Occupational Health And Safety Representatives at Work

SafetyNet 293, September 11, 2014
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Union News

OHS Regulator News

OHS Prosecutions

International News

Union News

Possible work-related fatality
In what may be a work fatality, a teenage boy was killed when he came off his motorbike on a farm in eastern Victoria last Saturday afternoon.  According to police, the boy was at a private property Jancourt East, about 30 kilometres from Camperdown, when he came off the motorbike, and died at the scene. Senior constable Melissa Seach said police were preparing report for the Coroner - and that WorkSafe would also investigate the death.
Source: The Age

World Suicide Prevention Day
Today has been designated by the WHO as 'World Suicide Prevention Day' and in Australia this is being promoted as "R U OK? Day".  The theme for World Suicide Prevention Day this year is ''one world connected'' – with the release last week of the World Health Organisation's first global report on suicide prevention to raise awareness of the issue internationally. The WHO says that over 800,000 people die due to suicide every year, being the second leading cause of death among 15-29 year olds; and that for each of these, there are many more people who attempt suicide every year.  According to R U OK?, there are 2,400 suicides deaths in Australia each year.  Work pressures and conditions can place workers under extreme stress, as evidenced by the suicides of young Fly in Fly out (FIFO) workers in remote WA workplaces.  If you or someone you know is thinking of suicide, phone Lifeline on 13 11 14 24 hours a day, or visit the website.
Read more: WHO Factsheet September 2014. R U OK? Media Release   Information on Stress

Ask Renata
Hello Renata,
I was wondering whether you could clarify something for me please. If my company were to ask me to work from my home and use it as a base to travel from to visit customers – is there a particular part of the OHS Act or a compliance code that they must abide by?

There is nothing which specifically addresses working from home in either the Act or the Regulations, and there is nothing in a Compliance Code either. However, under the  Victorian OHS Act, the employer's general duty of care under Section 21 is as follows:

(1)  An employer must, so far as is reasonably practicable, provide and maintain for employees of the employer a working environment that is safe and without risks to health.

Then, under 21(2), there is further detail about providing or maintaining safe plant, systems of work, facilities, information and training and so on. This section does not limit the generality of 21(1). See Duties of employers on the site.  (I will assume that you are in Victoria AND under the Victorian Act. If you are not – if you are in another jurisdiction, OR work for a Commonwealth Department and so come under Comcare, then you will need to look at the specific duty of care under the Act that covers you).

This means that even if your employer is requesting/directing that you work from home, the duty of care remains, and the employer still has the duty to 'provide and maintain a working environment that is safe and without risks to health'…. so far as reasonably practicable.  So, when the worker is working from home, then even though the employer cannot have total control of the working environment, there are certain things which should happen – for example:

• provision of appropriate ergonomic workstation, computer, chair, etc
• steps taken to ensure the worker has appropriate breaks, and works set hours
• monitoring of the worker's health and safety
• ensuring that any potential hazards/risks at the home are identified and either eliminated or reduced so far as practicable
• ensuring the vehicle is safe and that any potential hazard/risks associated with driving in the course of work are identified and either eliminated or reduced so far as practicable

The employer also has obligations with regard to workers' compensation. For more information page on this issue, see Teleworking – or Working from home

Please send any OHS related queries in to 'Ask Renata' - your query will be responded to as quickly as we can, within a couple of days at the latest.

Duties of First Aiders – more information
Last week's Ask Renata question was on whether First Aiders must provide first aid if directed to by their employer, or whether they have a choice. Mr Keith Cheethan, a SafetyNet subscriber and trainer in NSW who delivers First Aid training, sent in a comment I thought useful to include in this week's journal. He wrote that part of the course he delivers states:

A first Aider has a "Duty of Care" to his Casualty as soon as they start providing First Aid.

What this actually means is that the First Aider will provide emergency care that is:

• Prudent and reasonable given the circumstances;
• Entirely based upon the skills and knowledge gained through his/her formal First Aid training;
• Unlikely to make the condition worse Unlikely to cause complications of the injury or illness; and
• To the best of his/her ability and accreditation

He added that in his view, my answer was correct, as the First Aider, as a worker, has the same duty of care as any other employee under Section 25 of the Act.

