LABOR COUNCIL OF NSW
SUBMISSION TO LEGISLATION
COUNCIL GENERAL PURPOSE
STANDING COMMITTEE NO1
INQUIRY INTO SERIOUS INJURY
AND DEATH IN THE
WORKPLACE
07 March 2016
UNIONS NSW – with you at work
Labor Council of NSW
106748246
CONTENTS
1. EXECUTIVE SUMMARY - RECOMMENDATIONS
5
2. INTRODUCTION
13
A.
SAFETY SUMMIT IN BATHURST
14
B.
NSW OHS SAFETY LAWS
15
C.
NEW OHS ACT 2000 & OHS REGULATION 2001
16
D.
EFFECTIVE NSW GOVERNMENT COMMUNICATION STRATEGY
16
E.
EFFECTIVE COMMUNICATION THROUGH THE W ORKCOVER ASSIST PROGRAM
17
I.
POLICE ASSOCIATION’S EXPERIENCE WITH W ORKCOVER ASSIST PROGRAM
18
F.
COMMUNICATION AND ENFORCEMENT ARE CRUCIAL
19
G.
ENFORCEMENT
21
I.
21
H.
I.
RAIL INDUSTRY - FAR FROM A SAFE INDUSTRY
REVIEW ENFORCEMENT STRATEGIES
22
I.
THE ENFORCEMENT PYRAMID
23
II.
ENFORCEABLE UNDERTAKINGS
23
III.
EFFECTIVE USE OF ENFORCEABLE UNDERTAKING IN OTHER REGULATORY REGIMES
24
IV. RESOURCED INSPECTORATE TO ENSURE PROPER ENFORCEMENT
25
INTRODUCTION OF INDUSTRIAL MANSLAUGHTER
26
I.
27
DEAN MCGOLDRICK
II. INDUSTRIAL MANSLAUGHTER PASSED
III.
27
UNIONS SUPPORT GOVERNMENT PROCESS- EXPERT PANEL TO EXAMINE LEGISLATIVE ISSUES
AROUND W ORKPLACE DEATHS.
J.
28
IV. THE ACT INDUSTRIAL MANSLAUGHTER LEGISLATION
28
WORKPLACE FATALITIES
29
I.
29
DEFINITION OF W ORKPLACE FATALITY
II. FINDINGS OF THE STUDY
III.
32
A.
DATA FOR NSW FATALITIES
32
B.
HOW THE STATISTICS WERE FORMED
32
C.
LATEST NSW STATISTICS
33
SERIOUS INJURY
34
A.
DEFINITIONS
35
B.
COMPARISON OF SERIOUS INJURY W ITH VARIOUS INDUSTRIES
36
C.
OCCUPATIONAL DISEASE
39
IV. FATALITIES AND SERIOUS INCIDENTS IN HIGH RISK INDUSTRIES
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DATA
43
I.
DATA COLLECTION
43
II.
WORKERS COMPENSATION DATA UNDERESTIMATES W ORKPLACE FATALITIES
45
III.
NATIONAL DATABASE
47
LACK OF ACCOUNTABILITY BY MANUFACTURERS AND SUPPLIERS
47
I.
48
RESEARCH AND DESIGN SHOULD BE A PRIORITY
3. THE TERMS OF REFERENCE
A.
52
THE OPERATION OF W ORKCOVER'S PROSECUTION BRANCH
52
I.
PROSECUTIONS
52
II.
FINES IN NSW
53
III.
WORKPLACE FATALITIES – NO PROSECUTION
54
IV. TIME LIMIT ON PROSECUTIONS
54
B.
THE ROLE AND PERFORMANCE OF W ORKCOVER IN LIAISING WITH VICTIMS AND FAMILIES
57
C.
THE METHOD AND MONITORING OF PAYMENT OF PENALTIES WHERE AN EMPLOYER HAS BEEN
D.
CONVICTED OF AN OFFENCE RELATING TO A SERIOUS ACCIDENT OR DEATH
57
I.
57
IMPOSITION OF FINES
COMPLIANCE BY W ORKCOVER WITH ITS STATUTORY REQUIREMENTS RELATING TO SERIOUS
58
INJURY AND DEATH IN THE WORKPLACE
E.
F.
COMPARISON OF THE OPERATION OF W ORKCOVER IN RELATION TO THE MANAGEMENT OF
SERIOUS INJURY AND DEATH IN THE WORKPLACE IN OTHER JURISDICTIONS IN AUSTRALIA
60
I.
61
COMPARISONS WITH OTHER AUSTRALIAN JURISDICTIONS DURING 2001
ADDITIONAL INFORMATION
63
I.
INTERNATIONAL STATISTICS ON FATALITIES
63
II.
PREVENTING W ORKPLACE INJURY
63
4. CASE STUDIES
68
A.
PAN PHARMACEUTICALS
68
B.
TRUCK DRIVER JOSEPH TERRY CALDWELL
68
C.
JOEL EXNER
69
D.
ANTHONY HAMPSON
69
E.
ANTHONY GORRICK
70
F.
NSW POLICE ASSOCIATION DEATH OR SERIOUS INJURY TO POLICE CASE STUDIES
71
I.
ROBERT TAIT
71
II.
KEES (CORNELIS) VERHAGEN
71
III.
KEN HENDERSON
72
IV. ROBERT RILEY
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V.
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KRISTINE W OODS
72
VI. KEITH BAIRD
72
VII.
JONATHON PATEN
72
VIII.
MARK JOHNSON
73
IX. JAMES AFFLECK
73
X.
73
CHRISTOPHER THORNTON
5. REFERENCES
74
6. APPENDICES
75
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1. EXECUTIVE SUMMARY - RECOMMENDATIONS
Recommendation 1.
Labor Council recommends that the Government continue to hold Safety Summits
that involve key Ministers, government departments, unions and industry to develop
industry strategies supported by performance indicators that improve safety
outcomes for relevant industries.
Recommendation 2.
Labor Council recommends Ministers should establish a peak industry OHS body for
their portfolio areas that include the WorkCover Authority and the relevant union(s)
that develop and implement appropriate OHS strategies.
Recommendation 3.
Labor Council request the Committee to support the introduction of legislation to
allow union officials and OHS representatives to issue Provisional Improvement
Notices (PIN) notices.
Recommendation 4.
Labor Council requests the Committee to support the introduction of a legislative
provision in the OHS Act 2000 to allow employees and others to cease work where
there is an immediate risk to health and safety.
Recommendation 5.
Labor Council recommends that WorkCover should provide funding to high risk
industries to develop education programs underpinned by strategies and “workplace
tools” to improve workplace safety and reduce workplace injuries.
Recommendation 6.
Labor Council requests the Committee support the continuation of programs such as
WorkCover Assist. Such programs provide funding to both peak employer and union
bodies to assists the Government in communicating information about OHS
requirements to employers and employees.
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Recommendation 7.
Labor Council requests the Committee to recommend to the Government that the
WorkCover Assist Program continue beyond 2004.
Recommendation 8.
Labor Council recommends that the State Government, in conjunction with other
States, call on the Federal Government to fund a national safety campaign with the
States targeting workplace safety.
Recommendation 9.
Labor Council recommends that both the State and Federal Government commit to
establishing an annual funding program that funds ongoing OHS and safety
campaigns that target high risk workplaces.
Recommendation 10.
Labor Council recommends that the Government investigate the use of innovative
communication mediums in conjunction with traditional advertising campaigns to
convey key safety messages to employees and employers.
WorkCover needs to develop a communication strategy that tailors key safety
messages and delivers these messages through innovative mediums that specifically
targets the requirements of key audiences’.
Recommendation 11.
Labor Council recommends that intense industries based awareness campaigns
should be conduct.
Recommendation 12.
Labor Council and WorkCover establish a taskforce to review workplace consultation
arrangements to ensure that they comply with the legislation.
Recommendation 13.
That WorkCover produces guidelines on how to define workgroups and on Other
Agreed Consultation Arrangements in workplaces.
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Recommendation 14.
Labor Council recommends the Committee support a legislative provision, which
would allow for individuals or organisations prosecuting breaches under the OHS Act
2000 to enter into “terms of agreement” with the offender known as “enforceable
undertakings”.
Recommendation 15.
Labor Council recommends that the terms of agreement entered into on enforceable
undertakings must be filed before the Chief Industrial Magistrate or the Industrial
Relations Commission so that in the event the offender does not comply with the
agreement outlined in the enforceable undertakings then a prosecution may proceed.
Recommendation 16.
Labor Council recommends that inspectorate numbers and resources such as
access to scientific officers, occupational hygienists and ergonomists, be increased.
Recommendation 17.
Labor Council recommends that Labor Council and WorkCover develop an effective
partnership between WorkCover Inspectors and Authorised Officers.
Recommendation 18.
The Labor Council requests that the Committee supports the introduction of industrial
manslaughter legislation in NSW.
Recommendation 19.
Labor Council recommends that industry-by-industry strategies are developed to
prevent workplace deaths and serious injury. These strategies should be developed
in consultation with the appropriate State Minister, industry representatives and
unions.
Recommendation 20.
Labor Council recommends that the Industries should conduct awareness campaigns
and this should coincide with a blitz.
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Recommendation 21.
The Government, industry and unions should co-ordinate to fund research to identify
strategies that address specific systemic problems within and across industries.
Recommendation 22.
In order to address the current lack of adequate safety and OHS data, Labor Council
recommends the provision of increased resources to enable improved data
collection.
Recommendation 23.
Labor Council recommends that the Committee recommend to WorkCover to
develop a Code of Practice on workplace violence
Recommendation 24.
Labor Council recommends data should be collected on workplace fatalities from a
wider range of sources, such as hospitals to improve the quality of data already
collected in relation to workers compensation and OHS data.
Recommendation 25.
Labor Council supports the House of Representatives Standing Committee (HORSC)
recommendation for the incorporation of other data sources, for example the National
Coronial database and hospital based data, in addition to existing workers
compensation data. This needs to be supported with improved co-operation across
state occupational health and safety agencies.
Recommendation 26.
Labor Council requests the Committee recommend that there is an urgent need to
develop a national data base inline with the HORSC recommendations. The national
OHS Commission would be best placed to oversee and implement the national
database.
Recommendation 27.
Labor Council recommends that the NSW Government, Industry and unions should
undertake “safe design” initiatives consistent with the NSW OHS legislative
framework and complementary to the National Safe Design Strategy.
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Recommendation 28.
The Labor Council recommends that WorkCover a safe design seminar to share
learning and raise awareness.
Recommendation 29.
Labor Council recommends that the NSW Government request the University Vice
Chancellors give greater focus to OHS in the curriculum of design professionals.
Recommendation 30.
Labor Council recommends the NSW Government should work with Standards
Australia to improve the promotion and incorporation of safe work design principles in
existing and new standards.
Recommendation 31.
Labor Council recommends priority be given to recommendations from the Safety
Summit regarding design and that the State Government target budgetary resources
to industries to improve safety and design.
Recommendation 32.
Labor Council recommends the State Government establish a Taskforce to look at
safe design.
That all items appearing on the Government Contract List should be reviewed by the
Taskforce.
The Taskforce should be given responsibility for making recommendations to
industries regarding research and design.
Recommendation 33.
Labor Council recommends that the resources allocated to the prosecution branch of
WorkCover be increased.
In addition, the current workload on existing solicitors in the prosecution branch of
WorkCover should be reviewed and a ratio system established to ensure only a
select group of solicitors deal with fatalities.
