Category: legal obligations

More consultation on safety legislation in Western Australia

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At some point, someone will make a decision, but hot on the heels of the “Green” WHS Bill seeking comment on WA’s general health and safety legislation, stakeholders are now being asked to comment on options for “modernising” health and safety laws for mining, petroleum and major hazard facilities.

To the extent that it matters, you can find out more here:

http://www.marsdenjacob.com.au/wp-content/uploads/2014/10/Consultation-RIS-Resource-Safety-WebVersion.pdf

and submit comments here:

http://www.marsdenjacob.com.au/structural-reform-resources-safety-legislation-wa/

You have until the 19th of December.

If the history of harmonisation across the country is any measure, there will be a fair amount of administrative juggling within businesses and the usual parade of lawyers and safety consultants telling us that the sky is falling and we are all going to jail (no one ever has in Australia by the way!) – and then we will just get on doing what we are doing today, tomorrow.

Oh, (and again for what it is worth), Safe Work Australia’s own research (Safe Work Australia. (2013). The effectiveness of work health and safety interventions by regulators: A literature review. Canberra, ACT: Safe Work Australia) has found:

We do not know whether many of the strategies used on a regular basis by work health and safety regulators, such as introducing regulations, conducting inspections, imposing penalties for non-compliance and running industry campaigns are effective in achieving the desired policy outcome of reducing work related deaths, injuries and disease.

Seems to me to be a lot of fuss and nonsense for very little return.

Western Australia’s proposed WHS legislation

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On 23 October 2014 the Western Australian State Government released a draft or “Green” Bill, the Work Health and Safety Bill 2014 (see: https://www.commerce.wa.gov.au/worksafe/work-health-and-safety-bill-2014)

The Work Health and Safety Bill 2014 is Western Australia’s version of harmonised health and safety legislation. The Bill is open for public comment until 30 January 2015, and details on how to submit a comment can be found at https://www.commerce.wa.gov.au/worksafe/work-health-and-safety-bill-2014

You can access a copy of the Bill from the websites above, however, we have also added a copy to Lawstream (www.lawstream.com.au) and access to the Lawstream database it is available for access at no charge. Simply log on at:

www.lawstream.com.au

Username:           Trial User

Password:            LStrial123

When you click on the “login” button you will see two options, “client” and “trial“. Click on “client” to access your account.

Over the next few weeks we will be adding commentary about sections of the proposed Bill in the “mapping” section of the Lawstream database; simple follow the blog for more information about when updates and commentary are added.

Case discussion: Capon v BHP Billiton – Part 2 the appeal

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Early in 2013 BHP Billiton was convicted and fined $130,000 following a fatality at one of its facilities in Port Hedland. They were also ordered to pay $300,000 in legal costs.

Amongst the reasons for the conviction was BHP’s apparent failure to implement and enforce its own requirements for supervision and risk assessments by workers.

A video presentation and discussion about the case is available by following the link below:

Capon v BHP Billiton Iron Ore PH 1917/11

On 28 July 2014, the Western Australian Supreme Court allowed, in part, an appeal by BHP against the conviction. A key finding was that, while BHP did not enforce or supervise its own processes in relation to JHAs or Take 5s, that failure did not “cause” the fatality.

You can access a copy of the case here:

BHP Billiton Iron Ore Pty Ltd v Capon [2104] WASC 267

You can also see a video presentation and discussion about the case by following this link:

BHP Billiton Iron Ore Pty Ltd v Capon [2104] WASC 267 – discussion

(There is also an App available if you want to download the presentation to your device and view it later – iSpring Mobile Player)

A key question that comes out of the case – and one that I think has had some relevance for a number of years now is, what value does the JHA process add to our safety management system, and is there a case for removing them from our day to day processes?

At least, it seems that there is an arguable case that the JHA process should not be adopted with such lemming like dogma, and we can consider front line risk assessment processes that actually add value to our business.

 

 

 

 

 

 

How safety regulation undermines safety

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There is an interesting paradox in safety management, in so much as a lot of what we do in the name of safety and health actively undermines our safety efforts.

