New guidance material for lifting and related operations
Effective from 7 December 2015, Safe Work Australia has published 10 guides and information sheets on managing the risks associated with inspecting, maintaining and operating cranes, and plant that can be used as a crane and quick hitches for earthmoving machinery. This move is part of an agreement by SWA members in 2014 to replace the draft model WHS Code of Practice for cranes with guidance material.
You can access the SWA “cranes guidance material” page HERE.
This approach does create some interesting jurisdictional issues. For example, New South Wales which operates under the WHS legislation has an approved code of practice for managing the risks of falls at a workplace – which means it has a specific legislative standing, different from guidance material. This code of practice includes a section on “work boxes“, but it has different information from the material set out in the SWA guide on “crane lifted work boxes“.
For example, the SWA guide states that work boxes should:
- have sides not less than 1 metre high;
- have fall-arrest anchorage points;
- be correctly tagged;
- have lifting slings supplied to be attached to the lifting points by hammerlocks or moused shackles;
- have a safety factor for each suspension sling of at least eight for chains and 10 for wire rope; and
- where provided, a door is to be inward opening only and self-closing with a latch to prevent unintentional opening.
However, none of these points are mentioned in the approved code of practice.
A common failing of safety management systems is the level of internal inconsistency that develops as layers of safety management processor built up over time. It seems that the regulator is not immune from this problem.
A time for change
Good afternoon everyone.
After 4 terrific years this is just a short to advise you, that from 15 November 2015 I will no longer be working as the Legal Practice Director at STE. I have been given the opportunity to set up the Nexus Law Group in Western Australia, and after discussions with Ben, we agreed that separating the legal practice from STE would allow both the safety consultancy and the legal practice to grow more effectively.
For clients, the change will not impact my current practice. All of the services that I offer will still be available, at the same rates and on the same terms and conditions.
For readers of the blog – I will keep this site alive, and all of the videos will remain available for people to access. Over time, I will most likely migrate to a new platform, or new blog, but if you continue following I will provide updates and further details as things settle down.
My new contact details are:
Nexus Law Group
Level 28, AMP Building
140 St Georges Terrace
Perth WA 6000
T: 08 6166 3599
M: 0428 652 852
Thanks you to everyone who has followed my posts, and I look forward to continuing to provide ongoing commentary and updates, including videos, in the years to come.
Cheers
Greg Smith
Here is something misleading I read the other day ….
I get lots of health and safety “alerts” and “bulletins” moving through my email in box. The following paragraphs in one of them caught my eye:
Safe Work Australia have set ambitious targets to reduce workplace injuries and fatalities – and they intend to meet them.
So while this means that penalties for safety breaches are higher than ever it also means improvement and infringement notices are being handed out far more often, regardless of whether or not an incident has occurred.
The article then goes on to suggest:
If you want to make sure you’re meeting all your workplace health and safety obligations you should consider subscribing to the [insert product here]
The implication here is that Safe Work Australia is somehow responsible for health and safety penalties and policing breaches of safety legislation, and that Safe Work Australia’s “ambitious targets” somehow drive the enforcement of safety legislation. This of course is nonsense.
Safe Work Australia, as described in it’s 2013-2016 Strategic Plan:
… is the body leading the development of national policy to improve work health and safety and workers’ compensation across Australia. The interests of the Commonwealth, states and territories as well as workers and employers in Australia are all represented.
It has no role in enforcing or prosecuting health and safety legislation.
Health and safety is “enforced” by individual State Government departments with responsibility for safety and health, and cases are prosecuted through the State or Federal Court systems, depending on the specific piece of health and safety legislation in question. Prosecutions are usually managed by Government prosecutors, such as the relevant State Solicitor’s office of the Department of Public Prosecutions.
Interestingly the 2013-2016 Strategic Plan goes on to say:
Together we will work to achieve:
- Significant and continued reductions in the incidence of work-related death, injury and illness including through:
- reduced exposure to work-related hazards causing injury and illness
- improved quality of workplace controls, and
- an improved work health and safety framework, increased work health and safety awareness and skills and an evidence base which informs policy and practice.
- Improved outcomes for injured workers and their employers through more effective, efficient, clearly understood and sustainable workers’ compensation arrangements.
No mention of big fines or legal proceedings to achieve their objectives!
If companies are going to try and flog their safety solutions using “fear“, they should at least be accurate.
