an overly-prescriptive, compliance-driven approach.
A "climate of fear" has been compounded by health and safety consultants - many without any professional qualifications - "who have a perverse incentive to take an overzealous approach to applying the health and safety regulations", he says.
"As a consequence they employ a goal of eliminating all risk from the workplace instead of setting out the rational, proportionate approach that the Health and Safety at Work etc Act [1974] demands."
Lord Young says there should be a system of accreditation for health and safety consultants and a web-based listing for employers.
Processes should also be put in place to ensure their assessments are proportionate, he says.
Low-risk workplaces should have fewer obligations
Only about three per cent of all workplace injuries in Great Britain involve offices, and no office workers died as a result of accidents at work in 2009, says Lord Young.
Even so, low-hazard workplaces are obliged to carry out the same written risk assessments as high-hazard workplaces.
The UK should take the lead in ensuring EU health and safety rules for low-risk businesses "are not overly prescriptive, are proportionate and do not attempt to achieve the elimination of all risk", he says.
Further, employers should be exempt from conducting "unnecessary and intrusive" risk assessments for employees working from home in a low-hazard environment.
Self-employed people in low-hazard businesses should also be exempt from conducting risk assessments, he says.
Welcoming Lord Young's report, the Prime Minister said "good, straightforward legislation designed to protect people from major hazards" was all too often "extended inappropriately".
"We simply cannot go on like this," he said, pledging to carry out all of the recommendations.
Well this would be a welcome certainly to SME with low risk within Australia. Let's hope it catches on very quickly and we can get back to managing risk in a practical manner and not through the administrative wonderland which is what has been created.
Tuesday, October 19, 2010
OHS harmonisation "dead", as NSW opts out
Thursday, 14 October 2010 11:05am
The harmonisation of OHS laws could be dead in the water, with NSW on the verge of withdrawing from the process.
In an astonishing move, NSW Premier Kristina Keneally has told Prime Minister Julia Gillard that NSW would only implement the proposed Commonwealth Work Health and Safety Act if it could retain union-led prosecutions and reverse onus of proof laws.
The NSW Government agreed in December last year to adopt the model Act, without these provisions.
But Keneally said that as "modern safety laws focus on employers identifying and controlling the risks in their workplace", and recognising that they should "know the risks better than anyone", it was "entirely fair" that the onus should be on them "to prove what is and isn't reasonably practicable" in the event of a safety prosecution.
She also said the right of unions to initiate prosecutions, which had been in place in NSW since 1943, "provided workers with an important avenue of redress".
"NSW has the highest standards in safety in our workplaces and we won't compromise on that," Keneally said.
High-profile OHS lawyer Michael Tooma said harmonisation "in its present form is dead".
Tooma, who has in the past expressed doubts that harmonisation would succeed, said Keneally's move highlighted the "inherent vulnerability" of the model Act adopted.
"The current regulatory framework adopted for harmonisation is at the mercy of every change of policy direction by a state or territory government, as has occurred in this case [and] in Western Australia [following a change of government]," he said.
"The Federal Government must intervene to rescue harmonisation by introducing Federal legislation covering the field on this critical issue.
"We must abandon this inherently unstable approach of relying on model legislation. The Federal Government has the power to do this. It must show leadership on this issue."
Keneally swayed by "minor matters": McCallum
Labour-law expert Professor Ron McCallum told OHS Alert that it would be a "great pity" if NSW reneged on its commitment to enact the model Act based on two "rather minor matters".
McCallum, of Sydney University, said that while he approved of NSW's reverse-onus provision, it "doesn't make a difference in most cases".
He also said "there are mechanisms in the Federal law which allow for calls to review any decision [by a regulator] not to prosecute" an employer for an alleged safety breach.
But all is not lost, according to McCallum. He said he "would hope" that if the NSW Labor Government didn't pass the Act, the Opposition would if - as is widely expected - it won the State election in March next year.
"Harmonisation will help both employers and workers have a safer environment," he said.
Prime Minister Julia Gillard in July described the harmonisation of OHS laws as one of the most important reforms she "delivered" in her three years as Federal Workplace Relations Minister.
In June, OHS academic Neil Foster opined that it was "entirely possible that between now and the end of 2011 some or all of the jurisdictions who have signed on to the process will lose the political will to carry it through".
The harmonisation of OHS laws could be dead in the water, with NSW on the verge of withdrawing from the process.
In an astonishing move, NSW Premier Kristina Keneally has told Prime Minister Julia Gillard that NSW would only implement the proposed Commonwealth Work Health and Safety Act if it could retain union-led prosecutions and reverse onus of proof laws.
The NSW Government agreed in December last year to adopt the model Act, without these provisions.
But Keneally said that as "modern safety laws focus on employers identifying and controlling the risks in their workplace", and recognising that they should "know the risks better than anyone", it was "entirely fair" that the onus should be on them "to prove what is and isn't reasonably practicable" in the event of a safety prosecution.
She also said the right of unions to initiate prosecutions, which had been in place in NSW since 1943, "provided workers with an important avenue of redress".
"NSW has the highest standards in safety in our workplaces and we won't compromise on that," Keneally said.
High-profile OHS lawyer Michael Tooma said harmonisation "in its present form is dead".
Tooma, who has in the past expressed doubts that harmonisation would succeed, said Keneally's move highlighted the "inherent vulnerability" of the model Act adopted.
"The current regulatory framework adopted for harmonisation is at the mercy of every change of policy direction by a state or territory government, as has occurred in this case [and] in Western Australia [following a change of government]," he said.
"The Federal Government must intervene to rescue harmonisation by introducing Federal legislation covering the field on this critical issue.
"We must abandon this inherently unstable approach of relying on model legislation. The Federal Government has the power to do this. It must show leadership on this issue."
Keneally swayed by "minor matters": McCallum
Labour-law expert Professor Ron McCallum told OHS Alert that it would be a "great pity" if NSW reneged on its commitment to enact the model Act based on two "rather minor matters".
McCallum, of Sydney University, said that while he approved of NSW's reverse-onus provision, it "doesn't make a difference in most cases".
He also said "there are mechanisms in the Federal law which allow for calls to review any decision [by a regulator] not to prosecute" an employer for an alleged safety breach.
But all is not lost, according to McCallum. He said he "would hope" that if the NSW Labor Government didn't pass the Act, the Opposition would if - as is widely expected - it won the State election in March next year.
"Harmonisation will help both employers and workers have a safer environment," he said.
Prime Minister Julia Gillard in July described the harmonisation of OHS laws as one of the most important reforms she "delivered" in her three years as Federal Workplace Relations Minister.
In June, OHS academic Neil Foster opined that it was "entirely possible that between now and the end of 2011 some or all of the jurisdictions who have signed on to the process will lose the political will to carry it through".
Radio National OHS Program
On 21 September 2010, Radio Australia’s regular program Australia Talks conducted a live interview concerning occupational safety and health.
For those who have been listening to the show for some time would have been surprised that the program covered much of the same old OHS ground. Similar statistics, similar questions of what are the most dangerous occupations, similar assumptions and the same misunderstanding that discussions about OHS law are the same as discussions on safety management.
However, for those new to OHS, the program may have provided an impression that the issue is serious but that, even with harmonisation, the issue is too complex to be applied in their own circumstances.
What was very surprising was that the program spent some time discussing Industrial Manslaughter legislation that, to my knowledge, is not being seriously considered by any States through the harmonisation process, a position mentioned in the program. Such laws exist in the Australian Capital Territory but have never been used.
The case for the deterrent value of such laws seemed weak, regardless of what Geoff Fary of the ACTU said on the program. In fact it was stated that the consideration of such laws would cause employer associations to walk away from any OHS discussions involving the concept. It has become a matter of division in negotiations.
Such a talkback program will always attract callers who outline personal or particular grievances and need to be cut short by the host. This is a shame but a necessity of the format. What Radio National and other broadcasters fail to realise is that occupational health and safety is a combination of a many concepts and disciplines that cannot be dealt with in an hour or a couple of hours.
OHS deserves its own weekly radio program in Australia so that issues, like those listed below, and specific industry needs can be discussed, explained and understood.
Below is a brief list of OHS-related issues that I believe could be the basis for a series of radio broadcasts, in no particular order:
For those who have been listening to the show for some time would have been surprised that the program covered much of the same old OHS ground. Similar statistics, similar questions of what are the most dangerous occupations, similar assumptions and the same misunderstanding that discussions about OHS law are the same as discussions on safety management.
What was very surprising was that the program spent some time discussing Industrial Manslaughter legislation that, to my knowledge, is not being seriously considered by any States through the harmonisation process, a position mentioned in the program. Such laws exist in the Australian Capital Territory but have never been used.
Such a talkback program will always attract callers who outline personal or particular grievances and need to be cut short by the host. This is a shame but a necessity of the format. What Radio National and other broadcasters fail to realise is that occupational health and safety is a combination of a many concepts and disciplines that cannot be dealt with in an hour or a couple of hours.
OHS deserves its own weekly radio program in Australia so that issues, like those listed below, and specific industry needs can be discussed, explained and understood.
Below is a brief list of OHS-related issues that I believe could be the basis for a series of radio broadcasts, in no particular order:
- Infectious disease
- Mental Health
- Measuring OHS performance
- Safety Culture
- OHS Enforcement Policies and Limitations
- OHS Law
- Workplace suicide
- The Social Costs of Workplace Injury
- Can Capitalism allow OHS?
