EDITION 7-2012 http://www.mba.org.au/ files/view/?id=594 MASTER BUILDERS EXECUTIVE COUNCIL President – Simon Butt Treasurer – Frank Porreca Chair, Commercial Builders’ Sector Council – Valdis Luks Chair, Suppliers and Subcontractors’ Sector Council – Grace Ferreira Chair, Residential Builders’ Sector Council –Frank Porreca Chair, Civil Contractors’ Sector Council – Andy Crompton Chair, Professional Consultants’ Sector Council – Hans Sommer MASTER BUILDERS MANAGEMENT TEAM Executive Director – John Miller Deputy Executive Director – Jerry Howard Director Industrial Relations – Mike Baldwin Senior Management Accountant – Louise MacCallum Senior Manager - Marketing & Membership Services – David Leitch MASTER BUILDERS GROUP TRAINING General Manager – Wendy Tengstrom
Master Builders Association of the ACT 1 Iron Knob St, Fyshwick ACT 2609 PO Box 1211, Fyshwick ACT 2609 Tel: (02) 6247 2099 Fax: (02) 6249 8374 Email: canberra@mba.org.au Web: www.mba.org.au
DIRECTORS & OFFICERS WARNED OF WORKPLACE SAFETY INSURANACE RISK
Company directors and officers have been warned of insurance companies offering insurance against workplace health and safety penalties. According to a paper presented at a Comcare Australia conference, such insurance may cover civil penalties but are not valid for criminal penalties. Associate Professor Neil Foster, of Newcastle Law School, told the Comcare Conference in Sydney recently that the law "allows a director to take out insurance against their liability to pay civil damages for harm, should such arise".
There seems to be no barrier to a company officer purchasing directors and officers insurance to cover possible civil liability which might arise, Associate Professor Foster said. He advised “officers may need to renegotiate existing insurance policies if they do not already cover liability for personal injury or death of company workers. (Many company General and Products Liability policies will include a company officer within the definition of ‘the insured’, but there is usually a Workers Compensation/Employer’s Liability exclusion in such policies. Directors
The circumstances in which an officer would be found personally liable for injury to a worker are likely to be rare, but the possibility is there and would be worth considering. However, it was not possible for company officers to take out a valid insurance policy that covered criminal penalties exacted in criminal proceedings, such as an WHS prosecution, "where there is any element of 'personal fault' in the offence.” "Some insurance companies seem to be offering such policies," Associate Professor Foster said. "They are not legal." Criminal penalties imposed on officers for failing to ensure due diligence, under section 27 of the model Work Health and Safety Act, "will have to be paid out of [their] personal funds". It was illegal, he noted, for employers to pay their officers' fines.
and Officers Insurance is usually regarded as dealing with ‘financial’ risk rather than possible liability for personal injury. “ He also said, “The circumstances in which an officer would be found personally liable for injury to a worker are likely to be rare, but the possibility is there and would be worth considering.” According to Associate Professor Foster, insurance for criminal penalties is being offered in some policies and the insurance cover would be unenforceable, but “(presumably) payments continue to be made.”
THE
HAMMER hits the nail on the head
USING SAFETY AS A POLITICAL WEAPON Just looking at the whole debate about safety in the ACT, there is one conclusion that is irrefutable. Everyone is interested in it. What is also apparent is that the ongoing manipulation of safety as a tool by the CFMEU to meet ends that have nothing to do with the real game of improving safety. Their incessant bleat is about everyone else’s responsibilities except their own as they constantly run on 20/20 hindsight vision. As a major stakeholder in the industry when have they put their hand up and said, “We’ve got to do much better in driving home the message to our members of individual responsibility.” Of course, that wouldn’t suit their interests and heaven forbid that anyone in a position to ask question them on their responsibilities. The reality is that everyone has got to do better. When former New York mayor, Rudy Guiliani set about fixing up crime and safety problems in that city, he took a bottom up approach. It was about a culture that had developed in that city that needed changing and perhaps there are some lessons to be learned there; a concept that will be tested on October 22 at a Safety Culture and Leadership Forum being held by the Master Builders Association of the ACT.
