Farm Machinery Regulatory Review

A report for the Rural Industries Research and Development Corporation by Neil Gunningham

February 2003 RIRDC Publication No 02/169 RIRDC Project No GAP-1A

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© 2003 Rural Industries Research and Development Corporation. All rights reserved. ISBN 0 642 585687 ISSN 1440-6845 Farm Machinery Regulatory Review Publication No. 02/169 Project No. GAP-1A The views expressed and the conclusions reached in this publication are those of the author and not necessarily those of persons consulted. RIRDC shall not be responsible in any way whatsoever to any person who relies in whole or in part on the contents of this report. This publication is copyright. However, RIRDC encourages wide dissemination of its research, providing the Corporation is clearly acknowledged. For any other enquiries concerning reproduction, contact the Publications Manager on phone 02 6272 3186. Researcher Contact Details Neil Gunningham 100 Murranji St Hawker ACT 2614 Phone: 02 6125 3397 Fax: 02 6125 4899 Email: neilgunning@yahoo.com

In submitting this report, the researcher has agreed to RIRDC publishing this material in its edited form. RIRDC Contact Details Rural Industries Research and Development Corporation Level 1, AMA House 42 Macquarie Street BARTON ACT 2600 PO Box 4776 KINGSTON ACT 2604 Phone: 02 6272 4539 Fax: 02 6272 5877 Email: rirdc@rirdc.gov.au. Website: http://www.rirdc.gov.au Published in February 2003 Printed on environmentally friendly paper by Union Offset

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Foreword Farm machinery related injury has been shown to result in high numbers of deaths on farms and high costs to agriculture in Australia. One of the most effective ways of minimising farm machinery accidents is through regulation of machinery design, manufacture, supply and operation. However, existing farm machinery regulation in Australia is seriously deficient in a number of respects, and the Australian Agricultural Health Unit has identified regulatory reform as a high priority. This project both identifies the major deficiencies of the existing legislation and standards, and makes recommendations for a best practice regulatory regime. Its overall aim is to identify a strategy to reduce the very high rates of accident and injury in the agricultural sector, in particular, the substantial proportion that is associated with farm machinery.

The Report argues that in many respects the law can make a substantial contribution to improving Occupational Health and Safety (OHS) providing it is appropriately designed, complemented by appropriate education and training, and effectively implemented. In terms of design it endorses the use of performance standards supported by codes of practice and guidance notes, because of the greater flexibility this approach provides in most circumstances and because a stricter specifications standards approach would be both impractical and inhibit safety innovation. In terms of enforcement, a mixed approach is recommended, with advice and persuasion being the preferred strategy but escalating to the use of administrative notices, on the spot fines and ultimately, prosecution in extreme cases to give credibility to the overall ‘enforcement pyramid’. More specific solutions are identified in relation to child safety, changing technology and remoteness of farms. Beyond all else the virtues of pursuing an optimal policy mix are emphasised. For while education, training and information play crucial roles, so too, should positive incentives, and, in extreme cases, prosecution. The success of the ROPS (roll-over protective structures) scheme exemplifies the benefits of a combination of instruments: of subsidies used in conjunction with strengthened partnerships between organisations, underpinned by regulation and publicity, and culminating in demonstrable success in terms of improved OHS awareness and most tangibly, substantially reduced fatalities. The project forms a key component of the National Farm Machinery Safety program, and accordingly the research strategies conform to the parameters of that umbrella project. This project was funded from the Joint Venture for Farm Health and Safety which is a joint venture between RIRDC, Grains R&D Corporation, Cotton R&D Corporation, Sugar R&D Corporation, Meat & Livestock Australia, Dairy R&D Corporation and Horticulture Australia Ltd. This report is an addition to RIRDC’s diverse range of over 850 research publications, forms part of our Future Agricultural Systems R&D program, which aims to enhance human capital and facilitate innovation in rural industries and communities. Most of our publications are available for viewing, downloading or purchasing online through our website: downloads at www.rirdc.gov.au/reports/Index.htm purchases at www.rirdc.gov.au/eshop

Simon Hearn Managing Director Rural Industries Research and Development Corporation

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Contents

Foreword iii

Abbreviations v

Executive Summary vi

PART I: THE LEGAL FRAMEWORK 1

1. State and Territory Occupational Health and Safety (OHS) Legislation – the general duty 1

2. National Standard for Plant 11

3. Specific Regulations and Codes 17

4. The Relationship between legislation, standards, and codes of practice 27

5. Summary and Conclusion 31

PART II: THE EFFECTIVENESS AND APPROPRIATENESS OF CURRENT LEGISLATION AND STANDARDS IN IMPROVING FARM MACHINERY SAFETY 32

6. The effectiveness and appropriateness of current legislation and standards in improving farm machinery safety 32

7. Manufacturers, Designers and Importers 40

8. Suppliers 48

9. Duty Holders at the Workplace 53

10. The Relative Efficacy of Specification, Performance and Process Standards 64

11. A Context for Design of Appropriate and Effective Standards 68

12. Problems relating to Interpretation of Statutory Wording 75

13. Conclusion 79

14. Recommendations 80

SELECTED BIBLIOGRAPHY 83

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ABBREVIATIONS NSP National Standard for Plant OHSA (ACT) Occupational Health and Safety Act 1989 (ACT) OHS Regs (ACT) Occupational Health and Safety Regulations 1989 (ACT) OHSA (NSW) Occupational Health and Safety Act 1983 (NSW) OHS(CE) (NS) Regs (Cth)

Occupational Health and Safety (Commonwealth Employment) (National Standards) Regulations 1994 (Cth)

OHS(CE)A (Cth) Occupational Health and Safety (Commonwealth Employment) Act 1991 (Cth)

OHSA (Vic) Occupational Health and Safety Act 1985 (Vic) OHS (P) Regs (Vic) Occupational Health and Safety (Plant) Regulations 1995 (Vic) OHSWA (SA) Occupational Health, Safety and Welfare Act 1986 (SA) OHSW Regs (SA) Occupational Health, Safety and Welfare Regulations 1995 (SA) OSHA (WA) Occupational Safety and Health Act 1984 (WA) OSH Regs (WA) Occupational Safety and Health Regulations 1996 (WA) WHA (NT) Work Health Act 1986 (NT) WH (OHS) Regs (NT)

Work Health (Occupational Health and Safety) Regulations 1992 (NT)

WHSA (Tas) Workplace Health and Safety Act 1995 (Tas) WHS Regs (Tas) Workplace Health and Safety Regulations 1998 (Tas) WHSA (Qld) Workplace Health and Safety Act 1995 (Qld) WHS Reg (Qld) Workplace Health and Safety Regulation 1997 (Qld) WHS(M) Reg (Qld) Workplace Health and Safety (Miscellaneous) Regulation 1995 (Qld)

