Eye on Safety

The Work Cover laws in Australia are based on a “no blame” scenario.  The worker, if s/he was a worker going about their work, is automatically covered by Work Cover.  There are no questions asked about whether or not the worker contributed to his/her own injuries.

The trouble with “no blame” is that someone still has to pay, and Work Cover is an insurance scheme for which the premiums are paid by the employer.  For that reason alone, there should be some recognition given to contributory negligence by the employee, even if it is unintentional.

Let me expand on that last comment.  If an employer has fulfilled his duty of care and identified a risk, provided controls and training in a task for which the worker has signed off, and the worker is subsequently injured doing the task in a way that is not approved in the safe work instructions and was not the way he was trained to do it, there should be some contribution by the worker towards his own compensation.

But the system, as it now stands, says there is no blame attributable to the worker and s/he is entitled to full compensation.  In fact, if the matter goes to court the blame is passed back to the employer, for failing to ensure that the worker could not do the task in the incorrect manner.  No acknowledgement that adults can and do have their own ideas on what is the right way or the wrong way, that they don’t necessarily accept the training they are given or have any intention of doing it that way, and that the “human factor” is an aggravating circumstance in many injuries.

Here’s a couple of examples.  Recently, not 24 hours after refresher training which included direction of travel was given and signed off by all forklift operators, I spotted an operator moving forward with a double-stacked load – which be obviously could not see around!

In another instance, a mature aged driver hopped into the cab of a truck to move it without checking that the trailer behind him was actually attached – and dropped the trailer.  It was not attached, the legs were not down – and it was his responsibility as driver to ensure the safe operation of his vehicle.  He had recently completed coupling training and signed off on it.

If there was injury from either of these incidents, why should the employer be held responsible for the failure of the worker to work as trained and instructed?

In another recent example, a worker turned up at work with non-issue non-safety boots, and subsequently incurred an injury.  He commented that there was nowhere in the employer’s documentation that specified what a safety boot was – which was factually incorrect, because the employee handbook said that workers are required to wear issued PPE, issued boots were specifically AS compliant, and he had chosen not to wear them.  However, Work Cover still covered his injury which means that the company paid the price of his ignorance.

Recent comment has centered on the growing potential for age-related claims as the workforce gets older.  Degenerative and age-related conditions should not be covered. End of story.  No discussion.  But they are.  

The Work Cover system in Australia is a shambles and totally inequitable.  Unless and until it is revised to provide fair coverage for actual work injuries instead of just a slush fund for everything under the sun, it will be bankrupt before long.

And if Work Cover isn’t bankrupt, many employers who feed the monster will be.

So, it’s now 2 January 2012, and yesterday the much vaunted, long-awaited harmonisation of OH&S laws came into effect.  Not nationally, as intended, but federally and in 2 states and 2 territories.

As at today:

• Commonwealth – WHS Laws passed
• Queensland – WHS Laws passed
• New South Wales – WHS Laws passed
• Victoria – No Legislative action, likely to delay until 1 January 2013
• Western Australia – No Legislative action
• Tasmania – WHS Bill before parliament
• South Australia – No Legislative action
• Northern Territory – WHS Laws passed
• Australian Capital Territory – WHS Laws passed

That’s an unacceptable situation.  The politicians and others who have been responsible for holding up this process in Victora, WA, Tasmania and SA should be fired.  What possible justification can they have for the hold-ups?  Or, in the case of WA, the decision not to harmonise at all?  If they seriously believe that delaying or ignoring harmonisation is in the best interests of the workers in their states, they are living in la-la land.

This is ONE nation (as a certain pollie was so fond of pointing out).  There are a great many employers who attempt to work across borders, in all states and territories, but have to do so under the unacceptable burden of different workplace laws in different states.

The majority of employers aren’t out to intentionally break the law, and do their utmost to provide safe and healthy working conditions for their employees.  At present the only national standard for OH&S management they have to follow is the AS4801.  There is no benchmark for law, and legal precedent in one state may be completely irrelevant in another state.

Get over it people, and get on with it!  If you can’t act like adults and sit down and resolve this for the benefit of OH&S throughout the whole country, then move aside and let someone else have a seat.

This has to happen.  The present system is simply insane.

A recent decision by Q-Comp highlighted, for me, the insanity of the work cover system.  Worker’s compensation is, I believe, about compensating a worker who is injured at work as the result of an event of which his employment was a causal or significant contributing factor.  It was never intended as a back-up medical insurance for age-related illness or injury.

