Welcome to the 20 July 2022 edition of SafetyNet.
We are pleased to note that there have been no new workplace deaths reported since the last SafetyNet.
This week the Ombudsman announced that they will commence an investigation into WorkSafe self-insurers. More information can be found in the Union News section of this SafetyNet.
This edition also features some news of prosecutions, international news and some international research into automation. We hope you find this week's edition useful and interesting. Feel free to share it and please encourage others in your workplaces to subscribe.
Ombudsman investigation into WorkCover Self-Insurers
In Victoria most employers engage an insurance company ("authorised agents”) to manage their WorkCover liabilities. There is however an ability for employers to self-insure, that is manage their liabilities internally. Practically this option is used almost exclusively by large employers with the benefit of scale. Currently there are 34 self-insurers operating in Victoria, representing about 5% of total scheme remuneration.
In 2016 and 2019 the Ombudsman conducted an investigation into the claims management practices and oversight of authorised agents but self insurers slipped under the radar. These investigations resulted in an Independent Review and the Government committing to reform.
Last week the Ombudsman announced an investigation into the claims process conducted by self-insurers, and WorkSafe’s oversight role of them. This investigation was launched after the Ombudsman received multiple complaints and submissions from injured workers spotlighting concerns with the way self-insurers claims are being managed and lack of access to independent review of decision making when compared to decisions made by authorised agents. Other complaints were made about WorkSafe’s weak supervision of self-insurers.
The announcement stated that the investigation will consider:
- If the self-insurers’ management of claims are fair and provide just outcomes for their injured workers.
- Whether or not WorkSafe's oversight processes help provide fair and just outcomes for injured workers under the self-insurer scheme.
The Ombudsman is also interested in self-insurers best practices in managing injured workers claims. They would like to hear different experiences from injured workers, former workers of self-insurers or anyone that provides aid to injured workers including unions, lawyers and doctors.
SILICA NEWS: Silica at work could be linked to thousands of deaths
A new study from Curtin University projects up to 10,000 Australians will develop lung cancer from workplace exposure to silica dust. The study recommends banning the use of artificial stone for kitchen benchtops to save workers’ lives.
Roughly 500 Australians are currently diagnosed with silicosis, and almost all were diagnosed during the past three years and clearly linked to stonemasonry, however this number is set to be an underestimate as many workers have not yet been diagnosed.
The recent increase of cases was linked to the high demand of engineered stone for kitchen benchtops. Experts along with workers in several industries have asked the new federal government to use its powers and introduce tougher national regulations to minimise the associated harm with working with silica dust.
The process to ban importing some or all engineered stone goods is set to start by July 2024 as recommended by The National Dust Disease Taskforce.
Hi, I would like to know whether dust is classified as a hazardous substance? If dust exposure lead to someone falling ill, would it be considered a notifiable incident under the OHS Act?
What is a ‘substance’?
A hazardous substance is anything that is considered harmful and listed on the Globally Harmonized System of Classification and Labelling of Chemicals (GHS). The hazards associated with substances are usually physical or health hazards.
Is ‘dust’ a hazardous substance?
Dust may not be considered a hazardous substance unless it is listed on the GHS. Dust only falls under this category if it is a dust of something that is already considered a substance, e.g., silica dust or lead dust. Some hazardous substances may also be harmless unless they are in the form of airborne dust.
That being said, it is important to remember that all airborne dust is considered a health hazard. This includes all types of dust that you come across at work including wood dust, airborne dirt, and general dust around that may contain dust mites, pollen, dirt, and so on. Dust that are larger particles and fall to the floor may not be a health hazard unless disturbed. Smaller dust particles may be a health hazard since they are airborne and can be inhaled. The health effects of exposure can take years to develop. WorkSafe Victoria produces some useful information on exposure standards and atmospheric monitoring here.
Is illness from dust a notifiable incident?
Whether illness from dust is reportable as a notifiable incident depends on how serious the illness is. Under s38 of the OHS Act 2004, your employer must notify WorkSafe Victoria if someone dies, becomes seriously ill or injured, or if there was a dangerous incident. For example, if a worker has asthma and inhales dust particles at work that triggers a serious asthma attack requiring medical attention within 48 hours, then that is a notifiable incident under s37 of the Act. It is also reportable if an incident exposes a person to a serious risk to their health or safety emanating from an immediate or imminent exposure to an uncontrolled escape, spillage or leakage of any substance, including dangerous goods within the meaning of the Dangerous Goods Act 1985. This would include for example exposure to zinc or arsenical dust.