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Executive Summary The current legal regime Each state and territory in Australia has a principal Occupational Health and Safety Act, under which farm machinery (which falls under the broad definition of “plant”) is regulated by virtue of (i) general OHS duties on specific obligation-bearers; and (ii) specific regulations and Codes of Practice which deal with particular safety issues in more detail. In an attempt to address a lack of OHS regulatory uniformity in terms of (ii) above, the National Standard for Plant was developed and introduced in 1994. It creates a single overarching set of performance and process-based duties that require obligation-bearers to undertake hazard identification, risk analysis and risk control. The aim is to eliminate, and where that is not practicable to minimise, the risks to health and safety. Each jurisdiction also has some form of regulation (at differing stages of development and reform) regarding plant which imposes legal obligations on responsible parties relevant to the life-cycle of a piece of farm machinery. In some states this essentially reproduces the provisions of the National Standard on Plant while in others it goes beyond this to impose more specific requirements. Guidance as to measures which might be taken to comply with those obligations may be found in a range of material including approved Codes of Practice (Advisory Standards in Queensland), and guidance notes by industry or regulatory bodies There are also a number of relevant Australian and international standards, the latter being particularly significant as the majority of farm machinery in Australia is imported. These other standards are voluntary and do not have legal force (other than to provide evidence of what a reasonable duty holder would do to comply with a certain legal obligation) unless adopted and prescribed in legislation/regulation. A number of significant problems with the current legal framework are identified. How they might be overcome and how the regulatory regime might better contribute to improved occupational health and safety in the agricultural sector, is the subject of the remainder of the Report. Towards reform

National uniformity The National Standard for Plant (NSP), was created in an attempt to facilitate national uniformity and rationalise the existing body of plant regulations. Unfortunately, it has not been consistently implemented, causing confusion and seriously threatening its effectiveness. The problem is political rather than constitutional or legal. Another route to greater uniformity and efficiency is via the use of international standards. Recommendation 1. It is recommended that all jurisdictions agree to develop a list of comparable international design standards for plant acceptable in all jurisdictions. A related solution would be to treat the issue on a standard by standard basis with the aim to accept only best practice international standards, as argued below. The appropriate body through which to pursue such standardisation initiatives within cooperative federalism is NOHSC, which has the appropriate consultative tripartite mechanisms and processes.

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Manufacturers, designers, and importers The key role in terms of “building in” OHS at the outset, is that of designers of farm machinery. But recent research suggests that that human factors and health and safety are not perceived or incorporated by agricultural engineering designers as a fundamental part of design, but rather are incorporated at a late stage and that “the numbers of accidents occurring within the agricultural industry continue to be a tragic manifestation of inherently poor design”. Unfortunately, it is difficult and for the most part, wholly impractical to influence overseas designers directly beyond imposing regulation at the import stage. Given this constraint, it is arguable that much money could be saved, at no significant loss of safety, by accepting products into Australia that are manufactured in accordance with existing standards without the imposition of Australian legislative requirements. However, a lowest common denominator or compromise approach is not unknown in standards development Notwithstanding the cost savings to Australian primary producers that might result, there is a danger that this approach would result in a lowering of OHS protection. Recommendation 2. Our recommended solution would be to accept international standards on a case by case basis and only to the extent that it can be demonstrated that they approximate best practice. Suppliers Suppliers can play an important intermediate role in the chain between manufacturer and importer on the one hand and end user on the other. For this reason, Australian OHS legislation imposes both general and specific obligations on them. However, many suppliers are ignorant of their legal obligations and take no active role in OHS. Recommendation 3. It is recommended a greater emphasis on educating suppliers about their legal duties under regulation and what is necessary to discharge them adequately. Consideration should also be given to greater use of suppliers as a vehicle through which to disseminate information about various OHS machinery safety initiatives. Of particular value, would be a concerted effort to provide suppliers with practical guidance on what is required of them in manner which is readily accessible and meets their needs. In this context, the proposal of the TMA for the development of a Code of Practice for Machinery Dealers, has considerable merit. Second hand or used machinery Second hand or modified machinery can cause particular safety concerns, given that older equipment often does not incorporate adequate safety precautions, and modifying equipment can result in the introduction of new hazards. However, suppliers are not necessarily fully aware of their responsibilities in relation to second hand or modified equipment. Recommendation 4. A number of particular issues need to be addressed as a priority, including: second-hand tractors imported from Asia; ensuring that suppliers are aware and accept their increased level of responsibility in relation to modified equipment; and the role of economic incentives such as subsidies, in improving highly dangerous second hand equipment.

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Duty holders at the workplace Education and training To be effective, farmers must know of the existence of regulatory instruments and codes and have access to relevant information, without which the various regulatory instruments affecting farm safety have a very limited effect. The greatest challenge is not developing appropriate information (although this is obviously essential) but ensuring that it is effectively disseminated, read, digested, and implemented. Much depends upon how the information is presented and packaged, and upon who presents it. Above all, a coordinated and strategic approach to these and related issues is essential. Recommendation 5. It is recommended that the activities of Farmsafe Australia and the Australian Agricultural Health Unit which have been critical and in this respect must continue. Incentives The substantial costs of some safety improvements act as a very considerable disincentive to their introduction by farmers. Exhortation and coercion by means of law, may achieve some positive response (and in the case of the latter, some considerable hostility). Recommendation 6. To the extent that funding is available, economic incentives in the form of subsidies often achieve the greatest success. This is demonstrated by the success of ROPS rebates. Regulation and enforcement Although it should be regarded as a last resort, experience suggests that an underpinning of government regulation coupled with (at least a perceived) credible threat of inspection and enforcement, is necessary to persuade the reluctant, the recalcitrant, and the incompetent, that other, less coercive approaches, are worth adopting. The best strategy involves a judicious use of targeted enforcement, occasional prosecutions accompanied by broad publicity, blitzes on particularly serious hazards and the greater use of less resource intensive instruments such as on the spot fines (at least for offences of a ‘black and white’ nature), prohibition and improvement notices. Recommendation 7. Accordingly, we recommend that a tiered, or ‘pyramidal’ enforcement policy be adopted, focusing on education, advice and persuasion, but gradually escalating to a range of administrative and other sanctions. Comparison of specification, performance and system based standards There is a general trend to replace outdated prescriptive regulations (which focus on specifications or technology) with broader based performance standards (focusing on outcomes), in conjunction with process standards. The most important characteristic of such measures is their approach to managing hazards by incorporating the three fundamental steps of hazard identification, risk assessment and risk control (underpinned by a series of either principle-based (ie general duties) or performance-based standards). There is considerable evidence that the focus of performance standards supported by process based codes of practice and guidance notes is the correct one. This is because of the greater flexibility it provides in most circumstances and because a stricter specifications standards approach would, for the most part, be both impractical and inhibit safety innovation. Nevertheless, where duties can be clearly defined and the consequences of failure to comply involve serious risk, this does not preclude the