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Recommendation 34.
Labor Council recommends that the training of WorkCover inspectors in the
collection of evidence be reviewed to ensure that they are receiving the most
appropriate and current training.
Recommendation 35.
Labor Council recommends that the training of inspectors be reviewed to ensure
consistency, particularly in relation to the issuing of notices and penalties.
Recommendation 36.
Labor Council recommends that WorkCover Inspectors should be provided with
access to sufficient investigative solicitors to ensure the quality of evidence gathering
procedures remains high.
Recommendation 37.
Labor Council recommends a 5-year statute of limitations would be more appropriate,
as the current 2-year time limit is restrictive, particularly in the case of a fatality.
If the statute of limitations was increased, strict guidelines and protocols would need
to be developed to ensure unnecessary delays do not occur.
Recommendation 38.
Labor Council recommends that WorkCover be more strategic in their prosecutions
and target management in poorly performing industries such as long haul transport
and rail.
Recommendation 39.
Labor Council recommends that WorkCover should increase the number of
successful prosecutions of manufacturers, suppliers and designers.
Recommendation 40.
The Labor Council recommends that the Committee should recommend that the
ACCC embark on more prosecutions in the area of product liability.
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Recommendation 41.
Labor Council recommends WorkCover NSW establish a Victims Support Unit to
develop support networks of counsellors in conjunction with Area Health Services.
Recommendation 42.
Labor Council recommends WorkCover should establish a specialist recovery unit,
which would be responsible for monitoring the recovery of a fine until completion and
ensure that every measure available is pursued in terms of recovering the debt.
Recommendation 43.
The Labor Council recommends that the Committee recommend to the ASIC that
they should ensure compliance with the Corporations Law by preventing directors of
insolvent companies from holding office involved in the administration of companies.
Recommendation 44.
The Labor Council recommends that the quality and training of inspectors be
reviewed to ensure consistency, where appropriate, particularly in relation to the
issuing of notices and penalties.
Recommendation 45.
The Labor Council recommends that high-risk industries be provided with adequate
number of inspectors and resources.
Recommendation 46.
The Labor Council recommends that there needs for WorkCover to embark on
industry-by-industry blitz campaign in compliance with the new OHS Regulation,
particularly on duty to consult and risk management provisions. In light of the recent
Waterfall Inquiry, WorkCover should commence this blitz in the Rail Industry.
Recommendation 47.
The Labor Council recommends WorkCover should have a position of zero tolerance
similar to the position taken by Police in relation to breaches of the road rules
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Recommendation 48.
The Labor Council recommends that there needs to be a review of current
enforcement measures and that a number of new and innovative measures be
introduced in addition to the current measures.
Recommendation 49.
The Labor Council recommends substantially increasing on-the-spot fines,
introducing a level of fines similar to speeding – the higher the speed the greater the
fine – the greater the risk the higher the on the spot fine
Recommendation 50.
The Labor Council recommends a review of the number of inspectors in rural and
regional areas be conducted to ascertain if there are sufficient numbers in these
areas to adequately address the OHS Act 2001.
Recommendation 51.
The Labor Council recommends including tougher penalties for breaches of the OHS
Act and implement a law creating the offence of industrial manslaughter.
Recommendation 52.
The Labor Council recommends that WorkCover collect, compile and make available
to the public relevant and timely data so that employees in NSW can measure the
performance of the OHS Act and its administrating agencies in a transparent manner.
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2. INTRODUCTION
The Labor Council of NSW represents approximately 750,000 union members in
NSW.
The Labor Council welcomes the opportunity to make oral and written submissions to
the Inquiry into Serious Injury and Death in the Workplace on behalf of all of our
affiliated unions.
The Labor Council is aware that a number of unions will be presenting their own
written and oral submissions to this Inquiry, covering the particular issues relevant to
their industry. The Labor Council will provide a broad approach to the Terms of
Reference, as well as focussing on certain high-risk industries.
There has been a plethora of inquiries into workers compensation and OHS, at both
a State and National level. The Labor Council of NSW and the union movement are
very sceptical about these inquiries. The Labor Council, ACTU and other industry
stakeholders recently made submissions to the recent Inquiry into National Workers’
Compensation and Occupational Health and Safety Frameworks and together with
the unions spent several months preparing a submission, which included a
substantial amount of research. The Council and other stakeholders made a number
of very constructive and valuable contributions to this Inquiry, but ultimately Labor
Council and a number of other key organisations were disturbed by some of the
recommendations made by the Productivity Commission in its interim report.
The Labor Council is of the view the outcome of the Productivity Commission’s
Inquiry appears to endorse the further erosion of OHS standards at a national level.
The
Labor
Council
is
very
concerned
that
the
Commission’s
interim
recommendations allow the expansion of a self-insurance model for workers
compensation. This is despite the fact that a number of the stakeholders raised a
series of concerns in relation to allowing more employers to self-insure under the
Comcare System. This would place enormous financial pressure on the state
schemes and have a major impact on those employers left in the scheme, particularly
small employers and those in high-risk industries such as the rural sector.
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The Commission chose to ignore the majority of the recommendations made by the
key stakeholders and industry players.
The Labor Council however, is pleased to make recommendations to this Inquiry.
The Labor Council believes that the NSW Government takes seriously the views of
the stakeholders and Parliamentary Inquiries seriously. The NSW Government has
an excellent track record in relation to OHS reforms.
The NSW Labor Government has initiated a number of positive inquiries into
occupational health and safety including the review of the OHS Act 1983 by a panel
chaired by Professor Ron McCallum.
The Labor Council is pleased to note that almost all of the recommendations from the
Standing Committee on Law and Justice’s Inquiry into Workplace Safety have been
implemented.
A. SAFETY SUMMIT IN BATHURST
The NSW Government has introduced a number of excellent initiatives including the
Safety Summit in Bathurst in July 2002. So far, the Government has implemented
one-third of the recommendations arising out of this Safety Summit. The Government
is on track regarding the remainder.
The unions support initiatives such as Safety Summits as they bring together all the
industry players and relevant Government Ministers to ensure that concern for safety
at an industry level, is not only the responsibility of WorkCover, it is also the
responsibility of the industry and the relevant Ministers. WorkCover invited a number
of Ministers who had responsibilities for industry sectors, such as rural and
hospitality, to the Safety Summit in Bathurst and this was a great opportunity for
those Ministers to take part in the Summit and be intimately involved in its outcome.
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Recommendation 53.
Labor Council recommends that the Government continue to hold Safety Summits
that involve key Ministers, government departments, unions and industry to develop
industry strategies supported by performance indicators that improve safety
outcomes for relevant industries.
WorkCover should not be the only body responsible for OHS. Clearly, it should be
the responsibility of the relevant Minister to take on board the safety issues in the
industry and provide resources and a budget.
Recommendation 54.
Labor Council recommends Ministers should establish a peak industry OHS body for
their portfolio areas that include the WorkCover Authority and the relevant union(s)
that develop and implement appropriate OHS strategies.
B. NSW OHS SAFETY LAWS
The union movement in NSW recognises that NSW is close to being the best
legislative framework for occupational health and safety of any Australian state or
territory. The NSW legislation clearly recognises the role of trade unions in OHS.
The legislation allows unions to investigate breaches of the OHS legislation and to
prosecute.
However, there are a number of states and territories that have superior provisions in
relation to the rights of OHS representatives. Particularly the right of workplace safety
representatives to issue Prohibition and Improvement Notices.
Recommendation 55.
Labor Council request the Committee to support the introduction of legislation to
allow union officials and OHS representatives to issue Provisional Improvement
Notices (PIN) notices.
The NSW Industrial Relations Commission recognises that employees have the right
to cease work where there is an immediate risk to health and safety.
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The Victorian Occupational Health and Safety Act allows for health and safety
representatives to issue a cessation of work instruction where there is faulty
equipment or the system of work poses a real health safety risk to the employees.
NSW does not presently have legislation in place, which enables work to stop
immediately in dangerous situations. The only relevant provisions are contained in
the Federal Workplace Relations Act. The Labor Council seeks to have a provision
inserted into the NSW OHS Act that allows employees to cease work where there is
immediate risk to health and safety.
This is consistent with WorkCover’s prohibition notice regime.
Recommendation 56.
Labor Council requests the Committee to support the introduction of a legislative
provision in the OHS Act 2000 to allow employees and others to cease work where
there is an immediate risk to health and safety.
C. NEW OHS ACT 2000 & OHS REGULATION 2001
The Labor Council of NSW and all of our affiliated unions were consulted during all
stages of the amendments to the OHS Act 2000. The unions also had significant
input into the OHS Regulation 2001.
The unions worked very effectively with WorkCover during the development of the
OHS Regulation and WorkCover incorporated the Labor Council’s recommendations
into the Regulation.
D. EFFECTIVE NSW GOVERNMENT COMMUNICATION STRATEGY
The NSW Government and WorkCover have introduced a number of excellent
innovative strategies to heighten the level of awareness around OHS.
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E. EFFECTIVE COMMUNICATION THROUGH THE WORKCOVER ASSIST PROGRAM
The Government, through the WorkCover Assist Program has provided funding to
employers and unions to develop education programs and practical tools that are
relevant to their industry.
In the past WorkCover and other jurisdictions have developed generic OHS Codes of
Practice and guidance material, however there is such diversity between industry and
in particular how the legislation or generic codes is applied. There is a need for each
industry to develop their own Codes of Practice, guidance material and education
programs.
Recommendation 57.
Labor Council recommends that WorkCover should provide funding to high risk
industries to develop education programs underpinned by strategies and “workplace
tools” to improve workplace safety and reduce workplace injuries.
Through the WorkCover Assist Program, the Labor Council of NSW has been able to
produce a broad range of relevant information and distribute it to employers,
employees, teachers, students and workplaces across the state through the
production of literature, including easy guide to the law guidebooks and the use of
the Internet.
The Government & WorkCover has recognised the importance of communication in
effecting a shift in attitudes to safety culture provided by this funding.
This program is in its third year and has proven to be very successful. It has certainly
generated a high level of awareness about OHS, which WorkCover could not have
achieved otherwise.
The NSW Cancer Council has also used this methodology as they saw the unions as
being instrumental in bringing about a cultural change The Cancer Council worked
closely with the unions to bring about a change through education for smoke free
workplaces which we all share the benefit of.
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Governments spend millions on advertising, which often has very little, if no effect,
unless it has a below the line marketing strategy such as the WorkCover Assist
Program.
Below the line marketing strategies are the direct communication campaigns that
exist in workplaces at the point of implementation of safety policies.
The WorkCover Assist Program has been very successful and has seen the
development of practical tools and education programs for industries
i. POLICE ASSOCIATION’S EXPERIENCE WITH WORKCOVER ASSIST PROGRAM
The NSW Police Association has had a very positive experience in relation to the
WorkCover Assist Program. they have been the recipient of two rounds of funding
and the Association is extremely hopeful that the Government will make this a
permanent Assistance Program to develop strategies including communication, that
assist employers and employees in implementing their legal obligations. The Police
Association sees this as absolutely crucial.
Under the Police Association’s program, employers have benefited from those
arrangements. The Association has conducted a substantial amount of training of
Police Service managers, both civilian and senior police officers, and that is
contributing to enhancement of a safe culture within New South Wales Police.
The Police Association and other unions endorse the continuation of the WorkCover
Assist Program.
Recommendation 58.
