Issue 5 | 25 November 2009 |
Editor Gaby Grammeno BA MPH
By Joydeep Hor, Managing Partner, Harmers Workplace Lawyers and CCH Editorial Board Member
In a historic step towards achieving harmonised national occupational health and safety (OHS) laws, a draft model OHS Act titled Safe Work Act 2009 (Draft Act) was released for public consideration and comment in late September 2009. This article provides an overview of the background of the harmonisation process, the agreed principles of the model legislation, the key content of the Draft Act that is open for public comment, the next steps in the harmonisation process and the practical considerations in adopting the legislation once finalised.
At present, all states, territories and the Commonwealth have their own OHS legislation. While much of the legislation is similar, there are significant differences, both in the content and application of the laws, which continue to cause confusion, inefficiencies and different safety standards for businesses, workers and governments. To achieve consistency and improve the health and safety of all workers, the harmonisation of OHS laws is currently being undertaken to create uniform, national laws.
In July 2008, the Council of Australian Governments (COAG) signed an Intergovernmental Agreement for Regulatory and Operational Reform in OHS (IGA). The IGA provides that the state, territory and Commonwealth governments will cooperate to develop model OHS legislation and will pass laws mirroring the model OHS legislation by December 2011. The model legislation will consist of a principal OHS Act and model regulations, supported by model codes of practice. The IGA also provides for the establishment of an independent body to be responsible for the development and implementation of the model OHS laws. Safe Work Australia was established on 1 July 2009 to fulfil this role.
In January 2009, a national independent review of OHS laws in each jurisdiction was completed (National OHS Review). This resulted in two reports that were provided to the Workplace Relations Ministers’ Council (WRMC) containing recommendations on a model OHS Act to be adopted by all states and territories across Australia.
On 18 May 2009, after reviewing the recommendations arising from the two reports of the National OHS Review, the WRMC decided on the structure and content of the model OHS legislation. The WRMC requested Safe Work Australia to draft the model legislation in accordance with its decision.
The key principles of the model OHS legislation agreed by the WRMC consist of:
• a move away from the traditional emphasis on the primary duty of care being owed by employers, to an enhanced duty being owed by anyone conducting a business or undertaking, towards all workers
• an unqualified obligation on employers to provide a safe workplace for employees and to take a broad approach to an employer’s duty of care by extending it to people other than employees, such as contractors
• a substantial increase in penalties
• maintaining that breaches of duties of care are criminal offences
• enhancing consultation by employers with workers concerning work-related matters that affect their health and safety
• providing protections from discrimination, victimisation and coercion over OHS matters that go beyond protections in anti-discrimination and other laws
• enhancing the protection of workers through safety representatives with powers that include the ability to issue provisional improvement notices and to direct the cessation of unsafe work.
On 28 September 2009, after receiving endorsement from the WRMC, Safe Work Australia released the Draft Act and supporting documentation consisting of a discussion paper, draft administrative regulations (which deals with matters such as incident notification) and a consultation Regulation Impact Statement (dealing with the possible costs, benefits and impacts of implementing the legislation).
The Draft Act is broadly structured based on safety duties; other obligations (such as incident notification); consultation, participation and representation; discrimination; workplace entry by permit holders; the regulator; enforcement powers; compliance measures; review of decisions; legal proceedings; and other general provisions.
The public had until 9 November 2009 to comment on the Draft Act. This was the only opportunity for public comment and was limited to specific areas of the Draft Act where the WRMC did not provide a policy position or where there are practical implementation issues that need to be resolved.1 There is no opportunity to comment on policy decisions previously made by the WRMC in response to the National OHS Review recommendations.2
There are a number of key components of the Draft Act on which comment was sought by Safe Work Australia, including the following:
• Whether the scope of the primary duty of care on persons conducting a business or undertaking and the duties on persons relating to specific activities, such as (a) persons with management or control of a workplace and/or fixtures, fittings or plant at a workplace; (b) designers, manufacturers, importers and suppliers of plant, substances and structures, and (c) persons installing, constructing or commissioning plant or structures, is appropriate.
• The duties referred to above are qualified by the concept of what is “reasonably practicable”, which is determined objectively and requires the weighing up of a number of factors including the likelihood of the hazard or risk occurring, the degree of harm that may result, what the person knew or should have known about the hazard or risk and ways of eliminating it, the availability and suitability of ways to eliminate or minimise the hazard or risk and the cost of eliminating or minimising it. This will be an extremely important concept in prosecutions, and comment is sought on whether the definition is appropriate and if it should be exhaustive, so that only matters listed can be considered in determining whether compliance has been achieved.
• Officers have a positive duty to exercise “due diligence” to ensure that the body of which they are an officer complies with its duty. The definition of officer is broad and includes not just directors but persons who influence or make decisions that affect the whole or a substantial part of an organisation. Comment is sought on whether the definition adequately captures all those persons who should have officer duties. “Due diligence” is not defined in the legislation and it will be determined by case law.
• There are three categories of penalties for failure to comply with a duty, with each determined by the level of seriousness or culpability. The maximum penalty ranges from between $500,000 to $3 million for a corporation, $100,000 to $600,000 and/or 5 years’ imprisonment for officers, and $50,000 to $300,000 and/or 5 years’ imprisonment for workers or other persons, representing a significant increase in maximum penalties than currently available in most jurisdictions. The discussion paper sets out four additional categories of penalties, and has mapped them to specific offences, such as a maximum penalty of $50,000 for a corporation for failure to notify a notifiable incident. There is an opportunity to comment on whether the proposed additional range and levels of penalties are appropriate and whether all contraventions of the Draft Act (eg failure to display a list of health and safety representatives, which is probably less serious than a breach of a primary duty) should be criminal offences.
