Welcome to November 2011 OH&S Newsletter
Welcome to November & our offering concentrating on risk focus, policies and processes! This month we examine the need to focus on all risks not just minor; reality TV, change & JSA’s; incident investigations, regulator presence & consultation in risk management; job insecurity, AOD polices & Chardy Cardy’s confusion; pizza shop assault & OHS harmonised law reality...Enjoy!
Fatality increases related to our focus on lost time injuries?
As many western countries continue to grapple with their increases in both workplace fatality numbers and rates a recent review by the US National Safety Council (NSC) on behavioural safety can perhaps shed some light on the issue. A recent report by the US National Safety Council (NSC) focusses on the theories of Herbert Heinrich related to identifying & changing unsafe worker behaviours which we have come to know more recently as behavioural based safety (BBS).
In 1931 in a very different industrial environment, Heinrich claimed 88% of accidents were caused by 'unsafe acts of persons' & said that in a group of 330 accidents, 300 will result in no injuries, 29 will result in minor injuries and one will result in a major injury. This has been disputed by the many sources including the UK’s Health & Safety Executive who say that 70% of workplace deaths & injuries are caused by management failures.
The NSC article has acknowledged that what Heinrich did as 'research' is questionable & other commentators have suggested that his pyramid theory has really done a disservice to the health & safety (HS) profession because it has misled people running HS programs into thinking that if they work on minor incidents, major incidents will go away.
In fact certain companies with award winning low injury rates have suffered some of the worst catastrophic incidents during the past 10 years. One company that has relied heavily on BBS is BP. Following the Texas City explosion, which killed 15 people, their first response was to blame 'human error'. Subsequent investigations have indicated that the disaster was a result of management failings. A survey by the NSC magazine Safety Health showed that 86% of safety professionals believed Heinrich's theories either completely or somewhat with only 5% not believing them at all. That is one of the sources of our problems if those driving change are the ones basing that change on an inaccurate premise. The lack of attention to high consequence low probability incidents caused by this focus has perhaps contributed to our increasing fatalities. A recent example of this was seen in the Fortescue Metals Group with its 2010-11 LTIFR falling well below the industry average through their prevention activities but they were not able to prevent a fatality in the same year.
Others have suggested that the interpretation of managing near misses, minor incidents & LTI’s to avoid all incidents has missed Heinrich’s message that most incidents, significant or not, are forecasted well before they occur- it’s just that we don’t adequately monitor these risks.
The other concern is that in subsequent editions of Heinrich’s book he altered his 300-29-1 ratio to 88-10-2 with no explanation of why. Apparently the original insurance files he based his work on no longer exist so it is not possible to review the validity of his work. The concept of attributing 88% of incident to unsafe acts fails to consider the multiple causes and contributing factors involved in incidents. Supporters of evidence based HS interventions claim that Heinrich’s work was not scientific. He used accident reports completed by supervisors, based his observations on retrospective data & failed to investigate possible underlying causes. He provided a conclusion, where he primarily relied on the subjective observations of supervisors, some of who had an interest in blaming an employee rather than assuming any responsibility. Many think Heinrich was simply accurately reporting bad data. It is well known that exposures causing fatalities have little to do with sprains or strains, the most commonly reported minor incident and LTI so why is our focus on these sources rather than on our sources of major risk?
Although many in industry had identified these issues back in the 1980’s most annual reports today still focus on LTI’s as the main performance indicator related to HS risk management. Many have suggested we should be aiming for prevention through design but we do need to be focusing on the right design areas and the data we are using must be an accurate representation of the risk. Many have suggested more independent research into workplace HS management is required without the emphasis on turning findings into a safety product or commodity to be bought & sold. What are your HS programs based on, management of risks or injuries?
Reality TV viewers making workplaces safer
Workers exposed to potentially deadly stone dust on a BBC television programme has resulted in the stonemasonry business being fined for this exposure after a viewer spotted its dangerous practices on a BBC TV show. Atelier 109 Ltd featured in 2010 in the BBC2 series, Mastercrafts. After the program, a viewer contacted the UK’s Health & Safety Executive (HSE) to express concern over inadequate precautions to protect Atelier workers from dust that can cause serious lung diseases. HSE inspectors visited the company's workshop in 2010 & served an improvement notice compelling Atelier to take action immediately to cut exposure to stonemasonry dust to within the legal limit. When a further check was made, it was clear that, although improvements had been made, the ventilation system still had not been thoroughly examined & tested, so a second improvement notice was served 9 months later.
