Tragic fatality leads to huge fine
A recent court decision in Victoria has convicted and fined a company $450,000 after the tragic fatality of an employee who was struck by a front end loader bucket.
http://www.worksafe.vic.gov.au/news/news-article?result_42915_result_page=4#
“The court was told that the depot was a busy workplace with trucks dumping materials, heavy excavators and front end loaders sorting and clearing materials, and staff on foot all working in close proximity to each other.”
“While new employees were given safety pamphlets to read, the court heard there was no written induction at the site and training was informal and “on the job”.
How many these points could you cover off on at your workplace?
The court was also told that:
• There were no documented procedures for traffic management at the time of the incident. Instead, employees relied on common sense.
• There were no signs or lines in the yard area to determine where trucks, frontend loaders or the company’s street sweepers could or couldn’t go, nor were there alarms, lights or barriers.
• Training in relation to all the machines used in the depot was verbal.
• There had been a number of injuries and near misses involving employees and machines over recent years that had not been reported.
Traffic management on any site is of the utmost importance, especially where there is a lot of vehicle movement and high noise levels. Implementing and reviewing adequate controls for vehicle and pedestrian traffic, particularly any vehicle/pedestrian segregation should form part of the normal risk assessment process.
Safework Australia has a range of guidance material on Traffic Management that will help in managing the risks for your workplace. These are not for use on road work sites.
http://www.safeworkaustralia.gov.au/sites/swa/about/publications/pages/guidance-traffic-management
There is also a draft Model Code of Practice (replaced by the Guides) that is useful in setting up or reviewing your traffic management plans.
http://www.safeworkaustralia.gov.au/sites/SWA/model-whs-laws/model-COP/Documents/Draft-COP-December-2012/DRAFT-traffic-management-COP.pdf
If you would like any further information or help with these or any other health and safety matter, let me know.
UV and Sun Exposure Control
Australia has the worlds highest incidence rate of melanoma and is the forth most common cancer diagnosed in Australia.
Melanoma is more commonly diagnosed in men than women. The risk of being diagnosed with melanoma by age 85 is 1 in 14 for men compared to 1 in 24 for women.
In Australia in 2011, there were 1544 deaths due to melanoma.
Melanoma is the sixth most common cause of cancer death in Australian men and tenth most common in Australian women.
Cancer Council Australia http://www.cancer.org.au/about-cancer/types-of-cancer/skin-cancer/melanoma.html
Workcover NSW reports in its Statistics Bulletin 2012-13 that malignant melanomas Gross Incurred Cost had an average cost of $210,510
While visiting and auditing outdoor construction sites and road works, I constantly find people who, for any number of reasons, are not wearing good sun protective clothing and PPE. Base ball caps are a constant and hard hats without neck flaps is another.
In the National Hazard Exposure Worker Surveillance; Exposure to direct sunlight and provision of sun exposure controls in Australian workplaces released by Safework Australia in January 2010 http://www.safeworkaustralia.gov.au/sites/swa/about/publications/pages/rr201002nhewsexposuretodirectsunlight highlights at point 3.2 a summary of risk controls.
Although this shows the majority of industries involved in the study have some form of sun exposure controls in place, it doesn’t give any information on the enforcement of these controls. And it’s at this point that risk controls tend to break down.
Enforcement of your Sun Protection policy should be monitored on a regular basis. If you provide the appropriate hats, clothing and sun screen, the use of these items need to be monitored and enforced. On construction sites eye protection should be to AS1337. This will ensure that the UV control is adequate. (Sun glasses available at service stations etc may not have any UV protective qualities at all)
Skin cancers are a chronic disease, they don’t happen overnight. The latency period once a melanoma has started could from months to years. This is why early detection can and does work. A lot of skin cancers are generally located on the head and face area.
The Cancer Council of Australia has excellent resources available for both employers and employees that help give guidance on how to minimise the risks involved with UV exposure.
This link is for employers and gives good information on the controls that should be considered
http://www.cancer.org.au/content/pdf/PreventingCancer/BeSunsmart/Skincanceroutdoorworkbooklet.pdf
Although a few years old now this chart shows the average UV Index for Australia
Has the humble Danger Tag had its day?
Danger locks are now a common item in energy isolation processes. They provide a more positive isolation process then the tag and for the most part have reduced or eliminated the isolation being removed by the danger tags being removed, incorrectly attached or simply falling off.
Whether using the lock or tag system, the whole idea of isolation is to identify the energy sources involved (stored, potential and kinetic) and isolate that energy from people for the duration of the work. (sometimes dumping is not an option)
Both simple (1 or 2) or multiple (2 or more) isolations need to be assessed, planned, implemented and supervised.
Short cuts with isolation have led to many fatalities and injuries. Hydraulic, compressed gases, electricity, chemical, spring and gravity energies are indiscriminate and have no concerns about body parts being in the way.
