Recently there have been several local Australian kerfuffles about freelance writing.  I have experienced similar issues and many readers I meet ask me this question – “do you make money from the SafetyAtWorkBlog?”

The short answer is “No”.  But this is too simple.  Readers do not pay me for access and there is no advertising on the blog. However, what the SafetyAtWorkBlog has done has increased my professional profile in the Australian occupational health and safety (OHS) sector so that my consulting and writing has a higher value.

Last week a content provider contacted me to discuss me writing articles for them.  They read my blog articles and liked what they saw.  They offered a “word rate” of A$0.40 – a word rate is a rate that, for instance, would offer A$200.00 for a 500 word article. Such a word rate may have been legitimately offered twenty years ago but small business costs have increased enormously since then.

Prominent freelance writers can achieve A$1 per word but this is very rare.  It is more common to be offered a word rate of A$0.70 – a market rate that has remained almost unchanged for over a decade.

The rate advocated by the Media Entertainment & Arts Alliance (MEAA) in 2012 and still current, is

“1000 words or less – $925.00 then 93c per word”.

The MEAA calculates this rate based on the need to cover freelancer (small) business costs.

Customers need to realise that the price they pay now is based on, in my case, a couple of decades’ worth of advice, consulting, study and writing. It is unreasonable to expect to pay any experienced professional base-grade rates and yet when it comes to writing, people do.

Some would say that I am giving away my writing for free in the SafetyAtWorkBlog.  It may look that way but there is a lot of writing that occurs “off-blog” and for this I seek payment.  There are also cases where, if my articles are used elsewhere, Australia’s Copyright Agency obtains a payment for use. I also use software that searches the internet for articles that have a strong resemblance to my articles and can seek reuse payments or ask for the articles to be removed.

The freelance writing sector is not served well by people providing content to magazines and other media at no cost, although there may be quid pro quos that are similar to the use of “advertorials“, a type of article that seems to dominate trade publications.

I sometimes agree to write about events, conferences, seminars or books in return for a “media pass” or a “review copy” but there is a professional understanding that the review or article remains independent.  The article could be positive or negative and that is the risk taken by offering such access to an independent media. Any arrangements of this type are usually noted in the article or as a footnote.

The basis for this “understanding” is that any journalist applies the Code of Ethics. It is worth establishing in any early discussions with freelance writers whether they subscribe to this Code.

Some people ask why I don’t use advertising to get some financial return on the blog.  I could do this but every spare space on the web page would need to be filled with ads to gain a decent return from internet/clickthrough ads of the type Google promotes.  Also I have no, or little, control over who advertises on my site through Google Ads and I don’t want my readers to see ads of semi-clad women who are lonely in a suburb next to them.  I do not think the effort, or relinquishing control over my blog site, to be worth it.

This is a small taste of many of the talks I have presented over the years about the use of social media.  It is a complex business and it is extremely rare to make a livable wage from any blog, especially one that deals with the niche area of OHS, without selling products or services.

Kevin Jones

New research into quad bike safety by the University of New South Wales (UNSW) shows increasing maturity in the discussions on the safety of quad bikes and farms. According to a 2 September report on Australian ABC radio, more attention is now needed for quadbike rider’s actions, workplace conditions and choices.

The attention on the suitability and design of quad bikes has dominated the safety debate over the last few years.  There is no doubt that the design of quadbikes could have been made safer, or that new vehicle models offer better stability or that Operator Protection Devices (OPDs) offer a safety improvement.

The focus on riders has been almost exclusively about “active riding” techniques and the use and suitability of personal protective equipment, such as helmets. The UNSW researchers are now looking into issues regarding:

“how their bikes are used and what sort of tasks, and what sort of rules farmers have to keep themselves safe…”

“….how do farmers get into trouble, how do people get into trouble when they’re riding these quad bikes? What is it about these quad bikes that result in someone being seriously injured or killed?”

“…we look through a lot of the coronial files, we saw people were doing things which were sort of warned against behaviour. They were intoxicated, driving at night where they didn’t have sufficient light. They were doing donuts or doing silly things on them…”

Some would say that this is the area that researchers and occupational health and safety (OHS) regulators should already have been looking at.  That is true to some extent but it was first necessary to break the denial of quadbike manufacturers that ALL the injuries and fatalities were the fault of riders. Manufacturers may argue that researching the behaviour of riders would have  removed the debates over redesign but recent coronial findings have emphasised the validity of applying the hierarchy of controls to quadbikes and so engineering controls and redesign deserved their early consideration.

The latest discussions place quadbike operations in the context of farms-as-workplaces and the OHS obligations for risk assessments of any working environment.

Researcher Dr Emma Webster stated that future of research in this area will be looking at:

“…what other types of things that people are doing, and to understand better what are some of the high risk activities and to then better inform the types of rules that can be implemented on farms. “

Such research is an enormous challenge as it broadens from one particular article of plant to the safety culture of farming, but it is one that needs pursuing.

Kevin Jones

Several weeks ago I was asked by a trade unionist to make a submission to the Australian Government explaining how the impending Trans Pacific Partnership (TPP) would be bad for worker safety.  I acknowledged concerns over labour relations but pointed out that no matter who is working in an Australian workplace, their safety must be managed.  Whether they are a migrant worker of full-time employee was not relevant to the management of their occupational health and safety (OHS).  The trade unionist was disappointed.

Now the full text of the TPP has been released it is possible to look for any direct OHS impacts of the agreement.

It is necessary to provide a context to the article below.  The focus of this article will be on the Labour Chapter (19) of the TPP through the perspective of OHS.  The TPP has been in development for around ten years and not all the parties to the agreement have signed the Partnership.

The Preamble is an important read, just as are the aims of OHS legislation, in order to understand the promises to which the Parties are expected to accept and apply.  Here are some that could apply to OHS:

“ESTABLISH a comprehensive regional agreement that promotes economic integration to liberalise trade and investment, bring economic growth and social benefits, create new opportunities for workers and businesses, contribute to raising living standards, benefit consumers, reduce poverty and promote sustainable growth;”  (page 1)

“PROTECT and enforce labour rights, improve working conditions and living standards, strengthen cooperation and the Parties’ capacity on labour issues;” (page 2)

“PROMOTE transparency, good governance and rule of law, and eliminate bribery and corruption in trade and investment;” (page 2)

The last quote is included due to the role that good governance and rule of law has in managing workplace safety and health.

The Labour chapter includes in the definition of “labour laws”:

“…acceptable conditions of work with respect to minimum wages, hours of work, and occupational safety and health;” (page 19-1)

This is reinforced, sort of, by the following:

“Each Party shall adopt and maintain statutes and regulations, and practices thereunder, governing acceptable conditions of work with respect to minimum wages, hours of work, and occupational safety and health.”

Maintaining laws AND practices with respect to OHS seems like an important win but there is a footnote that states that what constitutes those laws and practices are determined by each specific Party.  So, in effect, the promise is a reinforcement of what Australia already does.

“For greater certainty, this obligation relates to the establishment by a Party in its statutes, regulations and practices thereunder, of acceptable conditions of work as determined by that Party.” (page 19-2)

There are other elements that may affect OHS management in this Agreement such as child labour, discrimination, slavery, freedom of association and other issues.

Article 19.5 is a useful example of the overall priorities of the TPP.  It says:

“No Party shall fail to effectively enforce its labour laws through a sustained or recurring course of action or inaction in a manner affecting trade or investment between the Parties after the date of entry into force of this Agreement.” (page 19-3)

The first part of the commitment is very positive – effective enforcement, sustained and recurring course of action – all of this positive enforcement is only IF it affects trade or investment.  It is highly unlikely that the failure to enforce OHS will have sufficient effect in trade and investment to create any sanction.

Corporate Social Responsibility

In some ways this potential action is not helped by including the concept of Corporate Social Responsibility (CSR) primarily in the Environment Chapter – Article 20.10.

CSR is briefly mentioned ion Labour Laws at Article 19.7 but only in the vaguest and weakest terms.  Those weak terms are highlighted below:

“Each Party shall endeavour to encourage enterprises to voluntarily adopt corporate social responsibility initiatives on labour issues that have been endorsed or are supported by that Party.”

CSR has always had the potential to greatly improve the OHS conditions of workers in one’s own country but the lobbyists have almost always applied CSR to trans-border supply chains.  There is a strong opportunity to link CSR with companies’ increasing OHS/WHS obligations under due diligence and corporate governance.  Corporate reputational risk is an integral part of modern OHS enforcement as much as it is in environmental laws, and CSR links these two management sectors.

Cooperation/Consultation

As OHS is founded on the concepts of consultation and cooperation Article 19.10: Cooperation is worth reading in full.  Several management values that directly affect OHS are listed, such as

“… generation of measurable, positive and meaningful labour outcomes;” and

“… transparency and public participation.” (page 19-6)

Some would interpret this chapter as supporting the tripartite consultative mechanism on which much of OHS relies but it expands the cooperation/consultation pool by referring to “stakeholders”.

“Each Party shall invite the views and, as appropriate, participation of its stakeholders, including worker and employer representatives, in identifying potential areas for cooperation and undertaking cooperative activities ……..” (Article 19-10, 3)

There is a long list of potential areas of cooperation in the Agreement that can relate to OHS and include, amongst others:

• “… innovative workplace practices to enhance workers’ well-being and business and economic competitiveness;
• … work-life balance;
• …. promotion of improvements in business and labour productivity, particularly in respect of SMEs;
• …. occupational safety and health;
• …. corporate social responsibility;”

The TPP says that these “Areas of cooperation may include……..” (emphasis added).  If Australia is to consider cooperation on the OHS-related issues above someone needs to begin lobbying the government to turn those “mays” into “musts”.

Quality Employment and Decent Work

Significantly these areas of cooperation mention “quality employment” several times but this phrase occurs nowhere else in the Agreement and it is not defined.  It appeared several times in the G20 Labour and Employment Ministerial Declaration released at the 2014 meeting in Australia without a specific definition but in the context of social protection, precarious work, “well-designed labour, employment and social policies” and gender equality.

“Quality employment” could mean many things to the Parties to this TPP but it is hoped that it becomes related to “decent work” which is mentioned briefly in the same cooperation section and the ILO has include safe working conditions as one of the elements of decent work.

