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The Royal Commission into the Home Insulation Program was established last week and its terms of reference released.

As reported in an earlier e-bulletin the commission is one of the Coalition Government’s election promises.

The terms of reference include how the Australian Labor Government made decisions about identifying, assessing and managing work health and safety (WHS) risks and whether the Government had sufficient regard for such risks.

Also included are whether the deaths of the four men, Matthew Fuller, Rueben Barnes, Mitchell Sweeney and Marcus Wilson, could have been avoided if the Labor Government had taken a different approach to identifying, assessing or managing WHS risks, the program’s effects on the victims’ families and the program’s effects on pre-existing home insulation businesses.

Ian Hanger AM QC has been appointed as the Royal Commissioner; he is a dispute resolution practitioner and an Adjunct Professor at the Australian Centre for Peace and Conflict Studies at the University of Queensland.

Hanger will report the commission’s findings and recommendations on or before 30 June 2014.

For more details, visit the Royal Commission and the full terms of reference.

Published on 19 December 2013 in NSCA Safe-T-Bulletin.

19 Dec 2013

NZ CEO escapes charges: unions shocked

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The dropping of safety charges against former Pike River CEO Peter Whittall has alarmed unions.

Whittall was the CEO of Pike River Coal Limited when an explosion at the company’s mine in the South Island of New Zealand killed 29 miners in November 2010.

He was charged with 12 safety breaches at the mine, following the explosion. This was in addition to the prosecution of the company.

The New Zealand Ministry of Business, Innovation and Employment (MBIE) told the Christchurch District Court late last week that “it intended to offer no evidence on the 12 charges and asked that Mr Whittall be discharged”.

MBIE Health and Safety group acting Deputy Chief Executive Geoffrey Podger said the likelihood of obtaining a conviction was low and it was not in the public interest to continue with the case.

Podger said an offer made by Whittall’s legal team was also taken into consideration. “Subject to charges being withdrawn, he [Whittall] would meet the Pike River families.

“Each of the Company’s directors would be asked by Mr Whittall to attend.

“The proposal also included a voluntary payment on behalf of directors and officers of the company at the time of the explosion of $3.41 million to meet the reparation ordered by Judge Farish at the Pike River Coal Limited sentencing.”

However, Podger reinforced it was the low likelihood of a conviction and not being in the public interest that led to the charges being dropped.

Pike River Coal Limited (In Receivership) has already been successfully prosecuted and fined.

The New Zealand Council of Trade Unions (CTU) says the decision to withdraw the charges is wrong.

“It is insufficient for the Department to say the charges could not be successfully proven,” said New Zealand CTU President Helen Kelly.

“The Royal Commission of Inquiry extensively documents the areas where Mr Whittal, in his CEO role, did not take all practicable steps to keep the men safe, and if it is correct that the charges could not have been proven there must have been errors in the range of charges laid.

“The timing of the decision and the lack of time for other parties to investigate the legitimacy of this proposition before charges were withdrawn suggests the Department did not want scrutiny of this decision.”

For more details, visit the Ministry and the Unions.

Published on 19 December 2013 in NSCA Safe-T-Bulletin.

The Fair Work Commission’s (FWC) bullying jurisdiction will be open for business on 1 January.

As reported in an earlier e-bulletin workers employed in constitutionally covered businesses will be able to apply directly to the FWC for an order to stop bullying.

The FWC must start dealing with a complaint within 14 days of an application being made.

It can make any order it considers appropriate to stop the bullying, apart from ordering the payment of compensation.

“Each application will be assessed at an early stage to decide whether it falls within our jurisdiction, the parties involved, the nature of the alleged bullying and how the application should be dealt with,” FWC president, The Honourable Justice Iain Ross, said.

Commissioner Peter Hampton is heading up the FWC’s anti-bullying panel.

The bullying complaint mechanism may change in the future, as the Coalition went to the Federal Election with a promise to change the laws so workers first have to seek help and advice from a regulator.

For more details, visit anti-bullying at the FWC.

Published on 19 December 2013 in NSCA Safe-T-Bulletin.

A new report suggests that lost time injuries (LTI) should no longer be the focus of measuring work health and safety performance.

Issues in the Measurement and Reporting of Work Health and Safety Performance: A Review isn’t suggesting that injury indicators be discarded altogether. Rather, it advocates using a range of measures including injury and illness outcomes and positive performance indicators.

“Disregarding one or the other would [be] akin to asking investors to choose between receiving a Balance Sheet and an Income Statement: both are important because they provide different perspectives on an organisation’s success – one reflects position and the other reflects performance,” the report says.

The report recommends a shift away from LTIs to Class 1 work-related illness and injury (WRII) outcomes, total recordable injury frequency rates (TRIFR), valid positive performance indicators and the innovation of new approaches to measuring performance.

For more details, visit the report.

Published on 19 December 2013 in NSCA Safe-T-Bulletin.

An accountant has been awarded $476,163 after the Federal Court determined she had been sexually harassed and assaulted by a contractor.

The case against the contractor was heard in December 2012 and the judgement handed down last week.

On the balance of probabilities, the court found the accountant had been subjected to sexual harassment and assault in May 2009, and the contractor had breached s 28B of the Commonwealth Sex Discrimination Act 1984.

The court determined the contractor had behaved in a sexually suggestive manner toward the accountant at work, touched her inappropriately while she was at her desk, pressured her to attend a pub with him for a drink, proposed she have an affair with him, sexually propositioned her, tried to kiss her, had sexual intercourse with her and sexually assaulted her.

The court described the contractor as “an arrogant individual with little or no regard for the truth”.

The accountant told the court she suffers from post-traumatic stress disorder and other psychiatric illness and is unable to work as a result of the incidents.

The court ordered the contractor to pay the accountant $476,163 plus interest. However, to avoid “double recovery”, any lump sum settlements the accountant had reached with her employer, the contractor’s recruitment and labour hire firm or others had to be deducted from this amount.

The accountant also made a formal complaint to police in June 2009, alleging she had been raped on 15 May 2009.

For more details, visit the court case.

Published on 19 December 2013 in NSCA Safe-T-Bulletin.


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