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introduction of more specific standards underpinned by the enforcement ‘teeth’ to make them effective. Detailed recommendations are provided in Chapter 14 which address these issues. A context for the design of appropriate and effective standards Child safety on farms Statistics suggest that children and young persons are at an unacceptably high risk of farm accidents and that a disproportionate number of fatalities are related to use of farm machinery and in particular to vehicle use. It would be wise to impose a minimum age for the use of tractors and ATVs, as is the case in some Canadian jurisdictions, as well as the UK. However, the main policy focus should be on information and education campaigns directed at two discrete audiences: farmers themselves and/or children and young persons. However, such initiatives must be located within the overall strategic framework being developed by Farmsafe Australia and in terms of the evolving National Strategy for Child Safety on Farms. Changing technology All Terrain Vehicles (ATVs) have to a significant extent replaced the use of small tractors. However, there is no equivalent regulation of ATVs in Australia as there is for tractors, notwithstanding the popularity of the former. ATV use is a major source of death and serious injury on farms. A shift in regulatory focus may be required, which recognises the particular hazards involved with ATVs, not least because such vehicles involve a compromise design involving substantial instability. Such a focus would include a prescribed minimum age as recommended in the previous section. It would also closely track British initiatives to design a ROPS for ATVs. It might also be appropriate to contemplate training for novices (as is required in the UK). There should also be a continuing focus on the provision of information sheets emphasising the dangers, reinforced by statistics and graphic stories of particular incidents. Problems relating to interpretation of statutory wording As discussed, there are various contentious issues regarding interpretation of machinery legislation and regulation. In particular, the expression “when properly used” addresses a legitimate concern of duty holders. It was probably included to prevent an upstream duty holder from liability for risks to workers arising from the misuse of the plant or substance at the employer’s workplace but has since been given a much broader interpretation. Notwithstanding that the 2001 decision in WorkCover v Arbor has removed some of the injustice that the term ‘when properly used’ was capable of perpetrating, a legislative solution may provide greater certainty for all concerned. Accordingly we recommend the term 'when properly used' which permeates most Australian statutes concerning design and manufacture of plant, be removed. Detailed recommendations concerning these three issues are provided in Chapter14.

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Conclusion The issue of farm machinery safety is both complex and challenging. No single policy instrument is likely to be wholly effective but a number of strategies have been identified which in combination are likely to prove much more effective than any one operating in isolation. Beyond all else the virtues of pursuing an optimal policy mix were emphasised. For while education, training and information play crucial roles, so too, should positive incentives, and, in extreme cases, prosecution. The success of the ROPS scheme exemplifies the benefits of a combination of instruments: of subsidies used in conjunction with strengthened partnerships between organisations, underpinned by regulation and publicity, and culminating in demonstrable success in terms of improved OHS awareness and most tangibly, substantially reduced fatalities.

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Part I: The Legal Framework1 1. State and Territory Occupational Health and Safety (OHS) Legislation – the general

duty 1.1 Main OHS Legislation Each Australian state and territory has an Occupational Health and Safety Act based on the model of the Robens report.2 The main pieces of Australian OHS legislation in each state and territory contain statutory general duties, and provide for the introduction of Codes of Practice and the making of regulations which contain more specific and detailed guidance on how to meet the general duties. The main Acts are as follows: Commonwealth - Occupational Health and Safety (Commonwealth Employment) Act 1991

ACT - Occupational Health and Safety Act 1989

NSW - Occupational Health and Safety Act 1983

NT - Work Health Act 1986

Qld - Workplace Health and Safety Act 1995

SA - Occupational Health , Safety and Welfare Act 1986

Tas - Workplace Health and Safety Act 1995

Vic - Occupational Health and Safety Act 1985

WA - Occupational Safety and Health Act 1984

1.2 Legislative definitions Farm machinery falls under the broader definition of “plant” in legislation, standards and regulations. The definitions differ slightly under the main OHS Acts in each state and territory, and tend to be broader than the definitions of plant developed in the regulations made under the Acts. The main statutory definitions of plant are included in the table below. Legislative provision Definition Cth - OHS(CE)A s5(1) Includes any machinery, equipment or tool, and any component thereof

ACT - OHSA s5(1) Includes any machinery, equipment or tool and any component thereof or

accessory thereto

NSW – OHSA s4(1) Includes any machinery, equipment and appliance

NT – WHA s3(1) Includes machinery, pressure vessels, appliances, implements, scaffolding and tools, any component thereof and anything fitted, connected or appurtenant thereto

Qld – WHS Sch 3 Includes machinery, equipment, appliance, pressure vessel, implement and tool; and personal protective equipment; and a component of plant and a fitting, connection, accessory or adjunct to plant

1 The author gratefully acknowledges the comments of Richard Calver (then of the NFF) and of John Dawson on previous drafts, and the research assistance of Rachel Walmsley. The author remains solely responsible for any errors remaining in, and opinions expressed, in the final draft. 2 Robens Report Report of the Committee on Health and Safety at Work 1970 -1972 (London H.M.S.O); and Gunningham N, Safeguarding the Worker, The Law Book Company Ltd, 1984.

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Legislative provision Definition SA – OHSWA s4(1) Any machinery, equipment, appliance, implement or tool

Tas – WHS s3(2) Includes any machinery, equipment, scaffolding, amusement structure,

appliance, implement or tool and any component or fitting of any of those things

Vic – OHSA s4 Includes any machinery, equipment, appliance implement or tool, any component thereof and anything fitted, connected or appurtenant thereto

WA – OSHA s3(1) Includes any machinery, equipment, appliance, implement, or tool and any component or fitting thereof or accessory thereto

1.3 The Main Obligation Bearers identified by legislation Legislation sets out minimum standards that obligation bearers are required to comply with and indicates the minimum acceptable behaviour expected of them. Compliance with legal requirements will usually be the most fundamental driver for all obligation bearers and as such, identification of the various parties and their corresponding obligations, and an understanding of legal obligations and strategies for reform, provide a necessary foundation for any analysis of safety regulation. Generally, the OHS legislation appears to target certain few key groups, rather than the complete set of groups, relevant to each stage in the life cycle of a piece of farm machinery - from design and manufacture, to supply and use. In relation to a tractor for instance, the main set of obligation bearers given current recognition can be divided into two groups: 3 Obligation bearers outside the workplace:

Designers

Manufacturers

Suppliers

Importers

Obligation bearers at the workplace

Employers

Employees

Self-employed

Owners

OHS legislation places obligations on all parties concerned with the work process (ie, at each stage of the life cycle) to ensure that each party takes every practicable measure to make sure that all work processes and plants are safe and without risks to health.4 “The duties for each category are structured to recognise their differing degrees of control over the workplace and are therefore most extensive in relation to employers, manufacturers and others introducing equipment.”5 3Based on Gunningham N, Johnstone R, and Burritt P, Safe Design Project “Review of OHS Legal Requirements for Designers, Manufacturers, Suppliers, Importers and Other Relevant Obligation Bearers” A Report prepared for the NOHSC, March 2000. Others obligation bearers include: Lessors; Franchisors; Contractors; Distributors; Retailers; Advertisers; Repairers; Second-hand goods dealers; Auctioneers; and Purchasers. 4 Johnstone R, Occupational Health and Safety Law and Policy LBC Information Services 1997, p260. 5 Bohle P, and Quinlan M “Managing Occupational Health and Safety. A Multidisciplinary Approach.” 2nd ed. MacMillan Publishers Australia Ltd 2000, p269.