Royal Commission into Home Insulation Program
Following the release of the report from the Royal Commission into the Labour Government's Home Insulation Program (HIP), Kevin Jones has written some very interesting and informative articles in his SafetyAtWorkBlog on various aspects of the HIP:

• Risk Registers and the shortcomings of the Minter Ellison staff in providing expert advice, as well as the issue of State/Commonwealth responsibilities;
• Leadership and culture: the report identifies major deficiencies in the design and administration of a major project regardless of the politics and jurisdictional "argy-bargy"; and
• Gross Negligence and accountability.

Read more: SafetyAtWorkBlog HIP Royal Commission – Risk Registers; Leadership and Culture and Gross Negligence and accountability   

Teacher awarded $770,000 in damages
A Victorian teacher who had a major psychological breakdown after dealing with "feral" students at a Melbourne school has been awarded almost $770,000 in damages.  The teacher took legal action against the Victorian Government claiming he suffered a major breakdown after being allocated some of Werribee College's most challenging students. The Victorian Supreme Court found the school, and therefore the state, had breached its duty to the teacher by not removing him from the challenging classes known as low and foundation classes. The judge ruled that this was a cause of the man's chronic severe major depressive condition.  Following this decision, The Age has reported that at least 20 teachers and other professionals have sought legal advice on potential claims against their employers for stress.  According to an employment lawyer, the decision means workers may claim compensation if their employers could have foreseen they would be injured by their workload, the stress caused by their work or some other attribute of their work which goes above and beyond the normal.

Meredith Peace, the Victorian president of the Australian Education Union, said it could happen again. "If our governments aren't prepared to support our schools in the important work that they do in educating our young people, then we do risk having situations like this re-occur," she said.
Read more: ABC News Online The Age: Ex-teacher's $1 million compensation award prompts rise in legal inquiries over stress 

Asbestos News
Reminder: ASEA Conference: November 16 – 18, 2014
The Asbestos Safety and Eradication Agency (ASEA) is inviting registrations for the 1^st International Conference on Asbestos Awareness and Management, to be held at Crown Casino on 16 – 18 November. There are going to be some fabulous international speakers, including Laurie Kazan-Allen, from the International Ban Asbestos Secretariat. The cost of registration is from $250 ('early bird' 'community' registration before September 30, no conference dinner) to $900 (full 'commercial' including conference dinner). 
Read more: ASEA Conference  including program information, and registration details.

Reminder: Head down to Grill'd Degraves St to support Asbestoswise
Please go down and have hamburger at the Degraves St, Melbourne CBD Grill'd to support Asbestoswise. If they get the most number of tokens, they will receive $300 – and it will go to a good cause. Check out the Asbestoswise website to find out more about the organisation.

James Hardie pays shareholders and leaves compensation fund short
In shocking news, the asbestos compensation body funded by James Hardie may need to draw on a taxpayer-backed loan arrangement to pay asbestos victims despite the company showering its own investors with $US556 million in dividends in the past two years.  Under a legal agreement achieved after the ACTU and asbestos diseases groups took the company to court a number of years ago, James Hardie pays a set amount (35 per cent of its operating cash flow) every year to the Asbestos Injuries Compensation Fund (AICF) to compensate victims suffering from asbestos-related diseases.

The state of the fund is assessed annually by KPMG, which, in its latest report increased the "central estimate" for liabilities by 10.4 per cent to $1.9 billion. This has led to a warning that Hardie's planned contributions may not cover the fund's costs for claims and so it may need to use the government-backed loan set up in 2010 when there were concerns that the global financial crisis could affect the fund's sustainability.  The NSW and federal governments agreed to provide the loan of up to $320 million, for the AICF if contributions from James Hardie were insufficient to meet claims.

