Agriculture Industry GUIDE

New Workplace

Manslaughter Laws

How to prepare for the New Workplace Manslaughter laws commencing 1 July 2020

SIGNIFICANT NEW OHS PENALTIES

The Victorian Parliament recently passed a new workplace manslaughter law that will impose fines and jail terms for employers responsible for negligently causing death. The Victorian Workplace Safety Legislation Amendment (Workplace Manslaughter and Other Matters) Bill 2019 includes fines of up to 100,000 penalty units currently equating to $16,522,000 for bodies corporate, and potential jail terms of currently up to 25 years for corporate ‘officers’ and others.

According to Worksafe Victoria’s Incident records the Agriculture Industry repeatedly appears in the worst six industries for work related fatalities, and Safe Work Australia have identified Agriculture as a ‘priority industry’ for focus in their strategic plan with the sheep, beef cattle and grain farming sub-sectors accounting for the majority of serious claims and fatalities.

In order to guide the Agriculture Industry on how to prepare for this new law, the Victorian Chamber has developed this and other online resources to provide insights from our health, safety and wellbeing experts and policy team on how Agriculture Industry employers can better prepare and respond to these new laws.

For an overview of the amendments to the Victorian Occupational Health and Safety (OHS) Act 2004, download Victorian Chamber’s New Workplace Manslaughter Laws – Generic Guide flyer or WorkSafe worksafe.vic.gov.au/victorias-new-workplace-manslaughter-offences

WHAT SHOULD THE AGRICULTURE INDUSTRY BE DOING?

Although these laws will not impose any new OHS duties on businesses, the threat of significantly increased penalties should motivate all small, medium and large businesses to review and ensure their high or extreme risk rated hazards and controls are either fully eliminated or effectively minimize those risks that can potentially result in a workplace death.

Agriculture Industry organisations with robust and effective OHS practices and procedures that comply with OHS obligations, and are followed, should not be found guilty of these offences.

A ‘Due Diligence’ Approach.

In most State, Territory and the Commonwealth workplace health and safety legislation requires ‘officers’ to provide focused ‘due diligence’ behaviours as shown in the diagram (across). Due Diligence in Agriculture means boards,

directors, executive teams and land owners should formally review and revise the organisation’s hazard and risk register for potential fatality and serious Injury/illnesses by following the systematic approach outlined in the diagrams (across).

What is safety risk management?

LIKELIHOOD

How likely is this incident to happen?

CONSEQUENCE

If the incident happened, how bad would it be (type of injury)?

1 Insignificant e.g. No treat-ment required 2 Minor e.g. First Aid

treatment 3 Moderate e.g. Medical treatment 4 Major e.g. Extensive injuries / single fatality 5 Catastrophic e.g. Multiple serious injuries / loss of life Certain to occur

5 Significant Risk Significant Risk High Risk Extreme Risk Extreme Risk Very likely

4 Moderate Risk Significant Risk Significant Risk High Risk Extreme Risk Likely

3 Low Risk Moderate Risk Significant Risk High Risk High Risk Unlikely

2 Low Risk Low Risk Moderate Risk Significant Risk High Risk Rare

1 Low Risk Low Risk Moderate Risk Significant Risk Significant Risk

THE SYSTEMATIC HAZARD AND RISK MANAGEMENT APPROACH ACCORDING TO ISO 31000

This legally required and systematic method of identification, assessment and control of hazards and risks is the best way to plan for and ensure all serious and fatal hazards and risks are effectively controlled and OHS compliance is achieved.

As a result, Agriculture business leadership should be seeking to systematically review their OHS hazard and risk registers, policies, practices and training relating to high risk work that could foreseeably result in a fatality or serious injury or illness.

REVIEWING AND DOCUMENTING HIGH RISK ACTIVITIES, HAZARDS AND CONTROLS

STEP 1 Develop or Conduct a Fatality/Serious Injury/Illness Hazards and Risks Review

All Agriculture Industry boards, directors, executive teams and landowners, whether they are running small, medium or large businesses, need to have crystal-clear ‘lines of sight’ of their potential serious injury, illness and fatality risks. These should be documented in an Injury Risk Register (spreadsheet) that details:

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each type/class of potentially fatal hazards (e.g. tractor, quadbike or other vehicle rollovers, or being struck by fast moving objects);

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their current risk ratings; and

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their mix of effective control strategies that reduce the extreme and high risks further.