The Labour Chapter of the TPP is often overlooked by everyone except for trade unionists. And almost no one looks at Free Trade Agreements and pledges like this Trans Pacific Partnership through the prism of occupational health and safety.  OHS may seem a minor consideration in international trade negotiations yet it is almost always present in agreements and treaties, often as an afterthought or a nuisance obligation.

It does not need to be this way and should not be this way but outside of the trade union movement, OHS has no strong advocates.  No one speaks about the relevance of safety in achieving the trade, productivity or sustainability elements and aims of the treaties and agreements. OHS is a crucial part of productivity and corporate sustainability.  If it is poorly managed or ignored, labour productivity declines and the reputational or financial damage can make a company unviable.

The Trans Pacific Partnership is a complex document that will be pored over by experts for weeks to identify obligations, outs and opportunities.  OHS is undeniably a part of the TPP and should not be ignored but it needs to be more than acknowledged by the Parties, it needs to be worked on, it needs to be owned and it needs to be applied.

Kevin Jones

On 30 November 2012, SAI Global announced a commercial arrangement with SafetyCulture for the sale of generic Safe Work Method Statements (SWMS), particularly for high-risk industries. This has caused something of a stir with some Australian safety professionals who claim that this runs contrary to good safety practice. The controversy of SWMS in Australia is a hot topic and one that is unlikely to be resolved soon, as it goes to the heart of some of the safety red-tape objections from the business sector.

SAI Global announced:

“SAI Global Limited (ASX: SAI) has signed a distribution agreement with SafetyCulture Pty Ltd one of Australia’s leading providers of Occupational, Health and Safety information and materials, to publish and sell their “Safe Work Method Statements”.

These Safe Work Method Statements, developed by SafetyCulture, are templates documenting procedures and methods for safely executing common tasks and operations on construction sites.

These templates cover a wide range of potentially dangerous tasks and activities which:

• Save construction companies time and effort drafting various OH&S procedures for different applications.
• Are available in Word format and can be easily tailored to meet the requirements for specific construction sites.
• Are based on industry expertise and latest OH&S best-practice for high-risk construction work.”

SafetyAtWorkBlog has written previously about the commercial situation and strategy of SAI Global and its relationship with Standards Australia. SAI Global has always been a commercial organisation that has marketed the work undertaken by Standards Australia. This has never sat well with many safety professionals as some, including SafetyAtWorkBlog, have argued that any Standards referenced in workplace safety legislation should be free or at a reduced cost due to their role in preventing incidents and harm.
It has been argued that if the Australian Government wants to reduce safety costs to small business, it should consider providing safety management standards at no, or little, cost.

What has raised the ire of many safety professionals is that the source of the generic SWMS has come from another commercial body, SafetyCulture. Describing any company as “leading”, as in the above quote, only ever describes market position and never product quality. At one point Enron was a leading energy company and Lehman Brothers was a leading merchant bank and Madoff was a leading investment adviser. “Leading” is a red flag for more analysis on a company or organisation.

SafetyCulture provides a timeline of the company’s development on its website but no information about the technical OHS resources and expertise used for its product development. The company has certainly made some inroads into the online safety app sector but many of the safety professionals’ concerns could be assuaged with more background on expertise and SWMS development.

SAI Global has only ever claimed these products to be templates which should be tailored to the needs of construction workers, a point that SAI Global’s Simon Berglund is at pains to stress in some OHS discussion forums. There is a growing trend to step away from the generic SWMS to the more relevant Job Safety Analyses or a simplified SWMS that is handwritten by the work crew on the day prior to commencing work in an area or a shift. In this way some construction companies are reinforcing the need to have SWMS live up to their intentions and not be an administrative task that someone in an office wrote weeks or months earlier.

Very recently Lynelle Briggs and Mark McCabe, the WorkSafe Commissioner for the Australian Capital Territory, investigated the safety performance of that territory’s construction industry and devoted a page on the matter of SWMS (withe the best use of “embuggerance” seen for some time). In the report, Getting Home Safely, Briggs and McCabe wrote:

“Safe Work Method Statements are, basically, a set of instructions for how to complete a prescribed task as safely as can reasonably be expected. The current Work Health and Safety Act 2011 only requires such documents for eighteen specific high-risk construction activities. [SAI Global offers many more than eighteen] The current mythology, however, which has proved enormously difficult to dislodge, is that all risks must be managed, and documented, and have a corresponding SWMS that can be produced when an inspector calls or if the employer ends up in court.

This mythology has been perpetuated by some in the industry for varying reasons, few if any of which are valid. Auditors, safety consultants and inexperienced or less qualified safety managers have all been culprits in perpetuating this myth, despite attempts by the local industry to lay most of the blame at the feet of the Federal Safety Commission.

Some of the Territory’s most senior safety managers are still yet to be convinced, despite protestations by WorkSafe ACT to the contrary, that they are not required to have a SWMS in place for workers walking over uneven ground on a construction site, or walking up stairs on a multi-level site. This is despite the fact that most people mastered such activities in early childhood.

Perhaps what the perceived issues surrounding SWMS actually represent is the inability of the local industry to see beyond the most basic of responses to demands for safer worksites. Whether this is due to an undue focus on profit margins, with safety seen as a mere ‘embuggerance’, or whether the responsibility for this lies more broadly among all of the stakeholders, it nonetheless has become an obstacle to seeing the bigger picture…….

For this specific issue, the answer is to comprehensively debunk the SWMS myth. To do this alone, however, and not shift the focus from paperwork to work practices, from systems-based controls to behavioural and cognitive controls, will not achieve the safety outcomes we must all expect from the construction industry.” (page 44)

Further to the mention of the Federal Safety Commission (FSC) above, the FSC states in its factsheet on SWMS that:

“As SWMS form the primary source of documented OHS guidance for workers, it is essential that they are involved in its development and clearly understand the material. Whilst some of the core information contained within a SWMS may be relevant across multiple projects, much of the information should relate to the specific situation on each project. As such, site specific SWMS should be developed for all projects.” (emphasis added)

The concerns of safety professionals comes largely from their experience that safety templates often become a default process that is diverted to become an SEP (Someone Else’s Problem) or simply a piece of paper that is never looked at and one that everybody hopes is never asked about.

An earlier incarnation of SafetyCulture, Wades Business Solutions, provided the following context to SWMS that is missing from the SAI Global site:

“Main Reasons Why Staff Do Not Adhere To Safe Work Method Statements

1. Safe work method statements are implemented without involvement with staff.
2. Different policies or work procedures don’t seem to be well-communicated.
3. Work procedures and improvements aren’t thoroughly enforced.
4. Employees openly accept a policy and independently neglect it.
5. Personnel do not think the principles affect them.”

Templates without context may be the basis for many of the safety professionals’ concerns.

Briggs’ and McCabe’s quote above displays their frustration with how the myth of the SWMS has grown out of control and is seen as a joke by some, an inconvenience by most and a useful safety tool by few. The SWMS system and regulatory expectations need a reboot across Australia and particularly in the high risk construction sector where SWMS could be of the greatest practical use. Issuing templates is not helping in this need for revision but SAI Global has long been a commercial leopard that seems to have no intention of changing its spots and needs to develop more commercial products to rebuild its profitability. Sadly it seems to be a short-sighted leopard.

Kevin Jones

In 2012 many countries have been required to pursue economic austerity measures.  A national or international economy rarely has any direct effect on safety management but the current economic status has led to an increase in harsh, or strong, political decisions and some of these decisions will affect safety management and professionals.  One obvious manifestation of political safety decisions is the UK Government’s decision to allow small businesses to step outside its occupational health and safety (OHS) laws in its pursuit of reducing supposed “red tape“.  This strategy is attractive to other government’s, including Australia’s, but the strategy could marginalise the safety profession even further if the profession remains insular and silent.

The Institute of Occupational Safety and Health (IOSH) has been campaigning for some time on the governments decisions to change its OHS laws in its quest for greater efficiencies and reduced business costs.  In the last few months, IOSH has turned its attention to the proposed changes to the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 1995 (RIDDOR) whereby the reporting period is extended and various types of incidents will no longer be required to be reported. IOSH’s head of policy and public affairs Richard Jones has said that

“IOSH is extremely worried that the changes will mean certain major injuries, including dislocations and temporary blindness and serious diseases, including occupational cancer and asthma, would no longer be reportable. This gives out entirely the wrong message, and is a retrograde step.” (emphasis added)

Most governments acknowledge that work-related incidents and illnesses are under-reported, to what extent depends largely on one’s politics, so it seems illogical for businesses to provide less information.

According to one article earlier this year

“Paul Kenny, general secretary of the GMB, criticised the changes to reporting injuries at work. “There will be 30,000 fewer accidents reported, which is not the same as 30,000 fewer accidents…” (link added)

Similar criticisms have been voiced in Australia about Work Health and Safety legislative reform which originated from similar ideological and political intentions to cut “red-tape”.  This motivation has grated with many safety professionals as improvements in worker safety have always been a secondary consideration to the reform process.

At the same time as the red-tape challenges, there is a parallel debate about the need to increase productivity.  In terms of OHS, red-tape and productivity have yet to be linked by the mainstream press or, sadly, the safety professional magazines, but this is likely to occur in 2013 if the safety profession develops a strategy to get a seat at the corporate leadership/economic/productivity table.  That’s a big IF in Australia, as the safety associations remain focused on a narrow strategy of tertiary education requirements and research lobbying.

IOSH has always had a strong lobbying role even though its level of influence seems to vary in line with ideological reviews of its leadership and changes of governments.  But at least IOSH has a voice and the ear of government and OHS regulators.  This is certainly not the case in Australia.

Australia also lacks an independent “think-tank” that is willing to analyse the economics of workplace safety.  The economic information currently available is too often part of a larger study or produced for marketing purposes or not sufficient broad and robust.  This allows for fads and niche products to establish themselves beyond their legitimate evidence base.  Attempts to establish think-tanks in Australia have been tried but with little sustainability.  The Institute for Safety, Compensation and Recovery Research has potential but would benefit from a larger and more varied source of funds.  There are potential models in Canada such as the Canadian Centre for Policy Alternatives and Europe has several safety think-tanks, often funded by the European Union.