This week I was confronted with another, recurring example.

I was speaking at a conference and talking, in part, about the relationship between “safety” risk management and “legal” risk management, and the relationship between them.

After the presentation a manager that I know well and have worked with in the past spoke to me about a a significant problem that he was grappling with. They had recently been prosecuted in relation to a workplace injury. He was not complaining about the prosecution, in so far as the nature of the incident most likely warranted some form of sanction.

What irritated him was that they were prosecuted, essentially, based on evidence drawn from their own, internal, incident investigation.

To make matters worse, some of the charges did not relate to the incident. They did not allege that the safety failures “caused” the incident – they were simple “breaches” of their safety obligations in the broader sense.

As this manager described it, they did not need to identify these “non-causal factors” in the incident investigation. They did it in the spirit of trying to learn and improve, yet to his mind they had been punished for trying to do the right thing.

What this meant, somewhat understandably, was that the approach to incident investigations had changed: Narrowly focussed, only considering objective, immediate causes and not examining safety management more broadly and all investigations are sanitised by lawyers.

A good outcome for safety?

I recall a number of years ago working with an industry group that used to regularly share members’ incident investigations on their web site and at regular forums – again, in the spirit of learning and improving.

Unfortunately, the practice has all but ceased as companies refused to have potentially “harmful” information made public. Those that did make information available had sanitised it to the extent that it was effectively meaningless.

There is also a seemingly common practice among safety regulators, whereby rather than do their job and investigate incidents, they simply require a company to provide them with a copy of their internal investigation. Again, hardly an incentive for an organisation to undertake any meaningful interrogation of their safety management.

When we look back at the harmonisation process in Australia it is clear that it was a terrible opportunity lost to address how we legislate to provide better safety outcomes. Unfortunately, it was only ever intended to provide a better “administrative” outcome.

As Western Australia embarks on a process of “modernising” its safety legislation, perhaps there is an opportunity to genuinely think differently.

For example, as an individual I have a right to protection against self incrimination, so that if an Inspector compels me to give a statement, that statement cannot be used against me in a subsequent prosecution. Why couldn’t that same right be extended to a company’s incident investigation?

Surely, the interests of improving workplace safety and health through a fearless examination of safety management following an incident should take priority over arming regulators with the information that they need to mount a prosecution?

Don’t mention the “H” word: We are “modern” now

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There have been some interesting mutterings coming from safety regulators and their political masters during the long funeral march of harmonisation in Western Australia over the past few years. However, it seems now that the “H” word is out, and “modernisation” is in.

At least that was the language being used recently at the SIA Safety in Action conference in Perth.

I for one will be glad when the corpse of harmonisation is finally laid to rest. Perhaps then we can focus on legislative changes that will actually drive good safety initiatives, rather than continue to tinker at the edges of administrative efficiency.

Whether “modernisation” in Western Australia means anything more than doing exactly what we have done for the last 20 years, but using different words to describe it, only time will tell.  And if the history of legislative change around safety and health in WA is any guide, I would not be holding my breath waiting for meaningful change.

Contractor Safety Management: Waco Kwikform Ltd v Perigo

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A recent NSW Court of Appeal decision has examined the very interesting (and vexed ) issue of how the actions of a Principal can create liability, by taking over responsibility for a Contractor’s safety system of work.

In Waco Kwikform Ltd v Perigo and Workers Compensation Nominal Insurer [2014] NSWCA 140, the Court found, in part, that by developing a Safety Work Method Statement, Waco had taken primary responsibility for the safe system of work out of the contractor’s hands.

You can see a video presentation about the case by clicking here.

And apologies, but there has been a little bit of a glitch in the sound quality – there is sound but you might need to turn it up.

I also need to let you know that there is a new app available to make watching these video updates easier. You can find it by clicking here.

The app will allow you to watch the presentation, or download it so you can watch it offline later.

Best Regards.

Legislation changes in Queensland

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A number of changes to Queensland Work Health and Safety laws (WHS) took effect from 16 May 2014.

The changes impact health and safety representatives, right of entry permits, electrical safety and a range of other health and safety obligation.