After considering all public comments, Safe Work Australia plans to finalise the Draft Act and administrative regulations then submit them to the WRMC for approval in December 2009.
The model regulations for all other matters will be developed between September 2009 and September 2010, and will be released for public comment between October 2010 and January 2011. It is anticipated that they will be submitted to the WRMC for agreement in June 2011.
It is intended that the model legislation will commence operation in each jurisdiction on 1 January 2012.
Once the WRMC approves the model laws in accordance with the time frames noted above, the states and territories will have at least 12 months to enact the model Act and six months to adopt the model regulations before repealing their existing OHS laws. In turn, this should provide businesses and officers with ample time to consider the requirements of the new laws and whether or not they are in compliance with them.
There are a number of areas in the Draft Act that are left open to the states and territories to determine, such as the ability of regulatory bodies to make their own guidelines on the way provisions operate in regards to a class of persons or set of circumstances or the way a discretion should be exercised, which have the potential to undermine the objective of harmonisation if any of the jurisdictions adopt different approaches. However, given the policy importance of harmonisation, implementation will be monitored through the COAG Reform Council, with a view to minimising divergences between the states and territories and achieving a nationally consistent approach to compliance and enforcement.
CCH will keep you up to date with further important developments in the OHS harmonisation process. When the process is complete, the commentary in CCH’s Australian Occupational Health & Safety Law will be updated by Harmers Workplace Lawyers, which will provide detailed information about the new national OHS legislation.
| 1 |
Exposure Draft Model Act for Occupational Health and Safety Discussion Paper, September 2009, page 4. |
| 2 |
ibid. |
The principal of a Sydney school has won a defamation payout of over $80,000 from the parent of one of her students. According to media reports, the child’s father had sent an email attacking the principal’s competence to fellow parents, with a copy to the principal, in April 2008 after his daughter performed poorly in a selective school's test.
The email, entitled “Call for Mrs Ryan to quit”, described Jennie Ryan, the 61-year-old principal of Beecroft Public School, as incompetent, dishonest and untrustworthy.
He also made complaints that she was racist and possibly abusive.
The principal took legal action against the parent, Dr Rajaratnam Premachandran, over the email, which she described as vitriolic and malicious.
Giving evidence in the NSW Supreme Court, Mrs Ryan said she had investigated the complaint “competently and professionally”.
She told the court she was stunned to receive the email, according an ABC report.
“I could not believe that anyone would write such lies about me”, she said.
The court heard that Dr Premachandran had run a malicious campaign against the principal for a year.
Dr Premachandran, who represented himself, was reprimanded several times by Justice Henric Nicholas for veering off the topic and persistently defending himself without evidence.
He told Dr Premachandran that the case was not a chance to explore the merits of the education system and that he should only ask questions that were “specifically relevant”.
The judge ruled that the rumours significantly damaged Mrs Ryan's reputation and caused her ongoing distress.
In the Supreme Court on 6 November 2009, Justice Nicholas ruled in favour of Mrs Ryan and ordered Dr Premachandran to pay $82,543 in damages.
The principal will apply to have him pay her legal costs.
WorkSafe Victoria has called on the operators of school camps and adventure activities to ensure high safety standards are in place and maintained. It comes after a prosecution arising from a February 2007 incident in which a boy was badly hurt while riding a flying fox at a school camp in the Yarra Valley.
According the WorkSafe’s website, the boy crashed into a scissor lift used as the retrieval point for students who had come down the flying fox at the Lyrebird Park camp in February 2007. Lyrebird Park is a school camp operated by the Williams Family Trust.
Prior to 22 February 2007, riders who had finished the ride were lowered to the ground from a step ladder. On 22 February 2007, the step ladder was replaced by a scissor lift and a five-pulley system was introduced. As a consequence of the introduction of the five-pulley system, five riders at any one time could be harnessed and ready to ride the flying fox. Further, it was not necessary for the rider to return to the start with his/her pulley before the next rider could begin the ride.
On 23 February 2007, one student rode the flying fox and dismounted without incident. However, the instructors experienced difficulty (and delay) in releasing the second student from her harness. The third student began the ride before the second student (and the scissor lift) had been cleared from the path of the flying fox. Despite the efforts of an instructor to stop him, the third student, an 11-year-old boy, crashed into the scissor lift.
The student was knocked unconscious, suffered a fractured skull and brain injuries and was taken to hospital and placed in a medically induced coma. He later made a full recovery.
WorkSafe’s Executive Director John Merritt said in a media release on 1 July 2009 that while camps and adventure activities were an important part of growing up, fun should not get in the way of getting home safely.
“You can’t guarantee that no one is ever hurt, but you must be able to demonstrate that steps have been taken to minimise risk. No matter what your past performance has been, no one will thank you if their child is hurt.”
Mr Merritt said anyone in the camps and adventure activity industry must ensure safety is built into activity planning and that safety standards were consistently maintained.
“This is particularly important when new activities or equipment are introduced. People need to know how things are to be done before they, or others, are put risk.”