In the midst of all the debate, is the Territory’s safety inquiry being headed up by former Commonwealth Public Service Commissioner, Lynelle Briggs, along with the support of ACT Work Safe Commissioner, Mark McCabe. The inquiry, brought about by the tragic deaths of four people in different circumstances on local projects since late last year, was not an inappropriate response by government. There is a well heeled view of safety professionals that an inappropriate response would be increasing levels of compliance where it is suggested widely that paperwork is part of the problem. Nobody would question the need to try to get to the bottom of a problem that might exist. Yes, four deaths need some answers but to try and join dots that bear no relationship to each other is fraught with danger. We’ve seen in the growth of a litigious world, someone has to be blamed. We have all but discounted the concept of a tragic error of judgement by an individual. If we can begin to grapple with that concept again, maybe we can start to lift awareness. Society has to get away from the mindset of always finding someone else to blame. It’s a concept that brings out the worst in people and one that is being preyed on by the less scrupulous parts of society – something for you to decide.
Nobody wants to “hope” that the building and construction industry doesn’t suffer any more tragedies on local work sites. The industry wants to be far more measured than that but that only comes about with everyone playing a part. There is a place for systems but it seems to be screaming out that there is a lot more space for a cultural shift, both a top down and bottom up approach, in other words a shared responsibility. The longer that people are out there using safety as a political weapon and divisive tool to build an empire there will be innocent victims caught in the crossfire who will just get hammered.
NATIONAL PLAN FOR ASBESTOS MANAGEMENT The Minister for Employment and Workplace Relations Bill Shorten has announced the Federal Government will establish an Office of Asbestos Safety to develop a national approach to asbestos awareness and management.
Mr Shorten said the new body would have “a central coordinating role [and] will pave the way for a national approach to asbestos awareness and management in Australia.” He announced the plans for the new body as part of the Government’s response to the Asbestos Management Review which was commissioned in October 2010. “Today, the Australian Government declares its commitment to establishing an Office of Asbestos Safety which will be tasked with developing a national strategic plan as recommended by the Review, by 1 July 2013,” Mr Shorten said.
Mr Shorten also announced a number of research projects on management and awareness of asbestos will commence in advance of the agency’s establishment. The research will include examining current infrastructure for the disposal of asbestos products, and a study of community awareness of and attitudes to asbestos. “This research will underpin the future work of the office, and provide them with a head start on what I anticipate will be a considerable workload.” The Asbestos Management Review recommended the commonwealth take responsibility for developing a national strategic plan to manage asbestos.
Australia has never genuinely contemplated a comprehensive national strategy to manage asbestos and raise awareness about it. “As an insidious killer, asbestos is a national issue requiring urgent attention and greater national preventative coordination - so we are making a concerted effort to address it. A critical element of the recommendations is the establishment of a body to oversee how we manage asbestos in Australia and how we can reduce exposure to asbestos.”
It said a national agency should be established to implement the plan which would investigate the prioritised removal of asbestos from government and commercial buildings by 2030. It also recommended reporting asbestos in residential homes built prior to 1987 with a labelling system to alert buyers, tenants and renovators to the presence of the material.
The Review, released in Parliament on 16 August, made 12 recommendations to address asbestos issues.
“If we know Australians will renovate their homes ... and people will be in public buildings which will eventually be upgraded or renovated - then don't we have an obligation to start tackling the cause of the risk,” Mr Shorten said.
Mr Shorten said, “Minimising asbestos exposure is a responsibility of all levels of government. While different levels of government have individually and at times together agreed on asbestos related measures, the sad truth is that until this Review was commissioned by the Gillard Government, Australia has never genuinely contemplated a comprehensive national strategy to manage asbestos and raise awareness about it. “We will continue to consult with state and territory governments to develop the functions, structure and funding of the new asbestos office and the content of the strategic plan.” Mr Shorten said, “Australia has one of the highest rates of asbestos related disease in the world. Our response to this Review represents our best chance to work together to eliminate asbestos-related disease in Australia.” The Office of Asbestos Safety will set out a road map for improved handling of asbestos and look at the practicalities of implementing the recommendations of the Review.
Opposition workplace relations spokesman Eric Abetz acknowledged most Australians would like to see a bipartisan approach to asbestos. “(But) in relation to a new bureaucracy we do (already) have Safe Work Australia, we do have established bureaucracies, so I'm somewhat agnostic about establishing a new bureaucracy which could potentially cost more money,” he said.