- Bullying
- Corporate Social Responsibility
- Determining Compliance
- Determining an Acceptable Level of Safety
- The Profession of Safety
- Where OHS is not relevant
- OHS and Politics
- Small Business Perceptions of OHS
Corporate Australia 'needs culture change'
Carolyn Taylor says Australian businesses need to adjust their 'she'll be right' attitude (Flickr: Tony Eccles)
Carolyn Taylor says many Australian companies have a dangerous "she'll be right" attitude and the problem areas of bullying and sexual harassment are accidents waiting to happen.
"I see a little bit of a belief that we can control behaviour by policies instead of recognising that culture is about values and standards," Ms Taylor told ABC Radio's The World Today.
"You can't mandate. It's not about what you tell people to do - it's about how you hold people to account.
"Every organisation has a culture. The question is whether it's the culture you need to avoid the kind of risks that can blow up in the high-profile disasters we've had recently."
Ms Taylor points to the global cases of Toyota, Goldman Sachs and Enron where poor management culture has damaged corporate reputations and financial bottom lines.
She believes the $37 million sexual harassment case confronting the retailer David Jones should prompt other companies to review their culture in addition to policies and procedures.
"The first question to ask is if it's an isolated incident or is there actually a pattern of behaviour that has been allowed, or even encouraged over a long period of time by the way that people in an organisation will 'walk their talk'?" she said.
Ms Taylor says high-profile cases of poor corporate culture should be lessons to companies trying to improve their workplace, but she worries the case studies are too quickly consigned to corporate history.
She says short-term thinking is a growing problem.
During her Australian visit Ms Taylor will work with the likes of BHP Billiton, Alacetel Lucent and Vodaphone Hutchison to advise on ways to improve corporate culture.
By business editor Peter Ryan
Updated Fri Sep 24, 2010 4:27pm AEST
Carolyn Taylor says many Australian companies have a dangerous "she'll be right" attitude and the problem areas of bullying and sexual harassment are accidents waiting to happen.
"I see a little bit of a belief that we can control behaviour by policies instead of recognising that culture is about values and standards," Ms Taylor told ABC Radio's The World Today.
"You can't mandate. It's not about what you tell people to do - it's about how you hold people to account.
"Every organisation has a culture. The question is whether it's the culture you need to avoid the kind of risks that can blow up in the high-profile disasters we've had recently."
Ms Taylor points to the global cases of Toyota, Goldman Sachs and Enron where poor management culture has damaged corporate reputations and financial bottom lines.
She believes the $37 million sexual harassment case confronting the retailer David Jones should prompt other companies to review their culture in addition to policies and procedures.
"The first question to ask is if it's an isolated incident or is there actually a pattern of behaviour that has been allowed, or even encouraged over a long period of time by the way that people in an organisation will 'walk their talk'?" she said.
Ms Taylor says high-profile cases of poor corporate culture should be lessons to companies trying to improve their workplace, but she worries the case studies are too quickly consigned to corporate history.
She says short-term thinking is a growing problem.
During her Australian visit Ms Taylor will work with the likes of BHP Billiton, Alacetel Lucent and Vodaphone Hutchison to advise on ways to improve corporate culture.
By business editor Peter Ryan
Updated Fri Sep 24, 2010 4:27pm AEST
Sunday, October 3, 2010
Australia - New work safety laws on farms 02 Oct 2010
NEW work safety rules apply for farmers and rural industries from this month, with the phasing out of legislated occupational health and safety exemptions for rural Queensland.
Workplace Health and Safety Queensland executive director, Dr Simon Blackwood, said the phasing out program, which started in 1990, required all rural property workers to be aware of, and comply with, the Workplace Health and Safety Regulation 2008.
"The phasing out of these exemptions is part of a staged removal to bring the rural industry in line with other Queensland industries," Dr Blackwood said.
"This staged removal ensures rural workers can get appropriate training, education, certification and licensing where required.
"The exemptions revoked in 2009 involved rural activities in demolition, construction work and the use of hazardous substances.
"Exemptions being removed from this September concern registrable plant design, confined spaces and atmospheric contaminants.
A new rural chemicals guide is available to rural workplaces containing information on herbicides, pesticides, hazardous substances, dangerous goods, flammable liquids, and agricultural and veterinary medicines," he said.
"Workplace Health and Safety Queensland's A guide to working safely in confined spaces highlights the new requirements and provides useful tools and information.
"It highlights how working in a confined space has the potential to increase the risk of injury from noise, being overcome by fumes, gases or oxygen depletion, high or low temperatures, manual handling and slips, trips and falls."
For more information about the rural industry exemption removal or managing rural chemicals go to http://www.worksafe.qld.gov.au/ or call the Workplace Health and Safety Infoline on 1300 369 915
Dr Blackwood highlighted that the changes which took effect from September 1 did not apply to rural workers being exempt from the requirement to hold a licence to perform high-risk work (e.g. forklift, tower crane, scaffolding).
"The rural exemption for this part of the regulation has been extended indefinitely until the new national model health and safety laws are enacted in Queensland," he said.
"The amendment ensures workers in the rural industry are not legally required to undertake the cost of training to obtain a licence, only to find out when the national OHS laws are finalised that they may no longer be required to hold a licence to operate in that class of work.
"However, it should be noted that forklift licensing is an excellent means of meeting the requirements of the current WHS legislation to provide a safe workplace.
"Rural businesses that use forklifts are urged to have operators of forklifts trained and licensed, particularly those who are regularly required to operate forklifts."
Forklift (and other classes of high-risk work) licensing is expected to be required under the nationally harmonised legislation from January 1, 2012.
Workplace Health and Safety Queensland executive director, Dr Simon Blackwood, said the phasing out program, which started in 1990, required all rural property workers to be aware of, and comply with, the Workplace Health and Safety Regulation 2008.
"The phasing out of these exemptions is part of a staged removal to bring the rural industry in line with other Queensland industries," Dr Blackwood said.
"This staged removal ensures rural workers can get appropriate training, education, certification and licensing where required.
"The exemptions revoked in 2009 involved rural activities in demolition, construction work and the use of hazardous substances.
"Exemptions being removed from this September concern registrable plant design, confined spaces and atmospheric contaminants.
A new rural chemicals guide is available to rural workplaces containing information on herbicides, pesticides, hazardous substances, dangerous goods, flammable liquids, and agricultural and veterinary medicines," he said.
"Workplace Health and Safety Queensland's A guide to working safely in confined spaces highlights the new requirements and provides useful tools and information.
"It highlights how working in a confined space has the potential to increase the risk of injury from noise, being overcome by fumes, gases or oxygen depletion, high or low temperatures, manual handling and slips, trips and falls."
For more information about the rural industry exemption removal or managing rural chemicals go to http://www.worksafe.qld.gov.au/ or call the Workplace Health and Safety Infoline on 1300 369 915
Dr Blackwood highlighted that the changes which took effect from September 1 did not apply to rural workers being exempt from the requirement to hold a licence to perform high-risk work (e.g. forklift, tower crane, scaffolding).
"The rural exemption for this part of the regulation has been extended indefinitely until the new national model health and safety laws are enacted in Queensland," he said.
"The amendment ensures workers in the rural industry are not legally required to undertake the cost of training to obtain a licence, only to find out when the national OHS laws are finalised that they may no longer be required to hold a licence to operate in that class of work.
"However, it should be noted that forklift licensing is an excellent means of meeting the requirements of the current WHS legislation to provide a safe workplace.
"Rural businesses that use forklifts are urged to have operators of forklifts trained and licensed, particularly those who are regularly required to operate forklifts."
Forklift (and other classes of high-risk work) licensing is expected to be required under the nationally harmonised legislation from January 1, 2012.
Monday, September 20, 2010
Legislation changes will keep workers’ compensation scheme strong
Attorney-General and Minister for Industrial Relations
The Honourable Cameron Dick
The Bligh Government has introduced laws to maintain Queensland’s workers’ compensation scheme as the strongest in Australia and keep employer premiums low.
Industrial Relations Minister Cameron Dick said the laws, introduced in State Parliament today, would offset the impacts of the global financial crisis and rising costs associated with common law claims and health and medical bills.
“This suite of changes is fair to both employers and employees,” Mr Dick said.
“There will be no restrictions on workers’ access to common law compensation claims, while employers will still have the lowest average premium of any Australian state or territory.
“WorkCover Queensland will increase average premiums for employers from $1.15 per $100 of wages to $1.30 for 20010-11.
“Victoria, which has the next lowest employer premium costs, currently charges businesses $1.34 per $100 of wages – nearly 3.1 per cent more than the new Queensland rate.”
Mr Dick said the changes to the Workers’ Compensation and Rehabilitation Act 2003 would align with the Civil Liability Act 2003, harmonising liability and contributory negligence provisions and capping general damages at $300,000.
Damages for economic loss will be capped at three times Queensland Ordinary Time Earnings, or $176,607 a year.
“Workers will still have unchanged access to their benefits under the statutory scheme,” he said.
“However, claims in the courts will be subject to the new cap, as well as liability provisions. In addition, a court will be able to award costs against a worker where a claim is not successful.”
Mr Dick thanked key stakeholders, including unions, for their input into the new laws.
“These changes – which were developed after extensive consultation with the union movement, the legal profession and employer groups – will ensure that WorkCover continues to maintain its position as the strongest workers’ compensation scheme in Australia.”