The fact that James Hardie paid $US556 million in dividends in the 2013 and 2014 financial years raised the ire of independent senator Nick Xenophon. "The bottom line is if James Hardie can afford $500 million to give to shareholders it can find the money to give to dying victims of their product," Mr Xenophon said. "If James Hardie doesn't come to the table they deserve the scorn of the Australian public. They have got through the GFC." This is occurring at the same time as the company's top executive received a huge pay increase last year. According to James Hardie's 2014 annual report, chief executive Louis Gries received $US11.7 million in total pay in 2014, up from $US7.9 million.
Read more: The Age: James Hardie asbestos compensation scheme millions short after big dividends

NSW residents now worried
The ABC this week reported that hundreds of New South Wales residents have asked for their homes to be tested for potentially deadly loose fill asbestos – the Mr Fluffy asbestos pumped into roof spaces of houses in the ACT and nearby New South Wales areas in the 1960s and 1970s. Earlier this year it was revealed another two companies used loose fill asbestos as insulation in other areas of New South Wales. Loose fill asbestos has been identified in 13 homes in the Yass Valley, Palerang and Queanbeyan Council areas.
Read more: ABC Online Hundreds of NSW residents concerned over potentially deadly fibres 

Italy: Firm Guilty of Asbestos Cancer Deaths
An Italian steel manufacturer has been condemned in a verdict released this week in a case which found 27 former company executives guilty of failing to protect workers at a Taranto plant from the asbestos hazard. The lives of those who had died from mesothelioma could have been saved had action been taken to prevent hazardous asbestos exposures wrote Judge Simone Orazio in his 268 page judgment. Medical check-ups would have enabled earlier diagnoses of asbestos-related conditions to have been made thus allowing more effective treatment for the injured. The company's policy of prioritizing profits had led to many deaths.
Read more:  Ilva Taranto, condanna per l'amianto  [Ilva Taranto, condemned over asbestos]. Source: IBAS Secretariat

Want to know about Asbestos laws and more – go to the Asbestos section on the site.

International Union News
China: Apple supplier accused of abuses
An investigative report released last week claims a Chinese factory that supplies Apple with parts has been operating with violations of basic standards for health, safety and environmental protection. China Labor Watch and Green America itemized their findings in the report based on an investigation in August of a Catcher Technology plant in the city of Suqian.  Violations found at the factory included:

• Significant amounts of aluminum-magnesium alloy shreddings on the floor and dust particles in the air (this dust is both flammable and combustible).
• Lack of proper ventilation
• Inadequate personal protective equipment (PPE) for handling toxic materials, such as metal cutting fluids.  Skin is exposed directly to these toxins and there are no ventilator masks
• Locked safety exits.  There is no means of rapid egress if there is a fire or explosion.
• A lack of safety training for workers; workers have not participated in fire drills in the past year
• Dumping of industrial fluids and waste into groundwater and  nearby rivers

Apple, however, has responded that it audits the plant regularly and works with its operators to raise standards and implement best practices. "Apple is committed to ensuring safe and fair working conditions for everyone in our supply chain," the California-based maker of iPhones, iPads, iPods, and Macintosh computers said in a statement.
Read more: China Labor Watch Media Release (the report can be downloaded from this page) Apple supplier in China accused of abuses

Global: Union body steps up precarious work campaign
IndustriALL has called on its affiliates worldwide to mobilise their members to 'STOP Precarious Work.' The global union body says regular, permanent and direct employment remains under constant attack from multinationals and other forces that are promoting precarious work, linked to higher rates of occupational injury and ill-health. Calling on its affiliated unions worldwide to highlight the campaign on the 7 October World Day for Decent Work, IndustriALL said: "We strongly encourage affiliates to take action and denounce precarious employment and the insecurity, which is becoming everyday life for more and more workers around the world."

It says some plans are already in place. In Canada, UNIFOR is to run a national Good Job Summit from 3-5 October as part of its 'Join the Revolution for Good Jobs' campaign. The summit will form part of a national dialogue between workers, students, government, employers and communities, aimed at finding new approaches to jobs and the economy. The Rio Tinto Global Union Network will hold a global day of action against precarious work as part of its employment rights campaign at the mining giant. And IndustriALL affiliates in Cambodia will target Export Process Zones (EPZs) where workers' rights are largely undermined. Workers in a bus and on motorcycles, holding IndustriALL flags, will do rounds in the EPZs as part of a "caravan for decent work."
Read more: IndustriALL News release and Report, Negotiating security: Trade union bargaining strategies against precarious work. IndustriALL STOP Precarious Work campaign.  Hazards information on health and safety and insecure work. October 7: World Day for Decent Work. Source: Risks 670