The matter related to a person who aggravated a pre-existing condition whilst at work, doing something he had done many times a day for many years.  The advice in the medical investigation was that he had a degenerative age-related medical condition.  It was not denied that the injury could have happened any where, any time, as an act of daily living.  He could have been doing up his shoelaces, he could have been at the supermarket.

Unfortunately for the employer, he just happened to be at work at the time.  Work Cover, in their infinite wisdom, accepted this as a work-related injury.  The employer appealed to Q-Comp.  Q-Comp, in their infinite wisdom, upheld the decision and referred to a similar decision by President Hall of the Industrial Magistrates Court which held that because the worker was at work at the time, his employment could be held to be a significant contributing factor.

Therein lies the insanity in this system.  An employer pays premiums to Work Cover to ensure compensation coverage for any of his employees who are legitimately injured at work.  I have absolutely no problem with that.  I have a huge problem with work being held to be a “significant contributing factor” to age-related degenerative conditions, especially when they are pre-existing.

Worker’s compensation insurance is a “contingency” insurance – one that arises on the occurrence of a specific event, specifically an injury in the course of work.  The event that constitutes the trigger of a worker’s compensation claim should be one of chance, outside the control of the beneficiary of the insurance – the worker.  A pre-existing degenerative age-related condition falls outside that definition.   The fact that, in the particular situation, even the specialists agreed that the event could have happened anywhere, any time, meant it could not be classified as a “work-related” event.  Work could, in no way, be considered to be a significant contributing factor.

Q-Comp and the industrial magistrates need to get away from the idea that, just because a person is at work when they sustain an injury, work is a significant contributing factor.  It’s all well and fine for worker’s compensation to be a “no blame” cover, but that simply means that the worker will be covered if the event happened “at work”, and the employer pays.  Even if the event didn’t happen as a direct result of employment.

Bad precedent makes it extremely difficult for OHS professionals to get the real safety message across to workers and employers alike.  This particular precedent may, in the future, have a detrimental impact on mature aged workers when employers realise they may be up for compensation claims for aggravation of pre-existing and/or age-related degenerative conditions.

In August 2011 the NSW Industrial Court heard the matter of Inspector Nikolovski v Multi Civil & Rail Services Pty Ltd [2011] NSWIRComm 116.  The company was fined $125,000.  The case related to injuries sustained by a worker when the hydraulic ramps on a float used to transport a tractor and slasher fell on him, leaving him a paraplegic.

The details leading to the incident do not paint a picture of a negligent employer.  Quite the opposite, I would have thought.  It’s a case that leads me to wonder how far an employer really has to go, and how the courts seriously expect businesses to monitor processes and people.  This, in my opinion, is a prime example of the “human factor” at work.

The company was contracted by RailCorp to carry out slashing.  They used a tractor and slasher which was moved between sites on a float with hydraulic ramps.   The two employees using this equipment noticed that a clevis pin and A-clip that connected the hydraulic ram to the truck had fallen out.  On returning to the yard the replaced the clevis pin and reported the problem to the yard manager.  The A-clip wasn’t replaced as the mechanic had left for the day, as had the OHS Manager.

The company had a written and promulgated policy in place regarding tagging out yet no-one thought to tag out the equipment.

No information was left for the mechanic or the OHS Manager so the problem could be remedied on their return to work.

A long weekend followed, and on returning to work on the Tuesday the employees noticed the A-clip still hadn’t been replaced.  They chose to take the trailer out anyway, knowing this.   Later that day the hydraulic ramp, weighing 300kg, fell on the operator while he was attempting to unload the tractor, causing serious spinal injuries.

The court found that the company, while having a “considered system of safety and operations” including pre-start checks, tag out procedures and safe work method statements, had still breached s 8(1) of the Occupational Health and Safety Act 2000 (NSW) by failing to:

• ensure the truck was safe
• ensure that the truck was not used until the fault was repaired
• maintain a tag-out system to ensure keys to defective plant were unavailable to workers, and
• have a safe work method statement for the hydraulic loading ramp.

At what stage in any of this did any person take responsibility for their own actions?  How is the company supposed to ensure that people follow procedures?  How many SWMSs, JSAs, risk assessments, hazard analyses, policies and procedures is a company really required to have?  How can any of that stuff affect the human factor?  How closely do you have to monitor people to ensure that one stupid decision won’t have a life-long effect?