Such think-tanks have the skills required for the analysis of economics, skills that are rarely found in workplace safety organisations.  IOSH spends a great deal of time on lobbying locally and, to a lesser extent, internationally but at least it is politically active.  Australia has no safety organisation prepared to do so and the profession is suffering from this lack.  Without political lobbying and a media presence, the safety profession could be seen as being reactive and whingers, rather than the progressive profession it can be.  It is exactly in times of economic pressure that the argument for effective safety strategies needs to be voiced strongly or else OHS will be given a business and economic priority that exposes it to ridicule and irrelevance.

Kevin Jones

Several years ago, a WorkSafe Victorian executive saw “reasonably practicable” as a major legal advantage in safety regulation. It is of legal benefit, but does it make workplaces safer? Does it make it easier to manage workplace safety? In this time of economic austerity and the pursuit of red tape reductions, can the “reasonably practicable” elements of Australia safety law be an impediment to safety management?

Employers have always seen legislative compliance as the equivalent of being safe. This position seems sensible because if the safety police of the OHS regulator leave you alone after a site visit and say you are compliant, your workplace must be safe. The safety experts have visited and found nothing wrong, it is logical to then assume safety.

Here’s a radical thought – compliance ≠ safety. Never has and never will.

This will be a shock for many businesses, and even a shock for many OHS regulators, because so much workplace safety strategy is based a flawed logic that “if I comply with workplace safety laws, I am safe”. Regardless of OHS laws, there is a moral social duty to look after the safety and welfare of one’s workers and oneself. When values become codified in law, the law becomes the value, and the moral duty becomes historical.

This is important to remember when considering the pursuit of red tape reductions. Much of the reduction is being sought, particularly here in Victoria, from regulatory agencies in the first instance. It is aimed at reducing the flow-on cost of compliance and will have no positive impact on workplace safety. If a company, particularly a small business is able to save money through the removal of a licence fee or other government charge, does anyone believe that any of that saving will be spent on safety? Savings are often reinvested or distributed to shareholders or spent on production processes to increase output. Changes to the “cost of compliance” maintains the focus on compliance and not on achieving a safe workplace.

In previous decades of prescriptive OHS laws, employers sought flexibility to achieve compliance in ways that acknowledged the differences in each workplace and industry. In industrial relations this was often applied through “structural efficiency principles”. The era of “reasonably practicable” began. Curiously around the same time, businesses became more vocal on their grumblings over the cost of compliance. The flexibility they requested made it more difficult to meet a compliance benchmark that was not universally applied. The consequences of that flexibility has been labelled as excessive red tape, and businesses want it reduced.

Non-regulatory OHS change

Here’s another radical thought. Aim to achieve a safe workplace and you will find that you also comply with the safety laws.

Also, your workers will be happier because they see you investing in their safety and mental welfare. Their perception of the value of their work improves, they may become happy and this happiness may manifest in increased productivity because people enjoy what they are doing in a company that looks after them.

Oh and you will be able to achieve this without lawyers because lawyers are part of the reactive process of failure and damage. Failure and damage is minimised or eliminated because healthy, happy workers look after each other. Safety becomes part of their working life instead of a legislative imposition. No retainers for a law firm, there’s a big cost saving and a reduction in the associated red tape. Who would have thought?

The pursuit of red tape reduction is being imposed on government agencies by political leaders but it was only in 2009 when some Australian OHS regulators saw the importance of reducing red tape and began the process because it would benefit both businesses and workers. The ideology behind the national harmonisation of OHS laws in Australia was already on show. The opportunities identified by the Victorian and New South Wales politicians occurred through State-based cooperation and almost all of the aims listed in the Safety At Work Bulletin article came to reality.

This article may read as a bit of a rant but is borne of frustration when safety professionals, regulators and others speak about workplace safety when they are really meaning compliance, lawyers are often the worst offenders. The semantics may seem pedantic but words reveal beliefs, ideologies and misperceptions.

Unions are often portrayed as being a bit loony or obsessed when they discuss safety but these criticisms often display the safety misunderstandings of the critic. Trade unions can be weird but they argue on the importance of safety, regardless of compliance. They believe, as I do, that focusing on safety first will almost always include compliance, but that focusing only on compliance does not ensure safety.

Kevin Jones

WorkSafe Victoria has asked me in the past why I do not report on some of their successful activities and promotional campaigns.  Recently WorkSafe Victoria has been running what appears to be a very successful safety campaign focusing on young workers. The campaign is called “if you’re not sure, ask“.  The television and online advertisements again feature confronting workplace injuries but the significant difference in this case is that there is a social context about body image.  This element of the campaign is very effective however, from the perspective of an old fart of a safety professional, the advertisements miss the role of the supervisor and the importance of a safe working environment.

The pivotal point of the ads is meant to be when the young workers look to their supervisors for assistance but as the supervisors are busy, the young workers chose to take an action that is beyond their workplace knowledge and an amputation and chemical burns result.

What I see is a magazine collating machine that has inadequate guarding and a large container of caustic chemical which has no tap or other safer method of decanting.  The workers’ supervisors are running workplaces that do not provide a safe and healthy work environment.  The focus is on the actions and choices of the inexperienced workers.  This satisfies the ads’ purpose but a second phase of these ads is warranted.

Supervision

I suggest that the same ads run a second time with a slight change.  As the supervisor turns away in the chemical ad, she turns back and says “Hang on.  Don’t do it that way.  Let me help”.  Or in the magazine ad, just as the boy goes to grab the jammed magazines, a supervisor’s hand comes on the boy’s shoulder saying “Stop.  Turn the machine of first.  Here, like this”.  The life-changing context of the incidents would remain a significant part of the ads but now active supervision, the “watchful eye” that all supervisors need to apply to new and young workers, is shown.

In this way, the core message of the advertising campaign remains – “if you not sure, ask” but this is reinforced with “if they’re not sure, supervise”.

Workplace redesign

It is also important that business owners and supervisors understand that the boy’s amputation would not have happened without suitable machine guarding or light sensors or some form of cut-off switch (no pun intended).  The girl’s chemical burns would not have happened if there was suitable PPE or, more importantly, the chemical container was either smaller and easier to handle, or had a tap to access the contents without touching the container.  All these design solutions are emphasised elsewhere in  WorkSafe Victoria guidances but are not part of this campaign.

The campaign’s website does include a link to advice for supervisors.  The advice is good and sensible but makes no mention of the actions one can take beyond supervision and consultation.  There is no mention of machine guarding or of the handling of hazardous substances.  The inclusion of such information would not have diluted the campaign’s message but could have provided an opportunity to piggyback on the campaign by deconstructing the incident and listing control measures and design changes that could have eliminated the risk; advice in line with OHS obligations and the hierarchy of controls.

I mentioned early in this article that it would be the perspective of an old fart of a safety professional.  I have felt old and out of touch when I have chatted with colleagues and others about my thoughts but I feel the perspective is valid.  Perhaps it is up to the safety professionals, young and old, to use these campaign materials  to add the workplace and safety perspective in our OHS discussions with our colleagues and our workforces.  But this would have been much easier if WorkSafe had considered a second and broader phase to this campaign.

Kevin Jones

The recent coronial finding into three workplace deaths related to an Australian government economic stimulus package in 2009 has muddled the safety profession over the political context and the OHS context of these deaths.  But the finding and resulting discussions could be the catalyst for a much-needed analysis of how decisions made with good intentions in Canberra can lead to the tragic personal and shopfloor decisions in the suburbs.

Nanny State

The Home Insulation Program (HIP) could have been interpreted as government “interference” in the market and been badged as “nanny state” economics.  However it may be possible to argue that Prime Minister Rudd could have been an economic hero if the Home Insulation Program had continued without any deaths. Recent newspaper articles have indicated that the home insulation sector doubled its workforce in response to the stimulus package (The Australian 8 July 2013 ).  One person’s “nanny state” could be another’s social welfare.

One media report in 2010 mentions a Coalition accusation of nanny state economics but in comparison to the Howard era of handouts, the accusation is a little shrill. The same report outlines some of the safety benefits that resulted from HIP.

Around the same time The Daily Reckoning used the HIP as an general criticism of the “nanny state” but also said:

“….it is truly stunning that a $2.5 billion program designed to put insulation in people’s homes (a dubious program to begin with) actually killed four young Australians…and no one has had the courage to link the bad policy with the tragic result.

Think about that again – the death of four young people is directly linked to government policy – and no one has been fired, lost a job, or held accountable for it at all. If, for example, four diggers were killed in Afghanistan after being sent on poorly planned mission, what do you think the coverage in the media would be like?”

In 2011 Annabel Crabb asked an uncomfortable ideological question about the Liberal Party’s inconsistency on the “nanny state”:

“Tony Abbott, for instance, wants the Government to be more involved in the household expenditure of welfare recipients, but also wants it to keep its grubby mitts away from anyone pouring their pay down the pokies.

How can one party support such intimate interventionism on one hand, and yet – on the other – preserve its customary suspicion of the nanny state? How do the rights and freedoms of a problem gambler outweigh the rights and freedoms of an alcoholic person on the dole?”

This 2012 article by Peter Lewis and Jackie Woods provides a very useful statistical approach to how the community would view the aims of many activities that some would describe as “nanny state”:

“On issues with natural safety implications, people believe the primary objective of regulation should be the protection of health and safety.”

Job Creation

It should be remembered that the HIP was seen as a “green jobs” stimulus program and probably the largest Australian job creation scheme with environmental credentials.  The mantra of almost all the Australian governments at the time of the HIP was “jobs, jobs, jobs.”  Such programs are rarely, if ever, run past the OHS policy makers or OHS regulators prior to implementation, yet it is well known that effective levels of safety are most successfully established the earlier they are introduced to the project design.

The failure of HIP is a strong argument for greater interaction between government regulators and program developers and the implementation of formal Safety Impact Assessments  in government project tendering and program development.

Accountability

A moral argument can be made that the Prime Minister and senior Ministers of the Australian government at the time were responsible for the deaths of the four men, and the burning of many homes, due to their setting a policy that could not be fulfilled without sacrificing workplace safety.  It can be argued that the State Governments, which had the responsibility for implementing and monitoring HIP and the safety requirements, were overwhelmed by the operational demands of HIP and failed in their regulatory duties.

But there can be no doubt that under OHS laws the principal responsibility for the safety of workers, then as it is now, was with the employers.

