Got something to say about how Chain of Responsibility Model Legislation is affecting you?

Alena Titterton writes:

Significant work has been done in the area of transport regulatory reform, with much of the effort led by the National Transport Commission (the NTC).

The NTC’s brief since its establishment in 2003 has been to “develop, monitor and maintain uniform or nationally consistent regulatory and operational reforms relating to road transport, rail transport and intermodal transport”.

Since its inception, NTC has been busily implementing a reform agenda which has included:

• ‘Chain of Responsibility’ laws to target the cause of heavy vehicle speeding, mass and loading, driver fatigue;
• Model Rail Safety legislation and an associated reform package;
• Compliance and Enforcement model legislation;
• Maintenance of National Australian Road Rules;
• Maintenance of National Australian Vehicle Standards Rules; and
• National Heavy Vehicle Safety Strategy.

The Australian Transport Council (the ATC) has appointed a Committee to review and report on the future of the NTC to be provided to the Transport Ministers who comprise the membership of the ATC.

A Review Steering Committee has been appointed by the ATC to undertake the review and prepare a report for the ATC to allow the ATC to provide recommendations to Transport Ministers on the future of the NTC.  The National Transport Commission Act 2003 requires that a review of the NTC be conducted no later than the sixth anniversary of the NTC Act which explains the timing of the review.

The Committee is chaired by Bruce Wilson, AM who was Chief Executive of Queensland Transport for 12 years. The other members include a Linfox Logistics President Commercial, Tania Whyte and Adam Lewis, a Director of McKinsey & Company, the management consultancy which has an interest in travel infrastructure logistics.

As part of a public consultation process, the Committee has called for submissions to the Review from interested individuals or organisations. 

Matters to be canvassed include:

• progress on the reform agenda by governments throughout Australia and the NTC;
• any changes needed to further drive the reform agenda;
• reform priorities;
• NTC’s role and interactions with government agencies and industry stakeholders;
• effectiveness of the NTC including whether it has struck an appropriate balance in relation to transport productivity, regulatory efficiency, safety and environmental performance;
• effectiveness of NTC’s review processes for reform implementation; and
• the relevance of the NTC reform agenda in relation to the major issues facing the transport industry and the community at large.

This is a real opportunity for industry affected by the reforms to provide preliminary feedback on the effectiveness of those reforms to improve road, rail and intermodal transport, how the reforms are affecting the industry and what the industry sees as the emerging transport policy and regulatory challenges.

Submissions to the Review Steering Committee are due by 6 March 2009.

The Committee’s Final Report will be provided to the Transport Ministers in September 2009.

The Call for Submissions Background Paper can be viewed here.

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National OHS Review Report Released

Michael Tooma and Alena Titterton write:

The National OHS Review Panel ‘National Review into Model Occupational Health and Safety Laws First Report’ (Report) was tabled at the Workplace Relations’ Ministers Council meeting yesterday.

The Report contains the findings and recommendations for what the National OHS Review Panel considers to be the optimal content of a model OHS Act in the following key areas:

  • duties of care (including the identification of duty holders and the scope and limits of duties); and
  • the nature and structure of offences, including defences.

Duties of Care

The Report recommends that there be a primary (general) duty of care imposed on any person who conducts a business or undertaking (whether as an employer, self-employed person, principal contractor or otherwise) for the health and safety of:

  • ‘workers’ within an expanded definition that is not limited to a contract of employment or deeming through direct engagement by contracting, referring instead to a broader ‘person who works in a business or undertaking’; and
  • others who may be put at risk to their health and safety by the conduct of the business or undertaking.

This recasting of the duty is intended to cover new working relationships beyond the traditional employer/employee relationship, circumventing the need to refer to the employment relationship.

The classes of persons singled out by the Report to be subject of duties of care under a model OHS Act include:

  • those with management or control of workplace areas;
  • designers of plant, substances and structures;
  • manufacturers of plant, substances and structures;
  • builders, erectors and installers of structures;
  • suppliers and importers of plant, substances and structures;
  • OHS service providers;
  • officers;
  • workers; and
  • other persons at the workplace.

The Report recommends that there be a statement of principles clearly stated in the OHS Model Act so that they are clearly understood. In this approach, the Report takes a leaf from the current Victorian OHS legislation.