Warren Maxwell Williams (as trustee of the Williams Family Trust) appeared in the Ringwood Magistrates Court and pleaded guilty to two charges under s 21 and 23 of the Occupational Health and Safety Act 2004. These sections set out employers’ duties to employees and to other persons.
The court heard that:
• use of the scissor lift was not subject to hazard identification or risk assessment
• there was no control of the effects of using a scissor lift and multiple harnesses on the flying fox
• employee instructors and volunteer helpers (teachers or parents) supervising children on the flying fox were not provided with adequate information, instruction, training or supervision, and
• there was no system of communication between instructors at the dispatch and dismount points.
WorkSafe’s representative told the court that these failings exposed users of the flying fox to the risk of serious injury. They also exposed employees to the risk of injury, should a child crash into them.
Mr Williams was not convicted or fined. He was, however, placed on a 12-month good behaviour bond and ordered to pay $10,000 to the Magistrates Court Fund and $4,500 in WorkSafe’s legal costs.
Research conducted at Queensland University of Technology (QUT) shows a rise in the number of girls committing crimes.
Professor Kerry Carrington, head of the School of Justice at QUT, said data from New South Wales over the past 47 years revealed that while more girls are now committing crimes, the crime rate for boys has decreased.
According to an ABC report in September 2009, Professor Carrington attributed the increased representation of young women in crime statistics partly to cyber bullying. She said that while the data shows boys still outnumber girls in court appearances and violent crimes, cyber bullying among girls is concerning and needs to be addressed.
She said there are a number of factors behind the shift, including the use of computers and mobile phones. In particular, she drew attention to internet sites on which girls attack or humiliate other girls.
Other commentators have noted that some posts on the social networking site MySpace go well beyond school-ground teasing. Some entries set out in explicit detail claims of sexual behaviour and drug and alcohol use.
“There are all these girl fight sites — people just go and have a look, they’re all over the web”, Professor Carrington said.
She said activity on these sites was providing girls with a motivation to go and pick on someone.
“It’s exacerbating the levels of violence in and outside of school playgrounds”, she said.
Employers in Tasmania’s retail and hospitality industry are to be targeted in a new campaign by the Fair Work Ombudsman, after it was revealed in October 2009 that many students were not being paid enough.
According to an ABC report, the two-month campaign was prompted by an agency survey that found one in four young people were being asked to work without pay at the start and end of their shift.
Fair Work Ombudsman Tasmanian director Glenn Jordan was quoted as saying that an agency survey of 150 college students in the Hobart area found 25% were performing unpaid work.
Employers at Hobart’s Eastlands shopping centre were the first to come under scrutiny from inspectors.
Mr Jordan said inspectors would target shops where staff were on site before opening time to check wage records and determine whether the students were receiving appropriate pay and conditions.
“For obvious reasons, they are reluctant to come forward and make a formal complaint, so what we are doing is embarking on a rolling campaign of witnessing the work going on in shops and from that we can then target the particular employers and make sure that those practices stop”, he said.
“The practice that we’re trying to stop is the expectation that people will do a job of work before they’re actually paid. What we want to see employers doing is paying for every hour that people work.”
Mr Jordan urged employers who know they’ve done the wrong thing to come forward.
There is a strong link in obesity between mothers and daughters and between fathers and sons, but not across the gender divide, according to research reported by the BBC.
The study of 226 families was published in the International Journal of Obesity in July 2009. It found that obese mothers were 10 times more likely to have obese daughters. For fathers and sons, there was a six-fold rise. But in both cases children of the opposite sex were not affected.
The researchers, from Plymouth’s Peninsula Medical School, said they believe the link is behavioural rather than genetic. They said it was probably due to some form of “behavioural sympathy” where daughters copied the lifestyles of their mothers and sons modelled themselves on their fathers.
This conclusion has reportedly led experts to believe government policy on tackling obesity should be rethought.
According to the report, much of the focus so far in the UK — in terms of targets and monitoring — has been on younger children, in the belief that obese children become obese adults.
But the researchers said the assumption ignored the fact that eight out of ten obese adults were not severely overweight when they were children.
They said that, in fact, their findings suggested the opposite was true — that obese adults led to obese children. Study leader, Professor Terry Wilkin, said that it was the reverse of what had previously been thought and this had fundamental implications for policy.
"We should be targeting the parents”, he said, “and that is not something we have really done to date.”
Findings reported in October 2009 on the side-effects of drugs used to treat ADHD (attention deficit hyperactivity disorder) have prompted concern among medical experts.
According to an article in The Daily Telegraph, the newspaper obtained adverse reaction reports from the Therapeutic Goods Administration. These reports showed at least 30 children have had severe psychotic episodes and wanted to kill themselves, according to the article.
It alleged that children as young as five have attempted suicide or are severely depressed while on the controversial drugs to treat ADHD.
The article cited the case of a seven-year-old boy who became so depressed while on Ritalin that he tried to commit suicide.
The number of serious reactions to ADHD drugs was reported to have doubled in three years, now up to 827, but the true extent of the side effects is not clear, as some doctors and parents may under-report the impact.
The ABC reported that Dr Jon Jureidini, head of psychiatry at Adelaide’s Women’s and Children’s Hospital, said he is worried by the new figures showing an increase in psychotic episodes among children taking the medications.
“There’s clear evidence that stimulant drugs tend to cause or precipitate psychotic episodes in children”, Dr Juriedini said.