The Honourable Cameron Dick
The Bligh Government has introduced laws to maintain Queensland’s workers’ compensation scheme as the strongest in Australia and keep employer premiums low.
Industrial Relations Minister Cameron Dick said the laws, introduced in State Parliament today, would offset the impacts of the global financial crisis and rising costs associated with common law claims and health and medical bills.
“This suite of changes is fair to both employers and employees,” Mr Dick said.
“There will be no restrictions on workers’ access to common law compensation claims, while employers will still have the lowest average premium of any Australian state or territory.
“WorkCover Queensland will increase average premiums for employers from $1.15 per $100 of wages to $1.30 for 20010-11.
“Victoria, which has the next lowest employer premium costs, currently charges businesses $1.34 per $100 of wages – nearly 3.1 per cent more than the new Queensland rate.”
Mr Dick said the changes to the Workers’ Compensation and Rehabilitation Act 2003 would align with the Civil Liability Act 2003, harmonising liability and contributory negligence provisions and capping general damages at $300,000.
Damages for economic loss will be capped at three times Queensland Ordinary Time Earnings, or $176,607 a year.
“Workers will still have unchanged access to their benefits under the statutory scheme,” he said.
“However, claims in the courts will be subject to the new cap, as well as liability provisions. In addition, a court will be able to award costs against a worker where a claim is not successful.”
Mr Dick thanked key stakeholders, including unions, for their input into the new laws.
“These changes – which were developed after extensive consultation with the union movement, the legal profession and employer groups – will ensure that WorkCover continues to maintain its position as the strongest workers’ compensation scheme in Australia.”
Saturday, September 18, 2010
Round-up: occupational health and safety and employment law
There have been some recent changes to the obligations of transport and logistics employers under the Fair Work Act and the Occupational Health and Safety Act (NSW).
Since the introduction of the Fair Work Act 2009 (Cth), employment law has gone through significant changes which have affected employers, including those in the transport and logistics industry. The industry, which is known for its strong union presence and safety concerns, has also been impacted by the recent decisions relating to OHS.
In this article we'll outline the recent changes to the obligations employers in the transport and logistics industry have under the Fair Work Act and the Occupational Health and Safety Act 2000 (NSW).
Adverse action under the Fair Work Act
Since the introduction of the new industrial relations legislation, we have seen some changes to the "adverse action" provisions under the Fair Work Act.
Under the new laws, employers cannot take adverse action against persons because they have a workplace right, because they have or have not exercised the right, or because they propose or propose not to exercise the right. An employee now has an unfettered right to make a complaint or inquiry in relation to his or her employment without fear of adverse action.
Furthermore, once an employee has established that adverse action has occurred, the onus falls on the employer to prove that the reason for the adverse action was not because the claimant had a workplace right, engaged or refused to engage in a lawful industrial activity, or because of unlawful discrimination. Employers should note that the "adverse action" protection is now extended to employees and prospective employees.
Employers' responsibilities under the NSW OHS law
Following the High Court decision in Kirk v Industrial Relations Commission [2010] HCA 1, employers are in a somewhat better position when defending claims of breaches under the Occupational Health and Safety Act 2000 (NSW).
The High Court in this instance found that WorkCover NSW will now have to nominate with some precision what the employer should have done to avoid breaches of the OHS Act, as a failure to do so would render a defence under section 53 – namely, that the required action was not reasonably practicable – near impossible to establish.
The Kirk decision potentially represents a major shift in the way OHS laws are applied in NSW, and while employers are in a better position following the decision, the NSW legislation still remains one of the strictest in the country.
Proposed Federal OHS legislation
Disparity between OHS legislation in different states has led to a proposal by the Federal Labor Government to enact Federal OHS laws which will standardise OHS obligations in Australia.
The proposed legislation is due to be enacted in early 2012, and the model laws bear close resemblance to legislation currently in place in Victoria and Queensland.
Once the laws are enacted, employers who carry on business in more than one state will be in a better position to ensure that they meet their obligations under the legislation. It should be noted that while the national laws will simplify compliance for employers, stringent standards will continue to apply.
Can an employee be unfairly dismissed if they were terminated due to OHS breaches?
While the termination of employment is subject to the unfair dismissal provisions of the Fair Work Act, it has been a long-standing principle that termination due to OHS breaches will not be "harsh, unjust or unreasonable". A recent decision by Fair Work Australia, however, has determined that a dismissal due to OHS breaches can be just and reasonable but still harsh under the circumstances.
The case in question turned on particular facts, and employers should not interpret this decision to mean that employment cannot be fairly terminated where there is a serious breach of workplace safety policies and practices.
Employers should ensure that their organisation and their people understand the obligations when terminating someone's employment, and that the dismissal is warranted given the nature of the breach and all the relevant circumstances.
Clayton Utz & Maurice Baroni.
Since the introduction of the Fair Work Act 2009 (Cth), employment law has gone through significant changes which have affected employers, including those in the transport and logistics industry. The industry, which is known for its strong union presence and safety concerns, has also been impacted by the recent decisions relating to OHS.
In this article we'll outline the recent changes to the obligations employers in the transport and logistics industry have under the Fair Work Act and the Occupational Health and Safety Act 2000 (NSW).
Adverse action under the Fair Work Act
Since the introduction of the new industrial relations legislation, we have seen some changes to the "adverse action" provisions under the Fair Work Act.
Under the new laws, employers cannot take adverse action against persons because they have a workplace right, because they have or have not exercised the right, or because they propose or propose not to exercise the right. An employee now has an unfettered right to make a complaint or inquiry in relation to his or her employment without fear of adverse action.
Furthermore, once an employee has established that adverse action has occurred, the onus falls on the employer to prove that the reason for the adverse action was not because the claimant had a workplace right, engaged or refused to engage in a lawful industrial activity, or because of unlawful discrimination. Employers should note that the "adverse action" protection is now extended to employees and prospective employees.
Employers' responsibilities under the NSW OHS law
Following the High Court decision in Kirk v Industrial Relations Commission [2010] HCA 1, employers are in a somewhat better position when defending claims of breaches under the Occupational Health and Safety Act 2000 (NSW).
The High Court in this instance found that WorkCover NSW will now have to nominate with some precision what the employer should have done to avoid breaches of the OHS Act, as a failure to do so would render a defence under section 53 – namely, that the required action was not reasonably practicable – near impossible to establish.
The Kirk decision potentially represents a major shift in the way OHS laws are applied in NSW, and while employers are in a better position following the decision, the NSW legislation still remains one of the strictest in the country.
Proposed Federal OHS legislation
Disparity between OHS legislation in different states has led to a proposal by the Federal Labor Government to enact Federal OHS laws which will standardise OHS obligations in Australia.
The proposed legislation is due to be enacted in early 2012, and the model laws bear close resemblance to legislation currently in place in Victoria and Queensland.
Once the laws are enacted, employers who carry on business in more than one state will be in a better position to ensure that they meet their obligations under the legislation. It should be noted that while the national laws will simplify compliance for employers, stringent standards will continue to apply.
Can an employee be unfairly dismissed if they were terminated due to OHS breaches?
While the termination of employment is subject to the unfair dismissal provisions of the Fair Work Act, it has been a long-standing principle that termination due to OHS breaches will not be "harsh, unjust or unreasonable". A recent decision by Fair Work Australia, however, has determined that a dismissal due to OHS breaches can be just and reasonable but still harsh under the circumstances.
The case in question turned on particular facts, and employers should not interpret this decision to mean that employment cannot be fairly terminated where there is a serious breach of workplace safety policies and practices.
Employers should ensure that their organisation and their people understand the obligations when terminating someone's employment, and that the dismissal is warranted given the nature of the breach and all the relevant circumstances.
Clayton Utz & Maurice Baroni.
Wednesday, September 15, 2010
Failure to seek first aid for injured worker ‘outrageous’
A Melbourne magistrate has described the failure of a Cheltenham company to seek first aid for a worker who hit his head and later died as “outrageous”.
Metal products manufacturer Pressfast Industries Pty Ltd was convicted and fined recently after a 2008 incident in which a worker fell over and hit his head on concrete after being struck by a forklift.
The 60 year-old man was later found unconscious at work and died in hospital two days later.
“There was no qualified first aider on site, and the company failed to call an ambulance or seek first aid for the worker,” WorkSafe Victoria’s strategic programs director Trevor Martin said.
“The only staff member with first aid training was certified in 1984, and wasn’t alerted until it was too late.”
In handing down his sentence, Magistrate Andrew Capell referred to the company’s decision not to seek help from the first aider, despite the expired certificate, as “outrageous”.
Following the incident, WorkSafe issued charges against Pressfast under the Occupational Health and Safety Act 2004.
Pressfast was convicted of two charges and fined a total of $163,500, and the court agreed for the third charge to be dealt with through an Adverse Publicity Order – requiring Pressfast to pay for a series of newspaper advertisements publicising the situation and health and safety tips from WorkSafe.
“This incident really brings home the importance of workplaces having a trained first aider on site at all times,” Martin said.
“In this case, Pressfast didn’t have a plan in place for dealing with first aid situations. Requiring Pressfast to publicise this through newspaper advertisements will alert other companies to make sure first aid is a priority in their workplace.”
Employees need to be given information and instruction, such as the location of kits, the names of officers and procedures to be followed when first aid is required, according to Martin.
Pressfast director Gunther Mayr was also fined $20,000 without conviction, for failing to provide and maintain a safe working environment for employees.