Labor Council requests the Committee support the continuation of programs such as
WorkCover Assist. Such programs provide funding to both peak employer and union
bodies to assists the Government in communicating information about OHS
requirements to employers and employees.
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Recommendation 59.
Labor Council requests the Committee to recommend to the Government that the
WorkCover Assist Program continue beyond 2004.
F. COMMUNICATION AND ENFORCEMENT ARE CRUCIAL
Enforcement, in addition to communication, is crucial to the implementation of
compliance with OHS legislation. Therefore, it is vitally important to have a well
thought out communication strategy coupled with an effective enforcement strategy.
The Road and Traffic Authority appear to have very effective communication and
enforcement strategies. The RTA use a number of different campaigns, such as
“Stop, Revive, Survive”, “Drink and Drive is a crime” “No such thing as safe
speeding”. In addition to running these community awareness campaigns they also
conduct different enforcement regimes for example the double demerit points during
peak holiday seasons. The cost of workplace safety is greater than road safety and
the Government, both Federal and State dedicate far more resources and budget
allocation to road safety awareness campaigns.
In 2001/2002

The national road toll
1,750

Deaths with work relationship
2,200
September 2000, ABS survey

500,000 workers reported they were ill or injured at work

Annual cost - $30B

Nearly 5% of GDP
It is the responsibility of the Federal and State Governments to develop and jointly
fund a nationally coordinated safety awareness campaign.
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Recommendation 60.
Labor Council recommends that the State Government, in conjunction with other
States, call on the Federal Government to fund a national safety campaign with the
States targeting workplace safety.
Recommendation 61.
Labor Council recommends that both the State and Federal Government commit to
establishing an annual funding program that funds ongoing OHS and safety
campaigns that target high risk workplaces.
Recommendation 62.
Labor Council recommends that the Government investigate the use of innovative
communication mediums in conjunction with traditional advertising campaigns to
convey key safety messages to employees and employers.
WorkCover needs to develop a communication strategy that tailors key safety
messages and delivers these messages through innovative mediums that specifically
targets the requirements of key audiences’.
Recommendation 63.
Labor Council recommends that intense industries based awareness campaigns
should be conduct.
These communication strategies do not work in isolation; rather they are a part of a
broader strategy in bringing about a significant cultural change in the community’s
attitude to safety in the workplace.
While the unions recognise that we have excellent OHS legislation, there is always
room for improvement. For the legislation to be successful there needs to be an
effective enforcement strategy and while employers will argue that they require
education, advice and leniency, this does not by itself produce the desired outcome.
The desired outcome is to have a safe workplace and reduce workplace death and
serious injury.
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WorkCover’s primary role is enforcement, similar to the Police and other enforcing
agencies and that is to make sure that there is compliance with the Legislation. The
whole issue of enforcement needs to be reviewed.
G. ENFORCEMENT
Whilst the unions recognise that we have excellent OHS legislation in NSW the
unions believe there needs to be greater focus on enforcement. The unions are
concerned with the implementation and enforcement that surrounds the new
requirement for employers to consult and believe that employers are resisting the
election of individual workplace representatives. The Labor Council and unions have
recently conducted research into a number of workplace OHS consultative structures,
very few if any, have OHS reps and the current structures are flawed.
i.
RAIL INDUSTRY - FAR FROM A SAFE INDUSTRY
The problem with the legislation is not only consistency with the implementation of
formal legal obligations, but also the effective compliance of the obligations by the
employers in the industry.
The Labor Council and WorkCover recently conducted a review of the OHS
Consultative Arrangements in State Rail. The outcome of our investigation found that
the current OHS structures are substantially flawed and need to be reviewed. Some
OHS Committees appear totally ineffective and unresolved serious OHS issues
remain on Committee agendas for years.
This is not only common in the Rail Industry, the Labor Council has found that other
workplaces have flawed OHS structures in that they do not adequately represent the
interests of employees.
The NSW OHS Act 2000 introduced a new duty on
employers to consult. The Act requires that employers consult with employees and
establish workplace consultative mechanisms, which must truly represent a particular
workgroup.
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Employers are very reluctant to establish any mechanism other than an OHS
Committee. Further, the OHS Committees are not properly constituted or elected and
they are not elected by the workgroup, which they represent. The Law and Justice
Standing Committee recommended the election by employers of workplace
representatives in workplaces, but this is being hindered in the majority of
workplaces.
Recommendation 64.
Labor Council and WorkCover establish a taskforce to review workplace consultation
arrangements to ensure that they comply with the legislation.
Recommendation 65.
That WorkCover produces guidelines on how to define workgroups and on Other
Agreed Consultation Arrangements in workplaces.
H. REVIEW ENFORCEMENT STRATEGIES
The Labor Council believes that OHS is not given the priority and attention by
workplaces and therefore we need to review the enforcement and implementation
strategy.
There needs to be a review of the current enforcement measures, as they do not
appear to have the effect intended. The current enforcement pyramid allows for
 Prosecution
 Enforceable undertakings
 Penalty notices
 Prohibition notices
 Improvement notices
 Information and advice
The Labor Council proposes further layers be added to the enforcement pyramid,
outlined hereunder.
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THE ENFORCEMENT PYRAMID
Prosecution
Enforceable
Undertakings
Penalty Notices
Industry Blitz Campaigns
On-the-Spot Double Demerit Fines
Prohibition Notices
Improvement Notices
OHS Reps and Unions to issue Notices
Information and Advice
ii.
ENFORCEABLE UNDERTAKINGS
Recent amendments to the Tasmanian and Queensland OHS legislation enable the
prosecutors i.e. WorkCover, etc to accept ‘enforceable undertakings’ from alleged
offenders as an alternative to prosecution.
Failure to comply with the terms of an enforceable undertaking may constitute an
offence punishable by a heavy penalty or may render the person liable to certain
court orders (and thereafter proceedings for contempt in the event of noncompliance).
In his second reading speech the Queensland Minister for Industrial Relations
described the anticipated use of enforceable undertakings as follows:
“an enforceable undertaking is an additional tool to prosecution. It allows the chief
executive of the Department to enter into a written undertaking with someone who
has breached the Act that sets out what actions a person or company will take,
over and above rectification of their breach of the Act For example, a company
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may agree to provide publicity or education programs to deter potential offenders,
or implement programs to prevent future contraventions. This can be used as an
incentive to improve health and safety, rather than as a punishment for having
failed to comply with the legislation.”1
The Queensland provision is particularly broad – it permits the chief executive to
accept a workplace undertaking, which includes ‘an assurance from the identified
person about the person’s future behavior’. The explanatory notes indicate that the
undertaking could include assurances:
 To cease certain behavior;
 To take specific action to redress parties adversely affected by the contravention;
 To implement specified actions or programs to prevent future breaches; and
 To implement other publicity or educative programs to help deter other obligation
holders.
Enforceable undertakings provide the prosecutor and the alleged offender with an
opportunity to avoid the delays and cost inherent in prosecution. It has also been said
that undertakings ‘may be used to achieve more focused, tangible outcomes’ such as
the implementation by an offender of an appropriate health and safety management
system. In order to be effective, the regulator must monitor compliance with the
undertaking.
iii.
EFFECTIVE USE OF ENFORCEABLE UNDERTAKING IN OTHER REGULATORY REGIMES
The Australian Securities and Investment Commission (ASIC) and the Australian
Competition and Consumer Commission (ACCC) use enforceable undertakings with
increasing regularity. In 1999 ASIC published a detailed practice note for the use of
undertakings. Consumer Affairs Victoria (CAV) also uses undertakings in the
enforcement of the Fair Trading Act 1999 (Vic) and other consumer legislation. ASIC,
ACCC and CAV each maintain a public register of undertakings on their respective
websites, which includes copies of undertakings.
1
Legislative Assembly (Queensland), 3 December 2002 p.5232.
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Enforceable undertakings are a new and largely unexamined enforcement measure
that appear to be popular with both regulators and the regulated as a means of
avoiding protracted litigation. There is considerable public benefit in the appropriate
use of undertakings, as noted by Burkett and Keel JJ in the context of an ACCC
undertaking –
“When corporations acknowledge contraventions, very lengthy and complex
litigation is frequently avoided, freeing the courts to deal with other matters, and
investigating officers . . . to turn to other areas . . . that require their attention”. 2
Recommendation 66.
Labor Council recommends the Committee support a legislative provision, which
would allow for individuals or organisations prosecuting breaches under the OHS Act
2000 to enter into “terms of agreement” with the offender known as “enforceable
undertakings”.
Recommendation 67.
Labor Council recommends that the terms of agreement entered into on enforceable
undertakings must be filed before the Chief Industrial Magistrate or the Industrial
Relations Commission so that in the event the offender does not comply with the
agreement outlined in the enforceable undertakings then a prosecution may proceed.
iv.
RESOURCED INSPECTORATE TO ENSURE PROPER ENFORCEMENT
The Labor Council recognises that NSW is probably one of the best resourced
inspectorates in Australia and even on a global scale. However, the unions are of the
view that the inspectorate requires additional numbers, technical support such as
ergonomists, occupational hygienists, and other scientific support services.
The Labor Council is also of the view that WorkCover and union officials who are
authorised officers under the OHS Act 2000, should enter into an effective
partnership to enable WorkCover to better concentrate on major OHS breaches and
investigations.
2
NW Frozen Foods v Australian Competition and Consumer
Commission (1996) 71 FCR 285, 290–291.
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Recommendation 68.
Labor Council recommends that inspectorate numbers and resources such as
access to scientific officers, occupational hygienists and ergonomists, be increased.
Recommendation 69.
Labor Council recommends that Labor Council and WorkCover develop an effective
partnership between WorkCover Inspectors and Authorised Officers.
I. INTRODUCTION OF INDUSTRIAL MANSLAUGHTER
While the union movement recognises that the NSW OHS legislation is a positive
step toward improvement, there is a need to send a clear message to employers who
blatantly disregard workplace safety.
The unions view the introduction of industrial manslaughter laws in New South Wales
as very much a process of evolution towards fair and reasonable industrial and OHS
laws in New South Wales.
The unions have concerns about WorkCover's ability to investigate and prosecute
serious injuries and deaths in New South Wales and are of the view that the
Prosecution Division needs to be adequately resourced.
The Labor Council notes the recent protocol developed by WorkCover, Police, the
Office of the Director of Public Prosecutions and the Coroner in relation to the
investigation of workplace fatalities and serious injuries and hopes this will assist in
ensuring appropriate matters are referred by the Police to the DPP.
The Labor Council fully supports the concept of employers facing manslaughter
charges where there has been blatant negligence. Particular reference is made to the
case of Dean McGoldrick.
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DEAN MCGOLDRICK
On 1 February 2000 at 861 George St, Sydney Mr Dean McGoldrick aged 17, died as
a result of injuries sustained when he fell 12.2 metres from the edge of a roof. He
was employer by Metal Gutter Fascia Services Pty Ltd. Mr John Poleviak was the
director of this company.
Dean’s Mother had phoned the employer before Dean started work and asked if
Dean would be provided with safety training and equipment. The Employer assured
Mrs McGoldrick that this would be provided. The employer did not provide Dean with
any training or safety equipment and as a result, Dean fell several metres to his
death.
The Chief Industrial Magistrate's Court, who had a maximum penalty cap of $55,000,
imposed a penalty of $20,000, which is approximately 1/3rd of what should have
been imposed.