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1.4 Duties of Obligation Bearers outside the workplace The general duty provisions impose a duty of care upon obligation bearers outside the workplace (ie: designers, manufacturers, suppliers and importers) to ensure, so far as is reasonably practicable, that the items supplied to the users in the workplace (ie, to employees, self-employed, and owners) will be safe and without risks to health when properly used. The main general duties in the statutes are summarised in the following table.6 Legislative provision Duty Commonwealth OHS(CE)A Ss18-19

Manufacturers/importers/suppliers of plant that ought reasonably be expected to be used by employees at work must take all reasonably practicable steps a) to ensure that the plant is designed/constructed/manufactured/ supplied so

as to be, when properly used, safe without risks to health; b) to cause to be carried out research, testing and examination necessary to

discover and eliminate or minimise any risk to the health and safety of employees that might arise from the use of the plant; and

c) to make available to an employer, in connection to the use of the plant by employees at work, adequate information concerning (I) the use for which it has been designed/manufactured etc has been tested; (ii) details of its design, construction, composition; and (iii) any conditions necessary to ensure that, when put to the use for which it was designed (etc) and tested, it will be safe for employees and without risk to their health.

S20 Erectors and installers of plant in a workplace for the use of employees at

work must take all reasonably practicable steps to ensure that the plant is not erected installed so as to be a risk to the health and safety of the employees who use the plant.

New South Wales OHSA s18(2)

Manufacturers and suppliers of plant for use at work must a) ensure that the plant is safe without risks to health; b) arrange for the carrying out of such research, testing and examination necessary to discover and eliminate or minimise any risks to health or safety; and c) make available adequate information about the plant in terms of the use for which the plant was designed, and any conditions necessary to ensure that the plant is safe and without risks to health when used.

S 18(3) Erectors and installers have a duty to ensure that plant for use at work is safe and without risk to health when properly used.

S 18(6) Manufacturers etc can be relieved of requirements where there is a written undertaking from a person to who plant was supplied that he/she will take steps to ensure that plant is safe and without risks to health.

S 18(9) Plant used without regard to relevant information provided by the manufacturer etc, can be considered not properly used.

S 53 Defence of reasonably practicable.

6 Based on Johnstone, op.cit. pp261- 263.

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Legislative provision Duty

Victoria7 OHSA s 24(1) & (3)

Designers, manufacturers, importers and suppliers of plant for use in a workplace shall a) ensure so far as is practicable, that the plant is safe and without risk to

health when properly used; b) arrange for the examination and testing necessary to carry out this duty c) ensure that adequate information is available regarding the results of any

relevant tests. S 24(2) 'Erectors and installers of plant for use at a workplace shall ensure, so far as is

practicable, that nothing about the way in which it is erected or installed makes it unsafe or a risk to health when properly used.'

S 24(4) Plant is not to be regarded as properly used when used without regard to any relevant information or advice that is available relating to its use.

Queensland WHSA s 32(1) & (2)

Designers manufacturers and importers of plant for use at a relevant workplace have an obligation to ensure the plant is designed/constructed to be safe and without risk to health when properly used.

S 32(3) Designers, manufacturers and importers of plant also have an obligation to ensure that plant 'undergoes appropriate levels of testing and examination to ensure compliance with the obligations imposed by ss 32(1) and (2).

S 32(4) “A designer, manufacturer, importer or supplier of plant or specified high risk plant for use at a relevant place has obligations - 'a) to take all reasonable steps to ensure appropriate information about the safe use of the plant is available'; b) to take the action the chief executive reasonably requires to prevent the use of unsafe plant anywhere.' (see Acts Interpretation Act 1954, ss 33 & 36).

S 32(5) Appropriate information includes that which states the use for which the plant has been designed and tested, and the conditions (if any) that must be followed if the plant is to be used safely without risk to health.

S 33 Erectors and Installers must install or erect plant in a way that is safe and without risks to health, 'and to ensure that nothing about the way that the plant is erected or installed makes it unsafe and a risk to health when properly used.'

Ss 26, 27, and 37 Defences

S 15 Plant is not 'properly used' if there is no regard to available information and advice concerning its use.

South Australia OHSWA s24 (1)

'Designers, manufacturers, importers and suppliers shall: a) ensure so far as is reasonably practicable that the plant is designed and

constructed so as to be safe (i) when properly used and maintained and (ii) when subject to reasonably foreseeable forms of misuse; and

b) ensure so far as is reasonably practicable that the plant is designed and constructed so that people who might use, clean, or maintain the plant are safe and without risks to health; and

c) take such steps to arrange for the testing and examination of plant reasonably necessary to ensure compliance with paras a) or b); and

d) ensure that the plant complies in all respects with prescribed requirements (if any) applicable to it; and

e) ensure so far as is reasonably practicable that adequate information about any conditions necessary to ensure the safe installation, use and

7 In Victoria, s 8 of the Equipment (Public Safety) Act 1994 places similar duties on manufacturers, designers, importers, suppliers, erectors and installers of “prescribed equipment.” This means any equipment prescribed by the Equipment (Public Safety) (General) Regulations 1994. The list of such plant under regulation 105 includes: tractors, earthmoving machinery, and explosive power tools. Johnstone op. cit p255.

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Legislative provision Duty maintenance of the plant is supplied with the plant.'

S 24(2) 'Erectors and installers of any plant for use at a workplace shall ensure so far

as is reasonably practicable that it will be safe a) when properly used and maintained; and b) when subjected to reasonably foreseeable forms of misuse.

S 24a Duties on owners of plant to a) ensure so far as is reasonably practicable that the plant is maintained in safe condition; b) ensure that the plant complies with all applicable prescribed requirements; c) ensure so far as is reasonably practicable that adequate information is supplied to any user of the plant.'

Tasmania WHSA s14

Similar provisions to those in Victoria, Queensland and South Australia.

S49 'A person must not (offer to) let or hire any plant for use at a workplace unless it complies with the prescribed requirements.

Northern Territory WHA s30B

'Similar provisions to those in Queensland, Victoria and South Australia.'

Australian Capital Territory OHSA ss 32-35

Similar duties to those in the Commonwealth Act.

