Number 656 - 31 May 2014
- Union wins legal victory for asbestos victims
- TUC calls for safety reps to be “eyes and ears”
- Wales TUC backs mental health changes
- TUC slams resilience pre-employment scrutiny
- Union demands greater maritime safety
- Blacklisted workers occupy blacklisters office
- Minister clueless on Government policy
- Botched asbestos job risked workers lives
- Apprentice death deemed unacceptable
- Clutha victims still wait for compensation
- Corporate Manslaughter conviction for Construction company
- Second conviction for food company
- Boss cries wolf – workers pay price.
- Nanomaterial causes workplace illness.
- Safety must be the law says ACTU
- Child miners face mercury poisoning despite convention
Unite has won a judicial review against HM Revenue and Customs (HMRC) which means that, when requested to do so by a coroner, HMRC has to produce the work history of a person suspected to have died from industrial disease. HMRC had recently overturned years of practice of issuing work histories if the deceased person’s relatives consented and were now refusing to do so without a High Court order. During the inquest into the death of Unite member Roderick Carmichael, the coroner served a formal notice on HMRC requesting disclosure of Mr. Carmichael’s work history. This was refused by the HMRC until the coroner got a court order. However that decision was overturned by the Administrative Court, who described HMRC’s grounds for objecting to the coroner’s request as a “rubber stamping exercise” that places “an unwarranted burden on the High Court”. The judgment enables coroners across the UK to obtain the work history of individuals believed to have died as a result of industrial disease, without the need to apply for a High Court order, however to implement the ruling the Government will have to make changes to the law. Executive director for legal, membership and affiliated services at Unite, Howard Beckett, said: “This successful legal challenge has ensured Mr. Carmichael’s family, and thousands of other victims of industrial disease, will not have to face unnecessary bureaucracy delaying a coroner investigating the cause of death. Head of national asbestos litigation at Thompsons Solicitors, Ian McFall, said: “HMRC’s policy on disclosure created an impasse which made it nigh on impossible to investigate many fatal occupational disease cases. The problem will not ultimately be cured until the Deregulation Bill becomes law, but the court’s decision is welcome as it will assist coroners to deal efficiently with inquests at time which is acutely distressing for the families of those who have died from industrial disease.”
The HSE is depending more on complaints and “whistle-blowers” to compensate for the collapse in proactive inspections forced on it by the coalition government. According to figures obtained by law firm Pinsent Masons after making a freedom of information request to the HSE, more than 4,000 inspections were carried out by the Health and Safety Executive officers as the result of tip-offs and other intelligence gathering in the year to March 2014. The figures is up by 18 per cent on the previous 12 months and up by 70 per cent since 2012. This however in no way compensates for the 11,000 net fall in the number of inspections caused by the wider changes in inspection policy. The HSE said “These are intelligence-prompted inspections where we have reason to suspect unsatisfactory health and safety standards.” However the number of complaints have been falling over recent years as people find it harder to contact the HSE with local contact numbers being removed from websites. The TUC’s head of Health and Safety, Hugh Robertson said “The fall in inspection numbers and the increased reliance on complaints shows that the only people who can expose what is going on it the workplace is union health and safety representatives. While they must raise problems with the employer first, as a last resort they should be prepared to let the HSE know what is happening before someone is killed and injured. We cannot replace HSE inspectors, but we can act as eyes and ears”. He said that unions had been in discussions with the HSE about setting up a process to allow union health and safety representatives to give intelligence to the HSE and that was likely to be announced in the next few weeks.
The Wales TUC unanimously backed a call for workers with mental health issues to have better protection and for union representatives to be given more support in advising and representing workers struggling with mental health problems. A motion from the union USDAW said there needs to be better support and resources for employers to help them deal with these complex issues and called on the Welsh Government to sharpen its focus on workplaces as part of the wider mental health strategy, leading to a culture where people are supported at work and employers understand that mental wellbeing is as important as physical wellbeing. It also called for the removal of the stigma around mental health problems. Delegates were told that research by the mental health charity Mind Cymru has shown that although one in five workers has taken a day off sick for stress. 90% of these workers gave their employer a different reason for their absence. Speaking to the Conference, Nick Ireland, Usdaw’s Divisional Officer for South Wales said: “It is no surprise that mental health and work related stress problems are on the increase. Times are tough and in the current economic climate many workers are taking time off work due to stress, depression or anxiety. These illnesses are often invisible and rarely talked about. For so many people actually talking to someone is the first step towards their recovery and sometimes that person is their union rep. So it’s absolutely right that the Trade Union movement leads the way in breaking down these barriers, because Union reps can really make a difference.”