This matter should have never been brought before the Chief Industrial Magistrate.
The Labor Council is aware that the WorkCover policy in relation to workplace fatality
has changed and that all prosecutions involving serious injury and workplace death
are brought before the Industrial Relations Commission.
In 2003, the Labor Council became aware that two and a half years later Mr Poleviak
has still only paid $1,800 of the fine. This raises the central question- what was done
to recover the fine?
This case is a prime example of when a penalty has no impact on the negligent party.
Surely, in these cases industrial manslaughter is justified.
ii.
INDUSTRIAL MANSLAUGHTER PASSED
The ACT and Canada have recently passed industrial manslaughter legislation.
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UNIONS SUPPORT GOVERNMENT PROCESS- EXPERT PANEL TO EXAMINE LEGISLATIVE
ISSUES AROUND WORKPLACE DEATHS.
The NSW Government has established a Panel of expert legal practitioners to advise
on the legislative issues surrounding workplace deaths The Labor Council and
unions support the process and understand the Panel will be reporting in May 2004.
the Labor Council and unions would welcome an opportunity to comment on the
Panel’s report.
iv.
THE ACT INDUSTRIAL MANSLAUGHTER LEGISLATION
In 2003, the ACT Government introduced legislation to create a law that would allow
a criminal change of Industrial Manslaughter. The legislation was passed and comes
into effect in 2004.
The ACT Industrial Relations Minister Katy Gallagher stated at the time of the Bills
passing through Parliament that the legislation sends strong signals to workers and
employers.
The Minister rejected criticism about the legislation and in particular, the criticism
from those who said that it did nothing for OHS. At the time the legislation passed
Gallagher stated that her office had been inundated with calls from employers
attempting to bring their workplaces up to standard.
The minister was quoted at the time: "We've had OHS Legislation for 14 years but it's
only with the passage of this Bill that some areas of industry are now getting up to
standard."
The Minister advised that companies with good OHS systems had nothing to fear
from the new legislation.
Obviously, the introduction of the industrial manslaughter law in the ACT has had a
major impact on bringing about a cultural change. The number of employers
contacting the Government to ensure their compliance with OHS standards
evidenced this.
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The NSW Crimes Act makes provision for manslaughter where the requisite degree
of negligence can be established to the criminal standard of proof i.e. beyond
reasonable doubt (maximum penalty – 25 years imprisonment).
In recent times, there have been three matters where manslaughter charges were
laid. Two of those matters were not proceeded with by the DPP on the grounds that
there was no reasonable prospect of conviction by a jury. The third matter went to
trial in the District Court, but after the close of the Crown case, the Judge directed the
jury to find the defendant not guilty because he did not consider there was any
evidence of criminal negligence.
There is currently one matter, which has been
referred to the DPP and is under consideration.
Recommendation 70.
The Labor Council requests that the Committee supports the introduction of industrial
manslaughter legislation in NSW.
J. WORKPLACE FATALITIES
i.
DEFINITION OF WORKPLACE FATALITY
The definition for Workplace Fatalities is decided upon workers compensation claims.
A workplace death is only classified as such when a claim is made to an insurance
company. The claim can be for undertaking work in the workplace, travelling to or
from work and/or occupational diseases such as asbestosis. Only if the claim is
successful will the death be classified as a workplace death.
The data provided below does not include deaths, which occur from exposure to
occupational diseases, i.e. asbestosis, etc. it includes workplace deaths and journey
claims. If journey claims were to be excluded this would reduce the number of
workplace deaths in 2000/01 to 122.
WorkCover is currently undertaking a research project to determine the most
appropriate definition for a workplace fatality.
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Labor Council understands WorkCover is undertaking systematic research into
workplace fatalities, primarily to identify common precursors that may lead to
workplace fatalities.
The research is examining those incidents, which fall within WorkCover's jurisdiction
and is based on an analysis of information from workers compensation data, OHS
data, and relevant data from other Government agencies and is supported by an
extensive literature review.
Labor Council understands that while the research is not complete, the results will be
used to guide WorkCover's enforcement and compliance activities as well as
advertising, education and communication campaigns.
FATAL EMPLOYMENT INJURIES*: NUMBER, INCIDENCE AND FREQUENCY: 1995 TO 2002
200
150
100
50
0
Number
Incidence per 100,000
employees at risk
Frequency per million hours
worked
1995
1996
1997
1998
1999
2000
2001
2002
177
181
173
181
163
181
139
178
8
7.9
7.5
7.8
6.8
7.2
5.2
6.6
0.05
0.05
0.04
0.04
0.04
0.04
0.03
0.04
10
9
8
7
6
5
4
3
2
1
0
* This includes injuries at the workplace, occupational diseases and non-workplace
injuries (commuting, journey claims, recess claims)
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FATAL WORKPLACE INJURY: NUMBER, INCIDENCE AND FREQUENCY: 1995 TO 2002
80
60
40
20
0
1995
1996
1997
1998
1999
2000
2001
2002
70
55
59
71
61
64
47
68
Incidence per 100,000
employees at risk
3.18
2.4
2.6
3.1
2.6
2.6
1.8
2.5
Frequency per million hours
worked
0.017
0.014
0.014
0.018
0.014
0.14
0.01
0.016
Number
5
4.5
4
3.5
3
2.5
2
1.5
1
0.5
0
While workplace deaths have fallen slightly over the last eight years, the NSW Labor
Council’s view is that this is partially due to the OHS reforms since 1995. However,
this rate is still far too high.
139 deaths from employment injuries.
16,616 instances of permanent disability from employment injuries
The average incidence of employment injuries (including workplace injuries and
occupational diseases) in 2000/01 was 20.3 per 1,000 workers.
Total Number of Fatalities in Various Industries in
2000/01
6
3
6
Agriculture, Forestry and Fishing
17
Mining
6
7
Manufacturing
4
Electricity, Gas and Water Supply
7
16
2
1
Construction
Wholesale Trade
0
15
19
8
12
10
Retail Trade
Accommodation, Cafes and
Restaurants
Transport and Storage
Communications Services
Finance and Insurance
Property and Business Services
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The Labor Council believes that the sources of data used for determining workplace
fatalities is grossly underestimated and I refer to a study conducted by the National
OHS Commission (NOHSC) between 1989 and 1992.
ii.
FINDINGS OF THE STUDY
The study found that there were 607 farm-related fatalities in Australia between 19891992. Of these;
 587 were unintentional fatalities and
 20 were intentional deaths (i.e. homicides).
Of the 587 unintentional fatalities,
 373 were of workers,
 142 were of bystanders to work and
 72 were other farm fatalities.
For all unintentional farm-related fatalities there were on average 147 fatalities per
year during 1989-1992 or approximately three fatalities per week.
a. DATA FOR NSW FATALITIES
In NSW for the period of 1989-1992 there were a total of 185 farming deaths.
 124 of that number were people working at the time of death.
 34 deaths to bystanders
 27 deaths to people under taking other farm work at the time of death.
Overall from 1989-1992 there were an average of 47 deaths on NSW farms.
b. HOW THE STATISTICS WERE FORMED
In the presentation by the Australian Centre for Agricultural Health and Safety
(ACAHS) titled “Farm Injury Presentation for Rural IRG Group” they identify the
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differences in the means of researching rural deaths. Relying on Workers
Compensation Statistics does not give an adequate figure to the real amount of
deaths in the rural sector.
Attached for your reference is a copy of the abovementioned presentation by
the ACAHS.
The ACAHS recognised in their presentation the weaknesses in only using the
Workers Compensation statistics as one form of data and these are outlined below:
 It covers only employees
 Shows only compensated cases
 There is no information about safety
 There is no information about exposure to risk
 It does not show the jobs that were being undertaken
 It does not show the location of the farm
 It doesn’t include children into the statistics
In the ACAHS presentation they included records for the statistics from:
 Hospitals
 Emergency wards
 Coronial; and
 Workers Compensation
c. LATEST NSW STATISTICS
The latest figures from WorkCover NSW show that in the areas of Agriculture,
Forestry and Fishing there have been a total of 46 deaths during the period of 19982001. Farmsafe have not produced any statistics, which are up to date with the
WorkCover NSW statistics.
Notwithstanding the Labor Council believes that the statistics in some industries do
not truly reflect the fatality rate, the Labor Council believes that it is not only the blue
collar industries where fatalities occur. There is also a high fatality rate in the retail
sector, therefore the same emphasis should be given to focusing on improving safety
in these industries.
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SERIOUS INJURY
EMPLOYMENT INJURY: NUMBER, INCIDENCE AND FREQUENCY: 1995 TO 2002
65000
60000
55000
50000
45000
1996
1997
1998
1999
2000
2001
2002
62840 62469 60109 58604 55492 53224 53797 54674
Number
*This
1995
40
35
30
25
20
15
10
5
0
Incidence rate per 1000
wage and salary earners
28.6
27.4
26.1
25.2
23.1
21.3
20.3
20.3
Frequency per million
hours worked*
16.1
15.6
14.7
14.5
12.9
11.8
11.8
11.9
includes injuries at the workplace, occupational diseases and non-workplace
injuries (commuting, journey claims, recess claims)
Workplace Injury: Number, Incidence and Frequency: 1995 to 2002
46000
30
44000
25
20
42000
15
40000
10
38000
36000
1995
1996
1997
1998
1999
2000
2001
2002
42505
42648
44654
43982
41739
39531
39995
40205
Incidence rate per 1000 w age
and salary earners
19.3
18.7
19.4
18.9
17.4
15.8
15.1
15
Frequency per million hours
w orked
10.8
10.7
10.9
10.8
9.7
8.8
8.8
8.7
Number
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a. DEFINITIONS
Employment injuries comprise all injuries resulting from accidents, and all
occupational diseases contracted or aggravated in the
course of a worker’s employment.
Workplace injuries
involve accidents that have occurred at the workplace either
during work or during a work break, where the worker’s
activity is under the control of an employer. These include all
accidents occurring on the premises at which the worker is
employed. They also include all accidents on work-related
journeys not covered below and injuries that occur while the
worker is working at a location other than the worker’s normal
workplace or base of operations.
Non-workplace injuries
involve accidents that have occurred away from the
workplace but where the worker is considered to be on
duty. There are three categories of non-workplace
injuries:
 Road traffic accidents resulting in injury (whether as a
driver, passenger or pedestrian) arising out of, or in the
course of employment, other than those which occur
whilst commuting (see below).
 Accidents away from work during a recess period, that
is, those claims where a worker has attended the place
of employment and is temporarily absent from that
place on that day during an ordinary recess or
authorised absence;
 Commuting accidents, which occur during travel
between residence and workplace, to educational
institutions for training associated with the worker’s
employment,
or
to
medical
treatment
for
a
compensable injury, etc. This category includes road
traffic accidents, which occur whilst commuting.
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Occupational diseases
106748246
diseases contracted or aggravated in the course of
employment and to which the employment was a
contributing
distinguishable
factor.
from
Occupational
workplace
and
diseases
are
non-workplace
injuries by at least one of the following characteristics:
 The slow and protracted nature of its cause;
 The disease is the result of a single traumatic event
(for example, the development of hepatitis following a
single exposure to the infection; or the development of
conjunctivitis after being exposed to a welding flash);
 It is ascribable to repeated or continuous action of a
mechanical, physical or chemical nature and is not the
effect of a single event but of a cause acting
imperceptibly and constantly;
 The uncertain time of its beginning; or
 There is a possible predisposition to the development
of the condition.
b. COMPARISON OF SERIOUS INJURY WITH VARIOUS INDUSTRIES
The Labor Council notes that the data for several industries for the periods of 199899, 1999-2000, and 2000-2001 demonstrates a decrease in the number of workplace
injuries where a worker has remained off work for more than six months.