The OHS regulators have and will pursue these companies through the Courts.  But the only accountability for the politicians associated with the HIP, other than their own consciences, will be through the ballot box.

What Australia does not have at the moment is any coordinated investigation into, amongst others:

• the effects on OHS of the  government’s decision making processes on the economy,
• the opportunities presented to small companies by such stimulus packages,
• the preparedness of businessmen to seize these opportunities without adequate consideration of the risks to workers,
• the level of resources required by State OHS regulators to address the inspectorate and licensing needs of a program that was foisted on them at extremely short notice, and
• the awareness of homeowners to the risks presented to building contractors on their premises,

The success and failure of the Home Insulation Program is a great opportunity for an analysis of how decisions at the top of the political structure in Australia can lead to fatal decisions in workplaces or, in the HIP case, the roof space of a domestic home.  Such an analysis could change the way workplace safety is understood and applied in all Australian businesses.

Kevin Jones

Mental health, happiness, well being, safety, red tape …. each of these have been linked to productivity recently in Australian discourses but, as has been mentioned previously, productivity has a flexible definition depending on one’s politics and political agenda. There is multi-factor productivity and labour productivity.  Each measure provides different results.  So where does OHS sit?

An article in The Weekend Australian on 27 July 2013 illustrates the flexible definitions and includes a rare acknowledgement on labour productivity.

“On the measure of labour productivity, which captures the output of each worker, productivity growth is in fact soaring, hitting 3.4 per cent in 2011-12. [emphasis added]

But on the broader measure, which includes the use business makes of capital equipment, growth is still a negligible 0.1 per cent and has declined on average 0.7 per cent a year ever since Labor was elected.”

The labour productivity figure is important to remember when one hears about excessive workloads, excessive hours of work and other potential causes for psychosocial hazards.  Of course, such statements can always be tempered by considering the changes to the labour market such as the decline in manufacturing jobs, increase in resources jobs and the increase in part-time work, amongst other factors, but these changes seem to make the 3.4% growth figure even more significant.

As well as the labour market changes mentioned above, labour productivity is “soaring” at a time of declining, or flattening, trade union membership, during a period of substantial change and tweaking to the industrial relations laws, whilst rates of workplace fatalities are declining and claims for stress, bullying and other mental health issues seem to be increasing.

That “the output of each  worker” is increasing during this period or economic and social variability should encourage greater analysis of the factors involved in labour productivity but the business lobby and conservative politicians seem to be addressing business concerns rather than causal factors.  This is illustrated further into The Weekend Australian article under the sub-heading if Industrial Relations.  There is no acknowledgement of the growth figure for labour productivity or options for increasing this productivity further.

The article quotes the common mantra of Australian business groups that

“Smaller businesses complain about the difficulty of managing redundancies, which restricts their ability to adjust to changing market conditions.”

Smaller businesses can complain as much as they want.  But instead of “managing redundancies” industry groups should be helping small businesses to eliminate psychosocial hazards as there is evidence that a happy and safe workforce is also a productive workforce, and a productive workforce increases the profitability of a business by increasing output and production efficiency.  Good safety management will minimise any disruptions to

It is unlikely that the productivity benefits of OHS will be picked up by the political opposition as Australia moves towards an election later this year.  The Weekend Australian in a separate article reported:

“The Coalition is expected to release its productivity agenda during the election campaign, but is refusing to release detail of the findings of a working group tasked with thrashing out how an Abbott government would boost Australia’s flatlining productivity.”

But not all productivity is flatlining and unless all political parties and lobbyists acknowledge this, the opportunities provided by the growth in labour productivity will be missed, and so will the chances for increasing the workplace conditions of Australian workers.

Kevin Jones

Everyone wants clarity.  We want the comfort of knowing we are doing the right thing or that we are meeting the targets we and others set.  Workplace safety is no different but it has been complicated to an extent that clarity is unachievable and so uncertainty has come to dominate.

Occupational health and safety (OHS) consultants are often asked by business, small business in particular, “just tell us how to comply”.  Once upon a time this could be done but now the best a consultant can do is say something like “I reckon you’ll be okay, ……. if you follow through with the commitments needed, and keep your state of knowledge up to date, and take out as many liability insurances as you can, and become a member of an industry association ….and……..and…..”

The cult of “reasonably practicable” has been a major cause of this uncertainty but even prior to this was the move in Australia in the 1990s from a prescriptive regulatory structure to performance-based.

OHS compliance is now at the stage of the “best guess” or an “educated guess”, if one is lucky.  This “best guess” situation is seen as increasing the level of risk or exposure on small business owners but a quick look at the history of OHS in Australia will show that the risk has not increased.  It is only that the level of responsibility, that was always on employers, cannot now be avoided.  Where previously one could say that “WorkSafe said it [whatever it was] complies”, now one must take ownership of the risk and the responsibility by stating that “I believe this complies”.  The obligation for a safe workplace resides exclusively with the person or organisation who gains the most benefit from the production of that company where in the past one could argue that the responsibility was shared with the regulator.

In the prescriptive era, business and industry associations decried the interference of government OHS agencies as being limiting and pedantic and prescription became a pejorative word.  So OHS regulators and governments of the day embraced performance-based measures that reduced the policing aspect of the inspectorate and allowed employers to determine and control their risks.

Yet in this century, business and industry associations continue to complain about regulations, interference and red tape.  Largely the current complainants are those seeking compliance with OHS laws instead of seeking safety, regardless of laws.  If one focuses on safety and the reduction of harm, if one begins to accept the responsibility for OHS and act like a grown-up, the sources of tension, the sources of uncertainty – the regulations, the interference and the red tape – disappear or at least fade considerably.  Business can achieve clarity on workplace safety when it stops looking at the laws and begins looking at the OHS principles.

Many business owners repeat the mantra of “everyone goes home the same way they came to work” [I always think this means if you traveled in by train, you go home by train, or if you come to work with a hangover, you can go home with one] but they usually impose this on OHS regulatory obligations rather than seeing the mantra as a moral and social obligation to their workers, independent of the laws.

Britain is an example of a country whose business groups struggle to work with OHS laws, they struggle to see beyond compliance and they have come to hate the Health and Safety Executive as the embodiment of OHS compliance. The Government has responded by eliminating OHS compliance for some sectors of the economy without replacing it with the values or morals required to keep from hurting people.

As Australia officially enters election mode for the next few weeks, similar lobbying by the business groups will be re-energised for the easing of OHS regulations.  The UK strategy may even by advocated locally.  But the lesson from Britain is that there should never be a void in changing OHS laws.

In the 1990s Australia moved from prescriptive OHS laws and regulations to performance-based but it moved from something to something else. Britain has moved from something to nothing.  Business has moved from clarity (even though that clarity was resented) to what they perceive as a freedom but it is a false freedom of the type that is likely to penalise workers.

Regulatory or policy change on OHS must first establish a direction, and a future, before it dispenses with the old.  Britain has failed to do this and Australia is contemplating the same risk.   All parties need to focus on safety as a priority and compliance as a lesser issue for by attending to safety first, compliance will come.

Kevin Jones

Australia’s conservative opposition leader, Tony Abbott, has announced that he intends to conduct a judicial inquiry into the government’s handling of the home insulation program (HIP) that resulted in the deaths of four workers in Queensland and New South Wales in 2009 and 2010.

Such a call would, normally, be very welcome but the timing of Abbott’s announcement brings a level of political baggage that weakens his commitment.

Newspapers report that the parents of Matthew Fuller have written a letter to Prime Minister Kevin Rudd expressing their dissatisfaction with his response to the Coronial findings into their son’s death and the need for a judicial inquiry.  The letter was dated 20 July 2013 but has only received media attention since Rudd announced the Federal election for September 2013.  There is little doubt that the concerns of Kevin and Christine Fuller are genuine and that they want more details from the Government about what they believe contributed to their son’s death.  Most parents would want the same and this letter provides Abbott with an opportunity of being seen to respond to public demands

Where is the criticism of the employers?

A major omission in Abbott’s media announcement and the coverage of the issue in The Australian newspaper, in particularly, is the failure to mention any involvement in the HIP by the employers of the deceased workers.  The argument jumps from deceased workers to Kevin Rudd and the Rudd Government.  In terms of workplace safety, the employers had very clear obligations that were not met in many cases.  Where is the mention of QHI Installations Pty Ltd or Arrow Property Maintenance Pty Ltd?

This video report by The Telegraph mirrors inaccurate statements that have become common.  Steve Lewis says that Matthew Fuller’s death was

“…a tragic accident as a result of the home insulation program that went wrong…”

The deaths occurred due to poor or non-existent safety management practices of the workers’ employers who were taking advantage of an admittedly flawed economic stimulus and job creation program.  Lewis repeats the omission of the employers’ role in their employees’ deaths.

In the days leading to Abbott’s announcement The Australian ran several articles on legal action proposed by home insulation companies that are allegedly out-of-pocket by millions of dollars due to the cancellation of the insulation scheme. According to The Australian on August 8 2013:

“The legal documents quote named public servants, including a senior figure in Mr Garrett’s department who allegedly asked one of Mr Rudd’s top aides: “Is there any way of delaying this scheme while we sort installer training, safety standards – that sort of thing?”

The Rudd aide’s reply is quoted as: “The Prime Minister wants it started now and it’s very difficult to argue with a Prime Minister with a 76 per cent approval rating.”

In another alleged conversation, a department project officer discloses to a company representative: “We expect houses will burn down.”

A company operator, Matthew Hannam, states that he told one of the key public servants: “You’re going to kill people if you let (untrained) installers in from outside the industry.”

The public servant allegedly replied: “It’s all about jobs. We understand there may be injuries.” (link added)

These comments deserve investigation but the fact that these are allegations in the context of civil action seeking compensation should be acknowledged and remembered.

By calling for a judicial inquiry into HIP during this election campaign the Liberal Party can be seen as supporting struggling small businesses, its usual constituency.  But this time the Liberals can support struggling small businesses who feel they have been screwed over by the government – an even better constituency during an election campaign.

The sad part of this announcement is that the workplace safety elements are unlikely to feature in a judicial inquiry due to a similar type of judicial inquiry, the coronial inquests, having already identified as much as they can about worker deaths and the direct accountability for them.  Employers have been prosecuted and penalised for OHS breaches but this fact is rarely acknowledged in the current political discussion.