Guide to measuring and controlling released by Safe Work Australia Safe Work Australia has published two new guides on reducing risks to employees from vibration, such as risks from operating hand held tools and compactors and operating vehicles on rough surfaces.
According to Safe Work Australia, “Workers are exposed to handarm vibration (HAV) through hand-held tools and hand-guided equipment, or by holding materials being processed by machines. “Exposure to HAV can disrupt hand and forearm circulation; damage nerves, tendons, muscles, bones and joints of the hands and arms; and cause carpal tunnel syndrome, tennis elbow and ‘vibration white finger’". Employers don't have to spend a lot of money to measure and control the problem, SWA said. “Whole-body vibration (WBV) is commonly experienced by drivers, operators and passengers in vehicles or machines being operated on uneven surfaces, and can increase due to the age of the vehicle, vehicle speed, cab and seat design, and task design.”
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Workers exposed to harmful or long-term levels of WBV are at risk of low-back pain; spine degeneration; cardiovascular, respiratory, endocrine and metabolic changes; digestive problems; reproductive organ damage; and vision and balance impairment.
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modifying existing tools to either minimise the vibration or prevent the vibration from moving into the handle of the tool
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directing cold air away from the worker’s hand
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maintaining equipment regularly to minimise vibration
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modifying work methods to reduce exposure to vibration
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altering work practices.
It says gloves should not be relied upon to provide protection from vibration. “They only provide protection from cold temperatures, water, and cuts and abrasions. The use of thick gloves may worsen exposure by workers applying increased grip forces to the tool and increase transmitted vibration.” There are currently no mandatory vibration exposure levels in Australia. In Europe there are mandatory requirements which Safe Work Australia says “may be used as a guide. You should select tools that can be used with the daily vibration exposure of a user
Exposure to HAV can disrupt hand and forearm circulation; damage nerves, tendons, muscles, bones and joints of the hands and arms; and cause carpal tunnel syndrome, tennis elbow and ‘vibration white finger
A Safe Work Australia report found that 24 per cent of workers are exposed to workplace vibration, and about one in four of these people are not provided with measures or training to control the risk. According to the fact sheets - Whole-Body Vibration and Hand-Arm Vibration - measuring vibration levels is difficult and expensive, but not always required. The Safe Work Australia guide says “successful HAV exposure reduction usually requires a combination of control measures.” In order of priority these include: •
substituting alternative methods or processes to eliminate the need to use vibrating hand-held tools
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selecting tools with low vibration emission levels to eliminate or minimise exposure to vibration
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remaining below 2.5 m/s2 averaged over an 8 hour working day. If this is not achievable, consider changing or rearranging the task so this can be met. Sometimes it is not possible to reduce exposure to below 2.5 m/s2, however you should never allow a worker to be exposed to more than 5 m/s2 over an 8 hour day.” Safe Work Australia also says, “When a worker feels that the roughness of the ride in a vehicle, for example, has become unpleasant, it "is likely that their exposure to whole-body vibration is reaching levels that could pose a risk to health.
"This may be used as an indicator that there is a problem and hazard controls may be put in place. Employers should then follow the hierarchy of controls to eliminate or reduce the risk”, the guides say. “Employers are also advised to consult the UK Health and Safety Executive's whole-body vibration calculator and exposure points system, to determine daily exposures,” Safe Work Australia says.
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LET’S CLARIFY THE NEW
HEALTH AND SAFETY LAWS
With the introduction of the Work Health and Safety Act 2011 on 1 January 2012, WorkSafe ACT is aware that some misconceptions have been promulgated by certain parties which have served to confuse and worry some employers, writes WorkSafe ACT Commisioner, Mark McCabe.
WORKING SAFELY AT HEIGHT BLITZ Safety breaches such as this will be targeted during the campaign.