The TUC has strongly criticised companies that have started offering employers “resilience testing” of job candidates, claiming that any companies that use such tests are potentially breaking the law. According to the TUC’s head of health and safety, Hugh Robertson, the tests will lead to employers trying to ensure that people are more able to cope with stress rather than trying to remove or reduce it. In other words changing the worker, not the job. Robertson claims “Apart from the fact that this is morally repugnant, there is absolutely no evidence that it has any effect.”
The TUC claims that any company that was tempted to introduce recruitment procedures based on measuring resilience could be making it more likely that people become ill as any person will suffer from anxiety and depression in the right circumstances and often it is those who least expect it, and who carry on regardless, who are hit hardest, while those who have experienced stress in the past know how to avoid it. Selection based on some kind of “resilience” is therefore simply creating an illusion of security and preventing the organisation dealing with the root cause. Robertson also warns about the potential legal consequences, claiming that “Any employer that goes down this path of selecting workers on the basis of their “resilience” could well be breaking the law on two grounds. Firstly, if there is a hazard in the workplace (such as stress) there is a legal requirement on the employer to remove or reduce the risk from the hazard. Secondly, if someone has an illness or a history of an illness that may be linked to stress that can be classed as a disability, the Equality Act makes it unlawful for the employer to take that into account and pre-employment questionnaires and screening that consider such health issues are actually forbidden. What is being proposed is simply introducing such screening by the backdoor.
The maritime union, RMT, have called for changes to the way that safety is regulated and enforced as an inquest opens into the deaths of six Russian sailors who died when their cargo ship the Swanland sank off the coast of Gwynedd in November 2011. Just two of the eight-man Russian crew survived when the MV Swanland sank as it carried quarry stone from a jetty near Llanddulas, near Colwyn Bay. RMT has repeated its calls for those responsible to be prosecuted and for the Government to take action to prevent any repetition. RMT Acting General Secretary Mick Cash said "The shocking and damning Marine Accident Investigation report into the avoidable and tragic sinking of the Swanland in the Irish Sea should have shamed our own government and the international maritime industry into urgent action but the practices that led to the events back in 2011 still continue to this day. This rusting death trap of a vessel had been flagged out to the Cook Islands and allowed to dodge the most basic of safety and maintenance regimes. The seafarers on board never stood a chance. Their lives were lost in the name of profit and greed. RMT continues to call for corporate manslaughter charges to be laid against those who sent these lads to their deaths, an end to flagging out and the dodging of safety regulations and action by the UK government to end the scandal of the ships of shame sailing out of British ports and in British waters.”
Unions Unite and UCATT joined the Blacklist Support Group to occupy the UK head office of the Danish owned employment agency Atlanco Rimec. The employment agency was exposed on Danish TV for keeping a secret blacklist of workers who joined a trade union and denied them work. The revelations were made by an ex-manager of the firm in a documentary broadcast on the DR1 TV channel last week. Among the protesters was blacklisted bricklayer Brian Higgins who has suffered decades of unemployment after his name appeared on the illegal Consulting Association blacklist. Higgin’s 49-page blacklist file is the largest file kept on the covert database and records when he stood up for his fellow workers as a UCATT shop steward and elected convener on building sites in London during the 1980 and 90s. He said “Far from being a thing of the past, we now have proof from Danish TV that the practice is still going strong among employment agencies.” The Northampton blacklist protest was part of a national day of action against the umbrella tax scams and abuses by employment agencies in the building industry which saw building sites occupied and blockaded in London, Newcastle, Manchester, Glasgow and Cardiff hitting projects such as Crossrail and Manchester City training ground. The Labour MP Ian Davidson, who chaired the parliamentary Select Committee investigation into blacklisting issued a statement saying “What we have seen shows clearly that the use of agency workers is a weak spot in eradicating blacklisting and we therefore recommended that direct employment and transparent recruitment practices should be standard for all public-sector contracts in the construction industry”.
