SUBMISSION

Document Sample
SUBMISSION Powered By Docstoc
					LABOR COUNCIL OF NSW
SUBMISSION TO LEGISLATION
COUNCIL GENERAL PURPOSE
 STANDING COMMITTEE NO1




INQUIRY INTO SERIOUS INJURY
     AND DEATH IN THE
        WORKPLACE
           03 May 2012

      UNIONS NSW – with you at work
Labor Council of NSW                                         1ea56b43-794f-4730-8eb8-0794aec05dfb.doc


                                            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.     RAIL INDUSTRY - FAR FROM A SAFE INDUSTRY                                                 21
   H.   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
   I.   INTRODUCTION OF INDUSTRIAL MANSLAUGHTER                                                         26
        I.     DEAN MCGOLDRICK                                                                          27
        II. INDUSTRIAL MANSLAUGHTER PASSED                                                              27
        III.   UNIONS SUPPORT GOVERNMENT PROCESS- EXPERT PANEL TO EXAMINE LEGISLATIVE ISSUES
               AROUND W ORKPLACE DEATHS.                                                                28
        IV. THE ACT INDUSTRIAL MANSLAUGHTER LEGISLATION                                                 28
   J.   WORKPLACE FATALITIES                                                                            29
        I.     DEFINITION OF W ORKPLACE FATALITY                                                        29
        II. FINDINGS OF THE STUDY                                                                       32
               A.   DATA FOR NSW FATALITIES                                                             32
               B.   HOW THE STATISTICS WERE FORMED                                                      32
               C.   LATEST NSW STATISTICS                                                               33
        III.   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                                    40


Page 2 of 75                                                                             03 May 2012
Labor Council of NSW                                      1ea56b43-794f-4730-8eb8-0794aec05dfb.doc
   K.   DATA                                                                                         43
        I.     DATA COLLECTION                                                                       43
        II.    WORKERS COMPENSATION DATA UNDERESTIMATES W ORKPLACE FATALITIES                        45
        III.   NATIONAL DATABASE                                                                     47
   L.   LACK OF ACCOUNTABILITY BY MANUFACTURERS AND SUPPLIERS                                        47
        I.     RESEARCH AND DESIGN SHOULD BE A PRIORITY                                              48
3. THE TERMS OF REFERENCE                                                                            52
   A.   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
        CONVICTED OF AN OFFENCE RELATING TO A SERIOUS ACCIDENT OR DEATH                              57
        I.     IMPOSITION OF FINES                                                                   57
   D.   COMPLIANCE BY W ORKCOVER WITH ITS STATUTORY REQUIREMENTS RELATING TO SERIOUS
        INJURY AND DEATH IN THE WORKPLACE                                                            58
   E.   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.     COMPARISONS WITH OTHER AUSTRALIAN JURISDICTIONS DURING 2001                           61
   F.   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                                                                             72


Page 3 of 75                                                                          03 May 2012
Labor Council of NSW              1ea56b43-794f-4730-8eb8-0794aec05dfb.doc
      V.   KRISTINE W OODS                                                   72
      VI. KEITH BAIRD                                                        72
      VII.     JONATHON PATEN                                                72
      VIII.    MARK JOHNSON                                                  73
      IX. JAMES AFFLECK                                                      73
      X.   CHRISTOPHER THORNTON                                              73
5. REFERENCES                                                                74
6. APPENDICES                                                                75




Page 4 of 75                                                  03 May 2012
Labor Council of NSW                                     1ea56b43-794f-4730-8eb8-0794aec05dfb.doc

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                                                                         03 May 2012
Labor Council of NSW                                    1ea56b43-794f-4730-8eb8-0794aec05dfb.doc

      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                                                                        03 May 2012
Labor Council of NSW                                     1ea56b43-794f-4730-8eb8-0794aec05dfb.doc

      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                                                                         03 May 2012
Labor Council of NSW                                     1ea56b43-794f-4730-8eb8-0794aec05dfb.doc

      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                                                                         03 May 2012
Labor Council of NSW                                     1ea56b43-794f-4730-8eb8-0794aec05dfb.doc