All other work-related illnesses should be reported to your employer.
COVID-19 LATEST NUMBERS
On Tuesday 19 July Victoria recorded:
12,201 new daily infections
25 COVID deaths
897 hospitalisations, 34 in ICU and 11 of these on ventilators
Cumulatively this equals:
2,287,325 total Victorian infections
4,215 Victorian COVID deaths (an increase of 124 since last week)
You can check the Victorian live update here.
Australia: As of 19 July, there have been a total of 8,516,847 COVID cases (an increase of 322,240 since last week) and 10,770 deaths, an increase of 444 since last week.
World: As of 19 July, there had been 561,388,387 worldwide infections (555,013,578 last week). The number of official COVID-related deaths is now 6,374,317 (Source: Worldometer).
As of 18 July, 83.86% of all Victorians have received their second dose, 86.34% their first, and only 55.66% for their crucially important third dose.
The figure for all Australians for the same date is 84.50%, 87.10% and 54.50%.
COVID-19 News: Return of Pandemic Disaster Leave Payment
Over the weekend, the Federal Government announced that the $750 pandemic disaster leave payment has been reinstated until 30 September 2022 and backdated to 1 July 2022.
This ensures that workers who are sick with COVID-19, or required to isolate as a close contact in accordance with State Government rules, are able to access some assistance whilst they are unable to work.
Unions have welcomed the reintroduction of the payments but argue more still needs to be done to ensure workers don’t have to choose between getting paid or getting better. In a statement to the Guardian, ACTU assistant secretary, Liam O’Brien said “It’s not just casual workers who need paid pandemic leave, it’s the hundreds of thousands of workers who are out of sick leave too.” We hope that both state and federal governments continue doing more to ensure that workers who are sick can stay home and get better without losing income.
LACK OF COVIDSAFE PLAN RESULTS IN FINE FOR BUSINESS
In WorkSafe prosecution news this week, Keyun Enterprises Pty Ltd. trading as Comfy Kew Apartments was fined $5,000 by the Melbourne Magistrates’ Court for failure to ensure that the workplace was safe and without risks to health by failing to have a COVID-19 Safe Plan in place.
In April 2020, the offender commenced to provide accommodation to several homeless people as part of the Victorian Government's pandemic response. During that time, the Department of Health and Human Services regularly updated its advice that a workplace is required to have a COVID-19 Safe Plan.
On 28 September 2020 several inspectors from WorkSafe attended the workplace and were informed by the General Manager that there was no COVID-19 Safe Plan in place. Additionally, inspectors observed:
- There was limited CovidSafe practices signage.
- There was no evidence of Covid Safe policies and other procedures limiting the risks or exposure to employees, independent contractors or patrons.
- No attempts at enforcement of mask wearing onsite.
- Room bookings remained open to the public and there was no sign in register for contractors and other people attending the site.
The court also took into consideration that the offender has no prior convictions and quickly complied and implemented a CovidSafe Plan after the inspection.
OWNER TURNED SUB-CONTRACTOR FINED $10,000
Bruno La Rosa, a residential dwelling owner, has been fined $10,000 and ordered to pay costs of $4,525 for falls/work at height offences after pleading guilty.
La Rosa appointed Seascape Constructions Pty Ltd as the builder for construction work in North Melbourne. In return, Seascape appointed him as the sub-contractor of the work and assigned him as the supervisor of the workplace, who can engage sub-contractors and direct how the work is performed.
On 16 April 2020, WorkSafe inspectors observed four workers completing roof works of a three-storey dwelling with a risk of a fall from a height of approximately 10 meters. La Rosa failed to ensure the workplace was reasonably without risk to health and safety, as there was no fall protection system in place.
ENTRY DEADLINE EXTENDED - WORKSAFE AWARDS
Worksafe have extended the deadline for nominations for their 2022 Awards until 5PM this Friday the 22nd of July!
There are 7 award categories in all, including, of course, Health and Safety Representative of the year, the category which acknowledges HSRs who have represented their DWG in an outstanding manner.
It is, in our view, the most important and prestigious award, and was won last year by United Workers Union members and HSRs Adrian Lidsey and Christopher Ball for their outstanding achievement in addressing the issue of indoor smoking areas at Crown Melbourne.
Entries now close on 22 July 2022, so don't delay if you’d like to nominate a HSR, or HSRs, at your workplace. Find more information here.
