SafetyNet 402, May 10, 2017
Take a break from the Federal Budget news and check what's going on in OHS.
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Hi OHS Unit
I work in a call centre as a casual and I would like to know the legal obligation for break times. How many hours I am allowed to sit in one place, not being able to leave the desk? I am on a 9-5 shift and am being made to wait until 2.30pm for a break. I am not even supposed to leave my desk to go to the toilet! How many breaks (paid or unpaid) should be given in a 9-5 shift?
The number and length of breaks is not an issue covered under OHS/WHS legislation. What workers are specifically entitled to is detailed in the 'industrial instruments' - that is Enterprise Agreements or Awards. However, there are many workers in un-unionised workplaces who are not covered by EAs which set this out. Under the previous award system, workers had to be given a break after no more than five hours of work. This break was an unpaid break. On top of this scheduled break, most workplaces had and still have a short paid 'tea break'.
However, a system of work which does not allow for both regular and unscheduled breaks (to go to the toilet, for example) is unsafe and unhealthy as it puts workers at risk of fatigue and can cause other problems. Under s21(2)(a) of the Act, an employer must provide systems of work that are, so far as is reasonably practicable, safe and without risks to health. So, this is clearly an OHS issue which you need to raise through your union and your elected HSR if you have one. If you don't, then I recommend organising a meeting of other workers to discuss how to approach your employer. Read more on Breaks
Please send any OHS related queries in to Ask Renata - your query will be responded to as quickly as we can – usually within a couple of days.
OHS discrimination clauses clarified by appeals court
The Victorian Supreme Court recently handed down a decision which clarifies how the OHS Act is applied when workers or HSRs are discriminated against for raising OHS issues. The court rejected several employer arguments which sought to make it harder for WorkSafe to prove that an employee had raised OHS issues or concerns. This decision will help protect workers and HSRs into the future.
An employer ("Acme") facing seven charges of discrimination against workers for raising an OHS issue has failed to convince a the Victorian Court of Appeal that the Crown must prove, beyond reasonable doubt, that the workers raised the issue on "reasonable grounds" and believed the threats made against them would be carried out. Justices Chris Maxwell, Mark Weinberg and Phillip Priest found that in prosecutions under s76 of the OHS Act, the Crown must prove (simply) that an employee "raised an issue or concern about health and safety", rather than the employee's "state of mind" at the time.
The company's operations manager allegedly threatened to place four workers who had raised concerns that heavy goods that needed to be lifted exceeded the warehouse forklift's safe work limit, and suggested that the company provide another forklift and seek advice from WorkSafe. The manager allegedly said he 'had had enough' of the worker who first raised the issue and that 'he and others had better watch their jobs'. Further, he also said that their jobs were 'on the line' and that, if there were more complaints, people would be terminated. He also said he was prepared to sack a high number of employees "to straighten the place out".
The justices concluded that what must be proved is that the employee in question 'raised an issue or concern about health or safety'; that this is a question of fact for the jury to decide, taking into account all of the surrounding circumstances.
Importantly, the judgement also stated: " .. we note that the submissions for Acme appeared to imply that there was a clear dichotomy between pursuing a 'genuine' concern about safety, on the one hand, and pursuing 'industrial' objectives on the other. As noted earlier, Acme's submission in this Court refers to safety issues being 'used as a tool to mask industrial action'...this is a false dichotomy, in our view. Plainly enough, safety in the workplace is an industrial issue of great importance to both employers and employees. The mere fact that a safety issue was raised as part of, or in connection with, the pursuit of other industrial objectives would not necessarily mean that an offence of this kind could not be proved. The context in which a safety issue is raised will, of course, be an important part of the circumstances by reference to which the jury decides the question of fact concerning the employee's conduct."
Read more: DPP v Acme Storage Pty Ltd (a Pseudonym)  VSCA 90 (28 April 2017)
Victorian Government responds to Labour Hire Inquiry
The Victorian Government has released its response to the Inquiry in the Labour Hire Industry and Insecure Work. The Victorian inquiry found that some labour-hire employees are subjected to poor safety standards and "outright exploitation", and made 35 recommendations, most of which related to Victoria advocating for a national labour-hire licensing scheme; "lead(ing) the way" by establishing its own scheme for certain industries; and the elements such a scheme should have. However, there were three recommendations which related to OHS. The inquiry recommended that Victoria adopt the Model Work Health and Safety Act approach to regulating labour hire relationships and also how it provides for worker representation and protection of workers against victimisation for asserting their rights.