      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                                                                         03 May 2012
Labor Council of NSW                                          1ea56b43-794f-4730-8eb8-0794aec05dfb.doc

      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                                                                             03 May 2012
Labor Council of NSW                                       1ea56b43-794f-4730-8eb8-0794aec05dfb.doc

      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                                                                          03 May 2012
Labor Council of NSW                                       1ea56b43-794f-4730-8eb8-0794aec05dfb.doc

      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                                                                          03 May 2012
Labor Council of NSW                                       1ea56b43-794f-4730-8eb8-0794aec05dfb.doc

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                                                                          03 May 2012
Labor Council of NSW                                     1ea56b43-794f-4730-8eb8-0794aec05dfb.doc

      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                                                                        03 May 2012
Labor Council of NSW                                      1ea56b43-794f-4730-8eb8-0794aec05dfb.doc

      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                                                                         03 May 2012
Labor Council of NSW                                     1ea56b43-794f-4730-8eb8-0794aec05dfb.doc



      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                                                                        03 May 2012
Labor Council of NSW                                        1ea56b43-794f-4730-8eb8-0794aec05dfb.doc

 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                                                                           03 May 2012
Labor Council of NSW                                      1ea56b43-794f-4730-8eb8-0794aec05dfb.doc

      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                                                                         03 May 2012
Labor Council of NSW                                        1ea56b43-794f-4730-8eb8-0794aec05dfb.doc

      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                                                                           03 May 2012
Labor Council of NSW                                    1ea56b43-794f-4730-8eb8-0794aec05dfb.doc

      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                                                                       03 May 2012
Labor Council of NSW                                     1ea56b43-794f-4730-8eb8-0794aec05dfb.doc

      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                                                                        03 May 2012
Labor Council of NSW                                    1ea56b43-794f-4730-8eb8-0794aec05dfb.doc

      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                                                                       03 May 2012
Labor Council of NSW                                       1ea56b43-794f-4730-8eb8-0794aec05dfb.doc

 i.   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 non-
      compliance).


      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                                                                          03 May 2012
Labor Council of NSW                                                     1ea56b43-794f-4730-8eb8-0794aec05dfb.doc

            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                                                                                        03 May 2012
Labor Council of NSW                                            1ea56b43-794f-4730-8eb8-0794aec05dfb.doc

      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                                                                               03 May 2012
Labor Council of NSW                                      1ea56b43-794f-4730-8eb8-0794aec05dfb.doc




      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                                                                         03 May 2012
Labor Council of NSW                                     1ea56b43-794f-4730-8eb8-0794aec05dfb.doc

 i.   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                                                                        03 May 2012
Labor Council of NSW                                      1ea56b43-794f-4730-8eb8-0794aec05dfb.doc

iii.   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                                                                         03 May 2012
Labor Council of NSW                                       1ea56b43-794f-4730-8eb8-0794aec05dfb.doc

      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                                                                          03 May 2012
Labor Council of NSW                                                1ea56b43-794f-4730-8eb8-0794aec05dfb.doc

      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                                                           10
                                                                                                      9
                                                                                                      8
                                        150
                                                                                                      7
                                                                                                      6
                                        100                                                           5
                                                                                                      4
                                                                                                      3
                                        50
                                                                                                      2
                                                                                                      1
                                         0                                                            0
                                              1995   1996   1997   1998   1999   2000   2001   2002
                Number                        177    181    173    181    163    181    139    178
                Incidence per 100,000          8     7.9    7.5    7.8    6.8    7.2    5.2     6.6
                employees at risk
                Frequency per million hours   0.05   0.05   0.04   0.04   0.04   0.04   0.03   0.04
                worked


      * This includes injuries at the workplace, occupational diseases and non-workplace
      injuries (commuting, journey claims, recess claims)




Page 30 of 75                                                                                   03 May 2012
Labor Council of NSW                                                               1ea56b43-794f-4730-8eb8-0794aec05dfb.doc