AUTOMATION REDUCES PHYSICAL INJURIES AT WORK BUT CARRIES SOCIETAL RISKS
Research out of the North America and Europe has examined the relationship between increased automation of physical activities at work, and workers safety. Using a combination of workplace injury data and data on the uptake of robotics in the workplace from both the United States and Germany, the study found that higher levels of robotic exposure resulted in a decrease in the number of physical injuries. The study connects this to a potential reduction in musculoskeletal injuries where robots are used for physically intensive tasks, as well as injuries from potential human error for highly repetitive tasks.
Despite these benefits, areas in the United States with high levels of robotic automation had correspondingly high levels of substance abuse resulting in death, as well as increases in reporting of mental health problems. Interestingly, there was no significant increase in either of these factors in study areas in Germany. The study interprets the increase in US study areas as a result of labor market pressures and economic uncertainty which have been apparently offset in Germany by significant increases in alternative employment.
Source: Gihleb, Rania, Giuntella, Osea ,Stella , Luca, Wang, Tianyi. (2022). Industrial robots, Workers’ safety, and health. Labour Economics, 78. https://doi.org/10.1016/j.labeco.2022.102205.
Firefighters Union fighting for Safety
Following on from the World Health Organisation’s declaration of Fire Fighting as a cancer-causing profession, the UK Fire Brigades Union has formally reported two fire and rescue services in relation to bringing in policy which would see firefighters sent into fires with their breathing equipment turned off.
The policy change involves instructing firefighters to go beyond the point of safe air with their breathing apparatus turned off in high-rise building fires, in a move which the union says breaks health and safety law. The policy in question has previously been struck down in London, by the fire service’s health and safety advisory panel due to being unsafe.
The Fire Brigade Union National Officer said:
“This procedure is unsafe, unlawful and unprofessional, and puts firefighters and the public at greater risk. It tears up half a century of health and safety law, best practice guidance, manufactures’ instructions, and firefighter training. “
Under the policy firefighters are to turn on their breathing apparatus only if a gas monitor alarm is activated and return to ‘clean air’. In their letter to the health and safety executive, the union says this is far too late, contradicts all expert advice and doesn’t allow firefighters time to put on their breathing apparatus or escape to safety.
New York Bill increasing severity of fines targeting sham construction contractors
In a move hoped to increase prosecutions under the Occupational Safety and Health Act of 1970, a new bill has been passed in New York which would allow courts to decide restitution from employers or supervisors with minimum fines of $300,000 for misdemeanours and $500,000 for felonies in criminal cases surrounding construction deaths.
The bill, named after a 22-year-old construction worker Carlos Moncayo, a non-union, undocumented worker, who died in 2015 in a trench collapse, the trench was noted at the scene of the workplace incident have not been properly reinforced.
In court prosecutors argued that supervisors ordered Moncayo into the trench because the project lagged behind schedule. Ultimately the general contractor was found guilty of manslaughter, criminally negligent homicide and reckless endangerment. The sentence imposed was a $10,000 the state-imposed limit on corporate penalties, which the district attorney described as ‘monopoly money’.
Safety Net readers may recognise a parallel with the tragic Delacombe trench collapse in March 2018. This prompted a powerful and successful industrial manslaughter campaign in Victoria, with the new industrial manslaughter laws introduced in July 2021.
HSR INITIAL & REFRESHER TRAINING
Trained HSRs are more effective HSRs - have you just been elected and haven't organised your training yet? Do it now! And if you completed your initial five-day training then organise your annual refresher now. There are things happening in the OHS space you need to be aware of.
Remember: under Section 67 of the OHS Act 2004 all HSRs and DHSRs are entitled to attend at least 1 one-day refresher course every year, yet many just don't get around to it. If this is you, then check out the courses scheduled for next year, and enrol now, before they fill up. It's important to attend in order to keep up your knowledge of OHS law up-to-date. In the past year we have had significant amendments to the OHS Act, new regulations (for crystalline silica) and new codes. Trained health and safety reps make a real difference in their workplaces, and it's great to meet with others and share experiences!
Initial Course Dates:
26, 27, 28 July & 10, 11 August - Carlton
8 - 12 August (Education Sector) - AEU - Abbotsford
15, 16, 17 August & 22, 23 August - Carlton
Course hours: 9am - 5pm
Course length: All initial OHS training courses are 5 days.
Course fee: $870.00 incl. GST Regional: $895.00 incl. GST
Refresher course Dates:
3 August - Work Related Gendered Violence (Education Sector) - AEU Offices, Abbotsford
4 August - Ringwood
25 August - Carlton
Go to this link to enrol in any of the five-day initial or refresher courses. Remember to then notify your employer at least 14 days before the course.