Reasonably practicable, knowledge and mental health
A common misconception in safety management is that you can somehow demonstrate that you have managed something as far as is reasonably practicable; that there is some sort of clear measure. This view of managing legal obligations is often summed up in the acronym “ALARP“.
However, “reasonably practicable” is not a clear standard, it is a value judgement as described by Justice Gaudron in Silvak v Lurgi (Australia) Pty Ltd [2001] HCA 6. You do not “demonstrate” what is reasonably practicable, you mount a “reasonably practicable” argument.
Whether measures taken by an employer to manage health and safety risks in their business are “reasonably practicable” is influenced to a significant degree by the objective state of knowledge about a hazard. For example, working at heights is a well-known hazard, there are specific regulations that govern the management of working at height risks and those regulations are in turn supported by “gazetted” Codes of Practice. It would be very hard for an employer, in light of all this “knowledge” about the hazard to argue that they had done everything “reasonably practicable” if they had not applied the controls evident in the regulations and Codes of Practice.
Being objective, the test for the relevant state of knowledge does not depend on what a particular employer knew at a particular time, but rather what they “ought to have known“. Again, looking at my working at heights example, it would not be open for an individual small-business employer to argue that they did not know about the relevant risks and controls – from the Court’s perspective all employers “ought” to know about them.
The relevant state of knowledge changes over time. A good example of this over the last 20 years is our knowledge about the impact of fatigue in the workplace and the factors that can affect a worker’s level of fatigue. Whereas 15 to 20 years ago an employer may not have appreciated the cumulative effect of their workers working consecutive 12 hour shifts and driving home, the state of knowledge about fatigue risks and the development of guidance material and Codes of Practice to manage those risks mean that employers – all employers – “ought to know” about those risks and the means to control them.
The Western Australian Legislative Assembly, Education and Health Standing Committee report on The impact of FIFO work practices on mental health published today, has moved the issue of knowledge about the hazard of mental health generally, and its impact on FIFO workforces in particular, much closer to the “ought to have known” category. To borrow the Committee’s own words:
The Committee considers that the emerging evidence that shows that mental health problems may be a concern for 30 per cent of the FIFO workforce will have an important positive impact on the state of knowledge cited in section 3 of the OSH Act, and therefore on the duty of care provisions (page 51).
The Committee goes on in Finding 15 to state that the evidence will not only increase the state of knowledge, but “create duty of care responsibilities“.
In an earlier post about zero harm I made a number of observations about how the practice of safety management may undermine safety in workplaces by contributing to harm to people’s mental health and well-being. The post received a huge number of comments which unfortunately focused on the ongoing debate about the use of the term “zero harm“.
The point of the conversation, in my view is much broader.
As evidence emerges about the changing nature of workplace hazards, in particular those that impact on people’s mental health and well-being, this in turn informs our level of “knowledge“.
As our level of knowledge changes it is incumbent on the health and safety industry to turn its mind to the extent to which historical practices may cause harm.
What is it that we “ought to know” ?
Changes to WA mining legislation: Update
Some information about possible changes to legislation regulating health and safety in Western Australia’s mining industry has emerged today from an interesting source, the Western Australian Legislative Assembly, Education and Health Standing Committee report on The impact of FIFO work practices on mental health.
According to the report (see page 40/41) , the Department of Mines and Petroleum has advised:
- The Minister has approved the Department to prepare a draft bill, known as the Work Health and Safety (Resources) Bill;
- The Bill will be consistent with the Western Australian WHS Bill currently out for public comment;
- A new Regulatory Impact Statement will be developed on the Resources Bill with a public consultation period from late June to mid-August 2015;
- It is hoped that the Resources Bill will be introduced to Parliament by 30 April 2016; and
- It is proposed that regulations under the Resources Bill will be gazetted by 1 December 2016.
Watch this space.
When does the language of “zero harm” become unlawful?
I am not a fan of the language of “zero“, either as an aspiration or as a stated goal. It has never sat well with me, and seems so disconnected from day to day reality in both society and a workplace that people cannot help but become disconnected from, or dismissive of, the message behind the term. My view has always been that the language of zero actually often undermines the objectives it is trying to achieve (see this case for example).
If you are interested in this topic (and if you are involved in safety you should be) there are far more passionate, learned and articulate critics of the language of zero than me – See for example, anything by Dr. Robert Long.