It is also important that risk assessment templates used are closely based on an established standard such as ISO 31000 – Risk Management (risk matrix shown previous page), as this provides a recognized framework for all. If not, then poorly informed management decisions can be made resulting in

substandard and less effective controls implemented, and fatality hazards and risks continuing unabated.

HAZARDS AND RISKS TO LOOK FOR

Items for identification and review in the Agriculture Industry should include:

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Confined Space Entry in items like water or tanks, pits, silos, building cavities or small spaces, etc.;

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People falling from one level to another (more than 2 metres), or people falling due to inadequate or

lack of fall barriers or fall prevention/arrest equipment;

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Weather events causing site features and equipment to collapse or be thrown around, or trees and

large branches to fall;

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Site visitors like volunteers and salespeople are kept in safe places;

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Being hit by large animals such as cattle or deer;

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Excavation and earthmoving collapse and engulfment, or earthmoving plant overturning;

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Children or adults drowning in dams and waterbodies;

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Segregating pedestrian traffic from moving vehicles so people are not trapped, or struck by vehicles;

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Mobile plant safe operation like tractors, trucks, forklifts and other vehicles, during daylight hours

and nights, especially regarding their interaction with pedestrians;

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Mobile Plant incidents such as tractors and quadbikes rollovers or uncontrolled movements;

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Vehicle and mobile plant scheduled maintenance, and all safety features working and utilized;

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Unsafe work practices such as speeding, misuse of power tools, pranking and not following

established safe procedures;

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Material loads shifting, rolling, and/or falling onto people;

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Plant and machinery large enough to have limbs and/or people crushed, drawn in, amputated,

including reviewing maintenance and safe isolation procedures (Lock out/Tag out) especially performed after hours with little or no supervision;

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Are lifting hoists, chains, ropes, skyhooks and slings regularly inspected and maintained or replaced?

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Storage and handling of hazardous chemicals and dangerous goods, including materials handling and

pumping connections where personal exposure is a risk;

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All required high risk chemicals are clearly identified and effectively controlled, including the correct types of PPE being properly used;

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Pressurized gas or liquids vessels and piping that may disconnect, fail or explode; and

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Plant and buildings, shutdown, cleaning and maintenance work.

Consideration must also be given to ‘who’ is exposed to these hazards and risks. Issues such as;

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Are there trained, experienced and qualified and licensed people, young, new or immigrant workers

with little experience, or contractors working uncontrolled?

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Are long work periods and fatigue, or shift arrangements adding to the risks?

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Are children, teenagers and other family members at risk?

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What levels of supervision are present?

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What languages and literacy levels are present, especially with temporary visa workers?

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Are tasks routine, unusual or an emergency repair or response?

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Are visitors and others such as contractors, volunteers and labour hire exposed to the hazards and risks?

HEALTH AND SAFETY DUE DILIGENCE – A FIVE STEP PROCESS

Step 1 Take a long-term view

In assessing the chance or likelihood of a fatality, serious injury or illness, organisations must think ‘longer term’ and industry wide, rather than only considering the next few months, years or only thinking about their own incident experience. Instead they need to be thinking in terms of the one in ten to twenty-year occurrence. After the Longford gas plant explosion that killed two men, the Royal Commission Report findings found that, at the time, Esso had a high focus on Lost Time Injury management but had lost focus on the ‘rare and extreme or catastrophic’ risks and, as a result, paid a heavy price.

With no ‘statute of limitations’ on these new laws, it is possible for an organisation, or ‘officer’, to be prosecuted many years after the criminally negligent conduct occurred (e.g. if someone dies of a carcinogenic chemical related illness as a result of a known and uncontrolled exposure).

Step 2 Enhance the Business Risk Registers and Action Plans

Corporate due diligence is required in order to plan and effectively resource an organisation’s

capabilities and safe practices to avoid or minimize the occurrence of these ‘rare and potentially fatal’ hazards and risks.