The majority of the cases involving children are boys aged between 9 and 12 years old.
About 400,000 prescriptions for ADHD drugs, including Ritalin, Strattera, Dexamphetamine and Concerta are issued each year.
A warning was recently placed on Strattera packaging advising consumers it causes suicidal tendencies, according to the reports.
KidsMatter Primary is a national mental health promotion, prevention and early intervention initiative specifically developed for primary schools. KidsMatter Primary involves the people who have a significant influence on children’s lives — parents, families, carers, teachers and community groups — in making a positive difference for children’s mental health during this important developmental period.
According to the KidsMatter website, the KidsMatter Primary initiative aims to:
• improve the mental health and wellbeing of primary school students
• reduce mental health problems among students, and
• achieve greater support for students experiencing mental health problems.
To achieve these aims, KidsMatter Primary promotes collaborative involvement across the health and education sectors. It provides a framework for mental health promotion, prevention and early intervention that is specifically oriented to primary schools, rather than presenting schools with a single defined program.
Through the KidsMatter Primary framework, schools are provided with the resources to implement a comprehensive approach to addressing students’ mental health which is tailored to their local needs.
In this way, KidsMatter Primary builds on the work schools are already doing to address the mental health of their students through national, state, territory and sector-based mental health initiatives and policies.
KidsMatter Primary has identified four areas (components) where schools can help to strengthen their students’ mental health and wellbeing. These make up the core content of KidsMatter Primary.
Dividing KidsMatter Primary into the four components is a way of making the task of improving students’ mental health and wellbeing in schools more manageable. It also ensures that the efforts that schools put into this initiative are being focused most effectively across contexts in children’s lives and involving all the significant people who have an impact on children’s mental health.
The four components are:
• a positive school community
• social and emotional learning for students
• parenting support and education
• early intervention for students experiencing mental health difficulties.
For further information about KidsMatter Primary, visit the website at www.kidsmatter.edu.au/primary/.
New research published in the Medical Journal of Australia has found the fatality rate from infections with staphylococcus aureus bacteraemia is almost twice as high as was previously thought.
In Australia, it is estimated that there are over 6,000 cases a year, and the study in the October 2009 issue of the MJA suggested that the infection may be responsible for more than a thousand deaths annually.
An earlier study had estimated that about 11% of those infected die from staph but it only looked at mortality rates after seven days. The new study, by Dr John Turnidge from SA Pathology and others, followed up cases for a month after infection and found that the all-cause mortality after 30 days was 20.6%, that is, around one in five.
The study also looked at the risk factors associated with staph-related deaths. These included older age, infections not originating from a medical device, sepsis syndrome and pneumonia. Invasive MRSA (methicillin resistant staphylococcus aureus) infection may be more life-threatening, partly because of the inferior efficacy of the standard treatment, vancomycin.
Staphylococcus aureus is a microorganism that is a common component of the microscopic flora normally living in various parts of the human body, such as the nose. Sometimes, however, these microorganisms can cause infections in human beings, particularly in patients with a compromised defence system (immunity). Staphylococcus aureus can have a harmful effect directly through a toxic substance (toxin) that it is able to produce.
Staphylococcus aureus can cause a range of different diseases, from mild skin infections to life-threatening generalised (systemic) infections.
Bacteraemia is defined as the presence of a microorganism in the blood. In this way, microorganisms spread from a localised point of infection to a systemic infection and affect organs that are far from the original site of the infection.
Staphylococcus aureus bacteraemia can lead to the development of severe complications.
Staph infections have been an unfortunate fact of life in medical institutions for a long time, and a growing number of people are reportedly contracting infections away from hospitals.
Earlier this year New South Wales became the first state to require mandatory reporting of staph infections but in most jurisdictions, there is nothing to force hospitals to keep a count of them.
Dr Turnidge told the ABC that the federal and state health ministers have agreed in principle to act on staph, but the details have yet to be decided.
He said that without recording information on the instances of this infection, it would not be possible to measure the effectiveness of control strategies, for example whether hand-hygiene programs are having the required impact.
It has been widely reported in recent years that drinking coffee in moderation appears to have a number of health benefits, as well as some risks.
The Harvard Health Letter reported some of the research findings about coffee:
• Blood pressure — results from long-term studies show that coffee may not increase the risk for high blood pressure over time, as previously thought. Study findings for other cardiovascular effects are mixed.
• Cancer — coffee might have anti-cancer properties. In 2007, researchers found that coffee drinkers were 50% less likely to get liver cancer than nondrinkers. A few studies have found ties to lower rates of colon, breast, and rectal cancers.
• Cholesterol — two substances in coffee, kahweol and cafestol, raise cholesterol levels. Paper filters capture these substances, but people who drink non-filtered coffee are not protected. Researchers have also found a link between cholesterol increases and decaffeinated coffee, possibly because of the type of bean used to make certain decaffeinated coffees.
• Diabetes — heavy coffee drinkers may be half as likely to get diabetes as light drinkers or non-drinkers. Coffee may contain chemicals that lower blood sugar. A coffee habit may also increase a person’s resting metabolism rate, which could help keep diabetes at bay.
• Parkinson’s disease — coffee seems to protect men, but not women, against Parkinson’s disease. One possible explanation for the sex difference may be that estrogen and caffeine need the same enzymes to be metabolised, and estrogen captures those enzymes.