Western Australia OHSA s23(1)

Designers, manufacturers, suppliers and importers or plant for use at a workplace shall, so far as is practicable: a) 'ensure that the design and construction of the plant is such that persons

who properly use the plant are not, in doing so, exposed to hazards;' b) arrange for the testing or examination of the plant to ensure its design and

construction comply with a) c) ensure that adequate information regarding any dangers associated with

the plant, specifications and test data, conditions necessary to ensure users are not exposed to hazard and proper maintenance of the plant, is 'provided when the plant is supplied and thereafter whenever requested.

d) S23(2) 'A person who erects or installs any plant for use at a workplace shall, so far as

is practicable, ensure that it is so erected or installed that persons who properly use the plant are not subjected to any hazard that arises from, or is increased by, the way in which the plant is erected or installed.

One prevalent view is that safety features, such as machinery guards, are best incorporated into equipment at the design stage. Designers are therefore important targets for health and safety interventions. As noted by Culvenor and Cowley, despite the fact that exerting legislative influence over a small number of easily identifiable equipment designers has the potential to benefit a great many equipment users (who may be difficult to identify and access), too often opportunities for targeting designers are missed.8 Australian workplace safety statutes are generally underpinned by the “hierarchy of control” methodology. The hierarchical model indicates that the priority for the minimisation of risk should be to control the hazard at the source firstly by elimination if practicable, and if not practicable, then by other means as indicated below.

8 Culvenor J, Cowley S , VIOSH Australia “Farm Injury Prevention at the Design Stage” Farm Injury Prevention 99.

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The Hierarchy of controls: 9

1. Eliminate the hazard

2. Substitute with a lesser hazard

3. Modify the work system or process

4. Isolate the hazard

5. Use engineering controls

6. Use back-up controls such as personal protective equipment.

These specific issues of duties of different obligation bearers will be explored further below. 1.5 Duties of the Users in the Workplace10 The general duty provisions also impose a duty of care upon obligation bearers within the workplace ie, employers, self-employed persons and employees. Most if not all, Australian farmers could be defined in one of these categories. Most of the Australian OHS statutes impose a duty of care upon employers in relation to both employees and non-employees. 11 The duty owed to non-employees is also imposed upon self-employed persons exceptunder Commonwealth and Northern territory legislation. Accidents involving non-employees, for example family members and minors (which account for a significant number of farm machinery related injuries), would be covered under this duty. Some of the statutes do not restrict the scope of the employer or self-employed person’s duty to any particular non-employees. For example, section 22 of the OHSA(Vic) provides that:

every employer and self-employed person shall ensure so far as is practicable that persons (other than the employees of the employer or self-employed persons) are not exposed to risks to their health or safety arising from the conduct of the undertaking of the employer or self-employed person.

Similar provisions are to be found in sub-sections 28(2) and 29 of the WHSA (Qld). The Commonwealth, New South Wales and Australian Capital Territory provisions adopt a wording that is similar to the Victorian and Queensland provisions, but each imposes an additional geographical limitation on the duty of the employer and self-employed person. Section 16 of OHSA (NSW) specifies that the duty only applies to non-employees “while they are at the employer or self-employed person’s place of work.” This duty has a clear geographical limitation, and does not extend beyond the duty holder’s workplace, ie the farm. The relevant provisions in the Commonwealth and ACT impose the duty on the employer in relation to persons “at or near a workplace under the employer’s control” who are not employees or contractors of the employer. The other Australian OHS statutes do not use the concept of the employer or self-employed person’s “undertaking”. Section 22 of the OHSWA (SA) and section 21 of the OSHA (WA) couch the duty in terms of “reasonable care”, to “avoid adversely affecting” the health and safety of others “by an act or omission at work” (OHSWA (SA)) and to “ensure that the health and safety” of another person is “not adversely affected wholly or in part as a result of work in which [the employer] or any of his employees is engaged” (OSHA (WA)). The employer’s duty to persons other than workers in section 29(1)(b) of the WHA(NT) resembles the wording of the Western Australian provision. A similar provision is to be found in the Tasmanian Act (see ss 9 and 13).

9 A hierarchy of controls relevant to guarding requirements is discussed in Section 3 of Part 1. 10 From Safe Design Project op. cit. 11 An “employer” is defined as a person or an organisation which employs at least one “employee”. See Rech v F M Hire Pty Ltd (1998) 83 IR 293.

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These duties to non-employees are absolute duties, qualified by the concept of (reasonable) practicability. They are non-delegable12, and the employer is personally, not vicariously, liable under its duty to employees and non-employees. The self-employed person or the employer cannot simply establish “a formal or idealised system, sometimes known as a ‘paper system’”. The employer must ensure that its OHS policies and procedures are fully implemented in relation to persons who are not employees.13 The main provisions relating to duties of employers, self-employed person and employees (including duty towards non-employees) in the principal Acts can be summarised as follows:14 Legislative provision Duty Commonwealth S 16(1) and S 16(2)(d), (3)

'An employer must take all reasonably practicable steps to protect the health and safety at work of the employers employees.' (This extends to contractors).

S17 Employers have a duty to develop OHS policy in consultation with the unions

S21 An employers duty extends to take all reasonably practicable steps regarding persons at or near a workplace who are not employees or contractors. An employee must at all times while at work take reasonably practicable steps to ensure they don't take any action, make any omission that creates or increases a risk to the health and safety of themselves or other persons, cooperate with the employer in fulfilling their obligations, and use equipment in accordance with instructions. Offence to interfere with personal protective equipment s80.

South Australia S 19(1)

'An employer shall, in respect of each employee employed or engaged by the employer ensure so far as is reasonably practicable that the employee is, while at work, safe from injury and risks to health' The duty extends to contractors, and also for example, requires monitoring and OHS information and records to be kept (s19(3)); and to maintain a OHS policy [and consult with employees and reps] (s20).

S 22 Employers duty is extended to taking reasonable care to ensure the health and safety of non-employees is not adversely affecting.

S21(1) Employees shall take reasonable care to protect their own health and safety, avoid adversely affecting the health and safety of another person, and as far as is reasonable ('but without derogating from any common law right') comply with certain specific requirements.

S25(1) A person (not being an employer, employee or occupier of a workplace) shall not misuse or damage anything related to OHS, or place at risk health and safety of any other person while at work.

Western Australia s19(1)

'An employer shall, so far as is reasonably practicable, provide and maintain a working environment in which his employees are not exposed to hazards - series of duties including reporting certain

12 R v British Steel Plc [1995] 1 WLR 1356; R v Associated Octel Co Ltd [1996] 4 All ER 846; and R v Gateway Foodmarkets Ltd [1997] 3 All ER 78. 13 However, see R v Nelson Group Services Ltd (Maintenance) [1998] 4 All ER 331 at p 351. See Safe Design op. cit. 14 Based on Johnstone op. cit. p166-167; p245-246, p269-271.

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Legislative provision Duty accidents(s19(3))

S21 Employer must also ensure, as far as is practicable, the health and safety of non-employees, is not adversely affected as a result of the work carried out.