A third HSE visit 4 months later in June this year found that the action recommended had still not been carried out, despite earlier tests revealing that dust levels for employees were up to three times the official limit. Atelier pleaded guilty at Peterborough Magistrates' Court to a criminal safety offence and was fined £5,000 (A$7530) and ordered to pay costs of £1,400 (A$2109). Who is watching at your workplace?
Need to manage risk when work practices change!
One worker fell 7 m from the top of a grain storage silo & suffered multiple fractures after his employer (who has since been fined $100K), had left it up to a group of employees to replace an established safe system for
working from heights with an unsafe alternative.
O'Connor Capital Pty Ltd (OC) pleaded guilty to safety breaches after the incident occurred at its Gilgandra site. The employer, a manufacturer of grain silos told the Industrial Court that workers were directed to access silo roofs by attaching ladders to the sides of the silos, then climbing them while clipped to a fall arrest system. The process was not documented, but was consistently adhered to. A few days before the incident, however, the Gilgandra construction team ran out of ladders, & 4 employees, including the site supervisor, decided to lift workers onto the roofs using a gantry crane with the crane hook connected to a Dring on the employee's harness. This new method was successfully used 3-4 times, before the worker's harness slipped from the hook & he fell.
The employer's director, who was based in Brisbane, told the Court that he had regular contact with the Gilgandra manager but only heard about the decision to implement the unsafe system after the fall. After the incident, all employees were immediately informed that they were not to work on silo roofs unless ladders were fitted and the fall-arrest system was used. The Industrial Court found the employer had failed to ensure workers were trained in & understood height safety, and failed to provide them with a supervisor suitably qualified to manage working at heights.
Workers should have been told not to change the safety systems. Due to the relative isolation of the site, the company relied heavily on the Gilgandra manager & although experienced, the manager's limited training in height safety meant he wasn’t equipped to deal with the issues arising from using plant to lift people. The Australian Standard on fallarrest safety warned that a karabiner attached to a hook could inadvertently release. A person familiar with that standard would have been aware of the danger, but it appears no one was aware of this at the Gilgandra site. The court concluded the main fault in the system was that is permitted a deviation which was unsafe. That is why risk assessments associated with change are so crucial. Inspector Pile v O'Connor Capital Pty Ltd [2011] NSWIRComm 138
Waiting for a fatality to know if workers comply with JSA’s?
Waterway Constructions Maintenance Pty Ltd (WCM) had contracted a tilt-truck operator to move a flatbottomed boat, which was loaded onto the truck by an excavator fitted with a "grab" at WCM's yard. As a yardman began to remove the excavator, he saw the driver pinned against the truck by the grab. He was taken to hospital & died shortly after. WCM had an inadequate system for monitoring & supervising contract drivers, had failed to induct drivers & had not ensured they complied with safe loading procedures. Although WCM inducted other subcontractors, it did not induct contract drivers because it was assumed they would be under the direct supervision of qualified staff at all times they were in the yard. Drivers were also not trained to comply with the WCM's JSA on loading & unloading trucks. This JSA stated that drivers should stand in a safe place where they could see the load being lifted onto the truck, & that they must always remain in the plant operator's view. If the whereabouts of the driver were unknown, the operator had to stop loading.
If WCM had developed & enforced a system of monitoring drivers, & enforced compliance with loadsafety documents, the incident might not have occurred. After the incident WCM required all drivers to be inducted in a safe work procedure designed to eliminate the risk of crush injuries & falls from height, installed rear & side vision cameras in the excavator, & invested in an external review of its safety culture, which led to additional training. Relatively simple actions that could have all been conducted prior to his death- Wonder where the risk of crush fatalities was on the WCM risk register. Inspector Hinton v Waterway Constructions Maintenance Pty Ltd [2011] NSWIRComm 132
Are your incident investigations up to scratch?
A claim came before the Administrative Appeals Tribunal (AAT) for review after twice being rejected by Comcare. The worker claimed to be suffering anxiety, depression & an adjustment disorder due to the behaviour & procedures adopted by her senior manager in the ACT Department of Disability, Housing and Community Services (ADDHCS).
