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 Page 2 of 75 40 07 March 2016 Labor Council of NSW K. L. 106748246 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 Page 3 of 75 72 07 March 2016 Labor Council of NSW V. 106748246 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 Page 4 of 75 07 March 2016 Labor Council of NSW 106748246 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. Page 5 of 75 07 March 2016 Labor Council of NSW 106748246 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. Page 6 of 75 07 March 2016 Labor Council of NSW 106748246 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. Page 7 of 75 07 March 2016 Labor Council of NSW 106748246 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. Page 8 of 75 07 March 2016 Labor Council of NSW 106748246 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. Page 9 of 75 07 March 2016 Labor Council of NSW 106748246 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. Page 10 of 75 07 March 2016 Labor Council of NSW 106748246 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 Page 11 of 75 07 March 2016 Labor Council of NSW 106748246 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. Page 12 of 75 07 March 2016 Labor Council of NSW 106748246 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. Page 13 of 75 07 March 2016 Labor Council of NSW 106748246 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. Page 14 of 75 07 March 2016 Labor Council of NSW 106748246 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. Page 15 of 75 07 March 2016 Labor Council of NSW 106748246 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. Page 16 of 75 07 March 2016 Labor Council of NSW 106748246 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. Page 17 of 75 07 March 2016 Labor Council of NSW 106748246 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. Page 18 of 75 07 March 2016 Labor Council of NSW 106748246 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. Page 19 of 75 07 March 2016 Labor Council of NSW 106748246 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. Page 20 of 75 07 March 2016 Labor Council of NSW 106748246 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. Page 21 of 75 07 March 2016 Labor Council of NSW 106748246 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. Page 22 of 75 07 March 2016 Labor Council of NSW i. 106748246 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 Page 23 of 75 07 March 2016 Labor Council of NSW 106748246 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. Page 24 of 75 07 March 2016 Labor Council of NSW 106748246 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. Page 25 of 75 07 March 2016 Labor Council of NSW 106748246 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. Page 26 of 75 07 March 2016 Labor Council of NSW i. 106748246 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. Page 27 of 75 07 March 2016 Labor Council of NSW iii. 106748246 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. Page 28 of 75 07 March 2016 Labor Council of NSW 106748246 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. Page 29 of 75 07 March 2016 Labor Council of NSW 106748246 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) Page 30 of 75 07 March 2016 Labor Council of NSW 106748246 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 Page 31 of 75 07 March 2016 Government Administration and Defence Education Labor Council of NSW 106748246 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 Page 32 of 75 07 March 2016 Labor Council of NSW 106748246 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. Page 33 of 75 07 March 2016 Labor Council of NSW iii. 106748246 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 Page 34 of 75 5 0 07 March 2016 Labor Council of NSW 106748246 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. Page 35 of 75 07 March 2016 Labor Council of NSW 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. Page 36 of 75 07 March 2016 Labor Council of NSW 106748246 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 Page 37 of 75 503 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 07 March 2016 Labor Council of NSW 106748246 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: Page 38 of 75 07 March 2016 Labor Council of NSW 106748246 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 Page 39 of 75 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 07 March 2016 Labor Council of NSW iv. 106748246 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 Page 40 of 75 07 March 2016 Labor Council of NSW 106748246 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 Page 41 of 75 07 March 2016 Labor Council of NSW 106748246 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. Page 42 of 75 07 March 2016 Labor Council of NSW 106748246 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 Page 43 of 75 07 March 2016 Labor Council of NSW 106748246 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. Page 44 of 75 07 March 2016 Labor Council of NSW 106748246 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 Page 45 of 75 07 March 2016 Labor Council of NSW 106748246 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)” Page 46 of 75 07 March 2016 Labor Council of NSW 106748246 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. Page 47 of 75 07 March 2016 Labor Council of NSW 106748246 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. Page 48 of 75 07 March 2016 Labor Council of NSW 106748246 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 Page 49 of 75 07 March 2016 Labor Council of NSW 106748246 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 Page 50 of 75 07 March 2016 Labor Council of NSW 106748246 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 Page 51 of 75 07 March 2016 Labor Council of NSW 3. 106748246 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. Page 52 of 75 07 March 2016 Labor Council of NSW 106748246 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. Page 53 of 75 07 March 2016 Labor Council of NSW 106748246 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 Page 54 of 75 07 March 2016 Labor Council of NSW 106748246 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. Page 55 of 75 07 March 2016 Labor Council of NSW 106748246 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. Page 56 of 75 07 March 2016 Labor Council of NSW 106748246 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 Page 57 of 75 07 March 2016 Labor Council of NSW 106748246 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. Page 58 of 75 07 March 2016 Labor Council of NSW 106748246 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 Page 59 of 75 07 March 2016 Labor Council of NSW 106748246 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. Page 60 of 75 07 March 2016 Labor Council of NSW 106748246 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) Page 61 of 75 07 March 2016 Labor Council of NSW 106748246 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) Page 62 of 75 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 07 March 2016 Labor Council of NSW 106748246 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. Page 63 of 75 The survey 07 March 2016 Labor Council of NSW 106748246 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. Page 64 of 75 07 March 2016 Labor Council of NSW 106748246 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 Page 65 of 75 07 March 2016 Labor Council of NSW 106748246 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 Page 66 of 75 07 March 2016 Labor Council of NSW 106748246 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 Page 67 of 75 07 March 2016 Labor Council of NSW 106748246 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. Page 68 of 75 07 March 2016 Labor Council of NSW 106748246 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 Page 69 of 75 07 March 2016 Labor Council of NSW 106748246 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. Page 70 of 75 07 March 2016 Labor Council of NSW 106748246 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. Page 71 of 75 07 March 2016 Labor Council of NSW iii. 106748246 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. Page 72 of 75 Paten resigned from the NSW Police and committed 07 March 2016 Labor Council of NSW suicide. 106748246 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. Page 73 of 75 07 March 2016 Labor Council of NSW 106748246 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” Page 74 of 75 07 March 2016 Labor Council of NSW 106748246 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 Page 75 of 75 07 March 2016