S20(1) Similar to South Australia, and must cooperate with employer re guarding OHS obligations 20(3).

Tasmania s9(1) (2)

'An employer must, in respect of each employee employed by the employer, ensure so far as is reasonably practicable that the employee is, while at work, safe from injury and risks to health' and (2) lists nine specific duties. There is scope for delegation to a responsible officer of employers duties (s10-12). Employee includes contractors.

S9(3) Duty extends, as far as is reasonably practicable to ensuring health and safety of non-employees is not adversely effected by work carried out. Furthermore, that visits are aware of OHS requirements s9(8). The same duty is imposed upon self-employed persons s13.

S16 At work an employee must take reasonable care for their own health and safety as well as that of other persons (eg supervised persons) who may be affected by acts or omissions at the workplace, and comply with directions from employer or responsible officer regarding OHS. A person must not endanger their own or another person's health and safety by the consumption of alcohol or drugs at a workplace s19. A person must not intentionally, recklessly, or without reasonable excuse interfere with, misuse or damage anything provided in the interests of health and safety s20.

Northern Territory s29(1)

'An employer shall, so far as is practicable, (a) provide and maintain a working environment at a workplace that is safe and without risk to the health or safety of the workers working at the workplace; and (b) ensure that the health and safety of any other person is not adversely affected as a result of the work in which the employer or any worker is engaged.' Includes contractor (s3(1)) and specifies that regulations may prescribe additional duties on employers (s29).

S29(1) Duty extends, so far as is practicable, to ensuring the health and safety of 'any other person' is not affected as a result of work carried out.

S31(1) Duty on worker similar to Victoria, comply with reasonable OHS directions from employer s31(2).

Australian Capital Territory s27(1)

'An employer shall take all reasonably practicable steps to protect the health, safety and welfare at work of the employers employees.'

S28 An employer shall take all reasonably practicable steps to ensure that persons (who are not employees) at or near a workplace are not exposed to risk to their health and safety arising from the conduct of the employers undertaking. The same duty is imposed on self-employed persons also s31.

S30 Same as Commonwealth.

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Legislative provision Duty

New South Wales s15(1)

'Every employer shall ensure the health, safety and welfare at work of all the employer's employees.' (describes contraventions similar to Victorian Act)

S16 All employers and self-employed persons shall ensure that non-employees are not exposed to health and safety risks arising from the work being carried out at the workplace.

S19 Every employee while at work shall take reasonable care for the health and safety of persons at the workplace or who may be affected by acts or omissions, and cooperate with their employer in complying with OHS requirements. A person shall not intentionally or recklessly misuse any OHS equipment s20, defence of reasonable practicability s53.

Queensland s28(1) 'An employer has an obligation to ensure the workplace health and safety of each of the employer's workers at work. 'An employer or self-employed person has an obligation to ensure that his or her own workplace safety and the workplace health and safety of others is not affected by the way the employer or self-employed person conducts the person's obligation.'

S36 Obligations are imposed on a worker or anyone else at a workplace to comply with OHS instructions, use personal protective equipment if provided, not to wilfully or recklessly interfere with OHS; and not to wilfully risk their own or another person's health and safety.

Victoria s21 'An employer shall provide and maintain so far as is practicable for employees a working environment that is safe and without risks to health.'

S22 'Every employer and every self-employed person shall ensure so far as is practicable that persons (other than employees..) are not exposed to risks to their health and safety arising from the conduct of the undertaking of the employer or self-employed person.'

S25(1) An employee at work must take reasonable care for hi/her and anyone else's health and safety affected by acts or omissions in the workplace, and cooperate with employer regarding OHS compliance. Shall not wilfully or recklessly misuse any OHS equipment s25(2).

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1.6 Qualifications to the general duty15 The general duty contained in all of the Australian OHS statutes imposes an absolute duty on the employer and obligation bearers. However there are some qualifying phrases. In all statutes (apart from the WHS (Qld))16, the general duty is qualified by the expression “reasonably practicable” or “practicable”.17 There are various factors which are taken into account in determining what would be reasonably practicable including: nature and severity of the hazard; knowledge of severity of the hazard; knowledge of solutions; availability of solutions; common standards of practice; and cost of solutions.18 Courts have held that the overriding consideration is a question of fact: was it reasonably practicable to take any precautions other than those that had been taken? An objective standard is applied of what a reasonable person would do in the position of the duty holder. The existence of a universal practice can be admissible as evidence, but not conclusive evidence, that it was not reasonably practicable to use some alternative safe method. 19 As well as the “reasonably practicable” qualification, the general duties imposed by the OHS legislation, tend to be qualified further by the phrase “when properly used”. This latter expression “severely reduces the scope of the duty owed by the designer, supplier, importer or manufacturer to design, test, examine, research and provide information to users so that the product is safe and without risk to health when properly used.”20 It can be argued that this makes an upstream duty holder immune from liability for risks to workers arising from misuse of plant in the workplace, and consequently removes incentives from designers and manufacturers to design/manufacture plant and equipment that is as safe as it might possibly be.21 Alternatively, the qualification can be viewed as providing legitimate protection for conscientious designers whose product is misused at a later stage in the life cycle. The meaning of the words “when properly used” was subject to judicial scrutiny in the very recent case of WorkCover v Arbor, the implications of which are examined in Part II (12.1) below.

15 Based on Safe Design Project, op. cit. 16 The Queensland statute nevertheless achieves largely the same effect stipulating “reasonable precautions” to be taken in s27(1). 17 Note: Practicable has been defined to mean “reasonably practicable.” Note table regarding Reasonably practicable in Safe Design Project. Note use of phrase overseas - UK - “so far as is reasonably practicable.” Safe Design op.cit p34. 18 Tractor and Machinery Association of Australia (2000) Occupational Health and Safety Guidelines Third Edition, TMA Australia. The TMA identify four common elements of the definition of practicable across Australia,p19. 19 Martin v Boulton and Paul (Steel Construction) Ltd [1982] ICR 366 (QB); and see Johnstone op. cit 1997:204. 20 Safe Design Project op. cit. p37-38. 21Ibid. Also noted in Part 4.