Reasonable Practicability

In relation to reasonable practicability, the Report recommends that a defined ‘reasonably practicable’ be built into the offence in the model OHS Act which reflects the current approach taken in all jurisdictions except New South Wales and Queensland. This will be welcomed by the business community in New South Wales and Queensland who have called for a shift of the burden of proof to prosecutors for some time.

The Report takes the sensible view that defining reasonably practicable will provide guidance to duty holders in achieving legislative compliance, noting that case law is not easily accessible to duty holders. The definition is modeled on the definition in the current Victoria Occupational Health and Safety Act 2004 however, provides greater clarity around the need to weigh up the various elements for doing what is reasonably practicable including:

(a) the likelihood of the hazard or risk eventuating;

(b) the degree of harm that may result if the hazard or risk eventuated;

(c) what the duty holder knows, or a person in their position ought reasonably to know, about:

(i) the hazard, the potential harm and the risk; and

(ii) ways of eliminating or reducing the hazard, the harm or the risk;

(d) the availability and suitability of ways to eliminate or reduce the hazard, the harm or the risk; and

(e) the costs associated with the available ways of eliminating or reducing the hazard, the harm or the risk, including whether the cost is grossly disproportionate to the degree of harm and the risk.

The authors are not supportive of the inclusion of the element of ‘control’ in the definition of ‘reasonably practicable’ and take the view that the definition should set out principles rather than processes. Arguably, failing to provide processes means that duty holders will still struggle to understand what it is they need to do to fulfill the duty.

The Report also suggests different qualifiers for officers, workers and other persons. In relation to officers of corporations, the recommendation is that there be a duty on officers to exercise due diligence to ensure compliance by their company, adopting an approach which is similar to that in the current Victorian legislation. The recommended casting of the officer duty is incident-focused rather than system focused and as such is reactive.

The business community will welcome the fact that the onus of proving a failure to meet the standard of due diligence will be on the prosecution under the Report’s suggested approach. The prosecution will bear the onus of proof beyond reasonable doubt on all elements of an offence. In light of the recommendations about the onus of proof in relation to reasonable practicability, there would be no defences under the model OHS Act.

The duty of ‘workers’ under the model OHS Act largely reflects the current duty which is placed on ‘employees’ throughout the jurisdictions. That is, taking reasonable care for their own health and safety and reasonable care that their acts and omissions do not adversely affect the health or safety of others.

Offences

The offences under the recommendations for the model OHS Act would be strictly criminal with the prosecution bearing the criminal standard of proof for all elements of the offence.

The Report suggests the adoption of a three-tiered approach to offences.

The Report adopts the Victorian approach of making category one offences indictable and other offences dealt with summarily. Indictable offences would be heard by a Judge and Jury (as occurs in Victoria). Indictable offences represent a departure from the position in most Australian jurisdictions.

The Report’s recommended three-tiered approach to offences can be summarised as follows:

Category

Description

Summary/Indictable

Maximum Penalty

Category 1 Most serious cases – Breach of the primary (general) duty involving recklessness or gross negligence and serious harm (fatality or serious injury) to a person or a risk of such harm. Indictable Corporation = $3 million
Individual = $600,000 Imprisonment – up to five years
Category 2 Breach of the primary (general) duty where serious harm or the risk of it without the element of recklessness or negligence.

Summary

Corporation = $1.5 million
Individual = $500,000

Category 3 Breach of the duty that does not involve serious harm or the risk of serious harm.

Summary

Corporation = $500,000
Individual = $100,000

As the table above demonstrates, maximum penalties would significantly increase if the approach recommended by the Report were adopted. Maximum penalties for the most serious OHS offences would rise to 3 million dollars for corporations; $600,000 for individuals and imprisonment for up to five years under the suggested approach. This would make OHS penalties comparable with penalties for breaches of environmental legislation in Australia. In light of the higher penalties, there are no further penalties recommended for repeat offenders.

The Report takes the view that the model OHS Act should provide a system of appeals against a finding of guilt in a prosecution with appeals ultimately to the High Court of Australia. Such an appeal process will be welcomed.

Concluding Thoughts

On the whole, the methodology adopted in the Report represents picking the preferable provision from existing legislation rather than approaching the challenge of what a model OHS Act should look like with a blank canvass. If there is a jurisdiction which the recommended model most closely resembles, it is clearly Victoria. The report was officially endorsed by COAG members. However, it remains to be seen whether it will in fact be adopted.