The operator knew the equipment was not 100%.  Why didn’t he tag it out?

What steps can an employer take to mitigate against stupidity?

It’s decisions like this, IMHO, that ensure that people continue to believe the law is an ass, and it’s decisions like this that ensure that the WHSQ aim of Zero Harm is now, and always will be, a pie-in-the-sky goal.

I recently sported a rather ugly looking gash on my cheek, emphasised by swelling around my cheek and cheekbone.  This was the result of a rather impetuous moment on the weekend when I decided to help my dearly beloved unload a trailer, without conducting a proper risk assessment of the task first.

Let’s face it, we’re at home, the safety rules don’t apply…. Do they?  Well, actually, they should.  In fact if more people applied safety rules at home, as we are required by law to do at work, there would be a lot fewer accidents in the home or leisure environment.

As a Rehabilitation and Return to Work Coordinator I know full well that there are some employees who will take advantage of Work Cover.  They injure themselves at sport or at home on the weekend, but since they have no medical insurance they will come to work on a Monday and invent circumstances in the workplace to explain their injury.  Don’t be sceptical.  It happens.   More often than any statistics will tell you.

I have heard people justify it by saying it’s Work Cover money, ergo Government funds, ergo no problem.  Erm… no… it’s actually an insurance premium paid by the employer to Work Cover specifically to insure workers in the event of a work accident.  And even if it was Government funds, would that make it right?

The working environment is extremely regulated for OH&S, and most reasonable employers fulfil their duty of care, act with due diligence, pay their Work Cover premiums, and look after their employees when they have an honest work related accident, so it’s like a slap in the face when some dishonest employee decides to rort the system because they didn’t taken as much care about tasks in their own time as they would have in their employer’s time.  Especially when the same dishonest employee is quite possibly very vocal if the employer slips up in their duty of care.

It’s not hard to do a risk assessment on a task in the home or leisure environment.  And if you fail to do so, or assess that the end justifies the means, then you have no right to expect your employer to carry the can for your stupidity.

Is there such a thing? Certainly, if you Google the term, there are countless sites which mention it, blogs which espouse it, even businesses which have built themselves on it.

“…just a few common sense type points…”
“…if road rules followed common sense…”
“…without common sense, it’s all a waste of time…”
“…it’s really very safe as long as you use common sense…”
“…it’s important to exercise common sense…”

So why do so many of us continue to use this term? What does it mean? Why is it so dangerous in a safety sense?

Safety legislation talks about what a “reasonable person” would do, but there is no single accepted definition of reasonable person, and many high level legal boffins have written screeds about it.  Why would anyone think that a single definition of common sense would be any easier to agree on?  Some definitions of common sense include sound judgment, good reasoning, reasonableness, but if legislators can’t agree on what a “reasonable person” is, why would they agree on what constitutes common sense?

Ask almost anyone, and you will get a huge variety of answers.  And why wouldn’t you?  How can common sense actually be “common” at all when the world is made up of so many different people with different ideas of what is easy, what is safe, what is reasonable?  The guy next door might think it’s okay to mow the lawns in thongs.  I don’t.  But he might think his next door neighbour is an idiot for letting their kids ride their bikes on the road at the end of their little cul de sac.

Would you think of yourself as a reasonable person?  How do you assess a risk?  What makes the way you act any different to anyone else?  If you think you are acting safely and using common sense, then why doesn’t eveyone agree with you?

Hard, isn’t it?

So when I hear people complain that safety is just common sense, I get rather annoyed.  There is no such thing.  Not in any aspect of our lives, and most certainly not in safety.  Safety requires an awareness of what might go wrong.  It requires an assessment of the risks and controls to reduce or do away with the risks.  It requires training in the best way to do a task, the best way to operate equipment, from people who have expertise and experience in those things.  It requires the cowboys who think they are indestructible to actually realise that they don’t know everything and risk taking is not acceptable.

And most of all, safety requires everyone to understand that safety is not common sense – it is a learned culture, a part of our lives every day, at work and at home.

We should all be reasonable people when it comes to safety.

Most people don’t read legislation – only those of us who can’t sleep, prefer reading to counting sheep, are seriously lacking a social life – or need to know it for our jobs.  Which is why people like me get to tell you about your duties and responsibilities.