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2. National Standard for Plant 2.1 Development of National Standard At the next level below the general duties enshrined in the main OHS legislation of each state and territory, are the duties and standards stipulated in the National Standard for Plant (NSP).22 It should be noted that the National Standard is not enforceable law unless it has been specifically incorporated into legislation. While each state and territory has (in somewhat different ways) now done so, as we will see, considerable differences remain in the wording used by different jurisdictions. The NSP was designed to facilitate the “rationalisation” of the varied array of plant regulation under the different statutes discussed in Part One. It creates a single overarching set of performance-based duties which requires obligation bearers (ie, designers, manufacturers, importers, suppliers, installers, employers, owners and self employed people) to undertake hazard identification, risk analysis and risk control to eliminate, and where that is not practicable, to minimise the risks to health and safety. It further allows for exemptions where it is considered that alternatives to the regulated provisions will deliver the same or better level of health and safety in the workplace. The National Standard is divided into six parts and three schedules. Part 1 contains objectives, interpretations, application and incorporation of references; part 2 outlines specific duties of obligation bearers in relation to plant; part 3 relates to all plant and contains the broad requirements for hazard identification, risk assessment and control of risk for all persons (except for employees) having a duty in the National Standard; part 4 relates to registration of plant designs and items of plant; part 5 refers to exemptions; part 6 provides for appeals; schedule 1 lists plant designs and individual items of plant requiring registration; schedule 2 lists standards covering the design and manufacture of plant; and schedule 3 lists all the various standards referenced in the NSP. 2.2 Definitions According to the National Standard ‘plant’ includes any machinery, equipment (including scaffolding), appliance, implement or tool. The definition of plant is broad and includes such items of plant as non-electric hand-held tools, such as hammers and screwdrivers, as well as office and workplace furniture. Section 3 of Part 1 contains the objectives of the National Standard and states it “is intended to protect the health and safety of persons from hazards arising from plant and systems of work associated with plant by:

a) ensuring that hazards associated with the use of plant in the workplace are identified and risks to health and safety are assessed and controlled;

b) eliminating or, where this is not practicable, minimising risks to health and safety arising from plant;

c) specifying requirements with respect to the design, manufacture, testing, installation, commissioning, use, repair, alteration, dismantling, storage and disposal of plant;

d) requiring the provision of relevant information and training; and e) requiring the registration of certain plant designs and items of plant.”23

Section 5 states that the provisions of the NSP apply to the following persons:

“designers, manufacturers, importers, suppliers, erectors, installers, employers, self-employed persons and employees with respect to all plant and associated systems of work in a workplace or plant intended to be used in a workplace, and owners with

22 National Occupational Health and Safety Commission (NOHSC), (1994) National Standard for Plant (NOHSC: 1010), Australian Government Publishing Service, Canberra. 23 National Standard for Plant, Part One - Preliminary, Section 3, Objectives.

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respect to particular plant and associated systems of work in a workplace or plant intended to be used in a workplace.”

2.3 Duties of Obligation Bearers under Part 2 of the National Standard for Plant The general principle for implementation of the National Standard in s7(1) states that a person carrying out a duty under the National Standard is required to apply the principle that “risks to health and safety arising from plant or systems of work associated with plant are, as far as is practicable eliminated, or where this is not practicable, minimised.” Furthermore, if the duty is imposed on more than one person, each person must comply individually unless specifically exempted.24 Using the same categorisation as in the legislation already examined, the duties on various parties is summarised in the following tables. 2.3.1 Duties on Persons Outside the Workplace according to the National Standard25 Designers

As well as duties to identify hazards, assess risk (taking into account for example, environmental and operational conditions, ergonomic needs and safe access)26 and provide information (s11), designers must control the risk (for example by providing operator protective devices s10(h)), including ensuring that plant is designed according to the relevant standards listed in schedule 2 of the National Standard or other comparable standards (ss8-11).

Manufacturers

Section 12 stipulates that manufacturers, where the designer is outside Australia, must assume the responsibilities that would otherwise be the responsibilities of the designer. Manufacturers must: - identify hazards, assess risks, provide information and control risks during the

manufacturing process and ensure that the plant is manufactured, inspected and, where required tested, according to the relevant standards listed in schedule 2 or other comparable standards,27

- identify any design fault that becomes apparent during the manufacturing process that

may affect health or safety, ensure that fault is controlled, not manufactured, and the designer is consulted if practicable. Furthermore if appropriate and practicable, advise the owner of the supplied plant of any fault which may have an effect on health or safety. (ss 12-14)

- provide the supplier with the information provided by the designer and with any

document relating to testing. (s15)

Importers

Where the designer or manufacturer is outside Australia, importers must assume the responsibilities that would otherwise be their responsibilities. They must also stipulate whether the plant is to be used for scrap or spare parts, and provide relevant health and safety information. These duties apply to the import of both new and used plant.28

Suppliers Section 19 provides for 2 situations: where a supplier has management and control of plant, they must ensure that risks to health and safety from the use of plant are eliminated, or where this is not practicable, minimised; and where a supplier does not1have management and control of plant must ensure that, “as far as practicable, any faults are identified, and the purchaser or owner is advised in writing, prior to the plant being supplied, of the faults and, where appropriate, that the plant is not to be used until the faults are rectified.”29 S19 (3) provides that a person who becomes a supplier as a result of hiring or leasing plant to a

24 Part 2 s7(2) NSP Obligations on More than One Person. 25 Worksafe Australia, “Economic Impact Analysis on the National Standard for Plant”, Australian Government Publishing Service Canberra, February 1996, pp 12 - 13. 26 s 9(2) (ii), (iii) and (iv). 27 Having regard to designers specifications s14(2)(a) control of risk. 28 Drafting Note, National Standard for Plant, op. cit p15. 29 S19 (1)(b) National Standard for Plant.

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workplace must assume the duties of an owner and ensure that the plant is: inspected between hiring and leasing; assessed in relation to testing required; tested if necessary, with recorded information maintained for the operating life of the plant. The supplier also has a duty to provide relevant information under s20.30

2.3.2 Duties on Persons in the workplace according to the National Standard Many Australian farmers fit the categories of owner, self-employed person, and employer, and therefore the following provisions apply to them if they have been incorporated into the legislation of the particular farmer's jurisdiction. Employers - Employers have duties relating to consultation with employees and their health

and safety representatives; hazard identification; risk assessment; provision of training, information, instruction and supervision; the control of risk; the design of plant; installation and commissioning; and operation, maintenance, inspection, cleaning, repair, alteration, dismantling, storage and disposal of plant. (ss24-46)31

- Employers have specific duties for control of risk for various types of plant

including in particular, “powered mobile plant” in s37 which as already noted, causes 70% of agricultural deaths in Australia. Section 37 in particular specifies roll-over protective structures (ROPS) for tractors.32

- Employers may carry out risk assessment on either individual items of plant or,

where multiple items of plant of the same design are installed and used under conditions which are the same for all practical purposes, carry out a risk assessment on a representative sample.33

- With regard to record keeping, when carrying out a risk assessment, an employer must ensure they identify items of plant which require records to be kept, the type of records, and the length of time records are to be kept. Where the risk assessment has been recorded, the employer must ensure that documentation is kept and is available to employees and their health and safety representatives. An employer must also keep (for the length of time identified in the risk assessment) and have available records for employees and their health and safety representatives while the plant is operable and under their control. 34