The Victorian Government, in its response, has agreed to these recommendations 'in principle' but says any amendments to the State OHS Act will only be made after a review of the legislation, examination of possible changes and consequences, and consultation with stakeholders.
The VTHC is broadly supportive of the government's position on moving slowly to ensure the change occurs with maximum consultation with unions and health and safety representatives.
Read more: The Victorian Inquiry into the Labour Hire Industry and Insecure Work - Website, and the Victorian Government Response, May 2017 [pdf]
Chrysotile fails to be listed: Rotterdam Convention discredited
The eighth Conference of Parties to the Rotterdam Convention, a United Nations treaty that requires dangerous substances listed by the Convention to be traded only with prior informed consent, is currently taking place in Geneva, Switzerland. On 3 May, a small minority of countries with commercial interests in continued asbestos use, including India, Kazakhstan, Kyrgyzstan, Russia, Syria and Zimbabwe, blocked chrysotile from being listed on Annex III of the Convention. For a substance to be listed, parties must reach unanimity.
Chrysotile asbestos will not be considered for listing until the next COP in two years' time. Russia even advocated taking chrysotile off the list of proposed chemicals for listing, a move not permitted under the Convention.
"Failure to list chrysotile asbestos on Annex III once again is an absolute disgrace. While they dither, hundreds of thousands of people will die from asbestos-related diseases," said Andrew Dettmer, National President of IndustriALL affiliate, the Australian Manufacturing Workers' Union (AMWU).
Read more: IndustriALL Media Release; Yahoo News UK
Asbestoswise support groups
Victorian asbestos diseases support and advocacy group Asbestoswise has many years of experience providing support to workers and families. The organisation holds regular Support Group meetings. These are usually held in the morning on the third Wednesday of every month at the South Melbourne Community Centre, Cnr Park St and Ferrars Place, Sth Melbourne. The group provides support to those diagnosed with mesothelioma, their carers, families and close friends. It meets . Asbestoswise also holds a Bereaved Group which meets monthly. More information, contact: Shirley Bare by phone 0412 537 819 or by email.
VTHC Migrant workers survey
Are you an International Student? Were you born overseas? How safe is your workplace? Migrant workers get injured more than other workers. If we work together, we can reduce the number of people getting injured at work.
The Victorian Trades Hall Council is the main organisation representing unions in Victoria. We have been fighting for workers' rights for over 150 years. We want to help all workers in Victoria feel safe at work, so it's important that we hear about your experiences. If you were born overseas, and are working in Victoria, please complete our short survey by clicking HERE. If you know of someone who should complete our survey, please pass on the link!
UK: Teachers abused online by parents and pupils
Nearly one-third of teachers in the UK report being abused online over the past 12 months, with half of those targeted saying parents, not just pupils, were behind the abuse. A UK-wide survey of over 1,500 teachers conducted by teaching union NASUWT found 31 per cent of teachers reported being abused online over the last year, of which 50 per cent said they had been abused by a parent. One in five (20 per cent) of the messages posted by parents included explicit threats, said the union. Chris Keates, general secretary of the NASUWT, commented: "The findings of this survey paint a shocking picture of what is happening in our schools, where on a day-to-day basis teachers are getting no support despite being subjected to appalling levels of online abuse. Most worryingly it appears that rather than setting a good example to their children, even some parents think it is acceptable to abuse and threaten teachers online." The union leader said: "This has to stop. Being a victim of online abuse can be a very traumatic experience, which can potentially ruin lives and careers. Government must act to put more safeguards in place to protect teachers and pupils alike and ensure our classrooms remain a safe and secure environment for all." Read more: NASUWT news release. Source: Risks 798
Crane collapse kills six workers in Korea
On Monday 1 May, six workers were killed and more than 20 injured, three severely, when a crane they were working on collapsed. This incident happened at the Samsung Heavy Industries shipyard on Geoje Island. Samsung is the world's third-largest shipbuilder and is a vicious anti-union company. All the dead workers were not direct employees of Samsung, but rather hired as subcontractors from different companies. The repression of independent unions and the increasing insecurity of employment, leads to unsafe workplaces for workers. Read more: Reuters; Source: AAWL mini news
USA: The story of the brave "radium girls"
Many SafetyNet subscribers may have seen this story on their social media feeds this past week. Just over a hundred years ago, young women painting watch dials with luminous radium paint not only started to literally glow in the dark themselves, but soon began to suffer terrible effects. This terrible story is another example of companies knowingly putting their workers' lives at risk and then doing everything they can to deny liability. However, it's also a story about how some of these women, some no older than girls, fought for justice, not only for themselves, but for the hundreds of others still at risk. Their brave and tenacious efforts finally led to a change in the US compensation laws.