Interlocking systems that have been bypassed, positive locking of switches not being used, Emergency Stop buttons being used for isolation or the simple “it’s too much trouble” are common markers of an incident just waiting to happen.
The Danger Tag faithfully served generations of workers but they were never a positive process and relied wholly on the good will of yourself and others to follow the rules. Danger Locks, although not infallible, at least can be controlled only by the person who placed it.
Get your isolation plans in place.
Train your people
Then you can get your locks on
Audiometric Testing Exemption
Workcover NSW have extended the exemption of Audiometric Testing as per WHS Regulation Clause 58(2)
The person conducting the business or undertaking who provides the personal protective equipment as a control measure must provide audiometric testing for the worker:
(a) within 3 months of the worker commencing the work, and
(b) in any event, at least every 2 years.
In December 2014 a notice in the NSW Government Gazette published on the Workcover NSW website http://www.workcover.nsw.gov.au/formspublications/publications/Documents/exemption-order-clause58-whs-reg.pdf states that this exemption in place until 31 December 2015.
A little bit of to-ing and fro-ing between Workcover NSW and Safework Australia as to why the exemption was put in place led to a document from the Department of Prime Minister and Cabinet http://ris.dpmc.gov.au/page/6/ (about ¾ of the way down the page)
This paper, released back in July 2014, is an Issue Paper and Regulation Impact Statement (RIS) on ways to improve the Model Work Health and Safety Act. Among a lot of points is Practical compliance difficulties – Audiometric Testing.
Cl 58 of the WHS Regs is still in all the harmonised States and Territories WHS Regulation except for Queensland.
Workcover NSW has decided under WHS Regulation Clause 684 to put in place an exemption on this at least for the rest of 2015 as this requirement is reviewed. There is no evidence from the other harmonised States and Territories health and safety regulator websites they have exempted this point.
The exemption in NSW on the clause however does not negate the requirement for the PCBU to ensure as far as reasonably practicable a safe work place. Hazard identification and risk assessments still need to be carried out in areas where noise could breach the exposure standard and appropriate controls implemented and monitored.
Respiratory Protective Equipment (RPE)
Safework Australia have released another Australian Work Exposures Study in November 2014 discussing Polycyclic Aromatic Hydrocarbons (PAH) that gives a snapshot of some of the issues surrounding the exposure of workers to 38 known PAH’s that are classified by the IARC as known or suspected carcinogens.
One of the points in the report stated on p15 “There was little or no information on the use of respiratory protective equipment or skin protection for many of the main circumstances involving exposure to PAHs.”
An issue that is not well understood in workplaces is how to select the most appropriate RPE for any given potential exposure. Face masks are designed for particular processes and one type is not fit for all purposes.
To start, you must first have the Safety Data Sheet (SDS) for the substance/s available. This should give some indication of the type of RPE that should be selected.
Next you need to consider what the substance is, is it liquid or solid (mists or vapours require a different type of mask to fumes and dusts) how it will be used, how much of it will be used, will the particulates be generated by mechanically or thermal processes, what will the equivalent aerodynamic diameter (EAD) be, will it be inspirable or respirable, what sort of vapour pressure does the substance/s have, what’s the boiling point of liquids, what sort of higher controls can be used to reduce or minimise exposure, basically, the risk assessment on the substance.
Will it be used in conjunction with any other substances. There may be what’s called a synergy effect where the sum of the multiple substances is greater than the whole. This means the combined substances actually have more impact when together then they do separately.
The 2 Australian standards that cover respiratory protective equipment are AS/NZS 1715 Selection, use and maintenance of respiratory protective equipment and AS/NZS1716 Respiratory protective devices. These 2 Standards need to be read in conjunction with the SDS’s to ensure the correct RPE is selected for the substances being used.
Selection of RPE is sometimes not just a simple matter of buying a pack of masks from the hardware store. You need to make sure the mask is suitable for the task.
What’s all this fuss about WHS Due Diligence?
I’ve had this question posed to me a few times lately and it seems there is still a fair bit of confusion around who is supposed to do what when it comes to the harmonised WHS Act.
Simply, the Person Conducting a Business or Undertaking (PCBU) can be one or more persons. In the old parlance it’s the employer. The employer could be one person, such as Sole Traders, self employed operators, sole owners of company’s or it could be multiple people such as Board Directors or businesses with multiple owners.
Under Section 19 of the Act the PCBU has the responsibility for ensuring, as far as reasonably practicable, a safe workplace for all workers under its control, this includes contractors and volunteers and others who may be at that workplace. So far so good.
The confusion seems to be around the requirements of Section 27 of the Act, Duty of Officers.
It is the officers responsibility to ensure the PCBU has safe systems in place and to ensure they are implemented and effective.
An officer of a business is someone who has decision making authority that can affect the whole or substantial part of the business. This is not necessarily a fixed position either. Take a project manager for example. If it’s a project that is a substantial amount of the business you are conducting, the project manager, for the term of the project at least, could be classed as an officer as they have a substantial or in some cases the majority say, in how things get done.