      FATAL WORKPLACE INJURY: NUMBER, INCIDENCE AND FREQUENCY: 1995 TO 2002

                                              80                                                                        5
                                                                                                                        4.5
                                              60                                                                        4
                                                                                                                        3.5
                                                                                                                        3
                                              40                                                                        2.5
                                                                                                                        2
                                              20                                                                        1.5
                                                                                                                        1
                                                                                                                        0.5
                                              0                                                                         0
                                                   1995       1996     1997      1998     1999    2000   2001   2002
                    Number                          70         55          59     71       61     64      47     68
                    Incidence per 100,000          3.18        2.4        2.6     3.1      2.6    2.6    1.8     2.5
                    employees at risk
                    Frequency per million hours    0.017      0.014    0.014     0.018    0.014   0.14   0.01   0.016
                    worked




      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                                            Agriculture, Forestry and Fishing
                                     3                   17
                                 6
                                                                                       Mining
                         6
                                                                      7
                     4                                                                 Manufacturing

                                                                                       Electricity, Gas and Water Supply
                7
                                                                            16         Construction
                2
                1
                                                                                       Wholesale Trade
                                                                            0
                15                                                                     Retail Trade

                                                                                       Accommodation, Cafes and
                                                                      19               Restaurants
                             8                                                         Transport and Storage

                                     12            10                                  Communications Services

                                                                                       Finance and Insurance

                                                                                       Property and Business Services
Page 31 of 75                                                                                                     03 May 2012
                                                                                       Government Administration and
                                                                                       Defence
                                                                                       Education
Labor Council of NSW                                     1ea56b43-794f-4730-8eb8-0794aec05dfb.doc

      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 1989-
      1992. 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                                                                        03 May 2012
Labor Council of NSW                                        1ea56b43-794f-4730-8eb8-0794aec05dfb.doc

      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 1998-
      2001. 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                                                                           03 May 2012
Labor Council of NSW                                                       1ea56b43-794f-4730-8eb8-0794aec05dfb.doc



iii.   SERIOUS INJURY


       EMPLOYMENT INJURY: NUMBER, INCIDENCE AND FREQUENCY: 1995 TO 2002


                                   65000                                                                        40
                                                                                                                35
                                   60000                                                                        30
                                                                                                                25
                                   55000                                                                        20
                                                                                                                15
                                   50000                                                                        10
                                                                                                                5
                                   45000                                                                        0
                                                1995    1996    1997    1998    1999    2000    2001    2002
                 Number                         62840 62469 60109 58604 55492 53224 53797 54674
                 Incidence rate per 1000        28.6    27.4    26.1    25.2    23.1    21.3    20.3    20.3
                 wage and salary earners
                 Frequency per million          16.1    15.6    14.7    14.5    12.9    11.8    11.8    11.9
                 hours worked*




       *This    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                                                                      5
                                     36000                                                                      0
                                                1995    1996    1997    1998    1999    2000     2001    2002

                Number                          42505   42648   44654   43982   41739   39531   39995   40205
                Incidence rate per 1000 w age    19.3   18.7    19.4     18.9    17.4    15.8    15.1     15
                and salary earners
                Frequency per million hours      10.8   10.7    10.9     10.8    9.7     8.8     8.8     8.7
                w orked




Page 34 of 75                                                                                             03 May 2012
Labor Council of NSW                                    1ea56b43-794f-4730-8eb8-0794aec05dfb.doc

  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                                                                       03 May 2012
Labor Council of NSW                                         1ea56b43-794f-4730-8eb8-0794aec05dfb.doc



      Occupational diseases      diseases contracted or aggravated in the course of
                                 employment and to which the employment was a
                                 contributing      factor.     Occupational       diseases       are
                                 distinguishable     from     workplace     and     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 1998-
      99, 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                                                                            03 May 2012
Labor Council of NSW                                                              1ea56b43-794f-4730-8eb8-0794aec05dfb.doc


                 Number of Workplace Incidents in Several Industries 1998-99

                                                                                                                         6271
                                                   1133
         Manufacturing                                                                       4197
                                19
                                                                                        3941
                                           644
         Construction                                            2142
                                26
                                                                                      3690
                                                879
         Retail Trade                            985
                                12
         Agriculture,                                   1435
         Forestry &               206
                                     503
         Fishing                13
         Transport                                                         3096
                                      360
         &                                       1007
         Storage                23
                            0               1000          2000          3000          4000          5000          6000          7000