Everyone knows – or should know in this country – that an employer must provide a safe workplace.  It’s the law.  As a trainer in OHS I often hear people gripe about why should they do training, they already work safe, they have no time, they did training 2 years ago, yadda yadda.  Well, people, put simply – it is an employer’s legal responsibility to provide training so they can comply with the law, so it is your legal responsibility to do it when your employer requires it.

Section 28 of the Queensland Workplace Health and Safety Act 1995 says the employer (the Person Conducting a Business or Undertaking, “PCBU”) has “an obligation to ensure the workplace health and safety of the person, each of the person’s workers and any other persons is not affected by the conduct of the relevant person’s business or undertaking.”  Got that?  Say so if you don’t.

According to Section 29, then, the PCBU can meet this obligation by doing all of the following:

(a) providing and maintaining a safe and healthy work environment;
(b) providing and maintaining safe plant;
(c) ensuring the safe use, handling, storage and transport of substances;
(d) ensuring safe systems of work;
(e) providing information, instruction, training and supervision to ensure health and safety.

There it is, in black and white.  The PCBU – your employer – is legally required to provide training.

So it is your legal responsibility to do it if your employer requires it.  And that’s even confirmed in the Act.

Section 36 lists the obligations of workers and other persons at a workplace as, in part, to “comply with the instructions given for workplace health and safety at the workplace by the employer at the workplace …”

Training is not a cure-all for workplace health and safety ills and wrongs, but it sure goes a long way towards improving the culture within a workplace and making people – including the PCBU – aware of just what safe practice is, and how unsafe practice can impact on the worker, the employer, and the wider community.  A workplace with relevant, practical and effective training, safety awareness, pro-active hazard analysis and a positive safety culture is likely to be a workplace without major incidents and injuries, and one that acts immediately to remedy any hazards that are identified.

No-one wants an incident to happen, least of all one that incurs a serious injury, so isn’t it sensible that you would do everything you can to try to make sure incidents don’t happen?  Like doing the training your employer asks you to do, repeated as often as they feel is necessary to get the message across.

Without griping.  Without attitude. Without clock watching.

Good onya!

I tend to get a bit heated when I read about things I disagree with.  In fact, the crappier the situation, the more heated I get.  One situation lately which made my hackles well and truly raise was the case of a 42 year old Telstra worker who claimed – and won – compo for allegedly injuring herself whilst working from home. Read more here.

I wish I had an employer who would let me work from home.  I’m sure there are hundreds – nay, thousands – of people, especially parents with children, who would relish the opportunity to work from home.  Well, if it was even the faintest possibility before, now you can probably forget it.  Forever.

What employer in their right mind is, after this case, going to allow an employee to work from home when there is the potential for the employee to so completely shaft the employer?  Come on!!  This woman’s “injuries” happened in her own home.  She knows her own home far far better than her employer could.   If she was working in her employer’s premises would she have been walking around in “socked feet”?  I don’t think so.  If she was working in her employer’s premises her actions would be able to be monitored and she could be warned about unsafe acts or practices.  In her own home surely she should take responsibility for her own acts?

QUT Dean of Law Michael Lavarch said “Homes are inherently dangerous places”.  And yet we live in them, every day.  We spend our free time in them, we do things in our home environment that we would never consider doing at work (climb on the roof to clean out gutters without fall protection, change a wheel without a proper jack, mow the lawns in thongs, sand a chair or door or sideboard without mask and safety glasses).  If something goes wrong, we take the risk, we accept the consequences.

This society has become one based on litigation, and if cases like this one set the precedent, tax will be the least of our worries.  We’ll be litigated out of existence.

My hackles are still up on this one.

No-one leaves the house in the morning with the intention of having an accident and injuring themselves – or others.  Yet accidents happen every day, in every aspect of our lives.  This blog aims to make you aware of safety at work, where safety, as much as reasonably practicable, can be assessed, controlled and managed.

The law says everyone has a responsibility to ensure safety at work, and some – like the employer or PCBU (Person Conducting a Business or Undertaking) – have a higher duty of care and degree of liability because they have more control over the safety processes and the budgets.  However, ultimately everyone has a responsibility for their own safety.  Don’t take risks, don’t do something you know is unsafe, report unsafe things and acts.

The aim of this blog is to encourage readers to be more aware of their surroundings, responsibilities and liability.  I welcome your support.

“If it’s to be, it’s up to me.” – William H. Johnsen