The National OHS Review Panel’s second report is due to be provided to the Workplace Relations Ministers at the end of January 2009.

To view the Report, click here.

Safety Alert for Wineries

Alena Titterton writes:

In the wake of the tragic fatalities in the Hunter Valley wine region which occurred on January 17 2008, the WorkCover Authority of New South Wales has issued a safety alert for fire and explosion risks at wineries.

The Safety Alert highlights the need for risk assessments to be carried out that identify the hazards associated with winery operations. As the activities of wineries necessitate the storage of flammable liquids, they are highly hazardous workplaces. In such circumstances, care must be taken with likely ignition sources such as welding, grinding and other hot work, which could cause flammable vapours to ignite.

The WorkCover Safety Alert provides the following useful tips for minimising the risk of fire and explosion. As part of the risk management plan for the workplace, all wineries should ensure that:

  • flammable liquids are stored in compliant containers and facilities according to AS 1940:2004;
  • flammable liquids storage areas are clearly marked with warnings and signs (Hazchem) and containers and tanks are clearly and correctly labelled;
  • adequate natural cross flow ventilation is maintained in buildings that involve storage or processing of flammable liquids;
  • any hot work and smoking restriction zones are clearly identified, sign posted and strictly enforced, including zones restricting mechanical grinding and cutting and other ignition sources. See AS 2430.3.3:2004;
  • hot work such as welding or oxy-cutting, is done according to AS1674.1:1997 which lists comprehensive fire and explosion precautions;
  • flammable or toxic materials have been properly removed before work is carried out on an empty container or vessel;
  • all decanting of flammable liquids is carried out in a well ventilated area;
  • transferring of flammable liquids from storage to the point of use is carried out to avoid spillage;
  • the area around storage and processing is kept free of materials that burn;
  • fire safety equipment is provided and maintained, eg alarm systems, fire extinguishers, hydrants and hoses and fire blankets; and
  • workers are instructed and trained in the storage and handling of dangerous goods, the emergency plan and the use of safety equipment.

To read the Safety Alert, please click here.

Renewed Presence for OHS Nationalisation

Alena Titterton writes:

A new website has been launched to support the Heads of Workplace Safety Authorities (HWSA).  

The HWSA brings together senior executives from the various workplace safety authorities in Australia (Commonwealth, State and Territories) with the aim of progressing national consistency, harmonisation and best practice in occupational health and safety.

The HWSA has 6 stated objectives:

  • to provide a forum for discussion of matters of interest to agencies responsible for the administration of OHS in Australia and New Zealand;
  • to generate and implement joint national activities;
  • to consider practical issues associated with the administration and implementation of OHS legislation and agree to nationally consistent approaches;
  • to cooperate with Australian Safety and Compensation Council (ASCC) and facilitate the achievement of national goals including the National OHS Strategy;
  • to review the efficacy of national and jurisdictional strategies in improving OHS performance; and
  • to liaise with the Heads of Workers Compensation Authorities (HWCA) and where appropriate engage in joint projects.

According to the Chair of HWSA, Mr John Watson, HWSA has agreed on a national campaign agenda to be conducted by Australia’s OHS authorities in 2008/09. Three campaigns are planned, targeting:

  1. manual handling and moving objects in the Retail Wholesale Transport and Storage industry;
  2. new and young workers in the Hospitality and Service industries; and
  3. issues associated with violence in the Healthcare industry.

A number of industries will be pleased to hear that the HWSA intends to identify and overcome jurisdictional obstacles to the implementation of national standards and codes of practice through its Construction Implementation Working Group.  The following Standards and Codes are on the initial agenda:

The franchise industry should expect a national set of OHS requirements for franchise sector agreements as the HWSA Small Business Network is also undertaking a project in consultation with the Franchise Council of Australia to develop such requirements.

For further information on the HWSA and its activities, check out the website here.

Enforceable Undertakings: An Alternative

Alena Titterton writes:

Being charged with an offence by a Workplace Health and Safety Queensland inspector does not necessarily have to mean a continued prosecution.

The Workplace Health and Safety Act 1995 (Qld) (the WHS Act) allows corporations to enter into Enforceable Undertakings (EU) with Workplace Health and Safety Queensland (WHSQ) as an alternative to pleading guilty in a WHS prosecution.

Enforceable undertakings are considered by WHSQ as a medium level sanction within the range of enforcement options available to the Department.