           Fatal       Permanent Disability                      6 months and over                  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                            1094
                                11
         Agriculture,                              1282
                                 176
         Forestry &                       503
         Fishing             16
                                                                        2870
         Transport                   328
         &                                       1083
         Storage                     21
                            0               1000          2000          3000          4000          5000          6000



            Fatal      Permanent Disability                      6 months and over                  less than 6 months



Page 37 of 75                                                                                                            03 May 2012
Labor Council of NSW                                                                  1ea56b43-794f-4730-8eb8-0794aec05dfb.doc




                            Number of Workplace Incidents in Several Industries 2000-2001

                                                                                                                     5214
               Manufacturing                            733
                                                                                                          4461
                                            16
                                                                                          3228
                     Construction                  483
                                                                                      2948
                                            19
                                                                                                  3906
                         Retail Trade                  592
                                                               1231
                                            12
                                                               1229
         Agric, Forestry &                   129
              Fishing                              528
                                            17
                                                                                        3067
                         Transport &             266
                           Storage                             1256
                                            15
                                        0               1000          2000        3000           4000         5000          6000

             Fatal             Permanent Disability                   6 months and over                 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.


                                Total Number of Permanent
                            Disabilities in NSW from 1993 to 2001

                         25,000
          Total Number




                                        17,598         20,051 19,046
                         20,000                                              15,605                          16,616
                                                                                        13,968 14,321 15,241
                         15,000
                         10,000
                          5,000
                              0
                                     4

                                                  5

                                                               6

                                                                         7

                                                                                    8

                                                                                                9

                                                                                                          0

                                                                                                                    1
                                  /9

                                               /9

                                                            /9

                                                                      /9

                                                                                 /9

                                                                                             /9

                                                                                                       /0

                                                                                                                 /0
                               93

                                            94

                                                         95

                                                                   96

                                                                              97

                                                                                          98

                                                                                                    99

                                                                                                              00
                             19

                                        19

                                                       19

                                                                19

                                                                             19

                                                                                       19

                                                                                                 19

                                                                                                           20




                                                 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                                                                                                         03 May 2012
Labor Council of NSW                                               1ea56b43-794f-4730-8eb8-0794aec05dfb.doc

       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
                                                                                                     5
                                        0                                                            0
                                            1995   1996   1997   1998   1999   2000   2001    2002
                Number                      16935 16349 11404 10269 9566       9169   9258    9891
                Incidence rate per 1000      7.7   7.2     5     4.42   3.97   3.67   3.49    3.68
                wage and salary earners
                Frequency per million       4.33   4.12   2.79   2.54   2.22   2.04   2.04    2.15
                hours worked




Page 39 of 75                                                                                  03 May 2012
Labor Council of NSW                                            1ea56b43-794f-4730-8eb8-0794aec05dfb.doc



iv.   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
          WorkCover NSW Workers Compensation Statistical Bulletin 2000-2001, pages72 and 75.
      4
          Recommendation 114
Page 40 of 75                                                                               03 May 2012
Labor Council of NSW                                        1ea56b43-794f-4730-8eb8-0794aec05dfb.doc




      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.
      6
        Ibid
      7
        Ibid
      8
        Op Cit N1 at page 87.
Page 41 of 75                                                                           03 May 2012
Labor Council of NSW                                       1ea56b43-794f-4730-8eb8-0794aec05dfb.doc



      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                                                                          03 May 2012
Labor Council of NSW                                     1ea56b43-794f-4730-8eb8-0794aec05dfb.doc

 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?                            What don’t we know?
      Horses
                                                  Exposure
      • Motorcycles
                                                  • Work related
      • Vehicles
                                                  • Activity being undertaken
      • Agricultural Machinery
                                                  • Tractors
      • Other Machinery
                                                  • Type of motor cycle
      •Animals
                                                  • Safety equipment / behaviour
      •Falls
                                                  • Location on farm
      • Severe cases