However, recently I have been asked to do quite a bit of work around psychological harm in the context of occupational safety and health. In particular, how the legal risk management of psychological harm in the context of safety and health might differ from the Human Resources (HR)/employee relations context.
WHS legislation around Australia expressly includes “psychological” health within its remit and the Western Australian Department of Mines and Petroleum has acknowledged that they regard “health” as including “psychological” health, even though it is not expressly described in the State’s mining legislation.
What has emerged, at least to my mind, is the extent to which our policy, procedure and policing approach to safety and health, far from alleviating psychological harm in the workplace, might be contributing to it.
Safety management might be part of the problem.
In an ongoing Western Australian inquiry into the possible impact of fly in/fly out work on “mental health” the Australian Medical Association identified that the way health and safety is managed can contribute to a “distinct sense of entrapment” (page 43):
The AMA also expressed its concerns about this issue, noting that “[o]nerous rules, safety procedures and focus on achievement of production levels have been shown to create a distinct sense of entrapment in FIFO workers.”
The inquiry drew, in some measure, on an earlier report, the Lifeline WA FIFO/DIDO Mental Health Research Report 2013 which also appeared to note the adverse impact of safety and health management on psychological well-being. For example “[a]dhering to on-site safety rules” was identified as a workplace stress (page 77). Interestingly, the Lifeline report noted a sense of “intimidation” brought on by the number of rules and regulations associated with work on a mine, and :
This sense of intimidation was further mirrored in the outcomes of mining safety regulations which in theory were designed to care for workers but in practice led to inflexible regulation over genuine safety concerns (page 81).
Examples from the Lifeline report include:
… a participant recalled a situation in which a worker handling heavy loads required an adhesive bandage but was unable to ask someone to get them for him because he had to fill out an accident report first (which he was unable to do mid-job); hence he had to carry on working without attending to his cuts. Alternatively, another example of the application of safety rules in an inflexible manner was illustrated when a group of workers were reprimanded for not wearing safety glasses on a 40 degree day even though they could not see from them due to excessive sweating. Hence, safety rules themselves were accepted as a necessary part of work but their implementation in an inflexible uniform manner created stress as workers felt their impact hindered their ability to conduct basic work tasks safely and/or without attracting rebuke. Hence, site rules and regulations could translate into arbitrary and punitive forms of punishment, which undermined participants’ ability to fulfil jobs to their satisfaction and left them feeling insecure with their positions (page 81).
It seems, then, that we need to think beyond our own perceptions of what might contribute to workplace stress and understand the impact that our efforts to manage health and safety might actually be having. Again, as the Lifeline research noted:
… although past research has shown that site conditions and cultures, such as isolation and excessive drinking are problematic, this research shows that the regimented nature of working and living on-site also takes a toll on mental health and wellbeing. From the responses of many participants, it was apparent that following site safety rules (either under pressure of internal monitoring or in the perceived absence of adequate safety precautions by co-workers and supervisors) was a significant stressor. Participants felt unable to apply self-perceived common-sense judgments and also reported feeling vulnerable to intensive scrutinising, intimidation and threats of job loss (page 82) [my emphasis added].
The common criticisms of the language of “zero” seem to me to go directly to the factors that have been identified in this research as contributing to psychological harm in the workplace. The pressure to comply with rules, fear about reporting incidents, the inability to exercise individual judgement on how to manage risk and the inflexible application of process are all side-effects of the language of “zero“.
Up until this point the debate around “zero harm” and its utility (or otherwise) as the headline for safety management has been relatively benign. Apart from the advocacy of people like Dr Robert Long “zero harm” seems to have been perceived as a relatively neutral strategy, insofar as people believe that it “does no harm“, and “what’s the alternative?”.
It seems, in fact, that much harm may be perpetuated in the name of “zero“, and at some point the behaviours that it drives will be found to be unlawful.
It is also going to be interesting to see how health and safety regulators, often the champions of “zero harm” oversee its potential impacts on psychological harm in the workplace. Indeed, it would be very useful to see what risk assessments, research or other measures were taken by regulators prior to introducing “zero harm” style campaigns or messages to understand the potential effects of their interventions, or any subsequent research to understand the potential harm they may have done.