Exploiting OHS for political purposes

Tony Abbott’s main aim of any judicial inquiry into HIP is political with worker safety being a secondary concern.  [Rudd said that “For the government, safety has always been the number one priority”  and this was clearly not the case] Abbott and the Liberal Party are at risk of doing what they regularly accuse the trade union movement of doing – using occupational health and safety as a cover for another agenda.  In the case of trade unions, the agenda is allegedly industrial relations,  The Liberal Party agenda is political gain and continuing criticism of the Australian Labor Party as poor project managers.  HIP is seen as a political weakness of Kevin Rudd and will continue to be exploited regardless of the election result on 7 September 2013.

For a moment assume that the sympathy that Greg Hunt, Shadow Minister for the Environment, and Opposition Leader Tony Abbott have expressed about the deaths of workers install home insulation is genuine.  Does this indicate a new perspective on worker safety?

If the Liberal Party wins the next election will it push for its State counterparts in Victoria and Western Australia to complete the work started by former Liberal Prime Minister John Howard and have a nationally harmonised work health and safety legislative structure?  These laws would hold employers to be more accountable for their OHS decision making and deterrent penalties have been increased.

Given the criticism directed at former Environment Minister Peter Garrett and the current Prime Minister Kevin Rudd over HIP, would the Liberal Party remove the exemption of the WHS laws that has been applied Ministers so that Ministers would be subject to the same levels of OHS due diligence no applied to most Chief Executive Officers in Australia?

These questions will never appear in the mainstream press as it has little or no OHS understanding, unless it relates to public servants lodging a workers compensation claim after sex in a hotel room.

The former Prime Minister, Julia Gillard mentioned OHS during an election campaign a few years ago which, in some ways, legitimised the topic as valid for an election campaign, at least for a little while.  Tony Abbott seems to be concerned about OHS in this election campaign but it is a thin veneer over his greater concern for small business and the glee of kicking Prime Minister Kevin Rudd in his uninsulated soft spots.

In all of this discussion about a potential judicial inquiry one should continue to ask what such an inquiry is likely to achieve.  Justice for the families? Compensation for insulation companies who thought their lucrative ship had come in? More reputational damage on an already damaged Labor Government? Improvements in workplace safety? Greater accountability for public servants?  Greater accountability for small business operators? Or simply a short-term political edge for the Liberal Party in a hotly contested election campaign?

Kevin Jones

One of the most discussed posts on this blog concerned an insurance company that paid the fines awarded against a company director. The company director had been found guilty of OHS breaches that led to the death of a worker. Yesterday, South Australia’s Deputy Premier and Minister for Industrial Relations. John Rau, said that he will be taking action to close the loophole that allows for this situation. But this is unlikely to succeed and may be a distraction from the more significant issue of new penalties for deterrence.

In a media release, not yet available online, Rau states that

“Insurance should not be the preference over safe equipment and safe workplace standards….

Whilst most employers do the right thing, this dodge effectively means that the incentive for a company to provide a safe environment for its workers is diminished or eliminated.”

Rau’s current strategy for closing this loophole, which is not really a legal loophole at all, is weak. Rau, a Labor Party politician, says that he will bring the matter to the attention of the Federal Minister for Workplace Relations, Bill Shorten. However, Australia is ten days away from an election that the current (Labor) government is tipped to lose.

Rau needs to also raise this matter with the Conservative politician most likely to be the next Workplace Relations Minister, Eric Abetz, but Abetz has not been a fan of the harmonised OHS laws and uses OHS as a platform for his own ideological agendas in similar ways to what he accuses the trade union movement of doing.

Of more likely success is Rau’s intention to implement a State-based solution as he is in a stronger electoral position to do so. But what could that be?

South Australia is one of the States that implemented occupational health and safety laws based on the model national Work Health and Safety (WHS) laws. Several States tweaked these laws to address their own peculiarities (or political needs) and to have the new laws pass Parliament. They remain State-based laws so there is good scope for local action to be taken.

Who did wrong?

However, this may be trying to change WHS laws for a non-WHS reason. The director of the company, Ferro Con, and the insurance company have done nothing legally wrong but they do seem to have, to quote Monty Python, “transgressed the unwritten law”. As much as the payout by the insurance company is distasteful to OHS professionals, the insurance company offered, or created, a policy the company director paid for. The insurance company would have assessed the claim and, in this case, chose to pay. It is difficult to see how WHS laws could be amended to affect this strictly commercial activity.

And at who should we aim our outrage? The company director may have taken out the policy for good economic reasons although this seems unlikely as the company went into liquidation. According to the Industrial Magistrate the company had “a general insurance policy which apparently included indemnification of its Director for fines imposed for his criminal conduct.” It seems unlikely that he took out this policy to cover intentionally poor safety management. Perhaps, we should be looking at the commercial morality of the insurance industry.

Rau is more likely to have greater success investigating the range of insurance products on offer. But it would be a courageous political move to question insurance companies.

Penalties and Deterrence

To step away from the insurance issues for a moment perhaps the discussion point should be about the continuing value of applying financial penalties to corporate and OHS breaches. Most penalties applied to large corporations are easily paid from profits. In 2010 BHP Billiton was penalised $A75,000 after the death of a worker, Scott Rigg. At the time I asked:

“The Australian Government has been willing to apply a 40% tax on the mining industry’s profits but is unlikely to apply a percentage penalty in relation to OHS. It could be argued that well-funded corporations have the financial resources to establish safety prevention units and strategies, have existed for decades and should know better on workplace safety issues, so why should they be subjected to an arbitrary set of financial penalty units? “

Ferro Con is not nearly in the same league as BHP Billiton but a percentage penalty of profits or some other corporate element could be an effective deterrent.

Name and Shame

Also, an increasingly important motivation for OHS compliance or other corporate compliance is the fear of reputational damage for such damage can ruin careers and affect stock market performance. “Name and Shame” should be considered again in light of Ferro Con. Michael Tooma was in favour of such an approach several years ago. Tooma was reported as saying

“”It focuses regulatory attention and resources where it is needed the most. By naming the employers, it also applies pressure on the companies concerned to lift their game,” he says.

“Obviously it should be used with other compliance and enforcement strategies since workplace accident injury statistics alone are not an effective measure of safety performance. But in combination with other initiatives, it may be effective in shifting ‘rusted on’ attitudes on ‘acceptable performance’ in some industries.”

Discussions on such an approach still occasionally appear but the challenge is how should the shame be applied in a world where a full-page apology in a newspaper is much less effective as the influence of newspapers has declined. Placing an apology on a corporate website is possible but how sustainable would the shame be?

Rau is unlikely to succeed in closing a loophole that is simply the offering of a commercial insurance product. It is perhaps better to let the case of Ferro Con slide as a very unfortunate lesson and to instead undertake a detailed review of penalties and punishments for OHS breaches. If an OHS penalty, regardless of the type, is intended to deter others from repeating the breach, ie, endangering someone’s life or health, what type of penalty can be applied now, in light of the Ferro Con case, that will have a similar or better level of deterrence?

The Ferro Con case deserves broad discussion on the perspectives of regulators, the courts and the policy and lawmakers. The case is of far more significance than the Baiada case from which various labour lawyers are making mileage. Many lawyers denied that any insurance company would ever pay the fines of a company or director. It was against longstanding principles, they said. Well, it happened and those longstanding principles are no more.

The OHS situation, the corporate accountability, insurance coverage, has changed. That change needs to be accepted and new approaches on penalties and deterrence are required. Or maybe the time has come for the application of old alternatives to financial penalties, alternatives that have been given half-hearted attention by the courts and the regulators in the past. Monetary penalties may not work as deterrence anymore, if they ever did.

Close the loophole, if it exists, but do more. Be creative. Be innovative, but above all, be brave,

Kevin Jones

Occupational health and safety (OHS) eyebrows were raised in Australia recently as a State Government suspended the application of three construction-related codes of practice, principally, on the basis that compliance will cost too much.  The decision by South Australia’s Minister for Industrial Relations, John Rau, following a report by the Small Business Commissioner, Mike Sinkunas, illustrates several issues:

• the SA government is overly influenced by the Housing Industry Association (HIA),
• small business is being misinformed on how workplace safety works,
• the application of “reasonably practicable” has been ignored, and
• the unions and safety profession do not know how to respond.

As part of the arrangement to pass the model Work Health and Safety laws, the SA Government agreed to allow the Small Business Commissioner review OHS codes of practice to

“….assess whether the code of practice would affect small business if implemented…”

The ferocious lobbying for some form of control over OHS was based on misinformation concerning the costs of compliance and, as such, “affect” has been determined as economic effects.  As “affect” is a neutral term it should be possible to assess the OHS Codes on terms other than economic.  A moral and economic argument could be mounted around the reduction of fatalities and injuries in the construction sector but up to now, the South Australian safety profession is silent as is the local trade union association.

Housing Industry Association

The Housing Industry Association of South Australia has long been misrepresenting the potential impacts of the Work Health and Safety harmonisation process on its members and the South Australian Community.  In its media release about the Codes’ suspension the HIA states:

“The decision is a victory for commonsense bearing in mind that the Codes were designed without consideration of their impact upon the residential industry. It is important that unnecessary impediments to this part of the industry are withdrawn given that we are coming off 3 years of significant reduction in activity in South Australia with respect to new home starts….

HIA and its Members remain committed to having the safest sites that we can achieve in the work place and HIA looks forward to further dialogue with SafeWork SA and the Small Business Commissioner as to how that may be achieved in a sensible, practicable and cost effective manner.”

The conservative side of politics loves to see any reduction in regulation as common sense but common sense is a nonsense and the phrase is only ever used when something occurs that supports one’s own position, outlook or ideology.

The HIA says that “the Codes were designed without consideration of their impact upon the residential industry” but the HIA had made a submission (summary, undated) on the model WHS laws and Codes which addressed costs.  The submission said

“The  uncertainty and interpretation concerns in this code could lead to union interference on sites and unnecessary costs for housing construction.”

But the code referenced in the quote above was concerning construction amenities and was not one of the Codes the government has suspended.

The quote is also significant in the linking of industrial relations with costs. The housing industry has always been fearful of union activity on its construction sites, a Conservative fear that is manifesting in the renewed interest in industrial relations at a national political level.