The Labor Council further notes that the number of workplace injuries with a disability
of less than six months duration has also decreased.
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Number of Workplace Incidents in Several Industries 1998-99
6271
1133
Manufacturing
4197
19
3941
644
Construction
2142
26
Retail Trade
12
Agriculture,
Forestry &
Fishing
Transport
&
Storage
1435
206
503
13
3096
360
1007
23
0
Fatal
3690
879
985
1000
2000
Permanent Disability
3000
4000
5000
6 months and over
6000
7000
less than 6 months
Number of Workplace Incidents in Several Industries 1999-2000
5605
953
Manufacturing
4411
28
3800
561
Construction
2530
32
3371
665
Retail Trade
Agriculture,
Forestry &
Fishing
Transport
&
Storage
1282
176
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503
16
2870
328
1083
21
0
Fatal
1094
11
1000
Permanent Disability
2000
3000
4000
6 months and over
5000
6000
less than 6 months
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Number of Workplace Incidents in Several Industries 2000-2001
5214
733
Manufacturing
4461
16
3228
483
Construction
2948
19
592
Retail Trade
12
Agric, Forestry &
Fishing
129
17
Transport &
Storage
Fatal
1231
1229
528
3067
266
1256
15
0
3906
1000
2000
Permanent Disability
3000
4000
6 months and over
5000
6000
less than 6 months
Permanent injuries appear to be on the increase, however, the time off in relation to
serious injury i.e. 6 months and over appears to have decreased.
00
/0
1
20
99
/0
0
19
98
/9
9
16,616
13,968 14,321 15,241
97
/9
8
19
96
/9
7
19
19
95
/9
6
15,605
19
19
20,051 19,046
19
17,598
94
/9
5
25,000
20,000
15,000
10,000
5,000
0
93
/9
4
Total Number
Total Number of Permanent
Disabilities in NSW from 1993 to 2001
Source Appendix E WorkCover NSW
Against that average figure the industries with the highest incidence of employment
injuries in 2000/01 were:
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 Coal mining (66.6 per 1000 workers)
 Mining (other than coal) (63.8);
 Storage (57.3);
 Road transport (45.7)
 General construction (44.0)
 Non-building construction (42.1);
 Agriculture (32.9);
 Manufacturing (31.4).
For males, the incidence of employment injuries was (26.7) and for females, the
incidence was (12.9).
9.7 per 1000 instances of workplace injuries were sprains and strains due to body
stressing and 1.6 per 1000 instances of workplace injuries were open wound injuries.
The most common occupational diseases involve: deafness (1.5 per 1000); “mental
disorders” (including stress) (0.7); and occupational overuse syndrome (0.4).
Source: Appendix E of the WorkCover NSW Workers Compensation Statistics NSW 2000/01
Catalogue Number 520.3
c. OCCUPATIONAL DISEASE
Occupational Disease: Number, Incidence and Frequency: 1995 to 2002
20000
30
25
15000
20
10000
15
10
5000
0
Number
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5
1995
1996
1997
1998
1999
2000
2001
2002
16935 16349 11404 10269 9566
9169
9258
9891
Incidence rate per 1000
wage and salary earners
7.7
7.2
5
4.42
3.97
3.67
3.49
3.68
Frequency per million
hours worked
4.33
4.12
2.79
2.54
2.22
2.04
2.04
2.15
0
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iv.
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FATALITIES AND SERIOUS INCIDENTS IN HIGH RISK INDUSTRIES
The latest data shows occupations with highest fatalities were agriculture.
The above data shows the latest available statistics of workplace deaths showing that
the largest number of fatalities was in Construction (19), followed by Agriculture (17),
Manufacturing (16) and Transport and Storage (15).
Recommendation 71.
Labor Council recommends that industry-by-industry strategies are developed to
prevent workplace deaths and serious injury. These strategies should be developed
in consultation with the appropriate State Minister, industry representatives and
unions.
Death and serious injury at work is generally considered to be an issue that only
concerns traditional blue-collar occupations such as mining, manufacturing and
construction.
This is not true. In the retail industry, there were 12 fatalities between 2000 and 2001
3,
more than in mining and manufacturing. In that same industry there were over
1,231 injuries resulting in a permanent injury. Once again, this figure represents more
than mining. Of these injuries, the vast majority related to manual handling.
In 2002, the Workplace Safety Summit recommended assisting retailers in finding
solutions to resolve manual handling design issues in the retail industry, specifically
in relation to checkout operators4.
No funds were forthcoming through the Retail Industry Reference Group or the
WorkCover NSW Injury Prevention, Education and Research Grants Scheme,
although attempts were made to convene a working group as it was considered to be
an employer issue as the major retailers are self insured outside the general scheme.
3
4
WorkCover NSW Workers Compensation Statistical Bulletin 2000-2001, pages72 and 75.
Recommendation 114
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Recommendation 72.
Labor Council recommends that the Industries should conduct awareness campaigns
and this should coincide with a blitz.
Recommendation 73.
The Government, industry and unions should co-ordinate to fund research to identify
strategies that address specific systemic problems within and across industries.
In addition, violence is a major issue in the retail industry. In 2002, there were over
22,3915 reported robberies from retail stores. This represented a 7.5% increase6 over
previous years.
Many of these robberies involved verbal or physical abuse of staff.
Of a more serious nature were the 714-armed7 robberies across NSW in 2002, a
proportion of which were against soft targets such as service stations, convenience
and retail stores.
However, the statistics do not bare this figure out in relation to the number of injuries.
The largest category of statistics consists of “other” injuries!8. Another relevant issue
is that Staff often do not realise that they should report all such incidents as there is a
generally lack of awareness that this is a safety issue. Therefore, the statistics are
unreliable.
In addition, police are not required by legislation to report all incidents concerning
violence to WorkCover NSW.
Recommendation 74.
In order to address the current lack of adequate safety and OHS data, Labor Council
recommends the provision of increased resources to enable improved data
collection.
5
NSW Recorded Crime Statistics 2002.
Ibid
7 Ibid
8 Op Cit N1 at page 87.
6
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A number of recommendations from the workplace Safety Summit recommended
increasing awareness of the issue of violence in the retail industry. While guidance
was certainly provided, no Code of Practice for minimum standards for businesses
large, medium or small was ever implemented.
No money has ever been provided to enable an extensive enquiry into this issue to
be conducted similar to the funding for the Health Industry in the “Prevention and
Management of Workplace Aggression: Guidelines and Case Studies from the NSW
Health Industry”. The WorkCover NSW Injury Prevention, Education and Research
Grants Scheme funded this project in the Health Industry.
There is an inconsistency as to what measures are considered appropriate in the
industry. In Western Australia, a Code of Practice has existed for some time and in
Victoria a very extensive guidance note has been developed that will be upgraded to
a Code this year.
Recommendation 75.
Labor Council recommends that the Committee recommend to WorkCover to
develop a Code of Practice on workplace violence
The retail industry employs over 470,000 persons across NSW alone. While The
Labor Council recognises that WorkCover NSW has increased the number of
inspectors in this area recently and that direct enforcement alone is not the answer,
the Labor Council recommends that Unions be given additional assistance to carry
out their role as secondary enforcers of safety legislation as they already do in their
capacity as Authorised Officers under the Act. While Unions can prosecute for
breaches of the legislation this is a costly and timely process.
Unions should be able to issue prohibition notices (not fines) that could be
challenged through the Chief Industrial Magistrate by the employer if thought to be
unreasonable.
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K. DATA
Inadequate data collection results in inadequate data on which to base research that
might lead to improved occupational health and safety outcomes. A number of
national inquiries noted that data collection is inadequate in all state, territory and
federal jurisdictions. Further inquiries into NSW Workers Compensation and OHS
Schemes have found that there are great inadequacies in the data. This is evidenced
in the ACAHS presentation (See Appendix A). The workers compensation data
provided certain information, however it did not provide the other information as
outlined below.
What do we know?
Horses
• Motorcycles
• Vehicles
• Agricultural Machinery
• Other Machinery
•Animals
•Falls
• Severe cases
What don’t we know?
Exposure
• Work related
• Activity being undertaken
• Tractors
• Type of motor cycle
• Safety equipment / behaviour
• Location on farm
Recommendation 76.
Labor Council recommends data should be collected on workplace fatalities from a
wider range of sources, such as hospitals to improve the quality of data already
collected in relation to workers compensation and OHS data.
i.
DATA COLLECTION
 There has been a problem with data collection
 Every Inquiry into OHS highlights the inadequacies of data
 A number of fatalities are not recorded
 Workplace deaths are grossly underestimated
 Rural and transport sectors are prime examples
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One of the major areas of deficiency in the area of occupational health and safety
concerns the issue of data collection.
In New South Wales, the impetus to streamline reporting and investigate the
possibility of establishing a Single Notification Scheme arose as a result of the widely
differing reporting required under the workers’ compensation legislation and
occupational health and safety legislation. It is clear that there are unquantifiable
levels of non-reporting of both workers’ compensation claims and in respect of
occupational health and safety incidents and near misses. Accident notification
changed in September 2003 but still the Labor Council of NSWhas reason to believe
there is a lack of compliance in this area, as is discussed below.
A lack of accurate data clearly makes identifying trends impossible and it is likely that
many issues are simply missed. For instance, the Labor Council is aware of a
number of injuries to fingers (including fingers being cut off) in the film industry in the
past three years caused by removing guards when working with electric saws, none
of which is reflected in WorkCover data. Many of the incidents involved subcontractors. Whether lodgement of a workers’ compensation claim was always
appropriate is not known, as some were self-employed rather than employees of an
incorporated company. However, all the incidents should have been reported as an
occupational health and safety occurrence. The NOHSC study also supported the
inaccuracy of workers compensation data.
Inadequate data collection highlights a lack of compliance by employers, some of
which may arise from ignorance. It also highlights a lack of enforcement.
In New South Wales the workers compensation claims data is collected by the
insurance companies and provided to WorkCover on a monthly basis. The problem
with this data is that there are often a number of errors i.e. incomplete and incorrect
information in the coded fields by insurers, therefore poor quality data is provided.
For example, if the insurer is unaware of the date of birth then if they insert a default
code, which is completely wrong, this leads to unreliable data.
Furthermore,
WorkCover collects different data for Occupational Health and Safety and Workers
Compensation. The OHS database and workers compensation database are not
integrated. Consequently, there are a number of different statistics being produced.
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This is not only common in NSW it is common across all jurisdictions.
Labor Council notes that the recent review of the NSW workers compensation
scheme by McKinsey & Company made specific recommendations concerning data
management including the standardisation of definitions and other initiatives to
improve data quality. Labor Council is pleased that the NSW Government has
adopted these recommendations.
The New South Wales Government has streamlined the accident notification system,
however, this will not significantly improve data quality.
There are also great inadequacies in the workers compensation data as highlighted
above. The workers compensation data, which is collected, does not include all
workplace incidents. For example, if a truck driver is killed during the course of his
employment this may be recorded on the motor accidents database and not as a
workers compensations statistic. Thus, the current data totally underestimates the
number of serious accidents and fatalities.
This is not only an issue for New South Wales but for all other state based
jurisdictions.