Undertaking a Risk Assesment for First Aid at the workplace is extremely vital to ensure that appropraite resources are allocated as necessary for your business and operations. There are plenty of good resources available to assist in determining what your needs are in busines business sector. Safety For Life can provide an appropriate Risk Assessment to define your needs.
Metal products manufacturer Pressfast Industries Pty Ltd was convicted and fined recently after a 2008 incident in which a worker fell over and hit his head on concrete after being struck by a forklift.
The 60 year-old man was later found unconscious at work and died in hospital two days later.
“There was no qualified first aider on site, and the company failed to call an ambulance or seek first aid for the worker,” WorkSafe Victoria’s strategic programs director Trevor Martin said.
“The only staff member with first aid training was certified in 1984, and wasn’t alerted until it was too late.”
In handing down his sentence, Magistrate Andrew Capell referred to the company’s decision not to seek help from the first aider, despite the expired certificate, as “outrageous”.
Following the incident, WorkSafe issued charges against Pressfast under the Occupational Health and Safety Act 2004.
Pressfast was convicted of two charges and fined a total of $163,500, and the court agreed for the third charge to be dealt with through an Adverse Publicity Order – requiring Pressfast to pay for a series of newspaper advertisements publicising the situation and health and safety tips from WorkSafe.
“This incident really brings home the importance of workplaces having a trained first aider on site at all times,” Martin said.
“In this case, Pressfast didn’t have a plan in place for dealing with first aid situations. Requiring Pressfast to publicise this through newspaper advertisements will alert other companies to make sure first aid is a priority in their workplace.”
Employees need to be given information and instruction, such as the location of kits, the names of officers and procedures to be followed when first aid is required, according to Martin.
Pressfast director Gunther Mayr was also fined $20,000 without conviction, for failing to provide and maintain a safe working environment for employees.
Undertaking a Risk Assesment for First Aid at the workplace is extremely vital to ensure that appropraite resources are allocated as necessary for your business and operations. There are plenty of good resources available to assist in determining what your needs are in busines business sector. Safety For Life can provide an appropriate Risk Assessment to define your needs.
Monday, September 13, 2010
Employee found to be unfairly dismissed even though he breached safety rules
The recent case of Paul L Quinlivan v Norske Skog Paper Mills (Australia) Ltd [2010] FWA 883 has highlighted Fair Work Australia's acceptance to reinstate employees validly terminated for breaches of workplace safety policies and practices if the termination was "harsh", or as was found in this instance, had a disastrous effect on the employee's life.
As we will see, however, this case turned on its own facts and employers and employees alike should be cautious about drawing conclusions as to whether a safety-based termination will be deemed "unfair" if challenged before Fair Work Australia.
The facts of the case
Mr Quinlivan was employed by the Norske Skog Paper Mill for approximately 20 years.
When the plant was shut down for maintenance, he began the task of cleaning a tank, which was a physically demanding job in a warm, dark and damp environment. As the plant was in shutdown, additional signage had been placed at the entrances to the plant reminding employees that safety glasses must be worn at all times.
Mr Quinlivan did not put on the safety glasses he was required to wear because, he said, there was not enough light and the glasses fogged up due to the warm, damp atmosphere and his perspiration.
Over several hours, he was repeatedly reminded by supervising staff to put his glasses on, as well as of the safety risks of not wearing glasses and the presence of the signs. His supervisors twice offered him safety glasses, to which he responded in a generally discourteous manner.
His employment was then terminated because of his repeated breach of safety policies and practices in failing to wear the safety glasses despite prominent signage and instructions to do so, and a separate matter concerning an alleged failure to follow a lawful direction given by his supervisor with respect to modification and use of a tool.
Mr Quinlivan applied to Fair Work Australia under section 394 of the Fair Work Act 2009, claiming that his termination was harsh, unjust or unreasonable.
Was his dismissal harsh, unjust or unreasonable?
In determining whether Mr Quinlivan's dismissal was harsh, unjust or unreasonable, Vice President Lawler turned to section 387 of the Fair Work Act. He considered Mr Quinlivan's disciplinary history (which consisted of minor incidents), as well as the employer's obligation to comply with "onerous" State OHS legislation.
Vice President Lawler held that Mr Quinlivan's failure to wear safety glasses (despite repeated instructions to do so in accordance with safety policies and practices) and his "disdainful and abusive responses" to his supervisors constituted "relatively serious misconduct" and a valid reason for dismissal. He did not, however, find that Mr Quinlivan engaged in misconduct in the form of a refusal to obey a lawful direction with respect to a tool.
Vice President Lawler pointed out that if a dismissal is not unjust or unreasonable, it could still be deemed harsh if it would have a disastrous impact on the employee's personal and economic situation.
Mr Quinlivan was 44 years old. He had been employed at the mill for 20 years, had limited education, no trade, no post-school educational qualifications, he had been unsuccessful in finding another full time job since his termination despite "serious efforts" to do so, and he had a mortgage and family to support:
"Realistically, the applicant faces the prospect of long-term unemployment or underemployment. His family faces severe financial hardship. There is a real risk that he will lose his house. His marriage will suffer increased stresses. His wife's depression could well be exacerbated. All these circumstances are likely to impact adversely on his young daughters."
In these circumstances, Vice President Lawler found that the termination was harsh and therefore Mr Quinlivan had been unfairly dismissed. He ordered that the applicant be reinstated but sanctioned Mr Quinlivan by refusing him his lost wages from the date of dismissal to reinstatement, approximately $18 000, because of the seriousness of his misconduct.
So how should employers handle a similar situation?
Although in this instance, a court found a termination for an OHS breach to be harsh, unjust or unreasonable, such findings are not common and this case is somewhat novel.
Employers should not interpret this decision to mean that employment should not be terminated where there is a serious breach of workplace safety policies and practices. This case turned on its particular facts, as Vice President Lawler noted:
"If the applicant had substantially lesser service, had not been a middle aged man with very poor employment prospects for whom the dismissal has such personal and economic consequences or if it had been brought home to him at any time on 2 September 2009 that a further breach would have serious consequences, I would not have concluded that the dismissal was harsh."
As with any termination, the key is to make sure that your organisation and your people understand their obligations under the Fair Work Act when terminating someone's employment, and that the dismissal is warranted given the nature of the breach and all the relevant circumstances.
As we will see, however, this case turned on its own facts and employers and employees alike should be cautious about drawing conclusions as to whether a safety-based termination will be deemed "unfair" if challenged before Fair Work Australia.
The facts of the case
Mr Quinlivan was employed by the Norske Skog Paper Mill for approximately 20 years.
When the plant was shut down for maintenance, he began the task of cleaning a tank, which was a physically demanding job in a warm, dark and damp environment. As the plant was in shutdown, additional signage had been placed at the entrances to the plant reminding employees that safety glasses must be worn at all times.
Mr Quinlivan did not put on the safety glasses he was required to wear because, he said, there was not enough light and the glasses fogged up due to the warm, damp atmosphere and his perspiration.
Over several hours, he was repeatedly reminded by supervising staff to put his glasses on, as well as of the safety risks of not wearing glasses and the presence of the signs. His supervisors twice offered him safety glasses, to which he responded in a generally discourteous manner.
His employment was then terminated because of his repeated breach of safety policies and practices in failing to wear the safety glasses despite prominent signage and instructions to do so, and a separate matter concerning an alleged failure to follow a lawful direction given by his supervisor with respect to modification and use of a tool.
Mr Quinlivan applied to Fair Work Australia under section 394 of the Fair Work Act 2009, claiming that his termination was harsh, unjust or unreasonable.
Was his dismissal harsh, unjust or unreasonable?
In determining whether Mr Quinlivan's dismissal was harsh, unjust or unreasonable, Vice President Lawler turned to section 387 of the Fair Work Act. He considered Mr Quinlivan's disciplinary history (which consisted of minor incidents), as well as the employer's obligation to comply with "onerous" State OHS legislation.
Vice President Lawler held that Mr Quinlivan's failure to wear safety glasses (despite repeated instructions to do so in accordance with safety policies and practices) and his "disdainful and abusive responses" to his supervisors constituted "relatively serious misconduct" and a valid reason for dismissal. He did not, however, find that Mr Quinlivan engaged in misconduct in the form of a refusal to obey a lawful direction with respect to a tool.
Vice President Lawler pointed out that if a dismissal is not unjust or unreasonable, it could still be deemed harsh if it would have a disastrous impact on the employee's personal and economic situation.
Mr Quinlivan was 44 years old. He had been employed at the mill for 20 years, had limited education, no trade, no post-school educational qualifications, he had been unsuccessful in finding another full time job since his termination despite "serious efforts" to do so, and he had a mortgage and family to support:
"Realistically, the applicant faces the prospect of long-term unemployment or underemployment. His family faces severe financial hardship. There is a real risk that he will lose his house. His marriage will suffer increased stresses. His wife's depression could well be exacerbated. All these circumstances are likely to impact adversely on his young daughters."
In these circumstances, Vice President Lawler found that the termination was harsh and therefore Mr Quinlivan had been unfairly dismissed. He ordered that the applicant be reinstated but sanctioned Mr Quinlivan by refusing him his lost wages from the date of dismissal to reinstatement, approximately $18 000, because of the seriousness of his misconduct.
So how should employers handle a similar situation?
Although in this instance, a court found a termination for an OHS breach to be harsh, unjust or unreasonable, such findings are not common and this case is somewhat novel.