Read more: The Forgotten Story Of The Radium Girls, Whose Deaths Saved Thousands Of Workers' Lives, Buzzfeed
White-collar stress and breast cancer
European researchers have suggested that the effect of stress on cortisol levels could explain the elevated risk of breast cancer among female white-collar workers.
The researchers from Sweden's Institute of Environmental Medicine and other institutions say their analysis of 14,110 female participants in a long-running diet and cancer study confirms previous studies that showed the risk of breast cancer differs between sectors, and that female workers in white-collar occupations are more at risk than their blue-collar counterparts. They found a higher risk of breast cancer for woman working in professional, administrative or bookkeeping roles than for those working in sales, transportation, production and service work.
The researchers say there have been theories that the increased risk among female white-collar workers may be due to reproductive factors associated with a "long education", like late first-time pregnancy and oral contraceptive use, or lifestyle factors like alcohol consumption. However, the study shows the disparity in breast cancer risk between white and blue-collar workers remains after adjusting for those factors, which indicates additional occupational risk factors influence the development of breast cancer.
Possible explanations of the higher prevalence include that they are in occupations with higher levels of job authority and stress, which can cause chronically elevated cortisol levels that increase breast cancer risk; increased participation in mammography screening (resulting in increased detection of breast cancer); or the difference in physical activity at work between white-collar and blue-collar workers.
Read more: Cecilia Kullberg, et al, Female white-collar workers remain at higher risk of breast cancer after adjustments for individual risk factors related to reproduction and lifestyle. [Full article] Occupational and Environmental Medicine, online first April 2017 doi: 10.1136/oemed-2016-104043 Source: OHSAlert
OHS Regulator News
New OHS regulations now available
The Occupational Health and Safety Regulations 2017 (OHS Regulations 2017) and the Equipment (Public Safety) Regulations 2017 (EPS Regulations 2017), which will take effect on 18 June 2017. These are available to download from the Victorian Legislation and Parliamentary Documents page of the Victorian Legislation website. The Regulations section of the OHSReps@work website will be updated before the new regulations take effect.
2017 WorkSafe Awards - nominate now!
The closing date to enter your nominations for the WorkSafe Awards is fast approaching. The awards "honour businesses and individuals who have shown excellence in health and safety, or helping injured workers get back to safe work sooner". There are nine award categories - but by far the most important one is the HSR of the Year Award, which recognises HSRs who have represented their DWGs in an outstanding manner. Nominations close on May 31 - so hurry up: nominate yourself, or your HSR now. We want to see WorkSafe inundated with nominations of union HSRs! Read more.
Comprehensive new Noise Control information available
Occupational noise is produced in many workplaces via loud processes and pieces of plant and equipment. In Victoria it is estimated that 10% of workers believe they are exposed to loud noise on a daily basis, yet only 1 in 4 eligible workers put in a worker's compensation claim for Noise Induced Hearing Loss (NIHL) / deafness.
It is important to identify and control occupational noise exposure as hearing loss occurs most rapidly in the initial years of exposure to loud noise. Exposure to noise is cumulative and a worker may perform a number of noisy work activities over time which, in combination, may expose them to hazardous noise. To reduce exposure to hazardous noise there needs to be a shift in focus from PPE to higher order controls.
To encourage this shift WorkSafe Victoria has produced a series of guidance documents (all PDF) providing information about Noise Control:
- A step by step approach
- Circular saws
- Compressed air noise
- Enclosures, barriers and screens
- Fan and ventilation noise
- Hearing protection
- Impact, vibration and materials handling noise
These documents are now available on the WorkSafe Victoria website as a resource for higher order noise control. Promotion of the documents will also be via social media to communicate the guidance to a wide audience.