The basic work health and safety requirements in the new legislation are very similar to those in the previous Act. One of the most important changes is the new accountability for Officers [Directors or Senior Executives] with regard to ensuring that their organisation or business is taking all reasonable steps to comply with the legislation. The basic work health and safety requirement for businesses remains the same. Employers must take all reasonably practicable steps to ensure a safe working environment for their workers. This does not mean that management will face fines every time an accident happens. Employers are not expected to provide risk free environments. As nice as that would be, it is rarely achievable. What employers are required to do is everything they reasonably can to either eliminate work health and safety risks or, if they can’t be eliminated, to minimise those risks. This requirement has not changed substantively since the introduction of health and safety legislation in the ACT in 1989. Health and safety, therefore, is about managing risks. This is the very core of an employer’s [or PCBU’s] health and safety obligation. Much of the material contained in the WHS Regulation and the Codes of Practice expands upon how an employer should or could [in the case of Codes of Practice] do this with respect to certain specific issues, such as working in confined spaces, at height, with plant and equipment, etc. All risks can be managed to some degree, without exception. Not all risks, however, can be eliminated. Where they can’t be eliminated, there are usually a range of things that can be done to minimise or mitigate those risks. Options include use of alternate products; isolating certain types of high risk work; mechanical aids or ways of minimising the chance of injury; training, supervision and procedures and the use of personal protective equipment [PPE]. A key step to creating a work environment where risk is managed appropriately is the creation of an environment where workers, supervisors, managers and the like are encouraged and given the skills to discuss and find ways to manage risks. Perpetuation of the myth that the construction industry is a risky business and there is nothing we can do about it is a recipe for disaster on many levels. While the new legislation rightly puts an obligation on senior managers to make sure that health and safety is receiving due attention in their business, and while there are some new and very serious penalties for failing to do this, it is not difficult to fulfil employers’ and managers’ obligations where there is a will to do so. More than this, our workers, indeed our community, expects that employers will be doing everything they reasonably can to protect the people they employ.
WorkSafe ACT will be commencing Phase 1 of its Working Safely at Height campaign before the end of the year. Falls from heights have been one of the largest contributors to injuries in the construction industry, not just in the ACT but nationally, indeed internationally, for many years. The ACT has witnessed several significant injuries as a result of falls from heights over the past several weeks. This campaign will involve different phases. Phase 1 is expected to commence towards the end of November 2012. WorkSafe inspectors will be examining scaffolding and other issues on a range of sites across the Territory and offending workplaces may receive either Improvement Notices or Prohibition Notices, depending on the faults identified. Phase 2 which will commence early in 2013 will focus on working on roofs in residential construction. The need for additional phases of this campaign will be assessed at the end of Phase 2.
NEW WORKPLACE HEALTH AND SAFETY TRAINING REQUIREMENTS Changes to the Federal Work Health & Safety regulations. Recent changes to the Federal Work Health and Safety regulations allow Workplace Health and Safety representatives to attend one day refresher courses to meet Health and Safety requirements rather than full five day courses, where they have previously completed longer courses under nowabolished requirements. The changes to the regulations restore the position which previously existed under the now repealed Occupational Health and Safety Act. The OHS Act was repealed and replaced by the Work Health and Safety Act in 2011. The regulations have now restored the previous provision that a Health and Safety Representative (HSR) who has previously completed training under the repealed Occupational Health and Safety Act 1991 (OHS Act) may attend a shortened bridging course approved by Comcare, as an alternative to the full five day training course HSRs must complete a prescribed training course before they can exercise some of the powers allowed under
the Act, including issuing a provisional improvement notice (requiring a person conducting a business or undertaking to remedy or prevent a contravention of the WHS Act) or to direct that unsafe work cease (if there is reasonable concern that the work would expose a worker to a risk to health or safety).
The Regulation also amends the Fair Work Regulations to enable the President of Fair Work Australia (FWA) to delegate the power to issue a WHS entry permit under section 134 of the WHS Act. A WHS permit enables a holder to enter a workplace to inquire into a suspected contravention of the WHS Act.
Explanatory material published with the new regulations says the introduction of a shortened bridging course for HSRs will mitigate training costs for employers and ensure HSRs are able to access training so they may continue to exercise their powers under the new WHS laws.
Under the change, the President of FWA can delegate FWA’s power to issue a WHS entry permit to senior FWA staff.
It says the amendments were developed in response to concerns raised by employers who have an obligation to train large numbers of HSRs in their workplace, and following consultation with the Australian Council of Trade Unions (ACTU). WHS regulators from each state and territory have also been consulted through the Work Health Safety Implementation Temporary Advisory Group (TAG) at Safe Work Australia.