Employers should not interpret this decision to mean that employment should not be terminated where there is a serious breach of workplace safety policies and practices. This case turned on its particular facts, as Vice President Lawler noted:
"If the applicant had substantially lesser service, had not been a middle aged man with very poor employment prospects for whom the dismissal has such personal and economic consequences or if it had been brought home to him at any time on 2 September 2009 that a further breach would have serious consequences, I would not have concluded that the dismissal was harsh."
As with any termination, the key is to make sure that your organisation and your people understand their obligations under the Fair Work Act when terminating someone's employment, and that the dismissal is warranted given the nature of the breach and all the relevant circumstances.
Wednesday, September 1, 2010
DJs case points to a company culture and a 'corporate cancer'
WHEN Kristy Fraser-Kirk brought a sexual harassment claim against retailer David Jones this week, much of the focus was on the figure.
After all, a $37 million claim for punitive damages sounds straight out of a courtroom in the US -- a country where anyone can sue for almost anything -- and far removed from the local reality where the record award for a sexual harassment case currently stands around $500,000.
Yet, ironically, had the 27-year-old publicist been employed at one of the larger US-based retailers instead, there is a good chance her complaint might not have seen the light of day thanks to a corporate culture more attuned to the risks of sexual harassment in the workplace.
Fraser-Kirk is now a household name thanks to the titillating nature of her allegations and the high-profile man they are directed towards.
Former David Jones chief executive Mark McInnes was as close to a corporate celebrity in Australia as one gets. Wealthy and successful -- he earned more than $35m during the seven years he oversaw the department store's revival and quadrupled the company's share price -- McInnes was a regular on Sydney's glitzy social scene. And it was no secret that the twice-divorced 45-year-old had no shortage of female admirers.
However, his reputation was tarnished forever on June 18 when it was revealed that a "mutual termination" of his employment had been agreed upon following incidents at two company functions.
McInnes's subsequent confession that he had acted in a manner that was unbecoming towards a female employee left little to the imagination and for weeks rumours swirled about the exact nature of his conduct. Supporters offered that McInnes had simply misread the woman's signals.
However, Fraser-Kirk's statement of claim, lobbed in the Federal Court on Monday after settlement negotiations with her employer apparently fell through late last week, lists the incidents in great detail.
It also points to a culture within the organisation that appears to have permitted harassment and bullying.
Fraser-Kirk alleges that McInnes first acted inappropriately towards her at a company luncheon held in May to celebrate the renewal of a contract with well-known racing trainer Gai Waterhouse.
Throughout the event, according to the claim, McInnes urged his employee to try a dessert that he likened to "a f . . k in the mouth", touched her under her clothing and repeatedly asked her to accompany him back to his Bondi home, which she declined.
Fraser-Kirk alleges that McInnes's behaviour towards her escalated at a company function two weeks later, where he touched her again beneath her clothes and attempted to kiss her against her will. She says the previous invitation to go home with him was repeated and she received a telephone call and a text message from her boss the next day, requesting that she meet him for dinner and a drink.
Fraser-Kirk also claims to have reported McInnes to her direct supervisor, Tahli Koch, and the company's public relations general manager, Anne-Maree Kelly, immediately after the first incident, only to be told by Kelly: "Next time that happens, you just need to be very clear and say, 'No, Mark', and he'll back off."
Fraser-Kirk says she later made it known that she was unwilling to travel to Melbourne for a work engagement because of her concerns about McInnes's unwelcome attention. Among other things, she is claiming that David Jones sent her to the second function despite knowing she was at risk of further unwelcome sexual advances, and has cited examples of four other women she claims have also been the subject of similar harassment.
The claim also points to a bullying complaint lodged against McInnes in 1999 before he was chief executive and a "bullying approach" later adopted under his watch that had "led to a reluctance by employees to raise concerns about management conduct".
The allegations, if proven to be true, reflect poorly on an organisation that has staunchly defended its policies in the area of workplace health and safety, including the prevention of sexual harassment and discrimination.
Most large publicly listed companies have similar policies. In fact, all are encouraged to publish details of any codes of conduct as part of the corporate governance guidelines put forward by the Australian Securities Exchange. While these codes are not required to make specific representations about harassment in the workplace, they are required to take into account how a company ensures it complies with various legal obligations. Sexual harassment is outlawed under federal and state legislation.
But if figures emerging from the most recent surveys on the subject are to be believed, the policies are not working.
The Australian Human Rights Commission conducted a national survey in 2008 and found that 22 per cent of women and 5 per cent of men claimed to have experienced sexual harassment at work. While that compared with 28 per cent of women and 7 per cent of men in 2003, indicating that progress was being made, Sex Discrimination Commissioner Elizabeth Broderick was deeply concerned about another finding.
"When we asked people about what they thought sexual harassment was, what we found was such a lack of understanding," Broderick tells The Weekend Australian. "People said 'no', when asked if they'd experienced sexual harassment. But when we asked them if they'd experienced any unwelcome touching or hugging, for example, they'd say, 'oh yeah, that happens quite regularly'."
Cases that appear before the Federal Court or state-based tribunals suggest that the same offences keep cropping up: unwanted touching, kissing, suggestive or pornographic emails and text messages, and persistent requests for dates.
In 2008, there was a Monash Medical School student who was compensated $100,000 after the Victorian Civil and Administrative Tribunal found her supervisor dropped his pants and grabbed her breast. The Federal Court last year heard the case of a woman who was sacked for purported shortfalls in her work performance after complaining that a colleague was badgering her to enter into a sexual relationship. The court found that the woman was terminated because she would not tolerate ongoing harassment. She was awarded $466,000 in damages, including compensations for pain and suffering and medical expenses incurred to treat depression and anxiety that she had suffered.
The Victorian Equal Opportunity & Human Rights Commission, which oversees the Equal Employment Opportunity Act, receives more than 200 complaints a year centred on sexual harassment. These are typically cases that have not been able to be resolved internally.
Commissioner Helen Szoke believes that the cases she sees are the tip of the iceberg, given that most people who experience harassment do not pursue the matter because they are embarrassed, fear adverse repercussions for their careers or lack confidence in their company's complaint resolution process.
Surprisingly, the cases do not all emerge from small businesses. "We see cases from across a range of businesses," Szoke says. "And, yes, some of those companies involved are large businesses that have (anti-harassment) policies and procedures in place. But it's not good enough to just have a policy."
As the David Jones case suggests, the existence of a policy is not enough to ensure that a company's board is made immediately aware of allegations levelled against a senior executive, which is ironic given the retailer's directors, including Australian Olympic Committee head John Coates and former Woolworths boss Reg Clairs, have been individually named as defendants.
David Jones chairman Bob Savage has insisted that neither he nor the board knew anything of McInnes acting inappropriately until it was brought to its attention days before his termination.
Peter Wilson, national president of the Australian Human Resources Institute, describes the bullying and sexual harassment of women in the workplace as a "corporate cancer", and believes that its prevalence despite legislation being in place for the past 25 years can be largely attributed to the lack of women on boards and within senior management.
(It is worth noting, though, that David Jones has Business Council of Australian chief executive Katie Lahey serving on its board and its management committee includes three women.)
"The evidence is clear that the very appearance of the female gender in male-dominated groups immediately changes behaviour," Wilson says.
"Generations X and Y are used to men and women sharing roles, at work and at home. Primarily this is an older-male problem."
Broderick agrees.
"The more hierarchical the environment, the more susceptible it is to sexual discrimination, especially those industries or organisations where there's a lot of junior women and a lot of senior men," she says.
While the quantum of Fraser-Kirk's claim has whipped talkback radio hosts and their listeners into a frenzy, it is clear that the $37m figure is part of a strategy designed to inflict punishment on McInnes, David Jones and its directors.
Even the timing of the court filing, which coincided with the store's spring-summer fashion launch -- one of its biggest publicity opportunities of the year -- smacked of a payback.
Fraser-Kirk has appointed the same legal firm that represented one-time PricewaterhouseCoopers partner Christina Rich in her high-profile harassment and discrimination case several years ago. Rich reportedly settled her complaint for more than $5m.
While some have painted the David Jones staffer as a gold-digger, she is not chasing a payout purely for herself. She is seeking unspecified damages relating to loss and damage and has said that any punitive damages would go to charity.
One former boss of a global investment bank says the case highlights how Australian companies lag when it comes to stamping out workplace harassment.
He points to the sexual harassment revolution that took place in the US during the 1990s that forced corporations to take seriously their obligations in providing a safe and harassment-free workplace. Just look at the damage caused to Smith Barney's reputation when a sexual harassment lawsuit filed by senior broker Pamela Martens in 1996 shone a light on the company's then-misogynist culture.
While the case and various others it sparked settled out of court, allegations against the bank were fleshed out in the book Tales from the Boom-Boom Room: Women vs Wall Street, published in 2002.
The book details a culture where women were routinely groped, called "whores" and banned from off-site meetings. When one woman complained about a male co-worker's conduct, she was apparently subjected to a grilling that included questions about her sex life, her gynaecological records and queries about her marriage breakdown.
"When I was working in New York, this sort of stuff was taken seriously because companies had learned the hard way that these cases can become very big problems. Big dollars are involved," says the banker, who is now based in Australia.
"In the US and Europe, what companies do is set up an anonymous telephone hotline so that employees can comfortably report any allegations to an independent party. The other thing is staff training. But in Australia, there really seems to be this 'she'll be right' attitude.