Positive effects on memory have also been reported. The benefits of caffeine appear to be more apparent in women than men, but scientists are unsure why. French researchers quoted in an article in The Sun Herald said that drinking more than three cups of coffee a day helps protect older women against some age-related memory decline.
The French National Institute of Medical Research followed 7,000 men and women in three French cities, checking their health and mental function and asking them about their current and past eating and drinking habits, their friends, and their daily activities.
They used this information to sort out the specific role caffeine played in these people’s lives.
The study found that women who drank more than three cups a day (or its caffeine equivalent in tea) had a 30% less chance of having a decline in verbal memory and 18% less chance of visual and spatial declines, compared with women who drank one cup a day, according to the report.
The study’s lead author, Dr Karen Ritchie, was quoted as saying she is not sure why only women benefited.
“Our best guess is that women don’t metabolise coffee in the same way as men”, she said.
New principal OHS legislation commenced in the Australian Capital Territory on 1 October 2009. The Work Safety Act 2008 (ACT) replaced the Occupational Health and Safety Act 1989.
“The work safety regime balances the interests of workers and business by providing a measured, future focused approach to work safety”, said John Hargreaves, Member of the Legislative Assembly, on 27 August.
“The regime will also make the future transition to nationally harmonised OHS laws simpler in the ACT than in any other jurisdiction.”
Key aspects of the Work Safety Act include:
• granting workers a specific right to refuse work where they reasonably believe there is a significant risk to their health or safety
• ensuring all employers consult on safety matters with workers and providing flexibility for the methods of consultation
• extending coverage to all people who have a worker-like relationship, such as independent contractors, outworkers, apprentices, trainees and volunteers, and work in employment-like settings
• extending coverage to visitors in workplaces
• extending and clarifying safety duties
• risk management principles
• providing for the reasonable exchange of information obtained by inspectors with other law enforcement agencies to ensure worker and public safety.
The Work Safety Legislation Amendment Act 2009, on 1 October, officially repealed the Occupational Health and Safety Act 1989 as well as the following regulations:
• Occupational Health and Safety (General) Regulation 2007
• Occupational Health and Safety (Certification of Plant Users and Operators) Regulation 2000
• Occupational Health and Safety (Manual Handling) Regulation 1997.
The Work Safety Legislation Amendment Act 2009 makes changes to other legislation, including a number of amendments to the Work Safety Act 2008, as well as the Dangerous Substances Act 2004 and regulations. In addition the amending legislation makes transitional provisions for codes of practice, OHS representatives and committees, work groups, authorised representatives, the OHS Council and Commissioner, and inspectors.
The Victorian Education Department was convicted and fined $50,000, after a student’s thumb was badly hurt in an unguarded school router.
According to WorkSafe Victoria’s website, the 15-year-old Lara Secondary College student had not been properly trained in the safe use of the router, nor had he used it before the April 2007 incident. Geelong Magistrate Coghlan convicted and fined the department in July 2009, ordering it to pay $6,621 in court costs.
The student was using the router to work on the timber legs of a stool he was making.
The court was told the department had a special duty of care to students, but that it had not provided safe systems of work or adequate guidelines and procedures for them.
Magistrate Coghlan was told a guard on the router was removed to make it easier to use; however, it exposed students to danger in the Material Design Technology class.
Charges against the Education Department after incidents involving students using grinders at the Kangaroo Flat and Kyneton Secondary Colleges in 2005 are yet to be heard by the County Court.
Machine guarding is a major issue for WorkSafe as it leads to many serious injuries and deaths across industry each year.
WorkSafe launched a graphic statewide campaign targeting young people late last year.
The campaign urged young people to speak up and ask questions if they were unsure what to do or if they had a safety concern.
It also sought to raise the awareness of employers and other duty holders about the dangers faced by young people who often did not fully understand potential dangers or who might take risks in the belief they were “bulletproof”.
The department was charged under s 23(1) of the Occupational Health and Safety Act 2004, which sets out the duties of employers to other persons.
An employer must ensure, so far as is reasonably practicable, that persons other than employees of the employer are not exposed to risks to their health or safety arising from the conduct of the undertaking of the employer.
In March 2007, six cadets on a school army cadet camp in Victoria’s Wombat State Forest went missing overnight for 18 hours without radio communication.
The cadets had begun a navigation exercise at 10 am and were due to return at 4 pm. At midday, the sergeant with supervision responsibilities for the section left them alone in the bush and did not return, taking the sole radio communication device. He was not replaced. From midday, the section was under the command of a year 10 student without radio communication equipment. The cadets managed to return to the campsite at 11 am the following day.
A risk assessment had been completed for the navigation exercise and had required the section to retain communications equipment for the duration of the exercise. However, the requirement for the group to have communications equipment was not fulfilled in practice.
In response to this incident as well as another that occurred on the same cadet camp (a peanut allergy-related death), Comcare prosecuted the Commonwealth of Australia, acting through the Chief of the Army, for a contravention of the Occupational Health and Safety Act 1991 (Cth) by the Australian Army Cadets (AAC).
The Federal Court proceedings had two separate parts. The first related to the supply of food containing peanuts, and the second related to the loss of the cadets for 18 hours. The first part, concerning the supply of food containing peanuts, was the subject of an article in the previous issue of Schools Alert. This article reports on the second part of the proceedings which focused on the cadets lost in the bush.
