3.3 Prevention of Falls

The CEPU (Plumbing Division); referred to as the Plumbing Trades Employees Union (PTEU), have been actively engaged in stakeholder discussions conducted by WorkSafe Victoria from the start of formal meetings beginning 19th March 2015.

At this meeting the PTEU raised the topic of how a ‘fall” is defined in the Regulations. We stated that we will be submitting public comment with specific regard to the definition of “fall” as defined in Regulation.

We submit that the current definition is inadequate and that the distinction currently drawn between a “fall” below and above 2M height is illusory.

Central to this submission would be the findings and recommendations of the Coronial Inquest into the death of Keith Dickman, a plumber who sustained fatal injuries from a fall below 2M, delivered on 29 February 2012.

Central to the Inquest, it was established that Keith Dickman did fall from a height (approximately 1.5m). However for work safety legislation purposes the height did not meet the definition of a “fall from height” as it was below 2m.

Legal debate centred upon the definition that a “fall” from height in Victorian Legislation is defined as “a person’s involuntary fall of more than 2 metres”.

The task Keith Dickman was undertaking at the time of his death was installing air conditioning duct from a ladder, and subsequently sustained fatal head injuries by striking his head on the floor.

So here we had the absurd situation that an inquest was held to ascertain the cause of death and the events contributing to the death, but the employer and the WorkSafe Authority were arguing that it was not a “fall” within the definition of “fall from height”. As if this was somehow a relevant distinction.

The Coroner also found that an indictable offence may have been committed in relation to the death arising from the provisions of the Occupational Health and Safety Act 2004 (Vic).
This was put to the DPP, and for whatever reasons unknown, (freedom of information requested by the PTEU) the case was not forwarded for prosecution.

The Coroner noted in the findings (paragraph 84)

“The illusory distinction between above and below 2m”, the latter of which is not regarded as ‘working at height’.

The Coroner goes on to address the distinction in more detail.

It is the PTEU position that the opportunity to address this anomaly be taken, and it recommends the objective of the Prevention of Falls Regulations must include all falls, therefore removing the definition as it stands, and adopt consistency with the national WHS Regulation 78; Part 4.4 Falls, Management of risk of fall 78 (1) definition and approach of a ‘fall” being “a fall by a person from one level to another.”

The PTEU submits that there is no good reason why workers in Victoria (or more particularly workers in Victoria who are not covered by the WHS Regulations 2011 and work safety provisions, should have applied to them lesser standards than those which apply to other workers doing the same work. To argue that a fall is a specifically regulated fall when it occurs from any height, provided the employee is subject to WHS Regulation, but to not regulate that same circumstance merely because it is a Victorian OH&S Regulation is absurd.

Following the above mentioned meeting 19 March 2012, WorkSafe put forward three options to consider.

Option A

Using the case study of the above Inquest showing current Regulatory framework and Act compliance is unenforceable with regard to a fall below 2M. The PTEU considered ‘Option A’; continuing to do the same thing and expecting a different outcome, came to the conclusion this approach as completely unacceptable.

With particular emphasis on Act compliance, it is worthy to note that the Authority’s inspectorate were unable to issue a single notice of any breach of the Act in the Dickman fatality. Therefore by adopting Option A and simply inserting a note reminding the duty holder of Act compliance is offensive to say the least.

Below is an extract from the previous Regulatory Impact Statement Occupational Health and Safety Regulations 2007, Pg 72.)

“The case for Regulatory control.
Falls are a major cause of death and serious injury in many industries. Successful management of work where there is a risk of a fall of more than two metres requires the adoption of specific control measures. The OHS Act 2004’s general duties alone cannot ensure that such measures will always be used, as they do not specify the types of controls that are required for particular hazards and risks.
While various forms of guidance can provide specific information on the type of controls that are necessary, following this guidance is not mandatory. If particular measures are necessary for various tasks to ensure safe work, as they are in work where there is a risk of falling, then the most appropriate approach is to ensure that they are implemented is regulation.”  
(Regulatory impact statement occupational health and safety regulations 2007, Pg 72.)

Option B

This is the PTEU position. As the Regulatory Impact Statement for proposed Occupational Health and Safety Regulations 2017 and Equipment (Public Safety) Regulations 2017 points out; “as this option increases national consistency it is part of the aggregate Option 3 – increased national consistency.”

Option C
During early discussions some stakeholders held an in principle position for reform and indicated support for either Option B or Option C, albeit without seeing the actual drafting. The PTEU considered; moved from our original position, and supported through general consensus ‘Option C’; to apply a hierarchy of falls under 2M, as we anticipated through this approach it would lead to, and acknowledge all “falls” from any height through Regulation. Whilst this approach removes confusion on duty holders and retains the prescribed hierarchy for work above 2M, that is; High Risk Construction Work, it does not address our main concern as highlighted at the inquest re: the definition.

For the PTEU to accept Option C, the PTEU’s expectation was that drafting of the proposal would have made it explicit, through Regulation that a “fall” can occur from any height.

We would also like to note that it was anticipated that draft Regulations would be produced for all three options so as the RIS process reflected a true costing based on actual proposals.

WSV position was Option A, and after two meetings, whilst it was suggested all three options would be drafted, this did not eventuate.