Construction union UCATT have condemned a Government minister for her complete lack of knowledge of the construction industry. Employment minister Jenny Willott MP said on television that “The Government supports the use of flexible employment structures in the labour market and as such cannot agree with the recommendations for requiring direct employment only” she claimed “This would effectively be a ban on the use of agency staff in the construction sector, which is likely to be unfair to agency workers.” This follows a recommendation from the Scottish Affairs Committee that, to help end blacklisting, all construction workers should be directly employed and not self-employed. However according to UCATT the Government has already made changes which mean that workers must be paid by PAYE if they are under “the direction, supervision or control of an intermediary (an employment agency of payroll company)”.The term direct employment means that a worker is employed directly and is an employee and pays tax by PAYE, rather than being officially self-employed (usually falsely self-employed). If a worker is directly employed they receive basic employment rights such as holiday pay, sick pay and pension entitlements and are less likely to be dismissed without notice and therefore the culture that creates blacklisting is reduced. Steve Murphy, General Secretary of UCATT, said “This shows that not only does Jenny Willott not understand the construction industry or the blacklisting scandal but she doesn’t understand her own Government’s policies. Rather than being an Employment Minister she is better suited to appearing on I’m Sorry I Haven’t a Clue. Victims of blacklisting deserve better than to be fobbed off by lame excuses which don’t even comply with Government policy.”
One of the largest asbestos removal contractors has been convicted of putting the lives of workers at risk through a catalogue of safety breaches during demolition of a former school building in Lincoln. Scottish-based Angus Group Ltd claim to have over thirty years experience in asbestos removal and are operating, not only in the UK, but and the middle and far east, yet did not properly manage the removal of asbestos-containing materials at the site of the former Ermine Infants’ School where they were sub-contracted to carry out the asbestos removal work on behalf of the contractors demolishing the school. Before work began, an asbestos survey was carried out to identify the areas in the building containing asbestos, and recommended how this was to be treated to ensure safe removal. The survey found the end walls of the school’s main hall were covered in a spray-applied coating of asbestos, and should therefore be removed by a licensed contractor under safe, controlled conditions. However HSE inspectors visited the school and discovered a catalogue of safety breaches. They found these recommendations were ignored by Angus Group Ltd. The asbestos spray coating on the main hall walls was chiseled off using power tools without any screens, enclosures or air extraction systems in place. Asbestos-containing material was bagged and carried to a skip outside. The company also notified the main contractors that the asbestos removal work on the main hall was finished, but when the project agents and main contractors visited the next day, they found the hall covered in dust and patches of asbestos material still on the wall. In all, the HSE found a catalogue of failings in the way the work had been planned and carried out. The exact location of asbestos material wasn’t identified and the work only took one day to complete rather than the planned seven. The company was found guilty of eight breaches of the Control of Asbestos Regulations 2006, and was fined a total of £109,000 and ordered to pay a further £42,100 in costs. HSE inspector Martin Giles said “Angus Group Ltd is an experienced licensed contractor, and was fully aware of all the hazards and all its responsibilities to ensure safety at all times. It is deplorable a company that does know better failed to properly manage the dangers of this hidden killer.” After the case the TUC’s Hugh Robertson tweeted “After this case the HSE must look at the fitness of this company to hold an asbestos licence.”
An inquest jury was instructed to return an accidental death in the case of a teenager crushed at work when machinery weighing almost a tonne fell on him. Jason Burden, from South Shields, died in 2011 when a 970kg tunnel thruster fell from a bench as he was working as an apprentice at Tyne Slipway and Engineering Co Ltd at South Dock in Sunderland. The court heard that an HSE inspector carried out an investigation of the workshop after Jason’s death and concluded that using chocks to secure the equipment would have prevented the fatal accident. The company claimed that the apprentice, who was left on his own to carry out the work, was able to do what they described as “a small job”. However two other operators who were qualified to work on the equipment were out of the country at the time so the apprentice was left to do it himself. The firm’s service engineer, Anthony McCormack, told the hearing “He was qualified to do that job. Brunvoll were quite happy for him to do it. He was fully capable.” In January, an investigation by the HSE concluded the company failed to take sufficient steps to ensure the machinery in question was safe to work on or near. It beleived Mr Burden's death could have been avoided had his employers taken simple steps to safely secure the machinery to the workbench. The firm was fined £75,000 and ordered to pay almost £48,000 in costs for health and safety failings. A jury at the inquest held at Sunderland Coroner's Court was instructed to return the verdict of accidental death.