The incident involved a failure of the Commonwealth to ensure the safety of the cadets. In particular, the Commonwealth had failed to ensure that the lost cadets had a radio communication device previously issued, which had been identified in the risk assessment.
The OHS Act provides that one of the remedies available for a breach of s 16(1) of the OHS Act is giving written undertakings to Comcare pursuant to cl 16 of Sch 2 of the OHS Act.
The Commonwealth has given a written undertaking which has been accepted by Comcare and is designed to prevent a recurrence of such an incident on other cadet camps. The court will adjourn this aspect of the case for one year to allow the Commonwealth to demonstrate compliance with the terms of the undertaking.
The specific undertakings relating the lost cadets incident included the following:
• the production of a field activities handbook to assist in the planning and conduct of AAC field activities
• the development of a standard operating procedure for mandatory reporting requirements for lost or overdue cadets
• the implementation of a revised AAC OHS Risk Management Policy and procedures
• the commencement of an AAC internal OHS audit program with results to be provided to Comcare on a quarterly basis regarding the progress and outcome of such audit procedures, and
• a presentation on the Army's approach to planning and conduct of youth development-related field activities at a public forum such as the Safety in Action conference in 2009 or 2010.
In this case, as it was a cadet camp, the responsibility lay with the Commonwealth acting through the Chief of Army. However, the evidence demonstrated that all those who ran the camp were either teachers or staff of Scotch College. The court was told that the Victorian WorkSafe Authority has apparently decided not to take action against the school.
The case highlights the duty of care applying to excursions, adventure and sporting activities. It is not enough to simply collect medical forms and consent forms and have those forms available when medical emergencies occur.
Risk assessments on all aspects of activities must:
• be undertaken prior to commencing activities
• be implemented in practice
• be specific to the activities being undertaken, and
• take into account the specific characteristics of the persons undertaking the activities.
Schools authorities should take note of the case and assess whether they have appropriate policies and procedures in place for managing the risks associated with extra-curricular activities.
For more information about the case, visit the website at www.austlii.edu.au/au/cases/cth/federal_ct/2009/700.html.
Comcare v Commonwealth of Australia [2009] FCA 700
The use of ladders is very common in schools, as it is in other workplaces. Falls from ladders are unfortunately all too common, and can cause serious injuries. The cleaning of high-level windows is a work activity often undertaken at schools. Though the accident that prompted the prosecution summarised below did not take place at a school, many school premises require similar risks to be regularly faced by cleaners.
An Underdale company that provided specialist cleaning services was convicted and fined $40,000 plus costs for failing to manage the risks of working at heights.
In 2007, the company was contracted by Romaldi Constructions Pty Ltd to undertake the cleaning of windows and frames of newly built commercial premises in South Australia’s Mawson Lakes. On 1 May, a 40-year-old employee was using an extension ladder to clean windows that were 7.5 m above floor level. The rubber feet of the six metre extension ladder had been placed on a piece of carpet to avoid marking a new timber floor. The ladder was not lashed at the top or secured by any other means. When the ladder slipped, the worker fell approximately 4.5 m and suffered catastrophic injuries including permanent brain damage.
Area Construction Labour Services Pty Ltd was charged under s 19(1) of the Occupational Health, Safety and Welfare Act 1986.
The Magistrates Court of South Australia found the company had failed to comply with its own written policy. It had failed to undertake a hazard identification and risk assessment in relation to cleaning windows at height. It had also failed to provide the employee with a safe means of accessing the windows that needed to be cleaned.
The company pleaded guilty to the breach. On 20 October 2009 it was fined $40,000 after a reduction of 25% for contrition and its guilty plea.
Compensation of $10,000 was awarded to the employee’s wife, as the worker’s injuries included cognitive impairment, loss of vision, speech and functional communication, epilepsy and poor mobility, resulting in a complete disruption of all personal relationships.
Hillman v Area Construction Labour Services Pty Ltd [2009] SAIRC 67
Ruckus Nation is a program to develop fun, effective products that increase physical activity in “tweens” (11 to 14-year-olds). The aim is to help reduce obesity by getting children to move more.
Ruckus Nation began as an idea competition that tapped into the power of the global community — including young people — to generate new ideas for products to get children moving. More than 400 entries were submitted by teams representing 37 countries and 41 US states. Winners were announced in March 2008.
HopeLab, a non-profit organisation that researches ways of improving the health and quality of life of young people with chronic illness, is now moving ahead with the best ideas from the competition to assess their technical feasibility, potential development costs, and desirability to the target audience based on direct feedback from tweens.
HopeLab has chosen to focus on physical activity in tweens in particular because:
• sedentary behaviour is harming children’s health and quality of life
• regardless of weight, physical activity improves health
• physical activity improves mental as well as physical wellbeing
• physical activity levels often decrease significantly in the tween years.
Ruckus Nation’s website includes a summary of research into the benefits of physical activity at ruckusnation.com/pdf/RN_Research_Summary.pdf.
It states that obesity has a profound influence on young people’s quality of life and also contributes to a broad range of adverse health outcomes. For example, obesity has been associated with hypertension, glucose intolerance, insulin resistance and chronic inflammation, which give rise to type 2 diabetes. Obesity during childhood often persists into adulthood, where it is also associated with heart disease and premature mortality.