Statistical recording of “falls” in Victoria.

With regards to statistical recording of “falls” in Victoria, we have attempted to ascertain if Keith Dickman’s fatality was recorded as a “fall”. This was done as recent as the meeting on 19 March 2015. This is of particular interest considering the legal debate at the inquest sought to establish that Keith Dickman did not “fall” from height. (the recent High Court decision; noted below, confirms our suspicion that the mechanism of injury may have been recorded as a manual handling incident). No response has been received as to this inquiry to date.

Also worth noting are the limitations in coding “falls” claims. Highlighted in the 2007 RIS, (provided below), was the inability to assess the success of the introduction of the Falls Regulations in 2003 to 2007, due to the fact that “falls” data did not distinguish between above and below 2M.

Currently in Victoria coding of “falls” between above and below 2M is limited. The RIS, 8.2.2 ‘Incidence and Trends’ states claims figures include all “falls” from height, not just above 2M. An extraordinary state of affairs as the Regulations differentiate between above and below 2M. It also goes on to say claims data does not identify how far the person fell in most entries.

One of the reasons given to adopt a threshold level of 2m was a report from Monash University Accident Research Council.

Given the shortcomings stated in the 2007 RIS (provided below) regarding the coding limitations, and Victorian jurisdiction basing its reasoning on a threshold of 2M using the premise of the Monash report, we are still in the same position trying to justify the effectiveness of the current Regulation and the threshold level.
Move on 10 years we can’t statistically analyse the effectiveness of the threshold level, as the claims data does not distinguish between the two! Extraordinary!

The extract from the 2007 RIS:
“Impact of the Prevention of Falls Regulations (2007 RIS)

It is not possible to determine whether recent changes in falls claims can be directly attributed to the introduction of the Prevention of Falls Regulations. This is mainly due to the limitations in coding of falls claims compensation data, but also because the Regulations only came into effect on 31 March 2004. The Prevention of Falls Regulations use a height threshold of more than two metres, because they require the use of a specific hierarchy of control, which may not be relevant to all tasks performed at lower heights. This height threshold focuses the Regulations on falls risks that have the potential to cause the most serious injuries. Claims data, however, includes all falls from one level to another, regardless of the height. Manual analysis of individual claims is required to estimate the number of claims involving a fall of more than two metres and to assess any changes in the severity of injuries.

A claim is coded according to the ‘mechanism of injury’ and the relevant code for falls is ‘fall from height or into depth’. The data is not coded into further categories, specifying, for example, the exact height or depth of the fall, or what the person fell from, or into. Further information may or may not be included in the narrative text on the claim form, which is supplied by the employer and/or injured worker. (Regulatory impact statement occupational health and safety regulations 2007, Pg 71)”

It is interesting to note that for the purposes of claims statistics “falls” are acknowledged as being from any height; that is from one level to another, however this is not the case in law in Victoria.

In conclusion the PTEU submits:  

• That the Victorian Regulatory Distinction as to falls from height and other falls is illusory.  

• That it creates a 2 tier national classification which is inconsistent of itself with other jurisdictions including the Commonwealth.  

• It is also inconsistent with the manner in which falls are recorded and coded for research purposes.  

• If no distinction is drawn in relation to a fall from 1.5 m or 2m for occupational health and safety research purposes, where is the rationale for actual safety legislation to make a distinction?  

• Why 2m was ever chosen is unclear other than it was an attempt to avoid regulation of ladders entirely.  

• There is no good reason for excluding <2m. The regulatory safety regime should be task focused not illusory height focused for any risk assessment so an employer does not say “oh well it’s under 2m so I don’t have to do anything special to protect against falls”. How does that help risk prevention?  

• There should be special rules (hierarchy approach) for all off ground work whether step or full height ladder or other height work.  

• A ‘fall’ for the purposes of the Regulations should be defined as – ‘from one level to another’, and working at height should be defined as ‘working off the ground’.  

• Sadly it is pertinent to comment that the process of safety review after incidents often appears focused upon whether the technical documents have been filed rather than the actual physical investigation of the death itself.   

• In reviewing these Regulations, and re-visiting the inquest hearing it has become apparent to the PTEU that there is a lack of communication and co-operation between the inspection function and the investigation function. The distinction between the responsibilities of these roles is problematic.

The recent High Court decision, (Deal v Father Pius Kodakkathanath [2016] HCA 31 (24 August 2016)) whilst in relation to manual handling regulation, considered a fall and reminds us that the purpose of the legislation and its regulations is to protect employees…. “The statutory purpose of the OHS Act and Regulations included protecting employees from the risks of manual handling tasks, as well as “deterring employers from doing less than is reasonably practicable to guard against risks”. 

It’s of interest that this court case concerns itself with manual handling, even though the circumstances of the claim involved working at height from a ladder below 2M.

Recommendation:

It is the PTEU position that the opportunity to address this anomaly be taken, and it recommends the objective of the Prevention of Falls Regulations must include all falls, therefore removing the definition as it stands, and adopt consistency with the national WHS Regulation 78; Part 4.4 Falls, Management of risk of fall 78 (1) definition and approach of a ‘fall” being “a fall by a person from one level to another.”