The HIA has regularly spoken to government about the costs associated with OHS compliance.  In a submission to Safe Work Australia on the draft workplace bullying code of practice, the HIA stated that it

“HIA believes that the costs of implementing the draft Code are significantly underestimated.

The methodology used by the RIS in determining costs is questionable. The use of average weekly earnings does not reflect the full cost to a business, but only the possible wage cost. Other costs that are not considered included opportunity costs and purchase costs such as for products or training. This leads to an underestimation of the actual costs to business. Further, the time allocations estimated in the RIS are understated, and assume existing expertise and a static workforce, such as that found in a business with a corporate structure and human resources capacity. This assumption is not appropriate for small business, including those of housing construction.” (page 10, emphases added)

Small Business

The HIA seems to always complain about the additional business costs that could result from new safety regulations and obligations but it fundamentally misunderstands workplace safety and is passing this on to its members.  Every business incurs costs when meeting legislative compliance on OHS just as they do for taxation and business reporting but many businesses, particularly small businesses, underestimate the costs of safety compliance in their business plans because they do not understand the costs of compliance.

Governments in Australia provide business advice that includes some statements on costs but without providing workable cost estimates.  For instance, WorkSafe ACT issues a small business guide that recommends undertaking a risk assessment to identify potential hazards and states:

“You should consider conducting a risk assessment:

• before you buy any new equipment or chemicals (get as much information from suppliers and manufacturers as possible to ensure you won’t ‘buy in’ new risks to your workplace)
• before you re‑order the equipment or chemicals you already use in your workplace when you are about to introduce a new work task or procedure
• when you get new information about your work tasks, procedures, equipment or chemicals.

This is more effective in terms of safety and costs.” (page 9, emphasis added)

Most State and Federal governments issue similar business start-up advice.  The governments try to get OHS compliance costs into initial business plans  but, for some reason, the reality of these costs are ignored or given a lower priority and when costs become evident, such as after an incident or when new laws/Codes are proposed, the costs are then seen as an unfair imposition. The costs of complying with the new WHS laws and codes should have been minimal because the safety obligations are not very different from what already existed.  The costs are more likely to be unpopular or seen as unfair to those businesses that were “managing” their safety through luck and not through a sound understanding of workplace safety.

Reasonably Practicable

Business groups lobbied hard over many years for increased flexibility on compliance with OHS obligations.  The governments allowed this flexibility through the application of “reasonable practicable”.  In its interpretive guidelines, Safe Work Australia says that

“‘Reasonably practicable’ is used to qualify duties to ensure health and safety and certain other duties in the WHS Act and Regulation”

The capacity to qualify duties has been ignored by the South Australian Government and the Small Business Commissioner.  SWA states that

“…Although the cost of eliminating or minimising risk is relevant in determining what is reasonably practicable, there is a clear presumption in favour of safety ahead of cost.

The cost of eliminating or minimising risk must only be taken into account after identifying the
extent of the risk (the likelihood and degree of harm) and the available ways of eliminating or
minimising the risk.” (emphasis added)

The Small Business Commissioner’s assessment of the Codes of Practice talks, almost exclusively, about economic costs – the last consideration in the determination of reasonable practicability.  It’s worth looking at the relevant findings.

• “There are significant additional costs to comply for small businesses;
•  These costs are both administrative and through the purchase and/or hire of various equipment – for example, lunch rooms, fencing, scaffolding and so onto meet the obligations;”

Small construction companies rarely have lunch rooms and it is common for the only onsite facilities to be a portable toilet.  Many workers provide their own meals in lunch boxes, chill bins, eskies or water bottles and eat in the open or their vehicles or under the house’s roof.

Fencing is an OHS measure but principally a way of securing the site in order to prevent any damage to the structure or theft until the house gets to lock-up stage.  This has been an existing business cost for many years.

Scaffolding is needed when working at heights unless the risk of falling has been controlled in other ways.  Regulators have been pushing the cost and risk benefits of safety in design for a long time and the concept remains valid but remains largely ignored.  If safety was incorporated in the design of a structure, there would be no additional safety costs and they would be included in the initial drawings.

The next finding reflects the false costing that the HIA has been pedalling for some time.

“Depending upon the location and size of the builder and also the type of construction, for example in a residential house construction, (whether it is single or double storey) the cost can range from 4 to 5k at the low end up to around 25 to 35k or higher.”

The Small Business Commissioner should have undertaken a more forensic analysis of the information provided by the HIA, a “key group” member according to the Commissioner’s findings. But then Commissioners operate on the information provided to them so perhaps some of the responsibility could be shared by those who remained silent on the Commissioner’s deliberation.  Perhaps there is also a structural flaw in a tripartite consultative model that restricts alternate voices.

“Administrative type costs are aspects such as the setting up of an administrative system to monitor and record the necessary paperwork, ongoing time for supervisors or owners to update and maintain the records, (for example Safe Work Method Statements), training costs, use of consultants and so on;”

This finding is mostly nonsense as all companies operate administrative systems and part of those systems relate to safety management.  The issue of Safe Work Method Statements is one discussed elsewhere in the SafetyAtWorkBlog and is more relevant to large businesses that the residential housing sector.

“These costs cannot be absorbed in the highly competitive market place that currently exists in this sector and additional costs will be passed on to the customer/client which then further affects demand and affordability issues;”

This argument is spurious and an attempt to frame costs in relation to housing affordability.  As discussed above this may only work if costs are new and additional.  Buyers expect a house to be built without a worker being injured in its construction. Would a home buyer be happy living in a house where a worker died during construction?  Could a worker fatality be reason for a home buyer to break a contract?  Should home buyers place a clause in the contract stating that no workers will be injured in the construction of their house, as large construction contracts do?

The Commissioner also complains about the legibility of the Codes:

” The three Codes themselves [Preventing Falls in Housing Construction, Safe Design of Structures, Construction Work] are similar to others I have reviewed previously; lengthy (in these cases from 29 to 53 pages long) not easy to work through, and confusing in places;”

These concerns have not been raised in any other States who have accepted the model WHS Laws, Regulations and Codes, to our knowledge.  OHS regulators place a great deal of attention on the readability of their documentation but acknowledge there is an important role for safety professionals and industry associations in explaining the relevance and contents of these Codes to their clients and members.

Also, the Commissioner’s findings fail to identify any of the confusion in the Codes so there is no opportunity to address the confusion, if it exists at all.

“There are practical considerations which mean for many builders and subcontractors it is almost impossible for them to comply with the WHS regulations and codes of practice. This is due to many of these businesses being so small that they do not have the capacity to dedicate resources in this area. Some builders have identified that is uneconomic to undertake smaller jobs due to the ‘level of paperwork’ that is required to complete a job.”

This sounds like nonsense.  Small businesses have limited resources, sometimes because they misunderstood or underestimated the resources required to undertake a job safely.  The reality of limited resources is usually a major reason for joining industry associations and it is hard to believe builders reject work on the basis of excessive OHS paperwork.  The matter of perceived red tape has been addressed elsewhere in the SafetyAtWorkBlog.

“There is an overwhelming view that the ‘one size fits all approach’ in the Codes are not practical for residential building sites – that these Codes have many aspects that are related to civil/commercial building sites only.”

See “reasonably practicable” above.

“There is some concern regarding varying interpretations that a Safe Work SA inspector may provide regarding compliance.”

This is always the case in any jurisdiction and surely accepting the Codes of Practice would have helped minimise the “varying interpretations”.  Expect more varying interpretations with the Codes.

“There has been significant effort by the industry over time to ensure a high level of safety in the workplace with ongoing training and education.”

This is no doubt the case but the Commissioner should have realised that training and education remain as the second lowest hazard control measures in the hierarchy of risk controls.  By instigating or encouraging higher order controls, the long term safety costs to businesses and the community would be minimised.

The Commissioner ends his findings by calling on “key groups’ to renegotiated a more suitable Code of practice that  improves

” safety practices and outcomes in a practical cost effective manner.”

Deputy Premier and Minister for Industrial Relations, John Rau has agreed to this review process but it is difficult to see how this will work while continuing to follow the WHS harmonisation process, where model Codes of Practice are applied consistently across Australia.

The model Code of Practice for Safe Design of Structures, and most other model Codes, states:

“Compliance with the WHS Act and Regulations may be achieved by following another  method, such as a technical or an industry standard, if it provides an equivalent or higher  standard of work health and safety than the code.”

There is no obligation for Minister Rau to revise these Codes.  It may be possible to throw this process back to the housing industry to develop an industry standard, as long as it matches or exceeds the model Code of Practice.  If the HIA and Master Builders South Australia have concerns with the Codes, set them the task of doing better.  They may find that the model Codes of Practice were the better option in relation to legal standing, business costs and ease of implementation.

Some colleagues in South Australia have said that this whole kerfuffle is directly related to the precarious election position of the current government given that an election is due within six months.  This may be the political imperative but there seemed to be far less capitulation to lobby groups under the previous Industrial Relations Minister, Russell Wortley.

What seems to be needed in South Australia is a strong OHS voice that argues on the basis of evidence and that scrutinises OHS statements and allegations to verify facts and identifies uncertainty.  The unions seem to have made no comment on Rau’s decision to suspend the Codes and the safety profession associations are as silent as ever.

The arguments about business costs and Codes of Practice have currently been restricted to the building industry but wait until the new guidance on workplace bullying is released soon.  The Housing Industry Association went to town on business costs in its workplace bullying submission to Safe Work Australia in July 2013, as below.  Rau’s acceptance of the costs argument by HIA and others through the Small Business Commissioner has legitimised the argument and has undercut the validity of establishing and managing a safe workplace for all South Australian businesses, big and small.

“Costs of a code of practice 

HIA believes that the costs of implementing the draft Code are significantly underestimated.

The methodology used by the RIS in determining costs is questionable. The use of average weekly earnings does not reflect the full cost to a business, but only the possible wage cost. Other costs that are not considered included opportunity costs and purchase costs such as for products or training. This leads to an underestimation of the actual costs to business. Further, the time allocations estimated in the RIS are understated, and assume existing expertise and a static workforce, such as that found in a business with a corporate structure and human resources capacity. This assumption is not appropriate for small business, including those of housing construction.”