Boards, directors, leadership teams and landowners need to do everything in their capacity to either eliminate these risks completely, or effectively minimize them so they no longer produce high or extreme risk ratings, but, based on current and potential new

controls, can be re-rated as significant, moderate or even low risks.

Leadership also needs to identify and resource the most effective blend of controls ‘practicable’ for the organization through following the hierarchy of controls principles in the diagram (across).

The higher the risk – the greater the need to

implement top tier and workplace focused controls. Needing to rely heavily on people’s decisions (bottom tier) to follow procedures and act in a safe manner is far less effective and must not be solely relied upon.

Step 3 Ensure this is conducted in a consultative way

Because risk assessment is a subjective assessment it is critical that all the ‘experts’ are engaged and listened to. The ‘hands on’, the ‘technical’ and the ‘process’ experts all need to be engaged with and contribute to these critical hazard and risk assessments.

Agriculture Industry boards, directors, leadership teams and landowners are often made up of great financially focused people who may not have full practical knowledge of the Agriculture Industry hazards and risks present and how the work is conducted. For this reason, there is a great need to engage with and consult the ‘hands on’, the ‘technical’ and ‘process’ experts and their representatives during this review.

In Agriculture, groups like trades and maintenance people, experienced and licensed vehicle operators, engineers and scientists, OHS and HR specialists, Health and Safety Representatives (HSRs) and the wide variety of contracting/services companies involved should be consulted with and listened to. This consultative approach provides a much higher degree of reliability and consistency for the risk register and its outcomes and, remember, it’s also a legal requirement in the OHS Act 2004 (S 35).

Step 4 Strengthen attitudes against accepting High Risk activities (Set the Right Culture)

Strong leadership standards, clear decisions and communication, and effective accountability are critical to improving and achieving this type of good safety culture on an ongoing basis, especially when significant business pressure and change occurs.

Agriculture, by nature, is always variable and unpredictable. Along with this there are periods that are busier than normal, involve vehicle and machinery breakdowns needing urgent attention, often overnight, may need workers that are not so familiar with the workplace, tasks and equipment to get involved, or are triggered by an urgent client, or imminent harvest and cropping need.

The conduct that often occurs is one of ‘getting it done’ or taking short cuts to meet an urgent seasonal or client deadline and which may lead to risk taking behaviours, serious injuries or fatalities. This attitude is often at the expense of doing things in a safe manner and frequently dominates middle management and supervisory thinking during busier periods.

A strong and clear leadership position on workplace safety, combined with clear responsibilities and active accountability for those who fail to meet the stated safety standards, is the best way to counter a dangerous safety culture developing.

Eliminate the hazards or risks

• Eliminate the hazards or eliminate the risks

Change the risks to reduce them

• Substitute the risks with lesser risks • Reduce the risks through engineering

changes or changes to systems of work • Isolate people from the risks

Change people to reduce the risks

• Reduce the level of harm using administrative actions

• Use personal protective equipment to protect people from harm

HIGHEST LOWEST LEVEL OF PR O TECTION LEAST MOST RELIABILITY

This approach needs to be planned and resourced for the long term and all leadership, management, supervision and landowners must develop a ‘high level of intolerence’ for accepting and conducting extreme/high risk activities without the most effective mixture of controls in place.

Step 5 Gain documented evidence and assurance

Agriculture business boards, directors, leadership teams and landowners need to ‘ensure’ that fatality risks are completely avoided or effectively controlled, and then regularly monitor and gain feedback to confirm this is the case for the long-term future, viability and success of the organization.

Due to the shared nature of the ‘OHS duties of care’ this is not only needed within the organization but must also occur across multiple businesses, partnerships and contracting or services arrangements. A combination of employment and contractual commitments on achieving OHS outcomes, regular OHS performance and incident reporting structures to boards and executive teams, combined with internal and external verification programs (OHS inspection and auditing) will generate the evidence and assurance the boards, directors and leadership teams need.

HOW WE CAN HELP?

The Victorian Chamber’s Health Safety and Wellbeing (HSW) team are highly qualified and experienced in reviewing, preparing and improving your policies, procedures and practices, and upskilling your staff in these complex safety management needs.

For more information on our HSW consulting, training and other support services, please contact us on