No-one injured or bereaved in the Glasgow helicopter crash has yet received compensation, as legal wrangles continue. Ten people were killed and many more injured after a police helicopter crashed on the Clutha Vaults pub in Glasgow in November 2013. Due to the strict liability principle underpinning the Civil Aviation Act, operator Bond, which provided the aircraft to Police Scotland, is automatically held responsible, regardless of the outcome of an ongoing investigation, yet final lump sums are still outstanding although insurers have covered interim payments for families and victims in financial hardship, as well as physiotherapy and counselling. In addition, money has been paid out from the Clutha charity fund, which raised more than £450,000 to help those affected. Negotiations are being led by Thompsons Solicitors and Irwin Mitchell. The Clutha tragedy highlights the obstacles facing personal injury claimants, including those injured and killed through their work.
Andrew Henderson, a partner at Thompsons, said: "There will be some cases that are likely to be settled completely in the course of the next six months. But there are other cases which, by their nature, where the client's injuries are serious and their circumstances are such that it may take longer. If someone is not yet back at work, but there is a possibility that they will return to work, until that becomes clearer you don't know what their loss of earnings for the future is going to be and you need to be clear on that. Because if you settle a claim for a client, that is a once-and-for-all payment."
A construction company has been found guilty of corporate manslaughter after David Evans, a stone mason's mate, was killed by a two tonne limestone block which fell off a concrete lintel as he was building a large wall. Cavendish Masonry Limited was found guilty by a jury at Oxford Crown Court of corporate manslaughter following his death in February 2010. The company was found guilty of a gross breach of its duty of care in the management and organisation of its activities at The Well Barn estate, by failing to take reasonable care in the planning and execution of those activities. It had previously pleaded guilty to a breach of the Health and Safety at Work Act. The investigation was jointly undertaken by Thames Valley Police and the Health and Safety Executive, with the majority of vital evidence being provided by experts from the Health and Safety Executive who had undertaken complex testing. Following the verdict, HSE Inspector Peter Snelgrove, who supported the police-led investigation, added: “David Evans’ tragic death was completely avoidable had Cavendish Masonry Limited properly planned and managed the installation of the heavy limestone. The lift itself was relatively straightforward, and there is no blame on the part of the crane operator who put the stone in place. The stone toppled because its shape was such that it was potentially unstable when free standing, yet nothing was used to fix it in place. It needed to be sufficiently restrained before the lifting slings attaching it to the crane were removed.
The drawings for the work were wholly insufficient, and the overall execution of the project fell significantly below the standard required and expected of a competent masonry company.” Reacting to the verdict, the Evans family said “We hope that this trial and the conclusions that are reached serve as an example to others in the industry. We hope that it is understood that the Health and Safety legislation is there to provide a safe working environment for all employees. We hope that it is understood that following such legislation and its guidelines provides a working environment where incidents such as the one that claimed the life of David are easily avoided.” The company is due to be sentenced on July 3.
A food manufacturer has been prosecuted for a second time for safety failings after a worker was injured using a machine with a guard that had been intentionally disabled. The company, Veetee Rice, was fined £30,000 and ordered to pay £5,492 in costs at Maidstone Crown Court after admitting a breach of the Provision and Use of Work Equipment Regulations 1998, thereby exposing workers to danger. An order of £500 in compensation against the company was made employee Khalil Ahmed, who had three fingers crushed at its factory on the Medway City Estate, Rochester. However it was revealed that the HSE had previously prosecuted the company in November 2009, when the company was fined £140,000 for similar failings relating to unguarded machinery that led to the death of one of its employees. The court heard Mr Ahmed was one of a number of employees working on a line where a machine was attaching labels to packets of rice at a point where a safety interlock guard on the conveyor rollers and labeller had been deliberately defeated. When the machine failed to stick a label to a box, it ended up on one of the unguarded rollers. Mr Ahmed tried to pull it off but his right hand became trapped, injuring three fingers. After the hearing, HSE Inspector Guy Widdowson said “Mr Ahmed was fortunate he was not more seriously injured and suffered no long term affects. It was an entirely preventable incident. The risks of production machinery are well recognised in the industry and Veetee Rice Ltd should have ensured that all machinery guarding mechanisms were not just in place but functioning properly. Veetee Rice Ltd was sentenced for an offence brought under the same Regulations just three years earlier, for a 2006 fatality of one of their staff, and patently did not sufficiently learn from that experience and the lessons it offered. Food production has one of the worst safety records within the manufacturing sector. Guards are critically-important elements and they can and do save injury and even life when working as they are intended.”