Or you could be part of a group of people classed as the PCBU and also an officer. Section 15 of the WHS Act says that a person can have more than one duty by being in more than one class of duty holder.
The Due Diligence part of Section 27 has 6 parts to it.
(a) to acquire and keep up-to-date knowledge of work health and safety matters, and
(b) to gain an understanding of the nature of the operations of the business or undertaking of the person conducting the business or undertaking and generally of the hazards and risks associated with those operations, and
(c) to ensure that the person conducting the business or undertaking has available for use, and uses, appropriate resources and processes to eliminate or minimise risks to health and safety from work carried out as part of the conduct of the business or undertaking, and
(d) to ensure that the person conducting the business or undertaking has appropriate processes for receiving and considering information regarding incidents, hazards and risks and responding in a timely way to that information, and
(e) to ensure that the person conducting the business or undertaking has, and implements, processes for complying with any duty or obligation of the person conducting the business or undertaking under this Act, and
(f) to verify the provision and use of the resources and processes referred to in paragraphs (c)–(e).
In most businesses most of these would be in the day to day running of the business. But looking at part f, how do you verify all these activities occurring?
General Managers and Board Chairs need to ensure that the Directors or other Officers (this includes themselves) in the business are meeting their Due Diligence obligations.
As Officers can be prosecuted separately from the PCBU for failing to comply with a duty, it is important that Officers are completely aware of these requirements and what evidence they need to show compliance.
For a full list of audits available, refer to the Auditing page
At long last WorkCover NSW has approved another 12 Codes of Practice.
These were released without much fanfare on 18 July 2014.
Time to update your External Masterlists and remove the matching Safework Codes to the Superseded or Guidance Information Only files. Any hard copies floating around need to be binned or clearly marked as Superseded.
Safe Work Australia released nine packages of national guidance material to support the model Work Health and Safety (WHS) Act and WHS Regulations. The topics are:
- Amusement devices
- Managing cash-in-transit security risks NSW still has a Code of Practice in place for Cash in Transit 2002
- Formwork and falsework NSW still has a Code of Practice in place for Formwork 1998
- Industrial lift trucks
- Managing risks in forestry operations NSW still has a Code of Practice Safety in Forest Harvesting Operations 2002
- Scaffolds and scaffolding work.
- Workplace traffic management
- Safe design, manufacture, import and supply of plant The SWA CoP for Safe Design of Structures July 2012 is still in place and effective
- Working in the vicinity of overhead and underground electric lines NSW still has a Code of Practice for Work Near Overhead Power lines 2006
Most of these new guides had been in draft Code of Practice status waiting for approval. They will now only be in Guide format and requirements
The national material provides practical advice for persons conducting a business or undertaking on how to manage risks at the workplace. The material includes information sheets to assist small businesses and workers meet their WHS obligations.
The national guidance material was agreed by majority by Safe Work Australia Members in June 2014 and is available at www.swa.gov.au.
To determine if these guides apply to the work you undertake in your state or territory please contact your work health and safety regulator.
Reverse onus of proof by any other name
I can remember in the lead up to and after the changeover into WHS that many business owners and managers zeroed in on the removal of the reverse onus of proof that the previous legislations carried. After the Kirk decision started to do the rounds there was a collective sigh of relief that the “Breach of s8.1 Fail to provide a safe place of work” would be a thing of the past as the regulators now at least have to give some indication of what could or should have been done to prevent the incident occurring.
Linking the requirements of s27 Duties of Officers with Division 5 Offences and penalties Category 1, 2 & 3 has been a slowing dawning of appreciation within business.
The fact is, yes the onus of proof and burden of evidence is placed upon the regulator that in fact s19 Primary Duty of Care has been breached, however s233 of the Act Multiple contraventions of a health and safety provision states that 2 or more contraventions arising from the same factual circumstances maybe charged as a single or as separate offences. Enter s27 and Division 5
Category 1 Reckless Conduct (s31)and Category 2 (s32)and Category 3 (s33) Failure to Comply, all start with the same line A person commits a……offence if “the person has a health and safety duty”
Officers in particular need to not only aware of the requirements placed on them by s27 but also need able to demonstrate in any prosecution that they indeed verify (s27(f)) “the provision and of resources and processes referred to in paragraphs c through e”.
S27(c) to ensure the PCBU has available for use and uses the appropriate resources and processes to eliminate or minimise risk.
S27(d) to ensure the PCBU has processes for receiving and considering information regarding incidents and hazards and risks…
S27(e) to ensure the PCBU has and implements processes for complying with any duty of obligation under the Act.
So, when you put the requirements of s31-33 together with the requirements of s27 and s28 for the workers, the reverse onus of proof doesn’t seem that far gone after all.
Queensland regulators have already made several successful prosecutions under s19 using s32, “having failed to meets it Work Health and Safety duties” and is matter of time before the prosecutions start to filter other harmonised States and Territories.