Kevin Jones

Ever since the UK Government reduced the occupational health and safety (OHS) obligations on small business, there have been concerns that a similar strategy could occur in Australia.  Of all the States in Australia, Victoria is the most likely to mirror the UK actions, particularly as its WorkSafe organisation continues with its restructuring and (ridiculous) rebranding, and Victoria’s conservative government continues to see OHS as a red tape issue for small business.  However a recent finding by the Queensland Coroner should be considered very seriously when thinking of OHS in small business.

In 2011 Adam Douglas Forster

” … came close to the rotating ball mill, then accidently (sic) became ensnared by the protruding bolts and was dragged underneath the ball mill which continued to rotate, thereby causing his fatal injuries.”

The inquest found

“There were no guards, barriers or other apparatus restricting access by any persons to the ball mill.” and

Forster “did not know how to turn the ball mill on or off”.

It must be noted that Forster’s official duties, he was a sales and marketing manager, did not involve any action with the ball mill but that he did help out now and then in some areas of the plant, as is a common occurrence in many small businesses.

The Coroner made particular note of a point made by Mrs Forster concerning the level of education on OHS matters in small business.  The Coroner said:

“This was an operation that, because of its size and location, was not generally open to the scrutiny of officials, unions, passers-by or others who might have raised concerns about the level of safety measures around the ball mill.

It has taken this fatal incident to focus attention on this particular workplace.

The recommendation made now is for the policy makers and advisors of WHSQ to consider the circumstances of Mr Forster’s death to see what else may reasonably be done or done better to educate very small business operators in order to foster a culture of workplace health and safety into their operations.”

OHS inspectors rarely visit small and micro-businesses like the one above, a company of four employees, as these rarely operate in what is considered “high risk” activities.  Certainly there is little risk of multiple fatalities or much impact on the public but Forster’s death shows that this sector needs OHS attention and support.  OHS regulators would say that there is plenty of OHS information available tailored to this sector and that some have specific advisory programs.  However, making something available does not mean it will be used.

For some time, OHS regulators have been advertising to the small business sector with ads about an unexpected visit from an inspector but this is an unlikely occurrence, particularly if the workplace is “low-risk”.  Many regulators have increasingly focused on encouraging workers themselves to refuse unsafe tasks, reflecting a general attention to personal empowerment for controlling hazards.  Partly, this approach is due to a continuing decline in union oversight and influence on OHS matters and the lack of companies applying the consultative mechanisms advocated in the OHS laws such as OHS committees and Health and Safety Representatives.  But it could also be a continuation of the misunderstanding of employer obligations to provide a safe system of work and what is actually meant by a “system of work”.  There is also the increasing distraction from direct cause-and-effect incidents by advocates of mental health and wellness programs.

Significantly the Queensland Coroner encourages “a culture of workplace health and safety” as a broad strategy to increase the attention given to OHS in small businesses. Work Health and Safety Queensland has as much safety information as most other OHS regulators including documents on culture, leadership and safety culture as well as a program of workshops for small business.  But even with all of this information available there remains a disconnection between valuing OHS and practicing OHS.

Clearly a new strategy is required beyond OHS pamphlets and support programs by the regulators.  Some thoughts for consideration:

• A mentoring program of small businesses by corporate safety professionals in similar industry sectors.
• A safety collective based around industrial neighbourhoods in industrial/business parks.
• Continuous Professional Development points/credit for pro bono work by OHS professionals.

At some point, safety must be integrated into the operational mind of all businesses and the front of mind of all workers.  Brochures and guidances go some way.  Marketing has generated a change in OHS values in some in the community as well as. perhaps, generating unrealistic expectations on OHS inspectorates. It may be time to stop looking at the regulators for leadership on OHS in the small business sector and instead provide it directly to those workplaces that slip under the inspectorate radar but that can still kill people like Adam Douglas Forster.

Kevin Jones

Work/life balance is a close cousin to occupational health and safety (OHS), particularly health.  It is often the gateway people use to reduce occupational health risks such as stress and other psychosocial issues.  Moving to self-employment can be a successful strategy but it is not as easy as simply relocating one’s individual workplace or teleworking, the expected control on work hours may not eventuate and it may be very difficult to maintain a livable wage.  In The Saturday Age on April 26 2014 (not locatable on-line), Dr Natalie Skinner of the Australian Centre for Work + Life, provided a useful perspective.

Skinner writes that her annual surveys over the last six years have indicated that:

“self-employment is neither better nor worse for work-life conflict than being an employee.”

Skinner acknowledges that this seems odd because there has been so much debate about the win-win of workplace flexibility.

Having been a freelance writer and an employee, full-time employment provides the necessary living wage but one does miss the flexibility of freelancing.  That is why before considering self-employment it is vital to establish a ledger where the pros and cons are listed prior to making the decision.  My experience would include the following positives and negatives:

• increased sense of community – professional loneliness
• direct control of income and costs – earning capacity linked more directly to economic fluctuations
• more time with kids – less time for work and income
• control the pace of one’s life – until the next deadline
• personal customer service – struggle to do so on limited resources
• time to smell the roses – sleepless nights over unpaid bills or late invoices

These are just some of my considerations and experiences over the last 15 years or so.  Work/life balance is a goal that is never achieved because it is a continuing process of give and take and flexibility in more elements than just work.  It may require freelancing for a while and salaried employment for a time, home office and city office.  It may involve a mix of the two extremes but this can easily become working two jobs and could result in less flexibility than one ever expected.  The pathway of work/life balance and self-employment has many insidious traps.

Kevin Jones

More of Dr Skinner’s work can be found on-line at the research page of the Centre for Work  + Life.

Australia’s latest Prime Minister, Malcolm Turnbull, has a strong background in technology investment and is urging the country to embrace innovation.  This has generated a focus on information technology start-ups but it may also create opportunities for occupational health and safety (OHS) professionals, if they are willing to change.

There has been a quick growth in OHS-related Apps over the last few years.  Many of these Apps can be very useful but developers usually assume that Apps are read or used indoors, or in quiet environments or out of the sunshine or by English-speakers or that everyone has an App-friendly smart phone.  They also seem to believe that there is a generic universal workplace, as if the theory of forms applies.  Many of these App developers are OHS professionals who are looking to monetise their skills and broaden their marketing base.  But social trends may be indicating a different market direction.

An article in the Australian Financial Review called “Great big secret of the online economy” focusses, principally, on the issue of productivity but mentions the changing nature of work.

Richard Dobbs, director of the McKinsey Global Institute, is paraphrased and quoted:

“Dobbs warns that computerisation and robotics mean many of the jobs we take for grated today will be done by machines, creating a divided labour market. On one side will be the people with skills at the at the cutting edge of science, technology, engineering and mathematics (or STEM to use the jargon), and those whose jobs depend on human interactions on the other.

“If you can’t do STEM get some interpersonal skills, because they’re the ones that are going to be created,” Dobbs said.” (emphasis added)

“Human interactions” and “interpersonal skills” is where the OHS profession sits and from where it can grow.  The OHS implications and context of the STEM-based innovations always need translation and explanation and OHS professionals who can listen and talk will have a healthy future career.

OHS professionals are often included in an amorphous group called compliance officers.  Frequently this is used as a derogatory term but it is an accurate description and those who use the term dismissively fail to understand that compliance has not been a defined line between right and wrong for several decades.  The band of the compliance created largely by the inclusion of “as far as is reasonably practicable” in workplace safety laws requires the compliance officers to be flexible, agile and innovative but, most importantly, able to explain how companies comply with this new broad definition of compliance. To do this the professional must have some understanding of business operations and pressures and contemporary organisational structures.

This is where safety Apps fail and where the OHS profession is struggling.

OHS may be simple, or perceived as just “common sense”, but the simplicity still needs explaining.  An App may give an answer or a risk factor or a completed checklist but it cannot say how this fits into the organisational policies, procedures or risk management criteria.  People are needed for this task and skilled OHS professionals are best placed to provide the explanation or translation IF they are creative thinkers and are prepared to adapt to the changing social and economic circumstances.

This brings the conversation back to productivity.  OHS is often seen as an unnecessary business cost but this shows shallow thinking and a fundamental misunderstanding of the business role of workplace safety.  Pure OHS thinking would say that the major principle is to eliminate harm to workers. But one effect of eliminating, or reducing harm, is for workers to continue to be productive.  This secondary link seems to be missing from many of the safety discussions, particularly in the small- to medium-sized business sector.

This reality is often glibly stated as “OHS is good for business” but such slogans are not enough; they have never been enough.  It needs explaining. What is meant by “good”? Productive? Profitable? Fair? Safety professionals rarely explain beyond the cliche, and they need to.

Consider this ridiculous but well-intended slogan –  “We want all our workers to go home at the end of the shift, the same way they came to work”. What, by train? Hungover? Fatigued? Angry?  Those who say such things assume that everyone knows what they are talking about and share in this value.  But it is not enough. The reality must be explained.

OHS can be innovative, agile and creative.  The “safety differently” movement is part of this but so is Rob Long’s “psychology of risk“, and so is Hudson’s maturity model.  But innovation does not have to come from what is new; it can be a new application of what is old.  Talking about safety, explaining safety, listening to others discussing safety are all skills that have existed for at least a century and legislated for over 40 years in the requirement to consult.

Too many people are looking for technology-based solutions when, at least in OHS, there is more of a future in applying human interaction and interpersonal skills to this discipline. It might not make you a millionaire and have Google looking to acquire your App but it will make workplaces safer.  And isn’t that what you joined this profession to do?

Kevin Jones

One of the benefits of the Internet is that people are able to distribute their thoughts in a variety of formats. (I am surely not the first to see some parallels with pamphleteering in the 1700s.) In November 2015, Australian safety professional Faith Eeson published Safety & The Three Little Pigs as an e-book.

The book is not a manual or a deep analysis of a particular safety topic.  It is a rumination on various safety-related issues with each chapter being no more than a couple of pages each.  Eeson peppers the e-book with references to fresh contemporary incidents in Australia, such as the Lindt Cafe siege last year in Sydney or the community prevalence of methamphetamine.  It may just the type of e-book that some small business owners made need for reassurance and guidance

Eeson uses the story of the Three Little Pigs to illustrate a growing awareness of risk and how we can fortify our workplaces to respond to new risks.  She explains how this process of change and improvement parallels the development of OHS and the refinement of OHS management systems.

Eeson writes that

“It’s great to have a family doctor who knows the family history. They understand the needs and issues of the family and know what actions to take.”