There is a major problem with the current workers compensation
classification codes i.e. occupation and agency. These fields need to be significantly
enhanced to allow the capture of more data.
The National Occupational Health and Safety Commission conducted a number of
fatality studies back in the early 90’s using a number of different data sources, and
the results proved the inadequacies in the current data systems. NOHSC found a
great deal of differences between the data source i.e. the National Coronial database
and other data sources.
ii.
WORKERS COMPENSATION DATA UNDERESTIMATES WORKPLACE FATALITIES
Most disturbing was the finding that the workers compensation database dramatically
understated the rate of fatalities associated with work related causes. To take only
one example, the workers compensation database implied that there only were 17
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fatalities in rural work related contexts in a particular year, whereas (by contrast)
NOHSC research project revealed that an average of 1 work related fatalities were
being caused in rural work situations. This is because not every workplace fatality is
recorded as a workers compensation claim because of self-employed status, family
member, visitor, etc.
Workers compensation data is problematic because of the difference purpose for
which the data is collected.
The HORSC identified that there were inadequacies with the data and made
recommendations outlined hereunder.
The most pressing matter to be addressed is the introduction of a nationally
consistent system of coding for all injuries, irrespective of whether those injuries are
work related or not. In addition, the lack of data on disease and illness also needs to
be addressed.
Source: HORSC: Back on the Job Report – June 2003 Section 6.13
The HORSC Committee recommended to the Commonwealth Government:
“Examine the need to extend the National Data Set for Compensation-based
Statistics, to provide nationally relevant workers’ compensation data that assists
meaningful interjurisdictional comparisons for policy analysis and contributes to the
development of a national framework.
Further, investigate the implications and appropriateness of a national database on
workers’ compensation claims, which identifies injured workers, employers, service
providers and insurance companies.
Further, investigate the implications and appropriateness of additional data matching
capacity between Commonwealth agencies and the State and Territory workers’
compensation authorities.
The Committee strongly believes that confidentiality should be exercised in relation to
the use of these databases. (Paragraph 8.47)”
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Recommendation 77.
Labor Council supports the House of Representatives Standing Committee (HORSC)
recommendation for the incorporation of other data sources, for example the National
Coronial database and hospital based data, in addition to existing workers
compensation data. This needs to be supported with improved co-operation across
state occupational health and safety agencies.
iii.
NATIONAL DATABASE
The HORSC Committee found that, currently there is little consistency in the format
of the type of data collected, which makes interstate comparisons difficult. Better data
about actual claims experience would enable a proper analysis of the incidents that
give rise to claims. It is extremely difficult to establish meaningful national
benchmarks, to identify performance standards or to monitor emerging trends on a
national basis, although the National Data Set for Compensation-based Statistics is a
positive step in this direction. Improved data recording would also enable industry
trends in terms of health and safety and workers’ compensation management to be
tracked.
Source: “Back on the Job” HORSC Report – Executive Summary Page 24
Recommendation 78.
Labor Council requests the Committee recommend that there is an urgent need to
develop a national data base inline with the HORSC recommendations. The national
OHS Commission would be best placed to oversee and implement the national
database.
L. LACK OF ACCOUNTABILITY BY MANUFACTURERS AND SUPPLIERS
There are very few prosecutions against manufacturers and suppliers of plant or
substances. At the NSW Safety Summit, one of the primary focuses of the Summit
was on how improved design can contribute to preventing workplace accidents and
incidents, including the incorporation of safety considerations and measures within
the design phase of buildings, plant, materials and substances.
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Listed below are the number of prosecutions against manufacturers, designers and
suppliers under the OHS Act 2000.
Filed
Completed Continuing after 31/12
1/1/99 – 31/12/99
11
0
12
1/1/00 – 31/12/00
0
7
8
1/1/01 – 31/12/01
3
2
9
1/1/02 – 31/12/02
9
0
18
Source: Annexure B of the Industrial Relation Commissions matters
The Labor Council is of the strong view that manufacturers, designers and suppliers,
when designing or supplying products, do not take into account the impact of OHS on
the end user. For example
 Kitchens in restaurants are poorly designed i.e. sinks and benches are often too
low, creating back injuries.
 Hospital beds with wind up handles have led to significant back injuries in nursing
staff.
 Tractors without roll over protection bars can be fatal.
 Goods being delivered in large quantities e.g.40kg bags of cement
i.
RESEARCH AND DESIGN SHOULD BE A PRIORITY
Under the OHS Act 2000, there have not been any completed cases relating to
design/manufacture, although there are several that have commenced and are
continuing at this point in time
The Safe Design Working Group agreed to the following resolutions:
Effective prevention requires:
 Locating responsibility for the elimination or control of risk at the source, whether
that be the designer, manufacturer, importer, supplier, or in the workplace.
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 Clients, controllers of the workplace and employers ensure that safe design is an
integral part of their purchasing and contractors policy.
 End user consultation and testing are an integral component of the design and
procurement process and capacity to achieve safe workplaces.
Recommendation 79.
Labor Council recommends that the NSW Government, Industry and unions should
undertake “safe design” initiatives consistent with the NSW OHS legislative
framework and complementary to the National Safe Design Strategy.
Recommendation 80.
The Labor Council recommends that WorkCover a safe design seminar to share
learning and raise awareness.
 Promote awareness of safe design principles amongst design professionals
 Tailor solutions for small, medium and large business particularly taking into
account regional NSW including field days and practical workshops involving
industry and professional associations and trade unions
Utilisation of NOHSC Solutions Database to promote safe design solutions, and
improvement in the routes by which the information is captured and reported
Owing to the established link between poor design and workplace injury, illness and
death, all industry sectors should consider safe design as a component of their
prevention programs
Government to consider strategies to give greater attention to OHS in its
procurement practices
Promoting OHS Awards programs run by associations of design professionals and/or
WorkCover that recognise industry effort to address safe design
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Recommendation 81.
Labor Council recommends that the NSW Government request the University Vice
Chancellors give greater focus to OHS in the curriculum of design professionals.
Recommendation 82.
Labor Council recommends the NSW Government should work with Standards
Australia to improve the promotion and incorporation of safe work design principles in
existing and new standards.
NSW Government should encourage government departments responsible for
specialist activities (schools, police, fire brigade, ambulance) to develop and maintain
design workplace standards and pattern books that can be used as reference tools
by design professionals to assist safe design.
Source: Extract from NSW Workplace Safety Summit Communiqué
Recommendation 83.
Labor Council recommends priority be given to recommendations from the Safety
Summit regarding design and that the State Government target budgetary resources
to industries to improve safety and design.
Recommendation 84.
Labor Council recommends the State Government establish a Taskforce to look at
safe design.
That all items appearing on the Government Contract List should be reviewed by the
Taskforce.
The Taskforce should be given responsibility for making recommendations to
industries regarding research and design.
Section 11 of the OHS Act provides that a person who designs, manufactures or
supplies any plant or substance for use by people at work must ensure that the plant
or substance is safe and without risks to health when properly used, and provide, or
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arrange for the provision of, adequate information about the plant or substance to the
persons to whom it is supplied to ensure its safe use.
WorkCover prosecutes designers, manufacturers and suppliers who breach these
provisions. A recent example involved Batequip Equipment Pty (formerly Bateman
Equipment Pty Limited) trading as Ditch Witch Australia, which was fined $45,500 for
importing and supplying unsafe wood chipping equipment.
During sentencing the
Industrial Relations Commission noted that as a result of the action taken by
WorkCover, the defendant company voluntarily recalled and modified the
woodchipping machines and stopped importing or supplying the defective equipment.
WorkCover is also working with NOHSC on a safe design project including a pilot
project for the inclusion of safe design principles into university curricula
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THE TERMS OF REFERENCE
INQUIRY AND REPORT ON SERIOUS INJURY AND DEATH IN THE WORKPLACE
A.THE OPERATION OF WORKCOVER'S PROSECUTION BRANCH
i.
PROSECUTIONS
WorkCover NSW Prosecutions Number of Summons Laid
1000
900
800
700
600
500
400
300
200
100
0
905
586
444
1999/00
2000/01
2001/02
Source: Appendix E WorkCover NSW
The Labor Council was concerned with the reduction in prosecutions in 1999-2001,
latest data however shows a substantial increase in the number of prosecutions
launched.
The Labor Council and unions raised their concerns with WorkCover in relation to
what appeared to be a drop in prosecutions from 1999/2000 to 2000/2001. The Labor
Council is pleased to note that there has been a substantial increase in prosecutions
in the latest data 2001, 905 prosecutions have all been issued under the OHS Act for
serious deaths and injuries.
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Number of successful prosecutions
600
500
No.
400
496
300
422
200
404
455
426
100
0
1998/1999 1999/2000 2000/2001 2001/2002 2002/2003
Year
ii.
FINES IN NSW
The Government has doubled the maximum fines for employers who fail to provide a
safe place of work or fail to protect the health, safety and welfare of non-employees
in the workplace.
Penalties available under the NSW OHS Act are currently the highest in any
Australian jurisdiction.
The maximum penalties for breaching OHS legislation are as follows:
 First offence by an individual - $55,000
 Individual (with prior offence) - $82,500 or 2 year imprisonment or both
 First offence by a corporation - $550,000; and
 Corporation (with prior offence) - $825,000.
Labor Council is also aware that the total fines imposed by the Industrial Relation
Commission are increasing as outlined above.
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OCCUPATIONAL HEALTH AND SAFETY PROSECUTION ACTIVITY
Successful OHS Prosecutions
Court awarded fines for OHS offences
1999
2000
2001
2002
2003
422
496
404
455
426
$5.4m
$9.5m
$13m
$2.97m $6.2m
Court Awarded Fines
13
9.5
6.2
5.4
20
02
/2
00
3
20
00
/2
00
1
20
01
/2
00
2
2.97
19
98
/1
99
9
19
99
/2
00
0
14
12
10
$m 8
6
4
2
0
Year
iii.
WORKPLACE FATALITIES – NO PROSECUTION
Labor Council is concerned that a number of fatalities (particularly non work related),
are not being pursued.
The Labor Council has now requested WorkCover to provide a full explanation of
these cases.
iv.
TIME LIMIT ON PROSECUTIONS
The Labor Council believes that the current time limit on prosecutions is far too
restrictive and should be extended. An example that the NSW Police Association has
relates to the deaths of their members Constable Addison and Constable Spears at
Crescent Head, which resulted in the first prosecution of the New South Wales Police
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Service. At the time, little was known by WorkCover of this. The Police Association is
aware that the summons was laid the day before the two-year time limit expired.
There has been a tremendous amount of discussion between WorkCover and the
Police Association about this particular prosecution.
The Police Association at the time agreed that they would undertake the prosecution,
however it would have cost the union something in the order of $300,000. This is
obviously unacceptable and is an example of the problems that existed in
WorkCover. The Police Association have noted some improvement but the other
unions indicate that problems still occur.
One of the issues raised by the unions is the time it takes for WorkCover to make a
decision about whether or not they are going to prosecute. Obviously that leaves very
little time for the alternative prosecutor, which is the union secretary under the Act, to
undertake the relevant investigative processes and prosecute if that is the ultimate
outcome.
We are a little concerned about the two-year timeframe; particularly if WorkCover
makes a decision not to prosecute, the union has to have an opportunity to make a
considered decision whether they will prosecute, on behalf of the injured or killed
member.