WorkSafe and EPA have a new MoU
WorkSafe Victoria and the Environment Protection Authority have signed a new Memorandum of Understanding which is hoped will further strengthen collaboration between the regulators. The new MoU is to streamline the ways in which WorkSafe and the EPA share information, particularly in relation to major hazard facilities and dangerous goods.
The agreement details how the two regulators work together on major projects, such as the closure of the Hazelwood Power Station, and reduce the duplication of certain work while ensuring the protection of human and environmental health.
Read more: WorkSafe statement
The latest edition of WorkSafe's Safety Soapbox was sent on May 5. The edition reminds the industry that the new OHS Regulations will come into effect on June 18. Also that inspectors will be focusing on safety around the use of powered mobile plant during this month.The edition has links to fours short videos produced by Access Canberra which highlight the importance of exclusion zones, traffic management, powered mobile plant and trenching. Find out more about what inspectors will be focusing on by viewing the latest Construction Safety Focus - Powered Mobile Plant information sheet [pdf].
There are also a couple of breakfast planned for the industry:
- May 19, Cross Border Mildura - Industry Breakfast
- May 24, Winchelsea - Safer Shared Roads Information Breakfast: Traffic Management and Construction
No RSVPs required, so for details, check the Safety Soapbox.
In the period April 14 - 27, there were 23 Reported Incidents - a very low number compared to past periods. Read the May 5 Safety Soapbox here, it also includes the link to the list of reported incidents.
Reminder: WorkSafe Victoria updating website so please help!
Victoria's regulator is gradually updating its website, section by section. This means that many links on the OHS Reps@Work website may be broken. If you come across any broken links, please please send Renata an email! Thank you!!
SA: New minimum standard for EWP training
In response to two elevating work platform (EWP) fatalities at the new Royal Adelaide Hospital construction site, SafeWork SA has introduced a minimum standard of training for workers who operate EWPs. Both deaths, the first in November 2014 and the second in February 2016, were the result of the workers being crushed between a scissor lift and concrete slab. SafeWork SA developed the standard in collaboration with unions, the building industry, training organisations and the EWP Association. SafeWork SA Acting Executive Director Dini Soulio said the new standard was the second measure to improve worker safety - the first, already completed, is improved guidance. The third supports the development of plant engineering controls - a longer-term focus area. Read more: SafeWork SA Media Release [pdf]
Safe Work Australia News
SWA launches consultation platformThis week Safe Work Australia launches its new consultation platform Engage. SWA says it is place to discuss, share ideas and collaborate on work health and safety matters in Australia. The new platform will allow SWA to engage with registered users more "interactively, creatively and innovatively" to gain feedback and expert advice on all matters work health and safety, as well as giving users the opportunity to join discussions. The platform also provides access to the webinar series. SWA news release.
National body has new website too!
A reminder that Safe Work Australia has a new website - so please contact Renata if you come across any broken links on the OHS Reps@Work site, Thank you!!
The SWA website has not been updated since 26 April, at which time there had been 51 fatalities reported. These were in the following industries:
- 19 in the Transport, postal and warehouse sector;
- 11 in Agriculture, forestry and fishing;
- 9 in Construction;
- 3 Arts and recreation services
- 3 in Electricity, gas, water and waste services
- 2 in Mining
- 1 in Manufacturing
- 1 in Accommodation and food services
- 1 in Public administration and safety
- 1 in Retail Trade
The numbers and industries may vary as Safe Work receives more detailed information (to check for updates and full figures for 2016, go to the Safe Work Australia Work-related fatalities page).
The latest monthly fatality report published remains that for December 2016, during which there were eight work-related notifiable fatalities: six male workers, one female worker, and one female bystander. To download the latest report, go to the Notifiable Fatalities Monthly Report webpage.
Worker injured by generator arc flash
Southern Generators & Electrical P/L, electrical generator rentals including the supply, installation and maintenance of portable electrical generators, has been fined $20,000 (plus $3,500 costs) for an incident which occurred on 28 August 2015. Employees were disconnecting a generator at a workplace in Kooyong when the generator was accidentally started: one of the workers was injured by an arc flash.