Eeson believes that an OHS consultant or adviser can have a similar role, and they can, but they have to compete against lawyers who have more of the ear of the managing director.  Many lawyers promote themselves as safety law experts but the clients hear “safety experts” so often giver the legal advice more prominence than it merits.  OHS advisers focus on the prevention of injury and, increasingly, the integration of safety in established business practices.

OHS advisers could be the corporate “family doctor” but must have an extensive knowledge network and a list of specialists and those who can provide second opinions.

Eeson told SafetyAtWorkBlog:

“The reason I wrote the ebook was to educate and bring awareness about the big picture of a safety management system and the importance of implementing a full system and its role in a business.

In my experience, I have found that a good percentage of established businesses continue with a main focus on growth and expansion, with some or little consideration given to a safety management system. They may have some knowledge of health and safety however, struggle with the application of the safety management process, so this may go into their “too hard basket” or bury their heads in the sand.

The message is that safety management is an integral part of the business success and unsafe conditions could be detrimental to the existence of the business. The goal is to take a proactive approach to safety and include preventative strategies that can only be achieved through a safety management system and a quality management strategy.

As added risk is introduced into the business through internal and external sources the health and safety processes needs to be in a cycle of continuous improvement.”

Eeson’s e-book will never be a best seller but it was never intended to be.  The book is a compilation of Eeson’s thoughts on OHS management in a contemporary, social context using familiar scenarios and stories to talk with the small business owner, predominantly, who may be wondering how the hell do they cut through all of the conflicting OHS advice.

Eeson uses a simple and clear language to provide a starting point of basic OHS concepts and how these fit with regulatory expectations. At 28 pages (and $6) it may be just the type of very short guide, and OHS reassurance, that very busy and confused business owners are looking for.  It doesn’t provide answers to the big OHS issues of the day but that goal was never intended.

Read it, think about it and then try to do better.  The OHS body of knowledge needs it.

Kevin Jones

Dr Tony Lower, Director of the Australian Centre for Agricultural Health and Safety has released his review of farm safety incident statistics for 2015.  According to a media release (not yet online), Dr Lower found

“…there were 69 on‐farm injury deaths. The main causes continued to be quads, accounting for 15 cases (22%), with two of these involving children. This is the fifth year in a row where quads have been the leading cause of non‐intentional injury deaths on Australian farms.”

His report is based on mainstream media coverage.  Whether this increases the accuracy of the statistics or underestimates the number of incidents is unclear but the process allows Dr Lower to provide frequent information on farm safety that may indicate trends.

Dr Lower also provides a report specific to quad bike incidents. This report found:

• “Of the 22 reported deaths, 15 (68%) occurred on a farm.
• Where information was available, 10 of the 20 reported deaths (50%) were rollovers.
• Three of the 22 reported deaths (13%), involved children under the age of 16 years.
• Thirteen of the 22 reported deaths (59%), involved persons over 50 years of age.”

Importantly Dr Lower reports on injuries as well as fatalities:

• “There were 12 children under the age of 16 years involved in quad related injury events, representing 17% of all injury cases. The majority of these children required hospitalisation or medical treatment for their injuries.
• Of the 70 reported injury events, location was unable to be determined for nine cases. Of the remaining cases, 41 (67%) occurred on‐farm and 20 (33%) in a non‐farming setting.
• Of the 70 cases, rollovers accounted for 25 (36%) of the reported non‐fatal injury cases and non‐rollovers for 45 (64%) of the cases.”

2015 saw the released of several coronial reports into quad bike deaths and the government released its research papers on quad bike operation and design.  2016 should be a year of action with the implementation of a Safety Star Rating system and other hazard control measures.  One could expect a the conservative coalition of the Australian Government to take action as quad bike incidents directly affect its constituent base but the National Party is increasingly involving itself in the resources sector rather than agriculture so the response may not be as decisive as it could have been in the past.

Dr Lower was able to summarise the risk control measures of quad bike use in terms of the OHS Hierarchy of Controls:

Dr Lower’s regular quarterly reports on farm safety are a useful reminder of the risks involved with that industry sector and with quadbikes in workplaces.

Kevin Jones

Update: 13 January 2016

I have been advised that the data definitely understates the reality with a further 10-15+ cases each year that are not reported in the media but picked up when Coronial inquiries are announced.

A decision by WorkSafe Victoria about the fitting of crush protection devices (CPD) to quad-bikes (All Terrain Vehicles/ATV) gained the major prominence in the latest edition of a major Australian farming newspaper, The Weekly Times.  The newspaper reports that

“WorkSafe Victoria is tightening rules around quad bikes that will see them banned in workplaces unless appropriate rollover protection is fitted.”

Some of the argument over the last 24 hours has been around whether this means that CPDs are mandatory and, as always, cost.

The Weekly Times reports that recent WorkSafe Victoria appointee Marnie Williams has said

“….WorkSafe has reviewed its current strategy and has accepted that a roll-over protection device is an appropriate means of reducing risks when quad bikes are used in workplaces.

“While it will not be compulsory for Victorian employers to fit an operator protective device, WorkSafe has made the decision to declare them an appropriate means of controlling the risk of roll-over.

“This means that if a roll-over was to occur, the employer could face prosecution for failing to reduce the risk to the operator.””

It is these words that have generated much of the debate – if a CPD is not compulsory, it cannot be mandatory, so why bother?

Prosecution

The CEO of Federal Chamber of Automotive Industries (FCAI), Tony Weber, has said don’t bother.  In a media release issued on 17 February 2016, Weber asked:

“WorkSafe has also created some confusion for farmers in the case where a worker becomes injured on an ATV without an OPD. Would the employer be prosecuted by WorkSafe Victoria?”

“It is unfortunate that this focus on OPDs moves media and public emphasis away from known safety practices, which are proven to significantly improve rider safety.”

(The FCAI calls CPDs Operator Protective Devices)

The FCAI continues to advocate helmets and other safety measures (as it has for several years) rather than CPDs claiming that the best evidence supports these as safer that CPDs.  That evidence has been seriously challenged over many years, and is really not the point of WorkSafe’s advice.

WorkSafe Victoria is a state occupational health and safety regulator operating under its own, and increasingly unique, OHS laws.  It can note actions and advice of regulators in other States but is under no obligation to follow those actions. The FCAI applies a national perspective as it is a national organisation and seems concerned the advice may set a precedent.

The FCAI’s question of prosecution illustrates the ideology of this conservative organisation.  Is the organisation in favour of saving lives and minimising injuries or the avoidance of prosecution?

WorkSafe Victoria has identified a potential safety device that all farmers should consider when determining the safety of their workers who need to use quad bikes.  It has improved the OHS state of knowledge by identifying the CPD as “an appropriate means of controlling the risk of roll-over.”  If farmers want to comply with OHS laws AND reduce the risk of injury in their workers they should install a CPD on each quad bike.

Prosecution is a separate matter and, if it happened at all, would only occur AFTER a worker is seriously injured or killed.  The point of workplace safety is to avoid the harm and therefore avoid a prosecution.  Focussing on prosecution muddies the safety message and allows opponents to CPDs to drum up concerns and fears, many of which have been unreasonably generated by the FCAI in its Honda-backed campaign against CPDs.

Cost

Behind some of the discussion is the issue of cost, an issue that is always front of mind for farmers if not for safety advocates.  Cost considerations have a specific place in OHS deliberations and is supposed to be one, if not THE, last consideration when identifying potential hazard controls.  WorkSafe Victoria’s position paper on reasonably practicable says this of Cost:

“Once the likelihood and degree of harm from a hazard or risk is understood, and the availability and suitability of a relevant safety measure to eliminate or reduce the hazard or risk is established, that safety measure should be implemented unless the cost of doing so is so disproportionate to the benefit (in terms of reducing the severity of the hazard or risk) that it would be clearly unreasonable to justify the expenditure.” (emphasis added)

Marnie Williams has identified that the safety benefits of a CPD outweigh the cost.

On the issue of cost several people have reminded people of the rebate made available to farmers for the fitting of rollover protection devices (ROPS) on tractors. There has been no mention from WorkSafe Victoria of a similar rebate for CPDs but SafetyAtWorkBlog has been advised that WorkSafe New South Wales will be announcing just such a subsidy soon.

It is also useful to remember this text from a 2001 paper from the  RIRDC entitled “Guidelines for evaluation of safety programs for the agricultural industry“.  It related to ROPs but could easily be tweaked to apply to CPDs.

“…factors that impede farmers from fitting ROPS may include a lack of understanding about the protective nature of ROPS, lack of available ROPS for older tractors, competing priorities, or the cost of purchase and fitting. Strategies to increase ROPS fitment could include:

1. a publicity campaign to inform farmers of the risk of unprotected tractors
2. the gaining of a subsidy for farmers to purchase and fit ROPS
3. ensuring availability of ROPS and
4. legislative changes.

Implementing these strategies is a necessary step to achieving the objective of ROPS being fitted to 90% tractors in the state and thence to achieving the program goal of injury reduction.” (page 6, reformatted)

If WorkSafe Victoria could afford a CPD subsidy, it is likely to follow New South Wales’ lead.

After The Weekly Times broke the story, the Victorian Farmers Federation (VFF) immediately included a rebate request in its budget submission to the Victorian Government, except that the VFF expects the total cost of a CPD to be covered!

More importantly WorkSafe has moved the safety debate on quad bikes one big step forward.  In many ways this is the step that many were looking to come out of last year’s Queensland and New South Wales coronial inquests.

The quad bike safety advice to farmers is fairly simple. If you don’t need to ride a quad bike, don’t.  If you do, choose the safest model (probably a side-by-side vehicle).  If that’s not suitable, use a quad bike but one fitted with a CPD.  And wear a suitable helmet.

Everything else is about money, power and ideology rather than safety.

Kevin Jones

SmartCompany includes SafetyAtWorkBlog in its 2016 list of Best Business Blogs, saying:

“Occupational health and safety consultant Kevin Jones brings two decades of experience to his editorship of the Safety At Work Blog, bringing together news and commentary on workplace safety and health. Regularly updated, this blog is a great resource for SMEs operating without a dedicated human resources team.”

It is well worth looking at the other entries on the list to gain an understanding of how safety is perceived, particularly in the small business sectors.

Kevin Jones