"But sexual harassment costs money, it costs reputations. "
Wilson agrees that Australian companies need to improve. The institute advocated four things all companies should do: establish a clear policy spelling out that sexual harassment is not acceptable, institute regular training programs, establish an external whistleblowing capability and act quickly when an issue arises.
While Wilson applauds Savage for his apparent swift action once McInnes's conduct came to his attention, he says most companies lag in this area. And many still do not have independent people handling whistleblowing, he says.
"I know corporate Australia will watch what happens with great interest," says Wilson. "It may well turn out to become a precedent. It has certainly sharpened awareness of the matter."
It is unlikely that the case will ever go to court. David Jones would no doubt be reluctant to see the matter go to trial, because of the risk of further embarrassing details emerging.
McInnes, who has been overseas with his pregnant girlfriend since mid-June, this week admitted to making mistakes but denied many of Fraser-Kirk's specific allegations.
Savage has said from the start that the company has been intent on supporting Fraser-Kirk. Yet his comments this week suggest that his patience could be running out.
"We have made it clear we value Ms Fraser-Kirk as an employee and we wanted her to return to work. If she chose not to return or she felt she was unable to return to work, we have made it clear we would be willing to compensate her for her loss." he told The Weekend Australian. "It was never our preference for this matter to be litigated and we made this clear. We are disappointed she felt it was necessary, but now proceedings have commenced, we have no option but to defend them."
A very interesting case indeed and in the context of bullying and harassement which falls under the WHS Legislation, what has your company done to assess the risk work bullying and harassment? Does your policy and procedure standard up to the test should an incident occur? Making sure you have a system in place that meets the guidelines is paramount.
After all, a $37 million claim for punitive damages sounds straight out of a courtroom in the US -- a country where anyone can sue for almost anything -- and far removed from the local reality where the record award for a sexual harassment case currently stands around $500,000.
Yet, ironically, had the 27-year-old publicist been employed at one of the larger US-based retailers instead, there is a good chance her complaint might not have seen the light of day thanks to a corporate culture more attuned to the risks of sexual harassment in the workplace.
Fraser-Kirk is now a household name thanks to the titillating nature of her allegations and the high-profile man they are directed towards.
Former David Jones chief executive Mark McInnes was as close to a corporate celebrity in Australia as one gets. Wealthy and successful -- he earned more than $35m during the seven years he oversaw the department store's revival and quadrupled the company's share price -- McInnes was a regular on Sydney's glitzy social scene. And it was no secret that the twice-divorced 45-year-old had no shortage of female admirers.
However, his reputation was tarnished forever on June 18 when it was revealed that a "mutual termination" of his employment had been agreed upon following incidents at two company functions.
McInnes's subsequent confession that he had acted in a manner that was unbecoming towards a female employee left little to the imagination and for weeks rumours swirled about the exact nature of his conduct. Supporters offered that McInnes had simply misread the woman's signals.
However, Fraser-Kirk's statement of claim, lobbed in the Federal Court on Monday after settlement negotiations with her employer apparently fell through late last week, lists the incidents in great detail.
It also points to a culture within the organisation that appears to have permitted harassment and bullying.
Fraser-Kirk alleges that McInnes first acted inappropriately towards her at a company luncheon held in May to celebrate the renewal of a contract with well-known racing trainer Gai Waterhouse.
Throughout the event, according to the claim, McInnes urged his employee to try a dessert that he likened to "a f . . k in the mouth", touched her under her clothing and repeatedly asked her to accompany him back to his Bondi home, which she declined.
Fraser-Kirk alleges that McInnes's behaviour towards her escalated at a company function two weeks later, where he touched her again beneath her clothes and attempted to kiss her against her will. She says the previous invitation to go home with him was repeated and she received a telephone call and a text message from her boss the next day, requesting that she meet him for dinner and a drink.
Fraser-Kirk also claims to have reported McInnes to her direct supervisor, Tahli Koch, and the company's public relations general manager, Anne-Maree Kelly, immediately after the first incident, only to be told by Kelly: "Next time that happens, you just need to be very clear and say, 'No, Mark', and he'll back off."
Fraser-Kirk says she later made it known that she was unwilling to travel to Melbourne for a work engagement because of her concerns about McInnes's unwelcome attention. Among other things, she is claiming that David Jones sent her to the second function despite knowing she was at risk of further unwelcome sexual advances, and has cited examples of four other women she claims have also been the subject of similar harassment.
The claim also points to a bullying complaint lodged against McInnes in 1999 before he was chief executive and a "bullying approach" later adopted under his watch that had "led to a reluctance by employees to raise concerns about management conduct".
The allegations, if proven to be true, reflect poorly on an organisation that has staunchly defended its policies in the area of workplace health and safety, including the prevention of sexual harassment and discrimination.
Most large publicly listed companies have similar policies. In fact, all are encouraged to publish details of any codes of conduct as part of the corporate governance guidelines put forward by the Australian Securities Exchange. While these codes are not required to make specific representations about harassment in the workplace, they are required to take into account how a company ensures it complies with various legal obligations. Sexual harassment is outlawed under federal and state legislation.
But if figures emerging from the most recent surveys on the subject are to be believed, the policies are not working.
The Australian Human Rights Commission conducted a national survey in 2008 and found that 22 per cent of women and 5 per cent of men claimed to have experienced sexual harassment at work. While that compared with 28 per cent of women and 7 per cent of men in 2003, indicating that progress was being made, Sex Discrimination Commissioner Elizabeth Broderick was deeply concerned about another finding.
"When we asked people about what they thought sexual harassment was, what we found was such a lack of understanding," Broderick tells The Weekend Australian. "People said 'no', when asked if they'd experienced sexual harassment. But when we asked them if they'd experienced any unwelcome touching or hugging, for example, they'd say, 'oh yeah, that happens quite regularly'."
Cases that appear before the Federal Court or state-based tribunals suggest that the same offences keep cropping up: unwanted touching, kissing, suggestive or pornographic emails and text messages, and persistent requests for dates.
In 2008, there was a Monash Medical School student who was compensated $100,000 after the Victorian Civil and Administrative Tribunal found her supervisor dropped his pants and grabbed her breast. The Federal Court last year heard the case of a woman who was sacked for purported shortfalls in her work performance after complaining that a colleague was badgering her to enter into a sexual relationship. The court found that the woman was terminated because she would not tolerate ongoing harassment. She was awarded $466,000 in damages, including compensations for pain and suffering and medical expenses incurred to treat depression and anxiety that she had suffered.
The Victorian Equal Opportunity & Human Rights Commission, which oversees the Equal Employment Opportunity Act, receives more than 200 complaints a year centred on sexual harassment. These are typically cases that have not been able to be resolved internally.
Commissioner Helen Szoke believes that the cases she sees are the tip of the iceberg, given that most people who experience harassment do not pursue the matter because they are embarrassed, fear adverse repercussions for their careers or lack confidence in their company's complaint resolution process.
Surprisingly, the cases do not all emerge from small businesses. "We see cases from across a range of businesses," Szoke says. "And, yes, some of those companies involved are large businesses that have (anti-harassment) policies and procedures in place. But it's not good enough to just have a policy."
As the David Jones case suggests, the existence of a policy is not enough to ensure that a company's board is made immediately aware of allegations levelled against a senior executive, which is ironic given the retailer's directors, including Australian Olympic Committee head John Coates and former Woolworths boss Reg Clairs, have been individually named as defendants.
David Jones chairman Bob Savage has insisted that neither he nor the board knew anything of McInnes acting inappropriately until it was brought to its attention days before his termination.
Peter Wilson, national president of the Australian Human Resources Institute, describes the bullying and sexual harassment of women in the workplace as a "corporate cancer", and believes that its prevalence despite legislation being in place for the past 25 years can be largely attributed to the lack of women on boards and within senior management.
(It is worth noting, though, that David Jones has Business Council of Australian chief executive Katie Lahey serving on its board and its management committee includes three women.)
"The evidence is clear that the very appearance of the female gender in male-dominated groups immediately changes behaviour," Wilson says.
"Generations X and Y are used to men and women sharing roles, at work and at home. Primarily this is an older-male problem."
Broderick agrees.
"The more hierarchical the environment, the more susceptible it is to sexual discrimination, especially those industries or organisations where there's a lot of junior women and a lot of senior men," she says.
While the quantum of Fraser-Kirk's claim has whipped talkback radio hosts and their listeners into a frenzy, it is clear that the $37m figure is part of a strategy designed to inflict punishment on McInnes, David Jones and its directors.
Even the timing of the court filing, which coincided with the store's spring-summer fashion launch -- one of its biggest publicity opportunities of the year -- smacked of a payback.
Fraser-Kirk has appointed the same legal firm that represented one-time PricewaterhouseCoopers partner Christina Rich in her high-profile harassment and discrimination case several years ago. Rich reportedly settled her complaint for more than $5m.
While some have painted the David Jones staffer as a gold-digger, she is not chasing a payout purely for herself. She is seeking unspecified damages relating to loss and damage and has said that any punitive damages would go to charity.
One former boss of a global investment bank says the case highlights how Australian companies lag when it comes to stamping out workplace harassment.
He points to the sexual harassment revolution that took place in the US during the 1990s that forced corporations to take seriously their obligations in providing a safe and harassment-free workplace. Just look at the damage caused to Smith Barney's reputation when a sexual harassment lawsuit filed by senior broker Pamela Martens in 1996 shone a light on the company's then-misogynist culture.