      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                                                                        03 May 2012
Labor Council of NSW                                        1ea56b43-794f-4730-8eb8-0794aec05dfb.doc

      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 sub-
      contractors. 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                                                                           03 May 2012
Labor Council of NSW                                       1ea56b43-794f-4730-8eb8-0794aec05dfb.doc



      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                                                                          03 May 2012
Labor Council of NSW                                       1ea56b43-794f-4730-8eb8-0794aec05dfb.doc

      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                                                                          03 May 2012
Labor Council of NSW                                       1ea56b43-794f-4730-8eb8-0794aec05dfb.doc




       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                                                                          03 May 2012
Labor Council of NSW                                        1ea56b43-794f-4730-8eb8-0794aec05dfb.doc



      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                                                                           03 May 2012
Labor Council of NSW                                       1ea56b43-794f-4730-8eb8-0794aec05dfb.doc

       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                                                                          03 May 2012
Labor Council of NSW                                      1ea56b43-794f-4730-8eb8-0794aec05dfb.doc

      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                                                                         03 May 2012
Labor Council of NSW                                        1ea56b43-794f-4730-8eb8-0794aec05dfb.doc

      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                                                                           03 May 2012
Labor Council of NSW                                    1ea56b43-794f-4730-8eb8-0794aec05dfb.doc

3.    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                                                                905
          600
          500
          400
                           586
          300                                     444
          200
          100
            0
                         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                                                                       03 May 2012
Labor Council of NSW                                       1ea56b43-794f-4730-8eb8-0794aec05dfb.doc




                                 Number of successful prosecutions

                600
                500
                400
                                       496                           455
          No.




                300                                 404                              426
                          422
                200
                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                                                                          03 May 2012
Labor Council of NSW                                        1ea56b43-794f-4730-8eb8-0794aec05dfb.doc

       OCCUPATIONAL HEALTH AND SAFETY PROSECUTION ACTIVITY
                                                    1999      2000     2001       2002        2003
       Successful OHS Prosecutions                  422       496       404        455        426
       Court awarded fines for OHS offences      $2.97m $6.2m          $5.4m     $9.5m        $13m



                                    Court Awarded Fines

            14
            12                                                                           13
            10
                                                                       9.5
         $m 8
             6
             4                          6.2            5.4
             2            2.97
             0
                         99



                                    00



                                                  01



                                                                  02



                                                                                  03
                       19



                                  20



                                                20



                                                                20



                                                                                20
                      /



                                    /



                                                /



                                                                 /



                                                                               /
                   98



                                 99



                                             00



                                                              01



                                                                            02
                19



                              19



                                          20



                                                           20



                                                       Year
                                                                         20


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                                                                            03 May 2012
Labor Council of NSW                                       1ea56b43-794f-4730-8eb8-0794aec05dfb.doc

      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                                                                          03 May 2012
Labor Council of NSW                                          1ea56b43-794f-4730-8eb8-0794aec05dfb.doc

      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                                                                             03 May 2012
Labor Council of NSW                                      1ea56b43-794f-4730-8eb8-0794aec05dfb.doc




   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                                                                         03 May 2012
Labor Council of NSW                                      1ea56b43-794f-4730-8eb8-0794aec05dfb.doc

      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                                                                         03 May 2012
Labor Council of NSW                                       1ea56b43-794f-4730-8eb8-0794aec05dfb.doc

      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                                                                          03 May 2012
Labor Council of NSW                                       1ea56b43-794f-4730-8eb8-0794aec05dfb.doc

      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                                                                          03 May 2012
Labor Council of NSW                                                       1ea56b43-794f-4730-8eb8-0794aec05dfb.doc



                       Total Prosecution Fines in Other States
                                      for 2001




                                                  0
                                                  15
                                                23
         10000000




                                          95
          9000000

                             0
                          00


                                       0
          8000000
                        00


                                   00
                       62


                                 00
          7000000
                               54
          6000000
          5000000