The AAT heard that in 2009 the worker came under suspicion for her involvement firstly in allocating public housing to a Department employee's relative, & secondly in processing a mutual tenancy exchange for 2 other co-workers. It was alleged she expedited the first, & improperly allocated the task of determining the second.
The worker said she dealt with both matters in accordance with policy & practice, which meant they were to be kept confidential & only assessed by higher level officers. The worker's supervisor, however, questioned her adherence to correct procedure. A week later, with no warning, the worker was called to a meeting with the Department director. He told her she was to be suspended for 1 month with pay, effective immediately. She was told to hand in her pass, keys & mobile and was escorted from the building.
The worker claimed that as a result of the suspension she suffered migraines, depression & anxiety, & could not eat or sleep. Her GP diagnosed her with posttraumatic stress disorder, severe anxiety & severe depression. The Department extended the suspension 3 times while the issue was investigated, but ultimately found none of the allegations proven. The suspension was lifted and the worker given informal counselling, before she began a graduated return to work in another office in February 2010.
The AAT considered whether the decisions to initiate the investigation & to suspend the worker were reasonable. Senior Member Creyke found the director's decision was not based on evidence sufficiently thorough to meet the appropriate standard for such a serious matter but had relied too heavily on the views of the person making the allegations.
The Senior Member concluded that the flaws in the investigation made it an unreasonable process. The decision to hold the disciplinary meeting with no notice & no support person, considering the "paucity of information", was consequently unreasonable. Finally, she found the decision to immediately suspend the worker without considering any other options was also unreasonable. ADDHCS was found liable for the worker's psychological injury after it conducted an "inadequate and unreasonable" investigation. How well are your investigations conducted to ensure appropriate process is followed? Jane Amanda Sands and Comcare [2011] AATA 710
What effect do regulatory inspections have on workers compensation?
A US study has found that official workplace safety inspections lead to dramatically reduced injury rates & big savings for firms. The findings come in an analysis of a decade's worth of data on safety inspections by the Department of Labour & Industries (L&I) in Washington State.
Researchers with the Safety & Health Assessment & Research for Prevention (SHARP) program, L&I's research unit, examined L&I inspection data & workers' compensation claims from 1998 - 2008. The study found significant reductions in claims & claim costs following a regulatory safety inspection or safety consultation. Like many other countries the US system links a company's insurance premiums to its workplace injury rates. The SHARP researchers found the greatest impact came when an inspection resulted in at least one citation for a safety breach. In those cases, the research found a reduction in worker injury claims of as much as 20% over similar work sites that were not inspected.
The authors say their study bears out what other researchers around the US have found & what SHARP researchers have seen in previous annual reviews of the data. Researchers suggest that safety is not always at the forefront of an employer's mind but when a significant event takes place, like a serious injury or an L&I inspection, it can really get their attention & lead to a greater recognition of what can be done in the workplace to reduce hazards, itself leading to safer workplaces and fewer injuries. Is your firm waiting for a serious injury to effectively manage the risk of your hazard exposures? Washington State Department of Labor and Industries: The Effect of DOSH Enforcement and Consultation Activity on the Compensable Claims Rates in Washington State, 1999-2008, published 2011
How well do you consult on & review your Health & Safety (HS) risk management?
Employers have been urged to consult with workers on HS issues & conduct regular reviews, after a second Victorian employer within a week was handed a significant fatality related fine. Fonterra Australia Pty Ltd were fined $300 000 after an incident, in which a 1 tonne bag of salt fell from an unstable stack & killed a forklift driver. The practice of stacking salt bags at the Fonterra site was unsafe because the tops of many bags were not sufficiently level. It was found that even a small disturbing force could topple a stack. A safe racking system was put in place & a written procedure developed after the incident. Another easy control option if the risk had been understood by consulting with workers or reviewing the stacking method prior to the incident!
Job insecurity causing mental health issues at your workplace?
A UK Chartered Institute of Personnel & Development (CIPD) survey has found stress is the highest cause of long-term absence (LTA) across the UK workforce & is increasingly affected by job insecurity. The CIPD/Simply
Health Absence Management survey concluded that for the first time stress is the most common LTA cause for both manual & non-manual employees.