While the case and various others it sparked settled out of court, allegations against the bank were fleshed out in the book Tales from the Boom-Boom Room: Women vs Wall Street, published in 2002.
The book details a culture where women were routinely groped, called "whores" and banned from off-site meetings. When one woman complained about a male co-worker's conduct, she was apparently subjected to a grilling that included questions about her sex life, her gynaecological records and queries about her marriage breakdown.
"When I was working in New York, this sort of stuff was taken seriously because companies had learned the hard way that these cases can become very big problems. Big dollars are involved," says the banker, who is now based in Australia.
"In the US and Europe, what companies do is set up an anonymous telephone hotline so that employees can comfortably report any allegations to an independent party. The other thing is staff training. But in Australia, there really seems to be this 'she'll be right' attitude.
"But sexual harassment costs money, it costs reputations. "
Wilson agrees that Australian companies need to improve. The institute advocated four things all companies should do: establish a clear policy spelling out that sexual harassment is not acceptable, institute regular training programs, establish an external whistleblowing capability and act quickly when an issue arises.
While Wilson applauds Savage for his apparent swift action once McInnes's conduct came to his attention, he says most companies lag in this area. And many still do not have independent people handling whistleblowing, he says.
"I know corporate Australia will watch what happens with great interest," says Wilson. "It may well turn out to become a precedent. It has certainly sharpened awareness of the matter."
It is unlikely that the case will ever go to court. David Jones would no doubt be reluctant to see the matter go to trial, because of the risk of further embarrassing details emerging.
McInnes, who has been overseas with his pregnant girlfriend since mid-June, this week admitted to making mistakes but denied many of Fraser-Kirk's specific allegations.
Savage has said from the start that the company has been intent on supporting Fraser-Kirk. Yet his comments this week suggest that his patience could be running out.
"We have made it clear we value Ms Fraser-Kirk as an employee and we wanted her to return to work. If she chose not to return or she felt she was unable to return to work, we have made it clear we would be willing to compensate her for her loss." he told The Weekend Australian. "It was never our preference for this matter to be litigated and we made this clear. We are disappointed she felt it was necessary, but now proceedings have commenced, we have no option but to defend them."
A very interesting case indeed and in the context of bullying and harassement which falls under the WHS Legislation, what has your company done to assess the risk work bullying and harassment? Does your policy and procedure standard up to the test should an incident occur? Making sure you have a system in place that meets the guidelines is paramount.
Big fines imposed over SA factory blast
A munitions factory that exploded, killing three workers, was a disaster waiting to happen, a court has heard.
South Australian Industrial Magistrate Michael Ardlie on Wednesday imposed the near maximum fines in relation to the deaths of the three men at the Gladstone plant, in South Australia's mid-north, in May 2006.
He also lashed Quin Investments, the company that operated the facility, and its boss, Nikolai Kuzub, for showing little remorse.
Mr Ardlie said what little regret and contrition they did show came only after they were found guilty of breaching workplace safety laws.
"This, in my view, is a bare minimum and a case of too little too late," he said.
Killed in the explosion more than four years ago were Damian Harris, Matt Keeley and Darren Millington.
They were making water gel explosives and the blast was triggered as they combined the liquid and dry ingredients.
As well as killing the three men and wounding two other workers, the explosion completely demolished the building they were in and threw items of equipment up to 600 metres away.
In June, Mr Ardlie ruled that poor maintenance and the careless storage and use of dangerous materials, including TNT, was to blame as he found the company and Mr Kuzub guilty on two counts of breaching safety laws.
He said the blast occurred after a hot spot developed in a mixture of dry ingredients in a blending machine that had not been properly serviced.
In his sentencing remarks, Mr Ardlie said the company and Mr Kuzub totally failed in their obligations to provide a safe working environment and criticised the lack of maintenance and safety procedures.
"I can only say that the operation of the factory was a disaster waiting to happen," he said.
He imposed fines of $95,000 on both Quin Investments and Mr Kuzub, and also ordered they pay a total of $40,000 in compensation, to be shared among the relatives of the three victims.
The maximum fines possiblewere $100,000 each, though the SA government has since increased that to $300,000.
Outside court Damian Harris' father, Gary, said all the families involved had wanted to know what happened and wanted the company held to account.
"But as far as the fine goes, what's money compared to lives?" he said.
"I guess we're walking away knowing what happened and that something has been done about it."
Both the company and Mr Kuzub have indicated they will appeal against the magistrate's rulings in the case.
This highlights the importance of ensuring that companies have adequate safe systems of work, safe plant and equipment and have provided information, instruction and training to workers. This is an incident which could have been prevented had the employer fullfilled their obligations. The failure to do so when lives are lost are a complete disregard of corporate responsibility. Shame on them!
Brought to us by © 2010 AAP
South Australian Industrial Magistrate Michael Ardlie on Wednesday imposed the near maximum fines in relation to the deaths of the three men at the Gladstone plant, in South Australia's mid-north, in May 2006.
He also lashed Quin Investments, the company that operated the facility, and its boss, Nikolai Kuzub, for showing little remorse.
Mr Ardlie said what little regret and contrition they did show came only after they were found guilty of breaching workplace safety laws.
"This, in my view, is a bare minimum and a case of too little too late," he said.
Killed in the explosion more than four years ago were Damian Harris, Matt Keeley and Darren Millington.
They were making water gel explosives and the blast was triggered as they combined the liquid and dry ingredients.
As well as killing the three men and wounding two other workers, the explosion completely demolished the building they were in and threw items of equipment up to 600 metres away.
In June, Mr Ardlie ruled that poor maintenance and the careless storage and use of dangerous materials, including TNT, was to blame as he found the company and Mr Kuzub guilty on two counts of breaching safety laws.
He said the blast occurred after a hot spot developed in a mixture of dry ingredients in a blending machine that had not been properly serviced.
In his sentencing remarks, Mr Ardlie said the company and Mr Kuzub totally failed in their obligations to provide a safe working environment and criticised the lack of maintenance and safety procedures.
"I can only say that the operation of the factory was a disaster waiting to happen," he said.
He imposed fines of $95,000 on both Quin Investments and Mr Kuzub, and also ordered they pay a total of $40,000 in compensation, to be shared among the relatives of the three victims.
The maximum fines possiblewere $100,000 each, though the SA government has since increased that to $300,000.
Outside court Damian Harris' father, Gary, said all the families involved had wanted to know what happened and wanted the company held to account.
"But as far as the fine goes, what's money compared to lives?" he said.
"I guess we're walking away knowing what happened and that something has been done about it."
Both the company and Mr Kuzub have indicated they will appeal against the magistrate's rulings in the case.
This highlights the importance of ensuring that companies have adequate safe systems of work, safe plant and equipment and have provided information, instruction and training to workers. This is an incident which could have been prevented had the employer fullfilled their obligations. The failure to do so when lives are lost are a complete disregard of corporate responsibility. Shame on them!
Brought to us by © 2010 AAP
Investigation clears sugar mill
AN investigation by Workplace Health and Safety Queensland into a locomotive derailment at the Isis Central Sugar Mill on June 24 has failed to identify any breach of safety laws.
The investigation was launched after the loco, towing 28 bins of cane, left the Adies Road tracks just before the bridge under Kevin Livingstone Drive.
Driver Geoffrey Martin, his offsider and a trainee driver jumped to safety, with all sustaining minor injuries.
A spokesperson for WHSQ said while no breach was detected, the department had worked with mill operators to identify strategies to minimise the potential for future similar events.
“WHSQ is also actively working with the Australian Sugar Milling Council and its members to look at ways to continuously improve safety with cane rail and cane transport in the sugar industry,” the spokesperson said.
Isis Central Sugar Mill general manager John Gorringe said the investigation had confirmed the company’s internal investigation, which showed there were no defects with the equipment or rail track involved.
“The mill has worked with employees and introduced a number of measures to reduce the possibility of a similar incident,” Mr Gorringe said.
Mr Martin, who was subsequently sacked from his employment for alleged breaches of company policies, said he still had not heard from WHSQ.
Since the incident, Fair Work Australia has mediated in a complaint Mr Martin made against the mill, the outcome of which must remain confidential.
“We reached a mutual agreement with no discrimination on either part,” Mr Martin said.
News Mail
The investigation was launched after the loco, towing 28 bins of cane, left the Adies Road tracks just before the bridge under Kevin Livingstone Drive.
Driver Geoffrey Martin, his offsider and a trainee driver jumped to safety, with all sustaining minor injuries.
A spokesperson for WHSQ said while no breach was detected, the department had worked with mill operators to identify strategies to minimise the potential for future similar events.
“WHSQ is also actively working with the Australian Sugar Milling Council and its members to look at ways to continuously improve safety with cane rail and cane transport in the sugar industry,” the spokesperson said.
Isis Central Sugar Mill general manager John Gorringe said the investigation had confirmed the company’s internal investigation, which showed there were no defects with the equipment or rail track involved.
“The mill has worked with employees and introduced a number of measures to reduce the possibility of a similar incident,” Mr Gorringe said.
Mr Martin, who was subsequently sacked from his employment for alleged breaches of company policies, said he still had not heard from WHSQ.
Since the incident, Fair Work Australia has mediated in a complaint Mr Martin made against the mill, the outcome of which must remain confidential.
“We reached a mutual agreement with no discrimination on either part,” Mr Martin said.