A US businessman who claimed that workplace safety inspectors were burdening him and killing jobs with too much red tape has just had a horrific incident on his site. Lance Johnson, president of Johnson Brass & Machine Foundry Inc., in Saukville, Wisconsin, claimed in 2012 "I've never been audited by more government agencies in my life than I have under Obama," Johnson claimed that the US safety regulator, OSHA, was subjecting him to duplicative audits and that the cost of dealing with those unnecessary OSHA audits went "well into the six figures." OSHA disputed that the audits were duplicative. Yet earlier this month Johnson's foundry was the site of a horrifying "catastrophic failure" that sprayed molten metal on workers, injuring eight and sending four of them to the hospital. On-line newspaper, The Huffington Post, asked Johnson if he still believed OSHA regulation was too burdensome. He had no immediate response. However it did report that the company had previously been hit with proposed penalties of $9,638 for exposing workers to apparent hazards in 2011.
A US worker is reported to have developed an acute allergy as a result of exposure to nanomaterial containing nickel, a known sentitiser. The 26-year-old chemist was unaware that she was working with nickel nanoparticle powder at work and no arrangements were made to protect her from exposure. Within a week of simply measuring out the one or two grams of powder, the chemist’s throat became congested, her nose dripped and face became flushed. Then her skin began to react to her earrings and belt buckle. Her symptoms continued even after she stopped working with the material and moved to another floor. Once outside her workplace the symptoms improved. Because of her diagnosis she is no longer going to be able to work in that building again. Accordingly to Dr. Shane Journeay, a medical doctor and nanotoxicologist at the University of Toronto “This is the first well-documented case of a worker handling nanoparticles in a US manufacturing facility developing serious health effects.” Journey, who specializes in occupational health and safety, also asked “Is this the tip of the iceberg?” There is no requirement in the USA to label nanomaterials, nor are there nano-specific regulations about how to safely handle many of them, despite them having very different properties to non-nano materials. There is concern that some chemicals may affect the body differently when in a nano-form, making them even more dangerous.
Australian trade unions have reacted angrily to further deaths as the federal Government continues to consider further deregulation and the Queensland Government enacts legislation tightening union right of entry for safety reasons and restricting the rights of health and safety representatives. After the death of a waterside worker at the toll shipping facility in Melbourne and of a worker at the Boggabri coal mine in New South Wales, Australian Congress of Trade Unions Assistant Secretary Michael Borowick passed on the condolences of the union movement to the family of the dead. He claimed “Waterside workers in Australia are 14 times more likely to be killed at work than the average worker and the fatality at the Boggabri mine comes only a month after two miners were killed near Cessnock. These alarming statistics must be a wakeup call to governments and employers to make the workplaces safe.” Mr Borowick said that unions want stronger regulation to save lives. "Unions fundamentally reject the Abbott government’s calls for less regulation. It is offensive to say workplace safety is 'red tape'. Safety must be made mandatory through regulation. Safety must be law. The ACTU said the Abbott government’s support to weaken occupational health and safety laws through changes to the model OH&S act was a disgrace and also called on the government to categorically rule out abolishing the safety body “Safework Australia” as recently recommended by the countries Audit Commission.
A Human Rights Watch investigation in Tanzania has claimed that health workers are “failing to diagnose” children suffering from mercury poisoning because they lacked training. Mercury is a highly toxic liquid metal that attacks the central nervous system and remains in the environment for long periods of time. It is particularly harmful to children. Much of the world’s mercury is used in small-scale gold mining, where an estimated 15 million adults and children use it on a regular basis to retrieve the gold, most of them unaware of its health risks. The metal is mixed into the ore to create an amalgam, and when burnt off, it releases toxic vapours. A statement issued by local environmentalists quoted the Human Rights Watch as saying that it has documented the harmful use of mercury by miners in Mali, Tanzania, Ghana, Nigeria and Papua New Guinea. A new international convention obliges governments to protect small-scale mining communities from mercury exposure and to develop health strategies for them, including through health worker training, awareness-raising, and data-gathering. In addition, the treaty calls upon governments to prevent and treat all populations affected by mercury, and to strengthen the capacities of health professionals to cope with mercury-related sickness. However that is not happening. Although the Minamata Convention on Mercury was adopted with the approval of 139 governments in 2013, the convention will not enter into force until 50 governments have ratified it. So far, only one country, the USA, has deposited an “instrument of acceptance” with the United Nations.
COURSES FOR 2014
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Issued: 30 May, 2014