Interventions involving physical activity have been found to prevent the onset of type 2 diabetes. In one study, participants at high risk for type 2 diabetes were randomly assigned to a lifestyle intervention involving endurance training and dietary counselling or to a control group. Those who were assigned to the intervention showed a decline in body weight, glucose, and insulin and were significantly less likely to develop a new case of diabetes. A follow-up analysis elucidated whether weight loss or physical activity was the critical ingredient. Participants in the intervention were divided into three groups based on how much their physical activity increased during the study. The group with the greatest increase in activity was 49% less likely to develop type 2 diabetes than the group with the smallest increase in physical activity.
Before initiating product development, HopeLab conducted in-depth interviews with tweens across the US to better understand the drivers and barriers to physical activity in their everyday lives. The results provided distinct profiles of tween behaviour and core design principles that inform the design of Ruckus Nation.
The first physical activity product in development at HopeLab is gDitty (working title). gDitty is a specially designed activity monitor optimised to record tween movement, combined with a website where children redeem activity points for rewards they choose. A first-generation gDitty prototype is being evaluated in small-scale pilot studies.
For more information and previews, visit the Ruckus Nation website at www.hopelab.org/innovative-solutions/ruckus-nation/.
A new kit was launched in October 2009 to help teachers prepare secondary school students in South Australia make the transition to work safely.
A media release from SafeWork SA said statistics show that young people are more likely to be injured at work and are often unfamiliar with workplace hazards and safety procedures, including their rights regarding working conditions.
The Teachers’ Toolbox was officially launched by the Presiding Member of the SafeWork SA Advisory Committee, Tom Phillips AM, who said: “Inexperience, and sometimes anxiety about job security, often puts young workers at greater risk of harm in the workplace. Inexperience means they can’t identify a hazard, while insecurity leaves them afraid to speak up if they see a hazard.
“We hope the Teachers’ Toolbox will address that, by helping teachers fill that knowledge gap before young people start work experience or part-time jobs.”
The kit can be used either as a stand-alone resource or in conjunction with other planned lessons and features a range of materials to ensure young people are properly informed about their rights and responsibilities regarding their safety at work.
It was developed by SafeWork SA with the assistance of the Department of Education and Children’s Services’ Futures Connect Program. Several experienced teachers were also consulted and contributed some of their successful lesson plans and activities.
“This is a good example of a resource developed for teachers by teachers with tried and tested materials”, Phillips added.
“Sections of the Toolbox have already been trialled in schools, with good responses from the teachers and students involved in those sessions.
“Appropriately, the Teachers Toolbox aligns with, and complements, other resources available to students and young workers such as the Passport to Safety learning and test program, for high school students about to enter work or work experience, and the Youth@Work website.”
The kit features teaching notes, case studies, student activities and videos.
Integrated pest management (IPM) is a widely accepted approach to pest management that results in effective suppression of pest populations while minimising hazards to human health and the environment.
It has been defined as a pest management strategy that focuses on long-term prevention or suppression of pest problems through a combination of techniques such as:
• monitoring for pest presence and establishing treatment threshold levels
• using non-chemical practices to make the habitat less conducive to pest development
• improving sanitation, and
• employing mechanical and physical controls.
The principles of IPM require that any pesticides selected for use should be those that pose the least possible hazard and are effective in a manner that minimises risks to people, property, and the environment. They should only be used after careful monitoring indicates they are needed according to pre-established guidelines and treatment thresholds.
The use of pesticides in schools has been the focus of legislation in California, USA, where the government passed a Healthy Schools Act which requires schools to have an IPM program. It also imposes additional requirements on schools, such as parental notification of pesticide applications, warning signs, record keeping at schools and pesticide use reporting by licensed pest control businesses that apply pesticides at schools.
As part of its implementation of the Act, the California Department of Pesticide Regulation created the California School IPM website. This site aims to assist schools by providing a variety of documents, web links, and other resources relating to integrated pest management in schools.
For more information, visit the website at apps.cdpr.ca.gov/schoolipm/.
All Australian health and safety legislation requires organisations to provide a safe work environment, safe systems of work, and safe machinery and equipment.
Guidelines on the safe use of portable ladders can be found on the websites of many state and territory WorkCover and WorkSafe authorities. SafeWork SA’s guidelines make the following recommendations.
Ladders are generally considered high-risk plant and should only be used if there is no other reasonably practicable alternative, such as scaffolding or an elevating work platform. If a ladder must be used, it is most important to check that the ladder is right for the job.
Before starting work, the responsible person should:
• check for hazards and risks, including the risk of falls (that is, conduct a hazard identification and risk assessment)
• if there is a hazard to persons in proximity of the work area, install a barricade or warning signs
• make sure the ladder:– has an angle or pitch of about 1:4– extends at least 1 m above the landing– is installed on a firm footing
• secure the top and bottom of the ladder against displacement
• ensure that a non-conductive, insulated ladder is used for electrical work or near electrical hazards
• ensure that the ladder will not be used in a manner that endangers any person.
Safe working practices on a ladder include the following:
• only one person should be on a ladder at any one time.
• when ascending or descending the ladder, maintain three points of contact. For example, two feet and one hand or two hands and one foot must be in contact with the ladder at all times.
• keep your body centred between the ladder stiles.
• do not stand above the tread or rung on the ladder indicated as the maximum safe working height.
• only conduct light work from a ladder.
• if the ladder is placed near a doorway, the door should be locked open or closed. Alternatively, a person may be placed on guard at the foot of the ladder. Warning signs may also be used.
