Prosecutions can be prevented

Recent survey highlights how poor housekeeping correlates to higher Workcover prosecution trends. Ray Schaffer* reports.

Recent survey highlights how poor housekeeping correlates to higher Workcover prosecution trends. Ray Schaffer* reports.

A NSW employer organisation recently conducted an interesting survey of manufacturing businesses. In addition to a list of some 30 other questions – the following was of some special interest considering new trends in recent Workcover NSW prosecutions.

In reply to the question: How important is housekeeping to your company’s level of “due diligence” management? around 85% ticked the box – Not Important.

A similar survey conducted among government safety inspectors only six months prior, found that where the business inspected had a “poor housekeeping” rating by inspectors, this lead, at a statistically significant level, to the issue of Industrial Court criminal prosecutions, penalty notices and infringement notices.

It appears that there are two disparate viewpoints on this question of how important is housekeeping in your business?

Certain corporate entities view good housekeeping as one element of their ‘corporate face’ and view it as important and a key part of the overall strategy of ‘due diligence’ and corporate identity.

Other businesses, since housekeeping delivers no value-added benefit to the service or goods produced, regard it as an unnecessary “cost”, ranking lowly in importance.

The analogy is readily made to a senior executive’s desk.

When one is confronted by a desk strewn with folders, unfiled letters, unwashed mugs of coffee, etc, etc, – this dishevelled confusion is most often an ‘indicator’ of a mind struggling to cope and unlikely to be disciplined and capable of carefully considered and effective executive decisions.

For some strange reason the similarity of these two scenarios is simply not comprehended by factory managers working on the shop floor. But, in fact, this OHS ‘blindness’ extends even further.

For example

In a recent case that came before the Industrial Court, brought by NSW Workcover, a worker was instructed to clean the inside of a stock feed mixer. Accidentally the machine was activated and a fatal injury ensued.

The company had no prior convictions, entered an early plea of guilt, but was nevertheless fined $150,000. The company was considered by the trial judge to have “failed to ensure the health and safety of its workers”.

The company claimed to have established and implemented a safe system of work and (safe) procedures for its operators to follow. The court assessed these and determined they were inadequate.

Among a long list of “failures” developed by Workcover NSW inspectors were the following:

q The employer had failed to ensure the operator could only enter the equipment once same was isolated from the electrical supply and the latter was ‘locked’ out;

q The company had failed to prepare adequate risk assessments of the machine’s vital working mechanisms;

q The company had failed to educate operators especially recent staff additions in the basic and critically important electrical lockout safety procedures;

q The company had failed to set in place a system for identifying hazards associated with the operation of equipment;

q The company had failed to assess the efficacy of machine guarding and confirm the controls in place were adequate;

q The company had failed to provide appropriate instruction, training and supervision.

As far as the company’s management was concerned it had identified its OHS responsibilities and had set in place a safety management system (SMS) commensurate with its legal obligations. At least, in terms of its assessment of its OHS legal obligations.

The huge gap between the company’s management’s perceptions of its OHS obligations and the de jure obligations under the OHS Law comes about as a result of several factors none of which appear to have been perceived by management.

This is the norm, and illustrated with the following typical responses:

q The know-it-all manager – “I have been in business 20 years, so don’t tell me the OHS law!”;

q The “we haven’t had an accident in 12 years” manager;

q The finance-cum-factory manager – “housekeeping adds nothing to the bottom line”;

q The straight to the point manager – “housekeeping isn’t OHS and is not what Workcover inspectors look at, anyway”;

q The brush-OHS-off manager – “look we put in a few bits and pieces of OHS – and they (Workcover inspectors) will never know any better!”;

q The ‘let it all hang out manager’ – “did you see all the safety signs and safe work methods placards we hung up all around the shop floor? We have everything covered, mate”;

q The maintenance guy who is the ‘fixer’ – “yes, we know we have to keep records and risk assessments and all that crap – so we got our maintenance guy who has attended a few one day Workcover seminars, to prepare, with the workers, a few really important procedures – we have done it all- believe me”;

q Finally – “look we don’t need OHS around here, we got in a bloke who sold us a huge swag of policies and procedures. Any Workcover guy comes asking any bloody stupid questions, we’ll show him the box of OHS documents we bought and let him figure out which ones he wants to see – no sweat”.

Funny if not true

Unfortunately, all of the above examples are laughable but, as the case example shows this is no laughing matter.

Both the NSW OHS Act 2000 as amended and the OHS Regulations 2001 (version dated 1st September 2008) set down a list of penalty sections in the Act, and clauses in the Regulations that carry major penalties for criminal contraventions.

In the case of the Act, see section 108. The much feared Section 115 sets down the laws conformance requirements in terms of which the court may order the offender … “to publicise the offence, its consequences, the penalty imposed, etc”.

Under the revised OH&S Regulations NSW, see Schedule 2 which sets down a comprehensive list of offences for which a penalty infringement notice and dollar penalty may be imposed. The list is lengthy and should be studied by any employer serious about evidencing “due diligence”.

Housekeeping, as the ‘face of your business’, and the first and most important first impression the Workcover Inspector gains of your OHS compliance, can have a major bearing on just how deep and far ranging your inspection may be.

Consider carefully, do you, in your business have your OHS obligations adequately covered? What does your housekeeping look like to an external expert? Your OHS safety management system (equivalent to an insurance policy) may well offer your business far less ‘cover’ than you think.

*Ray Schaffer is the principal consultant with RMH Schaffer & Co, consultants in health and safety and environmental pollution management, 02 9878 0613, email schaffer@zipworld.com.au. Visit www.environmentdiy.com.au, or www.ferret.com.au. Click on OH&S and enter RMH Schaffer & Co in the service provider box. Pose a question and receive an answer at no cost.