A link between job security & mental health problems was also revealed in the survey. Employers planning to make redundancies in the next 6 months are significantly more likely to report an increase in mental health problems among their staff, it found, with 51% reporting problems compared to 32% who are not planning redundancies. For manual workers, stress is now level with acute medical conditions & has overtaken musculoskeletal problems to become the top cause of long-term absence. Among non-manual staff, stress has moved ahead of acute medical conditions. Job insecurity is also reported as a more common cause of work-related stress in the public sector this year, where the 24% stress reporting rate is about double that for the private sector, mirroring the relative redundancy risk identified in the survey. What do you do in your workplace to manage this risk and how does it affect the mental health of your employees?
Would your AOD policy pass the behaviour test?
An employer who sacked a worker with a 16 years unblemished service record for "smelling strongly" of alcohol & exceeding the workplace limit by 4 times, although he had not behaved unsafely or oddly, has been ordered to reinstate him by Fair Work Australia. The Dux Hot Water trades assistant was dismissed this year after a random workplace test showed his blood alcohol level was 0.076%, well above the 0.02% limit. The worker accepted the reading, but told FWA Commissioner that he had not drunk excessively on the night before the incident, & did not believe he was affected by alcohol when he was tested.
The commissioner accepted the worker's evidence that he did not believe that he was affected by alcohol so that he should not drive or attend work. He was obviously wrong in this belief but that does not make him any less truthful in stating his belief. The commissioner found that it was conceivable that a person with a higher tolerance to alcohol might be less of a danger in the workplace with an alcohol level of 0.076 than a person who usually doesn't drink but had a blood alcohol reading of 0.04. The commissioner suggested that policies cannot be written to suit each individual & it is appropriate for Dux to have a policy which imposes a general limit of 0.02. That does not mean however that every breach of that policy should result in the termination of the relevant employee. The commissioner noted that Dux's policy stated that an employee could breach the policy 3 times before termination was mandatory. Does your work force understand how your AOD policy is to be implemented? Mr Wayne Daley v GWA Group Ltd T/A Dux Hot Water [2011] FWA 6993
Jetstar’s Chardy Cardy confusion!
NSW WCC President Keating found that Jetstar Airways Pty Ltd's Alcohol & Other Drugs (AOD) Policy was so "contradictory & confusing" that it could not be determined whether the worker, who sustained a psychological injury, had breached it. He upheld an arbitrator's finding that the employer's handling of the incident was unreasonable.
President Keating heard that in 2009 Jetstar directed the worker to fly from Sydney to Melbourne, where he had a shift the following day. While on the flight he had no operational duties, sat in a passenger seat, ordering a small bottle of wine & some food. He gave a colleague his credit card as payment, but did not obtain a receipt. Three weeks later Jetstar notified him it was investigating allegations that he had consumed alcohol while "on duty" & had not paid for the food & drink. The worker contested the allegations, but was later told they had been substantiated & was issued the final written warning.
The worker claimed his injury arose from being subjected to "undue psychological stresses". The employer contended that the injury resulted from reasonable disciplinary action, & told the Commission that its alcohol policy only authorised drinking during "duty travel" if the worker was out of uniform & the travel was not followed by a period of work. The worker argued that an operations manual stated drinking during duty travel was allowed if there were at least 8 hours until the next shift. He also submitted a letter from a colleague alleging she was told during a training session that drinking on duty travel was allowed if she wore a "Chardy Cardy". That is, any type of jacket that covered the Jetstar uniform. She claimed to have "engaged in Chardy Cardy behaviour" on several occasions & to have seen other crew members, including pilots, doing the same thing. The worker contended that Jetstar's response to his consumption of a small amount of alcohol inflight should have been to clarify the ambiguities in its alcohol policy, instead of giving him an "unreasonable" warning letter that was likely to induce a severe emotional reaction.