The Labor Council is also concerned that WorkCover may not have the adequate
resources, training and skills to undertake these prosecutions and make the following
recommendations.
Recommendation 85.
Labor Council recommends that the resources allocated to the prosecution branch of
WorkCover be increased.
In addition, the current workload on existing solicitors in the prosecution branch of
WorkCover should be reviewed and a ratio system established to ensure only a
select group of solicitors deal with fatalities.
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Recommendation 86.
Labor Council recommends that the training of WorkCover inspectors in the
collection of evidence be reviewed to ensure that they are receiving the most
appropriate and current training.
Recommendation 87.
Labor Council recommends that the training of inspectors be reviewed to ensure
consistency, particularly in relation to the issuing of notices and penalties.
Recommendation 88.
Labor Council recommends that WorkCover Inspectors should be provided with
access to sufficient investigative solicitors to ensure the quality of evidence gathering
procedures remains high.
Recommendation 89.
Labor Council recommends a 5-year statute of limitations would be more appropriate,
as the current 2-year time limit is restrictive, particularly in the case of a fatality.
If the statute of limitations was increased, strict guidelines and protocols would need
to be developed to ensure unnecessary delays do not occur.
Recommendation 90.
Labor Council recommends that WorkCover be more strategic in their prosecutions
and target management in poorly performing industries such as long haul transport
and rail.
Recommendation 91.
Labor Council recommends that WorkCover should increase the number of
successful prosecutions of manufacturers, suppliers and designers.
Recommendation 92.
The Labor Council recommends that the Committee should recommend that the
ACCC embark on more prosecutions in the area of product liability.
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B. THE ROLE AND PERFORMANCE OF WORKCOVER IN LIAISING WITH VICTIMS AND
FAMILIES
The Unions have for many years provided support to the families of those killed in the
Workplace, particularly the Building and Construction Industry. One of the most
common complaints is the failure of WorkCover to adequately communicate with the
families whose loved ones have died.
Grieving families can find the process confusing and difficult to deal with. The Labor
Council submits that the Government should fund a unit which would provide a
support role, in the case of a fatality assign a case manager liaise with the family, the
Work Cover investigative branch, the coroner's office and the police and relay the
progress of the investigation right through to the prosecution to the victim's family. It
would be a public liaison role. Being a part of this process and understanding what is
going on would assist families to begin to cope with their loss.
Recommendation 93.
Labor Council recommends WorkCover NSW establish a Victims Support Unit to
develop support networks of counsellors in conjunction with Area Health Services.
C. THE
METHOD AND MONITORING OF PAYMENT OF PENALTIES WHERE AN
EMPLOYER HAS BEEN CONVICTED OF AN OFFENCE RELATING TO A SERIOUS
ACCIDENT OR DEATH
i.
IMPOSITION OF FINES
Penalties alone are not a sufficient deterrent. The current recovery rate of fines is
88%. The Labor Council understands that a protocol is being developed between
WorkCover, the State Debt Recovery Office (SDRO) and Courts regarding the
recovery of OHS fines. The Labor Council believes that while 88% recovery does not
signal a major problem, there is always more that can be done. The Labor Council
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believes WorkCover should more actively monitor the recovery of fines by the SDRO
and Courts.
The Labor Council believes that, where appropriate, individuals as well as companies
should be prosecuted. This will ensure that individuals will be penalised and that
sanctions against individuals, such as loss of licence can be enforced.
The Labor Council understands, from the evidence given by WorkCover and the
State Debt Recovery office, that the recovery of the fine in the Poleviak matter has
been an unusual case. Greater cooperation between the courts and State Debt
Recovery office will ensure that this does not happen again.
It is important for the Committee to understand that, to the injured and the families of
those who have died at work, a fine against the employer is not about the money, it is
about justice for themselves or their loved one and a vindication which the system
affords. This must be made a priority.
Recommendation 94.
Labor Council recommends WorkCover should establish a specialist recovery unit,
which would be responsible for monitoring the recovery of a fine until completion and
ensure that every measure available is pursued in terms of recovering the debt.
Recommendation 95.
The Labor Council recommends that the Committee recommend to the ASIC that
they should ensure compliance with the Corporations Law by preventing directors of
insolvent companies from holding office involved in the administration of companies.
D. COMPLIANCE BY WORKCOVER WITH ITS STATUTORY REQUIREMENTS RELATING
TO SERIOUS INJURY AND DEATH IN THE WORKPLACE
The Labor Council is very concerned at what appears to be a decrease in the number
of compliance notices issued.
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Listed below are the numbers of compliance notices from 1999-2001
 Decrease in number of compliance notices
 The unions are critical – certainly room for improvement
 1998/99
17,442
 1999/00
14,701
 2000/01
15,448
 2001/02
12,774
 2002/03
14,681
The Labor Council makes the following recommendations
Recommendation 96.
The Labor Council recommends that the quality and training of inspectors be
reviewed to ensure consistency, where appropriate, particularly in relation to the
issuing of notices and penalties.
Recommendation 97.
The Labor Council recommends that high-risk industries be provided with adequate
number of inspectors and resources.
Recommendation 98.
The Labor Council recommends that there needs for WorkCover to embark on
industry-by-industry blitz campaign in compliance with the new OHS Regulation,
particularly on duty to consult and risk management provisions. In light of the recent
Waterfall Inquiry, WorkCover should commence this blitz in the Rail Industry.
Recommendation 99.
The Labor Council recommends WorkCover should have a position of zero tolerance
similar to the position taken by Police in relation to breaches of the road rules
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Recommendation 100.
The Labor Council recommends that there needs to be a review of current
enforcement measures and that a number of new and innovative measures be
introduced in addition to the current measures.
Recommendation 101.
The Labor Council recommends substantially increasing on-the-spot fines,
introducing a level of fines similar to speeding – the higher the speed the greater the
fine – the greater the risk the higher the on the spot fine
Recommendation 102.
The Labor Council recommends a review of the number of inspectors in rural and
regional areas be conducted to ascertain if there are sufficient numbers in these
areas to adequately address the OHS Act 2001.
Recommendation 103.
The Labor Council recommends including tougher penalties for breaches of the OHS
Act and implement a law creating the offence of industrial manslaughter.
Recommendation 104.
The Labor Council recommends that WorkCover collect, compile and make available
to the public relevant and timely data so that employees in NSW can measure the
performance of the OHS Act and its administrating agencies in a transparent manner.
E. COMPARISON
OF THE
OPERATION
OF
WORKCOVER
IN RELATION TO THE
MANAGEMENT OF SERIOUS INJURY AND DEATH IN THE WORKPLACE IN OTHER
JURISDICTIONS IN AUSTRALIA
The Labor Council of NSW again reiterates that NSW has the superior legislation
apart from OHS reps being able to issue notices.
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16
00
00
lth
0
C
w
AC
T
26
00
0
N
T
Ta
s
W
A
32
50
0
10
88
00
66
00
0
SA
Q
ld
VI
C
02
)
01
/
N
SW
(2
0
00
/
01
)
44
40
00
16
62
80
0
62
00
00
0
54
00
00
0
(2
0
N
SW
N
SW
(1
9
99
/
00
)
10000000
9000000
8000000
7000000
6000000
5000000
4000000
3000000
2000000
1000000
0
95
23
15
0
Total Prosecution Fines in Other States
for 2001
NSW is the global leader in terms of the number of prosecutions and Quantum
regarding fines.
i.
COMPARISONS WITH OTHER AUSTRALIAN JURISDICTIONS DURING 2001
NSW brings more than double the prosecutions of other States and Territories
combined.
Current laws also provide for victim impact statements as well as custodial sentences
and other orders – in addition to monetary fines.
Data derived from the Workplace Relations Ministers Council: Comparative
Performance Monitoring Report (August 2002 Edition)
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Total Number of Improvement Notices Issued in 2001
CASES PROSECUTED, 2001
500
450
400
350
300
250
200
150
100
50
0
Cases prosecuted
NSW
Vic
Qld
SA
WA
Tas
NT
ACT
Cwlth
467
111
55
1
37
9
3
2
1
COURT AWARDED FINES FOR OHS OFFENCES ($M), 2001
6
5
4
3
2
1
0
Court awarded fines ($M)
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NSW
Vic
Qld
5.4
1.6628
0.444
SA
WA
0.0325 0.1088
Tas
NT
ACT
Cwlth
0.066
0.026
0
0.16
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F. ADDITIONAL INFORMATION
i.
INTERNATIONAL STATISTICS ON FATALITIES
 California
 96 deaths
 Percentage prosecuted 31.4%
 Median penalty $25,060
 Illinois
 126 Deaths
 5.1% prosecuted
 Median Penalty $15,250
 •Ohio
 153 Deaths
 1.5% prosecuted
 Median Penalty $18,000
 •New York
 79 Deaths
 7.2% prosecuted
 Median Penalty $16,380
 •Texas
 166 Deaths
 4.1% prosecuted
 Median Penalty $14,400
Source: This information is courtesy of the New York Times website http://www.nytimes.com/
ii.
PREVENTING WORKPLACE INJURY
As part of the process of developing the OHS Regulation 2001, WorkCover
commissioned Coopers and Lybrand to survey 1,500 workplaces.
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identified areas where OHS performance could be improved in NSW workplaces. It
also identified small employers as a group that may need the greatest assistance in
improving OHS in their businesses. Key findings of that study, published in OHS
Regulation Regulatory Impact Statement include:
Approximately 30% of employers or senior managers was not aware that employers
have the primary legal responsibility for providing a safe and healthy workplace.
Approximately 21% of respondents thought it was likely or very likely that a serious
injury could occur in their workplace in the next 12 months – despite this awareness
some employers did not plan to make OHS improvements.
Small employers were less likely than larger employers to identify the possibility that
someone could be killed, were less aware of the frequency of serious back injuries
and were less likely to indicate that they had plans for making OHS improvements;
Larger employers indicated that a serious injury would be most likely to be caused by
the absence of appropriate risk controls (such as slippery floors, etc), in contrast,
small employers tended to identify individual worker behaviour as the most likely
cause;
Training in safe work practices was given to new employers in only 54% of workplace
Supervisors did not receive health and safety training in 40% of workplace
Employers who indicated that they had systems in place for identifying hazards
before injuries occurred were more likely to have trained supervisors, have provided
health and safety induction training, and have up-to-date safety information.
The results of the survey suggest that the unacceptable level of injury and disease in
NSW workplaces can be improved if OHS management practices are improved. At
an annual cost of $M5,713 each year, even a small reduction in the level of injury
and disease will have major benefits for employers, employees and the community.
Significant improvements in prevention are possible and the potential benefits from
improving OHS standards are enormous.
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Source: Legislative Council General Purpose Standing Committee No1 – NSW Workers
Compensation Scheme – Third Interim Report Section 3.32
This evidence was also presented to the Productivity Commission.
The Committee understands that it is not always possible to take aspects from
another jurisdictions scheme and apply them unchanged in the New South Wales
context. However, there is scope for practitioners of the New South Wales workers
compensation scheme to learn from the experiences of other jurisdictions and adapt
measures from elsewhere to suit the New South Wales environment.
Can this be improved, and if so how?
The answer is yes.
There is a fundamental need for a nationally coordinated
community awareness campaign supported by a proper employer/employee
education program, coupled with a strategic enforcement program, which should be
industry, or risk focused. For example, the rural sector is a high-risk industry and
there could be a nationally coordinated campaign:
 To raise community awareness;
 To educate employers and employees;
 To offer financial incentives for research and design; and
 A strategic enforcement strategy i.e. industry blitzing.