Information about the changes are described on Queensland’s Workplace health and safety website, which you can access here.

If you want to look at the specific changes in the context of the legislation, we have set up a Lawstream database that will show the affected legislation.

You can access the database at:

www.lawstream.com.au (click on “client” under the login tab to access)

Username:          Qld WHS

Password:           password

Changes to the Work Health and Safety Act 2011 are available now, and further, amended legislation will be uploaded soon.

To review the changes, navigate to the relevant section and click on the “updates” tab.

The sections of the Work Health and Safety Act 2011that have been affected are:

Section 68;

Section 71;

Section 74;

Section 82;

Section 83;

Section 85;

Section 86;

Section 119;

Section 122;

Section 123;

Section 143A;

Section 274;

Part 16, Division 3, sections 307 – 309;

Schedule 2A items 9 and 112.

Call for contributors: Management experiences of safety failure

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Hello everyone.

First, apologies for a long absence from the “blogosphere“. Business and life have been particularly hectic, but I hope to get back to something vaguely representing a “sane” routine.

I am planning to post four more videos to round out my video series on contractor safety management, and then will start a new series looking at cases dealing with the somewhat vexed issue of “Reasonably Practicable“, so please keep an eye out for that.

However, this post is a call for people to contribute to a new project/book looking at the experiences of managers following a catastrophic workplace event – most typically a fatality or multiple fatality event.

If you want to understand more about the rationale behind this project, please read the rest of the blog, but in short, I want to collect and share the experiences of managers when they get that dreaded call that someone has died at work. What did it mean for you personally? What was your experience?

I would like to explore the whole range of impacts; emotional, financial, the impact on your career, lour experience of the legal process and anything else that people are willing to share.

There are any number of excellent, tragic but excellent, stories from wives, husbands, parents, workmates, friends and others who tell of the devastation caused by workplace fatalities. But there is another story – the story of the managers who have to respond to the devistation. They are often the ones blamed by the families and  accused by the media. At the same time they have to deal with the regulators, lawyers and the glacial journey through the bureaucracy of health and safety enforcement and the legal process.

This is not to suggest that the impact on “mangers” is greater or lesser than the impact on others caught in the tragedy of workplace death, but it is real.

As importantly, understanding the impact of workplace tragedies on managers may drive us to question what we do to manage health and safety risks; a small change that could make an immeasurable difference.

If you have a story to tell that might help others avoid the experience that you have had to endure  and would be willing to share it, please let me know (gsmith@stegroup.com.au). I am happy to to tell your story in a way that will protect you anonymity, but the lessons of your journey will be invaluable.

New requirements for Road Transport safety

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On 17 December 2013 the Road Safety Remuneration Tribunal handed down its first Order, which will have health and safety implications for businesses involved in, or engage truck drivers.

Orders of the Road Safety Remuneration Tribunal have the same practical effect as legislation, and there is the potential for substantial penalties if the requirements are not complied with.

In broad terms, the Order applies to Road Transport Drivers, and imposes requirements on employers, “hirers” and “participants in the supply chain“. If you employ truck drivers, or engage/contract them to deliver things to your business or move your product, then you should consider the application of the Order.

An important health and safety requirement is the need to develop a “safe driving plan” in relation to “long distance” operations (basically where the distance travelled exceeds 500 kilometres).  The plans also require that a “participant in the supply chain” witness the commencement and conclusion time of each pick up by signing the safe driving plan. Relevantly, a “participant” is:

a consignor or consignee, intermediary or operator of premises for loading and unloading.

The Order also specifies training requirements as well as the requirements for documented drug and alcohol policies covering road transport drivers. These requirements apply to both employers and hirers.

The orders take effect from 1 May 2014.

You can access a PDF version of the Order here. You can also review a copy of the Order in Lawstream:

www.lawstream.com.au

Username: Remuneration

Password: password

(Username and password are case sensitive)

For more information about using Lawstream to track and manage your legal and other compliance obligations just email me, gsmith@stegroup.com.au.