News Mail
Australia ahead on health and productivity management
Australian governments have shown real leadership on workplace health and wellbeing, according to Sean Sullivan, president and chief executive of the US-based Institute for Health and Productivity Management.
In an address to the Australian Health and Productivity Management Congress in Melbourne this week, Mr Sullivan praised governments in Australia for grasping the importance of health and productivity management.
“The idea is no where as sharply focused nor widely adopted than it is right here in Australia,” he said.
“I commend what is happening here.”
Mr Sullivan singled out the Victorian Government and its WorkHealth initiative as a leader in the corporate health and wellness sector. The program was designed by WorkSafe Victoria to improve the health and wellbing of all Victorian workers and includes voluntary and confidential health checks.
“I’m really impressed with what is going on in the state of Victoria,” Mr Sullivan said.
“WorkHealth is an amazing example from the public sector.”
Mr Sullivan said the challenge for employers and occupational health and safety professionals was to look beyond ‘safety’ and instead focus on enhancing and protecting the wellbeing of employees.
“Safety is not the biggest issue anymore,” he told Government News.
“The biggest challenge is getting employers to see that employees are their human capital and the health of the human capital is just as important as the knowledge or technology base.
“They know what they need to have to run a successful enterprise, but health has not yet made it into that category.”
Australia’s efforts in workplace health and wellness were also praised by Dr Toby Ford, president of the Health and Productivity Institute of Australia (HAPIA).
“In Australia we’re doing health and wellness really well,” Dr Ford told congress delegates.
He said health and wellbeing was “the single greatest legacy an employer can give an employee”.
However, he argued for a voluntary, not statutory, approach to health and productivity management. Empowering the individual to take control of their health and wellbeing is the “winning ticket”, he said.
“Ownership of health destiny is really the vital part of what we’re doing here.
“We should motivate people and encourage them to participate.”
If you are looking at improving the health and wellbeing of workers in the workplace, then now is the time to consider a program to assist workers in identifying and addressing health issues. Make this a part of your WHS Plan. Improving the health of workers increases their productivity and effectiveness at the workplace and research has shown a direct correlation to improve safety performance.
Government News
In an address to the Australian Health and Productivity Management Congress in Melbourne this week, Mr Sullivan praised governments in Australia for grasping the importance of health and productivity management.
“The idea is no where as sharply focused nor widely adopted than it is right here in Australia,” he said.
“I commend what is happening here.”
Mr Sullivan singled out the Victorian Government and its WorkHealth initiative as a leader in the corporate health and wellness sector. The program was designed by WorkSafe Victoria to improve the health and wellbing of all Victorian workers and includes voluntary and confidential health checks.
“I’m really impressed with what is going on in the state of Victoria,” Mr Sullivan said.
“WorkHealth is an amazing example from the public sector.”
Mr Sullivan said the challenge for employers and occupational health and safety professionals was to look beyond ‘safety’ and instead focus on enhancing and protecting the wellbeing of employees.
“Safety is not the biggest issue anymore,” he told Government News.
“The biggest challenge is getting employers to see that employees are their human capital and the health of the human capital is just as important as the knowledge or technology base.
“They know what they need to have to run a successful enterprise, but health has not yet made it into that category.”
Australia’s efforts in workplace health and wellness were also praised by Dr Toby Ford, president of the Health and Productivity Institute of Australia (HAPIA).
“In Australia we’re doing health and wellness really well,” Dr Ford told congress delegates.
He said health and wellbeing was “the single greatest legacy an employer can give an employee”.
However, he argued for a voluntary, not statutory, approach to health and productivity management. Empowering the individual to take control of their health and wellbeing is the “winning ticket”, he said.
“Ownership of health destiny is really the vital part of what we’re doing here.
“We should motivate people and encourage them to participate.”
If you are looking at improving the health and wellbeing of workers in the workplace, then now is the time to consider a program to assist workers in identifying and addressing health issues. Make this a part of your WHS Plan. Improving the health of workers increases their productivity and effectiveness at the workplace and research has shown a direct correlation to improve safety performance.
Government News
Thursday, August 19, 2010
Employer with "generic" safety system fined $60K after death
A NSW employer whose "generic" safe work method statement failed to prevent the death of an 18-year-old trainee has been fined $60,000 out of a possible $550,000.
The judge, however, praised its attempts to make safety "a priority".
In 2007, a Lithgow Tyre Service trainee was inflating a forklift tyre when the nuts and studs on its two-piece composite rim - which were old and worn - failed.
The rims split in half with explosive force and the worker was struck, sustaining fatal injuries.
The employer was charged with breaching the State Occupational Health and Safety Act 2000, in failing to provide a safe system of work and training and instruction that specifically addressed the fitting of tyres to two-piece divided rim assemblies of the type used on forklift trucks.
Risk assessments informal and undocumented
In the Industrial Court, Justice Trish Kavanagh heard the employer's OHS management systems were based on advice and documentation from an OHS consultant, who only conducted "general" risk assessments.
The employer contended - and staff agreed - employees were trained to perform informal, undocumented risk assessments for each type of rim they worked on.
The employer also said the worker had been instructed not to fit tyres with worn studs and nuts - but admitted he was not yet competent to repair a tyre in a two-piece composite frame unsupervised.
Another worker had been allocated the task, it said, but after work commenced, had moved to another job.
Justice Kavanagh found the employer's "generic" safe work method statement "contained little, if any, information relevant to the task [of] repairing a tyre that was in a two piece composite frame".
She said the worker had been given on-the-job training generally, but the training was undocumented and informal in nature; no records were made or maintained with respect to training received or competencies.
"These failures were in breach of the [employer's] own written occupational health and safety plan, in operation as at the relevant date," she said.
However, she also took into account "subjective elements".
"I note this is not a worksite where there was no system of work although this task was not recognised sufficiently in the system nor risk assessed," she said. "[The employer] had an on-going commitment to safe working and had paid a professional occupational health and safety consultant on a continuing basis."
That person:
• regularly held OHS meetings on site;
• conducted regular inspections on site; and
• advised the company of the ongoing development of its existing safe work systems.
"This [employer] had in fact one of the most continuous occupational health and safety review systems inside a small workshop that the Court has reviewed."
Justice Kavanagh said the offence was "serious" and easily preventable, but said the family company provided vital employment to a country area, and fined it $60,000.
Inspector Karen Simpson v Wingruby Pty Ltd t/as Lithgow Tyre Service [2010] NSWIRComm 104 (13 August 2010)
The purspose of continually reviewing the OHS Risk Management Program within your business is crutial for the identification of tasks that pose risk to workers. An employer can demonstrate a safe system of work through the undertaking of a work task analysis, the development of a safe work procedure, providing on the job training and instruction, and supervision to ensure the procedure is appropriate for task being performed. Your OHS Plan should include the review of Safe Work Procedures. Is this the level you maintain in your business? Take time to review....it's worth it!
The judge, however, praised its attempts to make safety "a priority".
In 2007, a Lithgow Tyre Service trainee was inflating a forklift tyre when the nuts and studs on its two-piece composite rim - which were old and worn - failed.
The rims split in half with explosive force and the worker was struck, sustaining fatal injuries.
The employer was charged with breaching the State Occupational Health and Safety Act 2000, in failing to provide a safe system of work and training and instruction that specifically addressed the fitting of tyres to two-piece divided rim assemblies of the type used on forklift trucks.
Risk assessments informal and undocumented
In the Industrial Court, Justice Trish Kavanagh heard the employer's OHS management systems were based on advice and documentation from an OHS consultant, who only conducted "general" risk assessments.
The employer contended - and staff agreed - employees were trained to perform informal, undocumented risk assessments for each type of rim they worked on.
The employer also said the worker had been instructed not to fit tyres with worn studs and nuts - but admitted he was not yet competent to repair a tyre in a two-piece composite frame unsupervised.
Another worker had been allocated the task, it said, but after work commenced, had moved to another job.
Justice Kavanagh found the employer's "generic" safe work method statement "contained little, if any, information relevant to the task [of] repairing a tyre that was in a two piece composite frame".
She said the worker had been given on-the-job training generally, but the training was undocumented and informal in nature; no records were made or maintained with respect to training received or competencies.
"These failures were in breach of the [employer's] own written occupational health and safety plan, in operation as at the relevant date," she said.
However, she also took into account "subjective elements".
"I note this is not a worksite where there was no system of work although this task was not recognised sufficiently in the system nor risk assessed," she said. "[The employer] had an on-going commitment to safe working and had paid a professional occupational health and safety consultant on a continuing basis."
That person:
• regularly held OHS meetings on site;
• conducted regular inspections on site; and
• advised the company of the ongoing development of its existing safe work systems.
"This [employer] had in fact one of the most continuous occupational health and safety review systems inside a small workshop that the Court has reviewed."
Justice Kavanagh said the offence was "serious" and easily preventable, but said the family company provided vital employment to a country area, and fined it $60,000.
Inspector Karen Simpson v Wingruby Pty Ltd t/as Lithgow Tyre Service [2010] NSWIRComm 104 (13 August 2010)
The purspose of continually reviewing the OHS Risk Management Program within your business is crutial for the identification of tasks that pose risk to workers. An employer can demonstrate a safe system of work through the undertaking of a work task analysis, the development of a safe work procedure, providing on the job training and instruction, and supervision to ensure the procedure is appropriate for task being performed. Your OHS Plan should include the review of Safe Work Procedures. Is this the level you maintain in your business? Take time to review....it's worth it!
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