CONSTRUCTION INDUSTRY SAFETY INQUIRY
In the aftermath of the death of Ben Cantanzariti on an ACT construction site in July of this year, the Attorney General, Simon Corbell announced that the Government would be establishing an Inquiry into safety in the ACT's construction industry.
The regulation also updates the state and territory jurisdictions in which the changes apply, including to include the ACT and NSW.
For more information on HSR training, contact MBA Group Training: Tel: 02 6280 9119 Fax: 02 6280 9118 Email: training@mba.org.au Web: www.mba.org.au/training
in recent weeks, from residential or 'cottage industry' sites through to small unit development sites, commercial sites and civil construction sites, including the Cotter Dam. Panel members have also visited the sites of a number of the fatalities which have occurred over the past year. A call for written submissions which went out in mid September has now concluded and a range of submissions have been received from a wide variety of stakeholders including safety managers, workers, consultants, training organisations and building companies. The Master Builders Association of the ACT has provided the inquiry with a submission. This can be found on the MBA website at:
The Inquiry is now underway. The two Inquiry Panel members are Ms Lynelle Briggs, who will Chair the panel, with support from the Work Safety Commissioner, Mark McCabe. A small Secretariat is providing the panel with administrative support.
www.mba.org.a/media-room/submissions
To assist with their deliberations, Inquiry Panel members visited a range of local construction sites
The Attorney-General has asked the Panel to report back to the Minister by 16 November 2012.
The Panel has also been conducting face to face interviews with certain interested parties. These interviews are expected to be concluded by 12 October 2012.
NEW LEGISLATION PROTECTS EMPLOYEES IN NOISY WORKPLACES
From 1 January 2012, new legislation under the ACT & NSW Work Health and Safety Act 2011 requires employers to test the hearing of at-risk employees at commencement and then every 2 years. This applies to all employees who wear hearing protection regularly due to working in noisy environments. Failure to meet obligations carries a maximum penalty of $6,000 for individuals or $30,000 for body corporates. Noise-induced hearing loss Prolonged exposure to noise can damage the hair cells in the inner ear; this is called noise-induced hearing loss and it is insidious. Because the damage can occur over months or years, it can go undetected and untreated for long periods. One possible symptom of hearing loss is tinnitus, a ringing or buzzing in the ears produced by the brain attempting to compensate for silence in certain frequency ranges. In rare cases the impact of the tinnitus can outweigh that of the underlying hearing loss and can lead to sleep deprivation, concentration problems or psychological trauma. Once noise thresholds are reached, even moderate increases in noise levels can have a dramatic impact on safe levels of exposure. For example, the guidelines indicate that noise levels of 85 dB can be tolerated for up to 8 hours without consequence, however this halves to just 4 hours if the noise level increases by a further 3 dB. Noise meters are readily available and affordable, and should be standard issue for safety officers in noisy environments.
Managing employer risks Hearing is crucial to communication, and miscommunication can lead to costly mistakes or injuries. It is not uncommon for employee disputes to stem from undiagnosed hearing loss when verbal instructions are misunderstood or missed altogether. By understanding and talking about each employee’s hearing profile, strategies and controls can be implemented to reduce both the risk and impact of miscommunication. New employees can come to the job with existing hearing loss. Baselining their hearing profile serves to detect and mitigate risks, but it also protects the employer from future compensation claims where they are not at fault. Similarly, a regular screening program helps to manage compensation risks before they get out of hand and allows for preventative controls to be implemented where hearing problems arise.
been conducting employee screening programs for employers such as Qantas Defense, the Australian Mint, and the Australian Federal Police for years. Brindabella Hearing & Speech Centre can also provide comprehensive ongoing support and treatment for employees who show a hearing loss, including the supply of hearing aids and tinnitus maskers. Keep employees safe, happy & productive In summary, employers can avoid significant penalties and the potential bad publicity that could accompany getting caught out on your legal obligations. By implementing a robust hearing screening program, you can turn an insidious, unquantified risk into a positive, proactive safety feature of your organisation. Your employees – and the friends, colleagues and families they communicate with – will surely appreciate you for it.
