Published in March 2006 Australian Longwall Magazine

Australian occupational health and safety legislation is founded on the recommendations of the Robens Inquiry into workplace safety in the UK in the early 1970s and on ILO Convention 155. A core principle is that individuals should be held accountable, within the bounds of what is reasonably practicable, for OH&S in areas of work they control. Nevertheless, there is considerable variation between Australian states in the manner in which OH&S legislation is framed and administered.

It is generally recognised that the NSW Occupational Health and Safety Act is the harshest such legislation in Australia. It places an absolute obligation on an employer (and associated contractors, manufacturers and service providers) to ensure that employees are not exposed to any risk to their health and safety.

Employees are only required to “cooperate” with the employer and take “reasonable care”. The strict nature of the law and the way in which it is being applied in NSW means that most prosecutions are successful and mask any conclusions that can be drawn about the number of instances of “reckless or dangerous” behaviour.

At a 2005 conference, senior counsel Bruce Hodgkinson summed up the current situation in NSW:

“The present broadly based charges do not require proof of a level of culpability on the part of the employer said to be in breach, only that persons have been exposed to a risk [however it has arisen] whilst at work. [The court has held that] it is enough that the risk arose as a consequence of a careless, hasty, foolish or disobedient employee or contractor. In this way, the proactive obligation to ensure that an employer is providing a safe workplace has been turned into an often impossible burden.”

NSW conducts more than 60% of Australia’s OH&S prosecutions, but has only one-third of the Australian workforce. Further, 65% of Australian OH&S convictions occur in NSW.

The mining industry has not been exempt. Mine owners, management, contractors and suppliers have been prosecuted on more than 20 occasions for incidents of workplace death or serious injury. These prosecutions have involved more than 100 charges. Legal costs are estimated to have exceeded $20 million and fines total almost $4 million dollars.

Figure 1 shows – on a three-year rolling average basis – the number of fatalities per annum and the number of fatalities per million hours worked since 1991-92 in the Australian minerals industry. Both metrics have decreased by about 65% during this period, whilst the lost time injury frequency rate (LTIFR) decreased by 91% (figure 2).

The number of fatalities and the LTIFR since the late 1970s for the NSW coal mining sector, computed on a three-year rolling average, are shown in figure 3. A milestone was reached when no fatalities were recorded in 2002. Since the late 1970s, the fatality rate in the NSW coal mining sector has decreased by 89% and the LTIFR by 92%.

The table summarises the improvements in safety performance since the 1993-94 fiscal year in NSW workplaces, the Australian mining industry and the NSW mining industry. It is concluded from this analysis that the improvement in the performance of the NSW coal mining sector does not correlate with the move to an “automatic” prosecution policy under OH&S legislation by the NSW Government.

The 2007 OH&S performance goals set in the 2005 NSW WorkCover Discussion Paper – “to reduce workplace fatalities by at least 20% by June 30, 2012 [with a reduction of 10% by June 30, 2007] and reduce the incidence of workplace injury by at least 40% by June 30, 2007” – were achieved by both the Australian mining industry and the NSW coal mining sector back in about 1990. However, this may have been aided by the relatively low performance base from which the minerals industry started.

The OH&S performance of the Australian mining industry is beginning to plateau.

It is noteworthy that the productivity of the NSW coal sector has improved over the same period that its health and safety performance has improved.

An organisation evolves as it moves along the OH&S maturity curve, as shown in figure 4. Important steps in this process include the development of trust, openness, and honest and transparent communication between all members of the workforce. Consultation between employees is a critical element.

As is the active reporting – at all levels of the operation – of all near miss events and areas where risk could be reduced, consistent with a developing awareness of potential hazards in the workplace and the development of a trusting, cooperative and consultative working environment.

There is also a progression from a focus on lagging indicators, legislative compliance policies and punitive measures to a focus on self audits, peer review, leading indicators, positive reinforcement and continuous improvement.

The process is one of behavioural change at all levels in the organisation. Increasingly, organisations are recognising high levels of significant and near miss reporting as a positive and healthy indicator of shortcomings in the application of their systems and procedures; and high safety awareness of potential hazards and risks in the workplace. Invaluable free lessons can be learned to assist in the prevention of fatalities and serious injuries.

Such reporting willingness is also indicative of openness, trust and transparency of reporting and increased safety maturity.

In the last two decades there has been more than a 90% reduction in lost time injuries and fatalities in the Australian minerals industry. The Australian coal sector is up to international best practice standards, with a fatality rate of 0.5 in 2004, one third that of the United States and one quarter that of South Africa.

These performances have been achieved primarily by adopting a risk management approach to the workplace environment, equipment and systems of work. This approach predates the adoption by some states of what is effectively an “automatic” prosecution policy in the event of a serious incident.

The rate of improvement has now started to plateau. Further improvement is dependent on achieving human behavioural change. Automatic prosecution policies are impacting negatively and severely in moving off the plateau and towards the goal of zero harm. This is because lessons from serious incidents are not being disseminated for some years after the incident because of privilege and other considerations associated with pending prosecutions.

Some organisations and employees are reluctant to encourage near miss reporting because of concerns that the regulators may use this information to launch or support prosecutions.

One of the most effective means of achieving...click here to read on.