In NSW and Victoria, the governments have offered farmers a rebate if they fit their
tractors with a rollover protection device. This has been successful to a certain
degree; however, it has not been followed with a strategic enforcement strategy, such
as, fining farmers for not having rollover protection. Recent research has indicated
that there is an average of two (2) deaths per month on Australian farms and
properties. It is undeniable that tractors are the major cause of the death on farms.
Of crucial importance to this tragic phenomenon is the inability of many farmers to
spare the time or resources necessary to learn about the problems and necessary
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remedies. In addition, the intransigence of many farmers to alter their time honoured
ways in accordance with lessons so tragically learnt.
As an example, the National Farmers’ Federation (NFF) acknowledged that
workplace safety is a major issue within the farming industry. There is a wide variety
of hazards, and farms are often the most difficult to reach to provide support in OHS
practices. The NFF is working with the industry and educators to improve safety
outcomes.
Source: HORSC: Back on the job Report Section 6.35
There is a need to adopt a similar four-pronged strategy as that used in the road
safety campaigns.
There should be particular assistance for small business.
This is not merely an academic issue but a real dilemma of life and death.
Consequently, Government must both raise the awareness of those in charge of
commercial operations and simultaneously supply the appropriate enforcement
incentive, in the form of mandatory obligations and their effective enforcement.
Such things could include the composition of NOHSC, its work priorities, level of
funding, and the willingness of individual jurisdictions to adopt, and consistently
apply, guidelines developed by NOHSC.
There should be a greater responsibility by the host organisation to ensure that a
safe work environment will be maintained. There also needs to be clearer definitions
of the obligations of the three parties involved in a labor hire relationship: the onhired employees, the host organisation and the on-hired employee service provider.
Representatives of the cleaning industry also commented on the misunderstanding in
the community about the responsibilities of the principal employer or contractor.
There is the suggestion that by contracting out some operators are seeking to
distance responsibility for workers compensation and public liability, which may affect
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workplace safety. Research in this area has found situations where the outsourcing
of labour has become common, OHS deteriorated for both the subcontracted and the
employee workers. At the same time, the OHS of self-employed workers was placed
even more at risk.
Source: HORSC: Back on the job Report – Sections 6.32-6.33
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4. CASE STUDIES
A. PAN PHARMACEUTICALS
The Labor Council of NSWwould like to draw to the Inquiry’s attention to the recent
breaches by Pan Pharmaceuticals of an array of legal obligations concerning
manufacturing and processing. Owing to the grave risks to which the community was
exposed immediate action was taken by the Federal Government regarding the
breaches,
Thankfully, the public harm was minimal. Why is there not the same level of concern,
overview and active intervention for people who are exposed to risks in the
workplace, some of whom die as a result?
The Pan Pharmaceuticals scandal clearly demonstrates that both government and
the people alike agree about the need to properly regulate commercial activities in
order to prevent any threat to the health of the public. In such situations, quibbling
about compliance costs is not tolerated.
B.TRUCK DRIVER JOSEPH TERRY CALDWELL
At the trial of truck driver Joseph Terry Caldwell, Victorian County Court Judge Joe
Gullaci said authorities must take action against ruthless employers who imposed
unreasonable deadlines. Truck driver Joseph Terry Caldwell, was jailed for at least
three years and 10 months over the death of Francis Fava on July 6, 2001. The court
heard Caldwell, who pleaded guilty to culpable driving causing death, was driving 14
hours a day without breaks and feared he would be sacked if he didn’t work long
hours.
The poor safety culture among employers in the industry was criticised by the judge
as he passed down the sentence. The judge said it had become common for truck
drivers to take drugs to meet the demands of unscrupulous employers.
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While the driver’s culpability is not at question, questions must be asked as to the
outcome for his employers if Caldwell’s impairment from excessive hours had led to
his own death. The gaoling of Caldwell reflects community attitudes to such deaths.
That the Judge and the perpetrator both identified employment conditions as a strong
factor in the tragedy must send a message that the community expects more from
employers, and that the culpability of employers must be examined in relation to
workplace fatalities.
C.JOEL EXNER
Joel Exner was only three days into his new job as a roof plumber on the Australand
site in Western Sydney on Wednesday 15 October 2003, when he fell 15 metres to
his death.
The NSW OHS Regulation requires fall arrest systems to be in place and this
employer did not ensure that this occurred. Furthermore, the union recently visited
this employer and they still did not have an arrest system. WorkCover have visited
the site and is considering a prosecution.
If the WorkCover prosecution is successful then this is a clear case of an absolute
disregard for the current safety laws.
The Labor Council of NSW believes that the only clear way to send a message to the
community that safety standards will be maintained is to vigorously exercise the
enforcement provisions of the NSW Occupational Health and Safety Act 2000
D.ANTHONY HAMPSON
On 19 July 2001, Mr Hampson was employed by Gary Denson Metal Roofing Pty
Ltd, the same employer of teenager Joel Exner who died in late 2003. Mr Hampson
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whilst working on a roof, without a harness, fell and sustained serious injury which
has since prevented him from working.
E. ANTHONY GORRICK
This is a case of a boy named Anthony Gorrick: Anthony was 19 years old when he
was killed on his second day on the job. He was crushed to death when a five and a
half tonne slab of concrete fell on him while it was being transported on the tines of a
forklift.
Only three weeks earlier, WorkCover of Victoria issued Dry Bulk Pty Limited with an
improvement notice, because another slab had fallen in the exactly the same
circumstances. A couple of weeks earlier this company was put on notice that the
work method they were using was unsafe. Despite that, they continued to work in that
manner and unfortunately this poor boy were killed.
The company was prosecuted under the Victorian OHS Act and they were find
$50,000 and the directors were fined $10,000 each but not a cent was ever paid by
the company or directors - not a cent was ever paid. The company went into
liquidation. In an ultimate act of hypocrisy the parent company continued to operate
at that site. They continued to operate at the site where that boy had been killed and
no one ever paid a cent to the Government in relation to that particular death.
We say that can happen in New South Wales. Unfortunately there are cases where
this does occur. That is why it is important, that there is a legislative response to
these issues and fatalities that are occurring in the work place.
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F. NSW POLICE ASSOCIATION DEATH OR SERIOUS INJURY TO POLICE CASE
STUDIES
i. ROBERT TAIT
Inspector Tait was a member stationed at Narrabri in 1996. Tait received a letter
from the Royal Commission, which set out:
“This is to notify you that evidence will be adduced shortly from a witness who
is to be called to give evidence before the Royal Commission into the NSW
Police Service to the effect that you did fail to report or investigate complaints
of criminal conduct.”
There is ample evidence to support the change in TAIT ‘s demeanour and behaviour
following receipt of this letter. He was seen by the Police Psychologist and his own
Doctor but on the 26-3-96 he shot himself in his office with his service revolver. He
left a note clearly indicating how tortured he had become as a result of being named.
ii.
KEES (CORNELIS) VERHAGEN
Inspector Verhagen was attached to the Radio Communications Branch. He had
amongst other duties been involved in technical issues related to specifications and
tendering for changes to the police radio system. The contract for this tender was
awarded to Motorola.
The circumstances of the tender process became the subject of an Internal Affairs
investigation and later a Police Integrity Commission hearing, no action was taken
against him
Verhagen became ill and was diagnosed and discharged from the NSW Police with
Generalised Anxiety Disorder, Major Depressive Disorder and Metastic Prostate
Cancer. He died in February 2004.
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KEN HENDERSON
Detective Inspector Ken Henderson was attached to Newcastle. In 2001 he took his
own life. At the time a number of officers under his control were involved in Police
Integrity Commission matters.
It was later established that Henderson was not
subject to investigation. The family remains at a loss as to why he took his own life.
He had not received any treatment nor consulted any medical providers concerning
any stress he may have suffered.
iv.
ROBERT RILEY
Constable lst Class Riley was stationed at Taree and was being investigated over
allegations involving sexual assault.
Riley committed suicide with his service
revolver before he was interviewed over his involvement in the alleged offence.
v.
KRISTINE WOODS
Constable Woods was stationed at Eastwood. In November 2001 Woods and her
husband divorced and shared joint custody rights over their two children. In March
2002 Woods committed suicide at work.
vi.
KEITH BAIRD
Senior Constable BAIRD was an officer who was diagnosed with a psychiatric illness
following his treatment at work in the Eastern Suburbs. He was medically discharged
from the NSW Police in 1997. The Police denied that his illness was as a result of
his employment. He contested this in the Workers Compensation Court in 2001 with
further hearings in 2002. Mr Baird committed suicide in 2002 before the decision of
the Compensation Court was handed down. Can you say what the decision was
particularly if it was in his favour?
vii.
JONATHON PATEN
Senior Constable Paten was stationed at Queanbeyan. For some period of time
Paten was exhibiting clear signs of mental illness that were recognised at the time by
the Police Psychologist.
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Paten resigned from the NSW Police and committed
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The Coroner found that it was more convenient for the NSW Police to
accept a resignation than to attempt to deal with an unwell employee in a
professional way.
The Coroners Inquest has made a number of recommendations about dealing with
mentally ill officers.
viii.
MARK JOHNSON
In 2000 Sergeant Johnson was performing Lidar Radar duty as part of Operation Go
Slow Metro within the Tuggerah Lakes Command. Johnson was struck by a motor
vehicle that failed to stop. Johnson was critically injured and eventually discharged
medically unfit from the NSW Police. The driver was eventually located, charged,
convicted and sent to gaol.
The circumstances surrounding the Johnson motor
vehicle accident are subject to a Workcover Investigation.
ix.
JAMES AFFLECK
In January 2001 Senior Constable Jim Affleck was a Highway Patrol Officer who was
run over a killed whilst deploying a set of ‘road spikes’ during a high speed police
pursuit. The offending driver actually drove his vehicle at Affleck in a deliberate
attempt to run him down. He was subsequently charged with murder.
x.
Christopher Thornton
In April 2002, Senior Constable Chris Thornton was involved in a pursuit of a
speeding motorist when his vehicle was struck by another vehicle that failed to stop.
Thornton died as a result of the injuries received when his vehicle collided with a
pole. The offending vehicle was located and the driver arrested and charged.
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5. REFERENCES
 CFMEU Submission
 Jacaranda
Business. Work
Can
be
A
Health
Hazard.
Online
article,
www.jaconline.com.au 2003.
 Appendix E - WorkCover NSW Workers Compensation statistics 2000/01
www.workcover.nsw.gov.au
 Legislative Council Standing Committee on Law and Justice Inquiry into
Workplace Safety November 1998 http://www.parliament.nsw.gov.au
 The House of Representatives Standing Committee on Employment and
Workplace Relations – Back on the Job: Report on the Inquiry into Aspects of
Australian Worker’s Compensation Schemes June 2003 (HORSC)
 Labor Council’s Submission into the Productivity Commission Inquiry into National
Workers Compensation and OHS Frameworks, August 2003
 NOHSC Study 1989-1992
 ACAHS “Farm Injury Presentation for Rural IRG Group”
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6. APPENDICES
1. Farm Injury Presentation for Rural IRG - Richard Franklin, Director, Farm Injury
Research
2. Submission into Inquiry into Serious Injury and Death in the Workplace Police Association of NSW
3. Inquiry Into Serious Injury and Death in the Workplace Submission –
CFMEU
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