The company was charged with breaching s21(1) and 21(2)(a) of the Act in that it failed to provide and maintain systems of work that were, so far as was reasonably practicable, safe and without risks to health in relation to the connection and disconnection of generators. Southern Generators could have reduced the risk of serious injury or death by providing and maintaining systems of work for isolation associated with the connection/disconnection of generators that included a lock out / tag out of the battery isolator and main circuit breaker of the generator.
On 5 December 2016 in the Moorabbin Magistrates' Court the company pleaded guilty and was convicted and fined $20,000.00 (plus costs of $3,500) On Appeal, the Melbourne County Court set aside the orders imposed by the Magistrates' Court and sentenced the company, without conviction, to pay the same fine and costs.
For updates, check the: WorkSafe Prosecution Result Summaries & Enforceable Undertakings webpage.
SA: KFC fined $150,000 after young worker seriously burnt
Major fast food chain KFC has been convicted and fined $105,000 in the South Australian Magistrates Court, after a 16-year old worker fell into a tank of hot oil left unattended by other inexperienced workers.
Industrial Magistrate Stephen Lieschke found Kentucky Fried Chicken Pty Ltd failed to a conduct a risk assessment for the "core task" of handling tanks of hot oil, and there were no established procedures for the task. In May 2015, the then 16-year old cook, employed at the Eastwood KFC store, stepped back from his station and fell backwards into a tank of hot oil. A 17-year old trainer had been showing a new employee how to clean a deep fryer and pumped the fryer's oil into a tank, which they left behind the cook without warning him. The worker suffered third degree burns to nine per cent of his body. According to his victim impact statement, he experienced a very painful healing process, has permanent scarring, suffers extreme sensitivity to UV light and has lower back pain from damaged nerve endings.
Such incidents are not uncommon in the industry - there had been two previous prosecutions in South Australia involving young workers being injured by hot cooking oil; and in August 2015, a 16-year old worker suffered extensive third degree burns at the Geelong KFC fast food outlet (see SafetyNet 334). The magistrate initially fined KFC $175,000, from a maximum $1.5 million, but reduced the amount by 40 per cent for its "prompt" guilty plea. He noted the employer had paid the worker $15,000 in reparations.
NSW: Window glass company fined $1 million
A NSW District Court has fined a window glass company $1 million – the highest ever fine imposed in NSW under the Work Health and Safety Act. The decision relates to an incident on 19 June 2014, in which a contractor of WGA Pty Ltd sustained an electric shock while working on a window ledge at a residential-apartment construction site in South Hurstville.
The worker was installing a piece of aluminium to the outside of a window when the power jumped to the metal from nearby 33,000-volt power lines feeding the Illawarra train line. The worker suffered burns to 30 per cent of his body.
It seems that an important consideration in the decision is that beofre the incident, a SafeWork NSW inspector and Sydney Trains had provided advice to WGA Pty Ltd about working safely around these power lines. WGA Pty Ltd ignored this advice and the court found the company failed to take the necessary steps to protect the worker – such as having electricity to the power lines isolated before undertaking external work to the building. Read more: SafeWork NSW Media Release
Iran: Mine explosion kills dozens of workers
At least 35 coal miners were killed last week when an explosion ripped through their mine. An unknown number of miners are still believed to be trapped deeper inside the mine. The explosion at the mine in Golestan Province was thought to have occurred due to inadequate ventilation allowing a dangerous build up of methane gas. Unfortunately, this type of disaster has occurred before. With independent workers' organising severely repressed by the Government, thousands of Iranian workers daily face dangerous workplaces. Read more: Aljazeera. Source: AAWL Mini news
Europe: how will changes in Info and Comms technology affect OHS?
The European Agency for Safety and Health at work (EU-OSHA) has published a report under its current foresight activity. The project is looking at how changes in information and communication technologies and work location will affect occupational safety and health (OSH).
The report presents the results of the first phase of the project. The aim was to identify and describe key trends and drivers of these changes. The findings will be used in phase 2 to develop a set of scenarios describing possible and plausible visions of the world of work in 2025 and the associated OSH challenges.
Read the report "Key trends and drivers of change in information and communication technologies and work location". Find out more about EU-OSHA's foresight activities.
Europe: a new NAPO film! Risk assessment
Napo, EU-OSHA's lovable worker, is on a mission to convince his boss that carrying out a risk assessment has never been easier thanks to OiRA. Together they identify and evaluate occupational safety and health risks and take the right preventive actions.