Hearing screening services Brindabella Hearing & Speech Centre has a range of services to help you meet your legal obligations, manage your risk, and assist any employees with hearing loss. In addition to their fully equipped clinic in Deakin, they have a vehiclebased mobile screening unit that can come to your workplace. Each employee takes about 15 minutes and receives an ear exam and a hearing test. Results are compiled into a comprehensive report for management, and employees can be provided with their results if desired. The university qualified audiologists at Brindabella Hearing & Speech Centre are trained in the latest diagnostic equipment and protocols. They have
For more information contact Brindabell Hearing & Speech Centre Phone: 02 6281 2311 Fax: 02 6232 5555 Email: info@hearingandspeech.com.au www.hearingandspeech.com.au Hours: 9 AM - 5 PM, Monday - Friday Address: Suite 4, Level 1, Equinox 1 Building Equinox Business Park 70 Kent Street Deakin ACT 2600
COMING EVENTS FOR 2012 SAFETY CULTURE & LEADERSHIP FORUM
Date: Monday 22 October 2012 I
FRANKLIN CHARITY HOUSE
Date: October 2012 - March 2013 I
Where: National Convention Centre, Canberra
During National Safety Week we have assembled a group of industry experts and we want them to challenge the current approach to safety. There are two sessions on the day aimed at workers onsite, managers, safety representatives and company executives. Where: Cnr Oodgaroo Ave and Marie Pitt St, Franklin
Between October 2012 and March 2013 Master Builders ACT will be holding information sessions at the Franklin Charity House. These sessions will be held on Saturday mornings and are open to the public. Learn about Energy Efficiency, Contracts, Landscape Design plus much more. Visit www.franklincharityhouse.org.au for more information.
TRAINING DATES FOR 2012 ASBESTOS AWARENESS
Date: 23 October / 15 November(Contact Norma Inglis at ninglis@mba.org.au to book) The aim of this course is to provide learners with the knowledge and skills to identify when and where Asbestos may be present and the precautions that need to be taken to safely remove and dispose of the Asbestos.
ACT WHS INDUCTION CARD
Date: 8th & 15th November (Contact Norma Inglis at ninglis@mba.org.au to book) Current legislation requires all persons to complete WHS Induction Card Training before entering a construction site. This course prepares participants for the construction site through understanding of their WHS responsibilities and the skills to identify hazards.
REMOVAL OF ASBESTOS - BONDED UNDER 10M2
Date: 15 November (Contact Cecilee Miller at cmiller@mba.org.au to book) The aim of this course is to provide learners with the knowledge and skills to identify when and where Asbestos may be present and the precautions that need to be taken to safely remove and dispose of the Asbestos.
SECTOR COUNCIL MEETINGS 2012 COMMERCIAL
30 OCT
CIVIL
27 NOV
RESIDENTIAL
24 OCT
SUB-CONTRACTORS & SUPPLIERS
16 OCT
PROFESSIONAL
17 OCT
28 NOV
12 DEC
ACT PRIVATE SECTOR BUILDING ACTIVITY $120 $100
MILLION
$80 $60 $40 $20 $0
Oct-11
Nov-11
Dec-11
Jan-12
Feb-12
Mar-12
Apr-12
May-12
Jun-12
Jul-12
Aug-12
Sep-12
The above graph and table below summarise private sector building activity for the various building sectors in the ACT over the past 12 months. The values for each month are depicted in millions of dollars. // To Insert New Data Goto Object/Graph/Data
• Copy and Paste Pivot Table Data into Data Additions and Alterations (Residential) Commercial Building Work Garages, Pools, Decks and Similar Structures Multi Unit New Housing
Oct-11 Nov-11 Dec-11 Jan-12 Feb-12 Mar-12 Apr-12 May-12 Jun-12 0.3 0.6 0.58 0.82 1.00 2.00 5.5 5.8 5.2 85 60.9 17 8.19 51.5 19.02 14.3 39 80.2 7.35 10.5 7.1 9.02 7.05 0.64 1.7 9.0 10.2 7.7 24.89 15 13 16.5 1.8 0.13 34.5 33.1 1.07 2.8 0.4 1.8 11.4 3.7 40 53 49
Jul-12 6.3 83 9.5 5.5 67
Aug-12 Sep-12 5.3 8.2 17.1 27.5 15.0 13.8 0.5 1.8 17.2 40