Paper Based Safety Systems in a Contract Environment

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Two recent cases have highlighted the focus that is put on documented safety systems following a serious workplace incident. The cases have also shown that despite the mountains of paperwork deployed in the name of safety, organisations still struggle to understand if health and safety risks are being controlled.

The cases are also instructive because they both arose in the context of contractor safety management.

The first case, Hillman v Ferro Con (SA) Pty Ltd (in liquidation) and Anor [2013] SAIRC 22, examined the perils of contractors creating safety management systems to meet the requirements of the client, rather than the risks of their work.

On 16 July 2010 a fatality occurred during lifting operations at the Adelaide desalination water plant. A rigger employed by Ferro Con (SA) Pty Ltd was killed when he was struck on the head by a 1.8 tonne steel beam.

The Company, Ferro Con, and its Director, Paolo Maione were prosecuted under South Australian health and safety legislation, and in June 2013 were handed fines of over $200,000.

The case has attracted a lot of attention because Mr Maione was able to call on an insurance policy to pay his penalty – effectively avoiding the punishment of the Court. However, the judgement also offers good insights into the weaknesses of “paper based” safety management systems, a compliance mentality and lack of assurance. The judgement also explores some issues in the Principal/Contractor relationship.

It seemed clear from the case that the “safety system”, such as it was, was designed to meet the need of the client, not manage the risk associated with the work:

No detailed JSA’s for different types of lifts, or lift plans, were required by Adelaide Aqua. Ferro Con took its cue for the level of safety planning it would use in its work from Adelaide Aqua, and not from the foreseeable hazards of its work activities. Ferro Con was more focussed on complying with contractual requirements than taking all reasonably practicable steps to minimise the foreseeable hazards its business created.

The inappropriate nature of safety documents in a contracting relationship was also looked at in Nash v Eastern Star Gas Ltd [2013] NSWIRComm 75, only this time, from a Principal’s perspective.

In August 2009, Bruce Austin a working director of a small business, The Saver Guys, died from head injuries after he was hit by a length of pipe that was being extracted from the ground.

There were many different entities involved in the contractual arrangements, and a number of parties were prosecuted. This case, however, looked at the safety arrangements in place between Eastern Star Gas Ltd (ESG) and Austerberry Directional Drilling Services Pty Ltd (ADD).

The case provides some useful insights into the expectations placed on businesses removed from the conduct of the physical work by a contractor. It also demonstrates how an organisations’ own, documented safety management systems (in this case a contractor safety management system) can be used to show that the organisation is not meeting its obligations.

The general “failure” in this case was that:

ADD did not have a documented safe work procedure or method (SWP) for the Activity and no job safety analysis or risk assessment for the Activity was conducted by ADD

However, the criticism of ESG, the defendant in the case, related to both ADD’s system, and ESG’s own system and conduct. The Court noted:

  • ADD OHS documents, including 42 SWPs, were from another job.
  • ESG did not require any documents specific to the job it was doing.
  • ESG did not check if the safety documents were appropriate.
  • No inquiries were made by ESG to check if the safety documents addressed the activities on this job.

The Court also noted that ESG operated in breach of its own contractor safety management system, for example:

  • ESG’s contract representative did not ensure the work was subject to Hazard identification and risk assessment, including that a safe work procedure approved and JSAs were done.
  • There was a requirement to assess contractor performance, but there was no program for that assessment, and no assessment was in fact done.

These were not things that the Court thought were a good idea – these were requirements set out in ESG’s own system.

The Court found that the:

… defendant had, in its paper systems, a roll (sic) for auditing and for checking. However, what it did not do was to comply with its own systems and that included a failure to carry out any checking of safety issues at the site.  If documented safety systems are not complied with, then that failure creates a significantly legal risk. More importantly, however, if the documented safety systems represents what should be done to create a safe workplace, non-compliance far from being a legal risk, means that our workplaces are not safe.

If documented safety systems are not complied with, then that failure creates a significantly legal risk. More importantly, however, if the documented safety systems represents what should be done to create a safe workplace, non-compliance far from being a legal risk, means that our workplaces are not safe.