                                                         0
                                                         80
          4000000



                                                       62
          3000000




                                                                 00
                                                   16




                                                                                                               00
                                                                             00
                                                               40




                                                                            0
                                                                            0
          2000000




                                                                                               0



                                                                                                             00
                                                                          88


                                                                          00
                                                                         50




                                                                                             00
                                                              44




                                                                                                           16
          1000000




                                                                       10


                                                                       66
                                                                      32




                                                                                          26


                                                                                                   0
                0



                                                                   SA




                                                                                          T




                                                                                                        lth
                                                           ld




                                                                                   s
                                                    C




                                                                                                 T
                                                                            A
                        )


                                 )


                                           )
                        0


                                  1


                                            2




                                                                                 Ta


                                                                                         N

                                                                                               AC
                                                                           W
                                                  VI


                                                          Q
                     /0


                               /0


                                         /0




                                                                                                       w
                                                                                                       C
                  99


                            00


                                      01
                   9


                           0


                                     0
                (1


                        (2


                                  (2
            SW


                       SW


                               SW
           N


                   N


                             N




      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                                                                                          03 May 2012
Labor Council of NSW                                                         1ea56b43-794f-4730-8eb8-0794aec05dfb.doc

      Total Number of Improvement Notices Issued in 2001


                                            CASES PROSECUTED, 2001

                       500
                       450
                       400
                       350
                       300
                       250
                       200
                       150
                       100
                        50
                          0
                               NSW      Vic          Qld           SA        WA        Tas        NT      ACT     Cwlth
           Cases prosecuted    467      111          55            1         37         9         3        2       1




                        COURT AWARDED FINES FOR OHS OFFENCES ($M), 2001

                                6

                                5

                                4

                                3

                                2

                                1

                                0
                                      NSW      Vic         Qld          SA        WA        Tas    NT     ACT     Cwlth
           Court awarded fines ($M)   5.4     1.6628       0.444       0.0325 0.1088    0.066     0.026    0      0.16




Page 62 of 75                                                                                                   03 May 2012
Labor Council of NSW                                        1ea56b43-794f-4730-8eb8-0794aec05dfb.doc

   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.                    The survey

Page 63 of 75                                                                           03 May 2012
Labor Council of NSW                                     1ea56b43-794f-4730-8eb8-0794aec05dfb.doc

      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                                                                         03 May 2012
Labor Council of NSW                                       1ea56b43-794f-4730-8eb8-0794aec05dfb.doc



      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                                                                          03 May 2012
Labor Council of NSW                                       1ea56b43-794f-4730-8eb8-0794aec05dfb.doc

      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 on-
      hired 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                                                                          03 May 2012
Labor Council of NSW                                        1ea56b43-794f-4730-8eb8-0794aec05dfb.doc

      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                                                                           03 May 2012
Labor Council of NSW                                     1ea56b43-794f-4730-8eb8-0794aec05dfb.doc

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                                                                        03 May 2012
Labor Council of NSW                                   1ea56b43-794f-4730-8eb8-0794aec05dfb.doc



      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                                                                      03 May 2012
Labor Council of NSW                                       1ea56b43-794f-4730-8eb8-0794aec05dfb.doc

      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                                                                          03 May 2012
Labor Council of NSW                                      1ea56b43-794f-4730-8eb8-0794aec05dfb.doc

   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                                                                         03 May 2012
Labor Council of NSW                                          1ea56b43-794f-4730-8eb8-0794aec05dfb.doc

iii.   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.       Paten resigned from the NSW Police and committed



Page 72 of 75                                                                             03 May 2012
 Labor Council of NSW                                      1ea56b43-794f-4730-8eb8-0794aec05dfb.doc

        suicide.   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                                                                         03 May 2012
Labor Council of NSW                                    1ea56b43-794f-4730-8eb8-0794aec05dfb.doc

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                                                                       03 May 2012
Labor Council of NSW                                   1ea56b43-794f-4730-8eb8-0794aec05dfb.doc

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                                                                      03 May 2012

				
DOCUMENT INFO
Shared By:
Categories:
Tags:
Stats:
views:6
posted:5/3/2012
language:
pages:75