Updated access to old video presentations
There are currently 17 online video presentations looking at various health and safety cases and topics available through this blog. To make it easier to access old presentations I have added a new “video presentations folder” page.
Through the page you can access a link to a folder which contains all of the video presentations, and the folder will be updated as new presentations are added.
I hope that you continue to enjoy the presentations, and I look forward to any feedback.
Best regards.
Comcare v Transpacific Industries
Comcare v Transpacific Industries [2015] FCA 500 is an interesting case that looks at the liability of an employer for the death of a non-employee in a motor vehicle accident. In February 2011 a Transpacific employee driving a garbage collection truck ran into a vehicle killing the driver. Subsequent investigations revealed that the truck had faulty brakes.
The case provides some very interesting insights into the “illusion of safety” where it appears that, notwithstanding regulator approval and a routine maintenance regime, the high risk of poorly maintained brakes on a garbage truck was not identified.
There is also an interesting point raised in the case about the extent to which an employer should monitor the work of an employee who has been issued a warning for safety related breaches. Should an employer monitor the employee until they are satisfied that they are working in accordance with the safety requirements?
A short video presentation about the case is available here.
You can access a copy of the case here.
I have read and understood ….. What is the value of providing safety documents to employees?
A recent NSW Industrial Relations Court decision has agitated the question of whether an employer needs to provide written safe work procedures to its employees as part of their duty to provide a safe workplace.
In Inspector McCarthy (nee Shaw) v Siva & Jeya Pty Ltd [2015] NSWDC 15 a company and its director were prosecuted after an employee suffered severe burns while filling a burning pot used to heat food trays for a buffet style meal. The pots were filled using methylated spirits.
One of the allegations in the case was that the employer had not provided the employee with a “written safe work method” for the task. The Court found that the failure to provide the written information was not a breach of the employers obligations:
I do not think that the case for providing her with a written safe work method is made good. The written document for an immigrant such as Anisha may be difficult to comprehend and follow and may not necessarily be effective. A spoken direction is more likely to be effective.
This is not unprecedented, or unsurprising. In a 2013 South Australian decision, Moore v SD Tillett Memorials Pty Ltd [2013] SAIRC 47 it was alleged by the prosecution that the employer should have kept a record of a training document, and who that document was provided to. In relation to that allegation the Court said:
This is of course desirable but what would it have achieved against a background of constant verbal reinforcement? Recording who received the document had not been carried out in the past although there was a universal awareness of the document by the employees and former employees …
Another instructive case is Inspector Shepherd v Desiya Pty Ltd [2013] NSWIRComm 9. In that case workers were provided with “on the job” training in relation to operating machinery and traffic management in a work yard. An employee was killed when he was hit by a truck.
One of the allegations against the company (which was ultimately convicted) was:
The training and assessment of drivers of yard trucks was done via ‘on the job training’ and assessment.
One the job training is a legitimate training method, indeed, as illustrated by the Siva & Jeya Pty Ltd case, may be the appropriate method. In the case of Desiya, on the job training was a deliberate and legitimate strategy:
Verbal instructions were commonly used … as a control measure against employees with poor literacy skills not understanding the written instructions contained within training documentation.
The difficulty lay, not in the strategy, but the execution.
The competence of the trainee or trainer was not assessed against any documented objective criteria. After this ‘training’ process, if the driver was assessed as competent by the supervisor they were then permitted to operate the truck.
There are many appropriate and legitimate ways that an employer can discharge their obligations to ensure that employees are trained and competent to perform their work safely. These might include formal class room training, on the job training, computer based training, the use of written work instructions and so on.
The lessons from these, and similar cases, is that simply providing safe work procedures to employees is not sufficient to discharge and employers obligations. In all likelihood, simply providing training, no matter what its purported “quality” will not be sufficient either.
Documented safe work procedures should be developed and maintained, but they are not an end in themselves – they are simply the evidence of the “objective criteria” against which workplace safety will be judged.
To discharge obligations to ensure relevant training and competency in the workplace, employers need to be able to demonstrate that:
- Workers have been provided with the relevant information about how to do their job safely;
- Workers understand that information;
- Work is actually performed in accordance with the training; and
- There is ongoing supervision and enforcement of the training.
Equally importantly, this does not require dumbing everything down and treating workers like fools. Give workers the information they need to do their job safely, trust them and supervise them with respect – you might just be surprised by the results.