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Regulator News

ACT: safety blitz reveals widespread non-compliance
The ACT's Work Safety Commissioner, Mark McCabe has said he was disappointed that several significant compliance issues have been identified as a result of a recent safety blitz on truck-mounted concrete placing booms, a subset of the ACT's most dangerous industry, concreting. The blitz focussed on a range of WHS obligations, including the current levels of compliance with scheduled maintenance of plant and equipment currently in operation within the Territory. Nineteen truck mounted concrete placing booms were inspected by WorkSafe ACT inspectors: pf these, five were issued with prohibition notices putting them off the road. Three of these notices were still in effect. Mr McCabe said, ""It is concerning that the blitz has recorded such a high incidence of non-compliance. Some of the operators in this sector have a cavalier approach to safety. For some, at least, keeping trucks in service clearly takes priority over safety considerations. There are also indications that every effort is made by some to keep costs to a minimum in order to undercut competitors who are trying to comply by their obligations."
Read more: ACT WorkCover Media Release

NSW amends DG legislation
NSW's dangerous goods regulations have been amended to require all tanker trailers to be retrofitted with roll-stability systems. The Environment Protection Authority (EPA) has signed a declaration – made under the State Dangerous Goods (Road and Rail Transport) Regulation 2014 – requiring all dangerous goods tank trailers that travel on roads in NSW to be fitted with roll-stability systems (also known as roll-over controls or roll-stability functions) by 1 January 2019.  This comes following a number of major road incidents, including the Cootes Transport petrol tanker explosion that killed two motorists and injured five others in Sydney in October last year.

Useful materials

• From NT Work Safe: a Safety Alert issued to highlight the risk of carbon monoxide poisoning if flue terminals for gas appliances are incorrectly installed in recreational vehicles with annexes.
• From WA Work Safe: a 13 page Checklist for car retailing industry.  designed to increase awareness of safety issues faced by the industry, such as working with mobile plant, chemicals and move, and to highlight the effect and importance of appropriate systems of work and safety management systems. 

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OHS Prosecutions

Victoria: Company fined for failing to notify regulator or preserve site
On 19 November 2013, an incident in which an employee of Pickering Joinery Pty Ltd sustained an injury to his finger which required immediate medical treatment as an in-patient in a hospital, where he spent two days. The incident was not notified to the VWA, as required under Section 37 of the OHS Act. The company also failed to preserve the incident site, as required under Section 39 of the Act. In a second Incident, on 29 November 2013, another Pickering Joinery employee suffered an amputation of tips of left index and ring fingers. Once again, the company failed to notify the VWA, or preserve the site, as required by the OHS Act.

The company subsequently pleaded guilty in the Geelong Magistrates Court to two charges under section 38(1), two charges under section 38(3) and two charges under section 39(1) of the OHS Act. It was sentenced as follows:

• First Incident - was without conviction placed on an adjourned undertaking for a period of 12 months with a special condition to pay $1,500 into a Court Fund.
• Second Incident convicted and fined $3,000 plus $2,534 in costs.

Victoria: Warrnambool company fined for inadequate guarding
Yahl Skin & Hide Pty Ltd pleaded guilty to breaching Sections 21(1) & 21(2)(a) of the OHS Act 2004 in that it failed, so far as was reasonably practicable to provide and maintain plant that was safe and without risks to health. On 1 October 2013, a VWA Inspector attended the company's workplace and observed that there was inadequate perimeter guarding of the salting tumblers to prevent access to the chain drive, belts and pulleys. Access to this area of the plant exposed employees to a risk of injury. On 21 August 2014, the Warrnambool Magistrates Court fined the company $5,000, plus costs of $4,375 - without conviction.