President Keating found the employer's policy was confusing, & accepted the worker's claim that his behaviour was not only permissible but a common occurrence at all levels of staff in awarding the flight attendant workers’ compensation for a psychological injury. He also rejected the employer's claim that the worker should have raised anything he was unsure of in the policy during his training. The obligation was on Jetstar to communicate its policies and procedures in clear and unambiguous terms. Jetstar Airways Pty Ltd v Canterbury [2011] NSWWCCPD 54
Assault after training course party compensable
A South Australian (SA) police officer who was assaulted after a night out in Mt Isa while on an interstate training course has successfully argued that the return journey to his motel was work-related. The SA Workers Compensation Tribunal found the worker's daily period of employment encompassed the time between being collected from and returned to his accommodation. The time spent socialising was "an interlude" in the course of the day's work, it found.
The worker attended the training course, run by the National Counter Terrorism Committee, in Mount Isa, Queensland in 2009. During the 5 day course, participants were transported between their motel & various training venues by minibus. At the end of the last day, the minibus took trainees to Mt Isa Police Station for a final debrief, which was followed by drinks at the police social club.
The worker and two others left the club at 11pm, intending to return to their motel via a pizza shop. While waiting for their food they became involved in an altercation between two other patrons, and the worker was punched in the back of the head. He was knocked unconscious and hospitalised with a severe head injury, which later caused him to suffer significant cognition and memory difficulties.
Before Deputy President Hannon, SA Police contended the worker's employment-related activities concluded with the debrief. It said there was no expectation that he drink at the social club, and that even if there was he had severed any connection with work by staying so long and deviating from his trip to the motel to buy food.
Judge Hannon said he could not accept the worker's primary contention that the entire stay at Mt Isa constituted a single "episode of work", but went on to find the assault was work-related, and the injury compensable. He said the variations on the last day of the course were "not such as to break the connection between the employment and the activity of returning to the accommodation", and that buying a pizza was a "relatively insignificant" deviation in the journey. He also found there was no misconduct by the worker.
Judge Hannon noted that after the worker was transported to the debrief - an "official course activity" - no arrangements were made to take him back to the motel. The worker had to return to the motel at some stage, he said. How well do you plan to manage this sort of risk at your workplace? Wheeler v South Australia Police [2011] SAWCT 30
Are we really going to get harmonised HS laws across all industries in Australia to save money?
The mining-specific model Work Health and Safety Regulations and Codes of Practice are purported to otentially save business millions of dollars a year in reduced red tape according to a Regulation Impact Statement (RIS) released last month, which also found that employers operating in Victoria and South Australia will have to make the most changes to adapt to the new laws. The RIS, which was authored by Deloitte and released public comment, found that if all jurisdictions adopted the "core" Regulations - instead of retaining "the status quo" - this "could result in efficiency gains of around $1 billion a year".
The report said the "great majority of employment" in the mining sector was in firms that operated in multiple jurisdictions, and that these companies would benefit from improved productivity, "avoided health system expenditure" and "preservation of skills". However, it noted that employers operating in Victoria and South Australia would be required to make "considerable" changes to their approach to hazard management plans, mine survey plans and mine records.
Although the majority of changes are related to aligning work systems and associated documentation requirements across jurisdictions for some jurisdictions this will require additional activities. For Victoria, the proposed inclusion of quarry and exploration operations in the definition of a mine would mean that these activities would now be required to comply with the mining-specific regulations. The new laws would have little impact on the ACT and Commonwealth jurisdictions, as the ACT had only one operating quarry and the Commonwealth has no mining operations at all.
Which also begs the question as to why offshore health and safety was not covered within this legislation- although it is recognised the health and safety legislation associated with the various jurisdictional Petroleum Submerged Lands Act (schedules) & Regulations and the National Offshore Petroleum and Greenhouse Gas Storage Act & regulations are currently harmonised to some degree across WA, NT, Victoria & SA- why could this industry not be treated in a similar manner to mining & construction in relation to having specific regulatory components which comply to offshore petroleum work conducted within Australian Commonwealth waters?
What about the maritime industry & the OHS Act & regulations relevant to this industry in Australian waters? Surely there could be savings to be made in including these industries in the OHS regulatory approach. It is understood that there has been agreement in principle for harmonised law across jurisdictions for Transport legislation but why can’t’ the relevant OHS legislation be included within the harmonised framework? With WA, SA, NT & Tasmania signed up but not yet passed the Model Act, it will be interesting to see if OHS harmonisation will actually become a reality!
Written by Julie Armour
Click here to read the October 2011 OH&S Newsletter