Step or trestle ladders should only be used in the fully open position. A rigid metal spreader or locking device must be used and the load must be carried by the front stiles.
Ladders should be checked frequently and periodically serviced by a competent person (someone who is qualified either through experience, training or both).
Consideration should be given to the type of environment in which the ladder has been used. For example, aluminium ladders can easily become damaged if exposed to acids.
Ladders intended for heavy use must have a load rating of 120 kg or greater.
Australian Standards AS 1892.5 Portable Ladders — selection, safe use and care.
In recent years, some schools have been plagued with disruptive student behaviour, and from time to time, concerns about violence and discipline have surpassed learning and teaching as the highest priority for reform and intervention.
School factors that affect student behaviour have been researched by the New South Wales Department of Education and Training in partnership with the New South Wales Bureau of Crime Statistics and Research (see Schools Alert, May 2006). The study revealed the following school-related factors that affected the likelihood of problem behaviour occurring.
The probability increased if a student:
• felt he/she spent a lot of time in class copying out of textbooks or off the blackboard
• felt his/her teacher spent more time controlling the class than teaching
• felt that his/her fellow students were racist
• more than 25% of the student’s school teachers had less than five years experience.
The probability decreased if a student:
• felt that students making racist comments were reprimanded by teachers for doing so
• felt that teachers at the student’s school stop bullying if they are aware of it
• had found out the school rules formally (through classroom instruction, or in an assembly).
The Tasmanian Department of Education has used this research to develop a program known as Schoolwide Positive Behaviour Support (SWPBS).
SWPBS is an organised and tailored system of strategies that support social and learning outcomes for students, while preventing problem behaviour.
Schools that implement SWPBS systems correctly are providing responsive environments that “stack the deck” in favour of appropriate student behaviour and preferred quality of life outcomes.
SWPBS is a continuum of strategies comprised of three components or phases, including universal support, secondary support and tertiary support. These three levels assist school staff to create the organised and tailored systems of support for all students.
Primary prevention operates through school-wide systems for all students, staff and settings.
Secondary prevention systems address a minority of students with at-risk behaviour.
Tertiary prevention is for the small number of students displaying high-risk behaviour.
SWPBS works by creating multiple behaviour support systems to enable school staff to adopt the most efficient and effective practices for decreasing problem behaviour. The school team starts with the implementation of a primary or universal prevention level of support and builds the remaining systems (secondary and tertiary) over a three- to five-year period until a full continuum of student support needs are addressed.
Building a working knowledge of SWPBS practices and systems will usually require school leadership teams, including parent representatives, to access quality professional learning or training in the SWPBS model. The first year of tasks for school leadership teams include:
• development of an individualised action plan for SWPBS
• establishment of data systems — discipline data, effective behaviour support self-assessment survey, team implementation checklist
• delivery of a presentation for the school
• organisation of meeting schedules and activities for upcoming school year.
The Tasmanian Department of Education has developed a set of resources for SWPBS which are available from its website.
These include:
• general school resources
• schoolwide expectations
• action plans
• acknowledgement systems
• corrective systems
• teaching matrix and lessons
• behavioural referral forms
• websites
• presentations
• articles
• events.
Tools available from the website include:
• effective behaviour support
• schoolwide evaluation tool
• team implementation checklist
• action planning and self assessment.
For more information, visit the Department’s website at www.education.tas.gov.au/school/health/wellbeing/positivebehaviour.
Highlights in update 41 of the School Health and Safety Guide include:
• “Fire Safety” has been updated with regard to school fire refuges, in the light of the interim report of Victoria’s Bushfires Royal Commission.
• Commentary on the incidence of deaths in Australia from Staphylococcus aureus has been added to the section on “Medical Conditions and Infestations”.
• “Canteens and Tuckshops” has been updated with reference to recent research indicating that a peanut-free diet may be implicated in rising levels of peanut allergy.
• New commentary has been added to the section on “OHS Legislation” regarding developments in the harmonisation of OHS legislation across Australia.
• “Technology” has been updated with reference to a prosecution of the Victorian Education Department after a boy’s thumb was badly hurt by a school router.
• “Body Image and Eating Disorders” has been updated with recent figures on overweight and obese children, released by the government’s Preventative Health Taskforce.
• Reference to an information resource on integrated pest management in schools has been added to “Pest Control”.
• “Smoking” has been updated for recent legislative developments.
Your articles and comments are always welcome. Articles for Schools Alert should be between 750 and 1,000 words. Contributions should be presented in electronic form and include your name, address and phone contact numbers.
Please send your correspondence to ggrammeno@bigpond.com. Alternatively, you can send mail to Gaby Grammeno, Editor, Schools Alert, CCH Australia Limited, GPO Box 4072, Sydney NSW 2001.
Mr David Ford, senior partner, Emil Ford & Co, Solicitors, Sydney
Mr Drew Hopkins, lecturer in law, Australian Catholic University, Melbourne
Ms Gaby Grammeno, OHS consultant and writer
Mr Andrew Knott, partner, Macrossans Lawyers, Brisbane
Dr Joan Squelch, lecturer in law, Curtin University, WA
Ms Reeta Verma, lecturer in law, La Trobe University, Bendigo
Dr Grahame Wagener, principal, Oak Flats High School, NSW
Ms Vernita Zigouras, principal, Westall Secondary College, Vic
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