Victoria: Specialist pit company fined after worker crushed
BVCI Pty Ltd, a company claiming to be 'Pit specialists', pleaded guilty to breaching its duty of care under Section 21(1) & 21(2)(a) of the Occupational Health and Safety Act 2004 in that it failed, so far as was reasonably practicable, to provide and maintain a safe system of work and failed to provide plant that was safe and without risks to health. On 2 May 2013, an employee was injured while in the process of removing a completed concrete pit from a mould. The concrete pit, which weighed approximately three and a tonnes, fell towards the employee, landed on his legs, and caused leg injuries. The incident could have been fatal and yet, the Ballarat Magistrates court fined $62,000 (plus costs of $2,252), without conviction.
Source: VWA Prosecution Result Summaries & Enforceable Undertakings   

NSW: Worker awarded $725k after fall
The NSW Supreme Court has awarded $725,000 in damages to a carpenter injured in a fall after finding his employer had failed to instruct him about a safety hazard that it assumed was obvious to all workers.   The man fractured his spine after falling five metres from a scaffolding rail, the first time he had worked in that area of the building. The worker told the court that his work had to be done 'at some pace' and he was not told or taught to check every scaffold connection.  On the day of the incident, he fell when the scaffolding rail he had stood on to retrieve a tape measure that had dropped, moved.  The court concluded that the employer was in breach of the duty that it owed the worker by failing to instruct him not to stand or climb upon scaffold rails. The worker had no need for a safety harness if he had been given that instruction and he had complied with it. The court commented that the dangers that the workplace presented should have prompted either a complete prohibition upon working from an unsafe platform or the rectification of the defects before work commenced.
Read more: S v Emicon Pty Ltd [2014] NSWSC 1072 (12 August 2014)

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International News  

Bosnia: 34 miners trapped after tunnel collapse following earthquake
On Friday it was reported that thirty-four miners were trapped in a Bosnian coal mine after an earthquake triggered a gas explosion and caved in two tunnels.  "Of 56 miners that were in the mine, 22 made it back to the surface and 34 are still in the affected zone," said Esad Civic, manager at the Raspotocje mine in Zenica.  "We are communicating with them. They are doing well and have enough clean air to wait for the arrival of rescue teams."

According to union leader Mehmed Oruc, the miners were in a tunnel that was not affected by the gas explosion, around 600 metres underground. The latest news is that most of the missing were rescued - 22 had to be hospitalised, and five were killed.
Read more: ABC News online and CoalGuru News 

Germany: Ban on out-of-office contact investigated
German employment minister Andrea Nahles is considering new "anti-stress" legislation that would ban companies from contacting employees out of hours.  Concerns over rising levels of workplace stress prompted the minister to commission a report investigating the viability of legislation that would restrict the use of emails to contact staff outside of work. She told journalists: "There is an undeniable relationship between constant availability and the increase of mental illness. We have commissioned the Federal Institute for Occupational Safety and Health to work out whether it is possible to set load thresholds. We need universal and legally binding criteria."

It is already illegal in Germany for employers to contact staff during holidays. Several major companies such as Volkswagen and BMW have also implemented their own restrictions on contacting employees out of hours. Last year the German Labour Ministry banned managers from contacting staff outside of work. Recently, car manufacturer Daimler installed software on its systems which automatically deletes emails sent to staff out of hours. A study released recently by the union DGB showed that increasing numbers of German workers are retiring early through stress. The findings of the workplace stress report will be delivered next year. Earlier this year, unions and employers in France's technology and consultancy sectors agreed a legally binding agreement that workers would no longer have to answer work emails or phone calls outside work hours.
Source: Risks 670

Costa Rica: high levels of fungicide in pregnant women
A new study has found alarmingly high levels of pesticides in the urine of pregnant Costa Rican women working in and living near the banana industry in Matina, Limón. The chemical ethylene thiourea (ETU) found in the fungicide mancozeb, which is sprayed over banana plantations here, can be detrimental to foetal brain development, according to the report released this week in Environmental Health Perspectives. The study registered 451 pregnant women and tracked urine samples from 445 of them to test their level of exposure to ETU. Expecting mothers had levels of ETU in their urine five times greater than the general population, exceeding reference doses for the chemical. ETU levels were significantly higher for women living less than 50 meters from a banana plantation. Seventy two percent of the women surveyed had on average 45 percent higher levels of the chemical in their bodies than women who lived more than 500 meters away. The report also noted higher levels in women who washed agricultural work clothes one day before samples were collected; women who worked during pregnancy; and immigrant women.
Read more: High levels of fungicide found in pregnant women living near banana plantations The Tico Times.

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