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Did You Know…?

Alena Titterton writes:

Thought NASA was all about space travel? Think again.

Did you know that the number one goal of the Aeronautics Research Mission Directorate of NASA is to revolutionise aviation and enable a safe, environmentally-friendly expansion of aviation? The first objective in this goal is to increase safety by reducing the aircraft accident rate by a factor of five within 10 years, and by a factor of 10 within 25 years.

NASA has had some bad publicity on this score of late.

Air Safety: Responding to Toxic Flight Incidents

Alena Titterton writes:

Aviation safety has been put in the spotlight this week by Sydney Morning Herald revelations regarding incidents of fumes on aircraft flight decks at Qantas.

According to SMH, Qantas was issued with an improvement notice by WorkCover NSW in relation to two incidents, one on 28 July 2007, when the crew on a Qantas flight from Los Angeles to Auckland became aware of an odour on the flight deck. A Qantas flight engineer suffered watery eyes and laboured breathing after inhaling toxic fumes which resulted in a week away from work.

These recent aviation safety incidents highlight the importance of managing safety in design of aircraft. It has been reported that the issue arises as a result of a design flaw in jet aircraft which involves bleeding warm air off engines and pumping it straight into the cabin of the jet without any filtration. If the engine has an oil leak, the warm air that enters the cabin is laced with tricresyl phosphate, carcinogens and organophosphates. These chemicals are known to attack the nervous system and can result in brain damage.

This is not however, a new safety issue for the aviation industry in Australia or internationally. The Commonwealth of Australia’s Senate Rural and Regional Affairs and Transport References Committee undertook an inquiry into the Air Safety and Cabin Air Quality in the Bae 146 Aircraft in October 2000 (the Senate Report). The Senate Report can be found here. The Senate Report stated that:

“Although the incidence of reports of fumes affecting BAe 146 flight and cabin crews has reduced in the last three years, there appears to be no real possibility of such occurrences being eradicated totally as long as air is brought into the jet aircraft by bleeding air from its engines.” (Ch 6, para 6.3 of the Senate Report).

It appears from the recent news coverage that the design flaws which contributed to cases of “aerotoxic syndrome” and toxic fume incidents in the Bae 146 Aircraft have been replicated in Boeing 747, 757 and 767 planes.

The recent toxic fume inhallation incidents provide an opportunity to renew the call to the Civil Aviation Safety Authority (CASA) to re-assess and monitor the issue of aerotoxic syndrome” and toxic fume inhallation under existing civil aviation regulations, as recommended by the Senate Report. Specifically, CASA and the aviation industry should consider whether current reporting requirements in respect of the operation of jet aircraft, specifically related to the effect of cabin and cockpit air quality, are adequate. CASA and the aviation industry in general should address the need for the following in relation to all jet aircraft which were identified by the Senate Report in relation to Bae 146 Aircraft (see Ch 6, para 6.33 of the Senate Report):

  1. a specific national standard for checking and monitoring the engine seals and air quality in all passenger jet aircraft;
  2. maintenance procedures, including specific maintenance procedures for ageing aircraft;
  3. specific, appropriate maintenance and operational procedures for jet aircraft which pay particular attention to the need to ensure that aircraft are maintained and serviced for a minimum operating time to ensure that faults resulting in oil leaks, fumes or smoke are repaired;
  4. the design of incident reports so as to reflect the history of the cabin air problem that was been encountered on the BAe 146 and has been encountered on other jet aircraft;
  5. sources of contamination in the cabin and cockpit environment in jet aircraft to be identified and further evaluated using appropriate sampling and analytical technology for the contaminants which, for example, might result from the burning of fuel and lubricating oil used in jet aircraft engines; and
  6. the need for companies operating jet aircraft in Australia to provide CASA with specific reports on the results of monitoring these matters within an appropriate timeframe, quarterly or bi-annually, in order that CASA can assess the operations of the aircraft.

Clearly, bleeding warm air off engines and pumping it into jet cabins without filtration is a foreseeable risk to the health and safety of both airline employees and non-employees travelling on the aircraft. The issue has to be managed from the design of aircraft through to maintenance, monitoring and reporting. A co-ordinated approach involving CASA as the aviation safety regulator, Boeing and other jet manufacturers, and airlines such as Qantas is required if this serious safety issue is to be resolved.