- There are also duties concerning 'Training, Information, Instruction and

Supervision' of persons exposed to risk - s26(4). - S31 entitled 'Use' specifies how employers must ensure proper use (eg re:

training, testing, damage, proper purpose, alteration, warning devices,

30 A further category of the NSP is Erectors and installers : An erector or installer must carry out a hazard identification and risk assessment and then control risks associated with the erection or installation procedure in accordance with the relevant standards, for example ensuring that all electrical installations associated with plant comply with the relevant standard. (ss 21-23). 31 From Economic Analysis of National Standard for Plant, Worksafe op. cit p13. 32 Other specific plant…plant under pressure; plant with moving parts; powered mobile plant; plant with hot or cold parts; electrical plant and plant exposed to electrical hazards; plant designed to lift or move people, equipment or materials; scaffolds; lasers; industrial robots and other remotely or automatically energised equipment; and lifts and amusement structures. 33 However, it should be noted that “the use of a representative sample is subject to the qualification that where risk may vary from operator to operator, a separate assessment of the risk to each operator of the particular plant is carried out on each item of plant.” Economic Impact Analysis on the National Standard for Plant 1996, Worksafe op. cit. p13. This provision also applies to installers, erectors and owners. 34 The records include any relevant tests, maintenance, inspection, commissioning and alteration relating to items of plant requiring registration, a further list of high risk plant specified in the National Standard and the plant identified by the risk assessment as requiring records to be kept.

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inspection and repair) and s32 concerns repair.

Owners Although the duties of owners is limited to 'maintain' plant, they may also have a duty as a designer or manufacturer as appropriate.35 Ownership duties apply to owners of any plant that is hired or leased (this could apply to hired farm machinery); or any of four categories of plant (that is, plant under pressure, plant designed to lift or move people, equipment or materials; lifts or amusement structures) where there is no employer or self-employed person having management or control of the plant. An owner has similar duties to those of employers regarding hazard identification, risk assessment, general control of risk, maintenance, inspection, repair, cleaning, alteration, dismantling, storage and disposal of plant. Relevant health and safety information must also be provided. Regarding record keeping, an owner of plant that is hired or leased must comply with the same requirements as an employer. An owner of one of the 4 specific categories of plant (which could arguably include certain types of machinery used on farms) must keep records relating to health and safety and transfer the records on sale of plant unless the plant is to be sold for scrap or spare parts s56(2).

The self-employed

Many Australian farmers would come under the category of self-employed, and as such must identify hazards, assess and control risks, keep records and provide relevant health and safety information to appropriate persons. Similar to employers, they have specific duties regarding powered mobile plant such as tractors. They also have specific duties for the control of risk for certain types of plant (namely, plant under pressure, plant designed to lift and move, lifts and amusement structures as well as powered mobile plant). Similar to the duties on owners, where plant is under the control of a self-employed person, that person must keep records relating to health and safety and transfer the records on sale of plant unless the plant is to be sold for scrap or spare parts. (ss 56-62)

Employees Section 63(1) states “employese must comply, to the extent that they are capable, with all activities carried out in accordance with the provisions of the National Standard” and (2)must report promptly to their employer any matters of which they are aware that may affect the employer’s compliance with the provisions of this National Standard.

Interestingly, The NSP in s64 declares a further general duty on “all persons” not to wilfully or recklessly interfere with or misuse anything provided in the interests of health and safety… or place at risk the health and safety of any person at the workplace.” How this might apply to farmers removing safety guards or family members exposed to risk on farms will be discussed further in Part Two.

35 NOHSC Drafting Note to the National Standard.

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2.4 General requirements for hazard identification, risk assessment and control of risk Having identified in Part Two of the National Standard the persons having a duty, Part Three specifies the actual details and general requirements for hazard identification, risk assessment and control of risk.36 In relation to hazard identification, all reasonably foreseeable hazards to health and safety must be identified. Hazards associated with a list of factors, so far as they are relevant to the design, manufacture, installation, commissioning, operation, maintenance, inspection and cleaning of the plant, must be identified. In relation to risk assessment, a person carrying out a risk assessment must, as far as practicable, determine a method of assessment which adequately addresses the hazards identified and includes one or a combination of techniques ranging from a visual inspection to a technical or scientific evaluation. In relation to control of risk, where an assessment identifies a requirement to control a risk to health or safety, that risk must be eliminated or, where it cannot be eliminated, minimised. To minimise the risk to health and safety one or a combination of approaches must be used. These include substitution of the plant by less hazardous plant, modification of the design of the plant, isolation of the plant and engineering controls such as guarding. Where the risk is not minimised through these approaches appropriate administrative controls and personal protective equipment must be used. Specific requirements relating to access and egress, dangerous parts, guarding, operational controls, emergency stops and warning devices are also included under control of risk. 2.5 Exemptions Section 74 in Part 5 provides that where a person believes that an equivalent level of health and safety can be achieved by an alternative means, other than compliance with all requirements of the National Standard, that person may apply to the authority in writing for an exemption.37 An exemption may not be sought regarding any consultation requirements duties of employers. The drafters of this section noted that most states and territory principal OHS legislation includes exemption requirements which would take precedence here, as avenues for developing alternative compliance methods.38 2.6 Other Australian and International Standards The National Standard incorporates a number of Australian and British Standards. However, it allows for the use of other comparable standards which may be deemed acceptable by the OHS authorities in lieu of the referenced standards. Where there is any inconsistency between the National Standard and any referenced document, the National Standard takes precedence. The regulations which implement the National Standard for Plant also refer to other Australian standards.39 Again it is essential to acknowledge/note the legal status of standards. The NSP, state regulations and codes of practice often refer to these voluntary standards. Standards are not legal documents in

36 Economic Analysis of the National Standard for Plant , Worksafe op cit.1996.p16. 37 The “Authority” means any Commonwealth, State or Territory regulatory authority with the responsibility for plant safety and includes an officer of that Authority with delegated responsibility by that Authority: part 1, s 4. 38National Standard for Plant, p48. 39 For example, the Queensland Code of Practice for Safe Design and Operation of Tractors lists in Appendix 2 the relevant standards. Standards Australia have at least 60 different documents relating to tractors and agricultural machinery, and have hundreds of documents concerning plant standards (but no knowledge of the National Standard) - www.standards.com.au.

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themselves. As noted by the TMA the only instance of regulations prescribing mandatory compliance with an Australian Standard is regarding AS 1636 - Mandatory fitment of ROPS on tractors.40 The following Australian Standards are relevant to the design and operation of tractors and agricultural machinery: AS 1019 Internal Combustion Engines - Spark emission control devices (1985).

AS 1064 Agricultural and light industrial equipment - Operator Controls - symbols (1987).

AS 1121 Guards for agricultural tractor PTO drives (1983).

AS 1269 Acoustics - Hearing conversation (1989).

AS 1418.5 Cranes Part 5: Mobile and vehicle-loading (1995).

AS 1636 Agricultural Wheeled tractors - Roll Over Protective Structures - Criteria and Tests (1996). (amended 1984 version - 3 parts)

AS 2012 Acoustics - Measurement of airborne noise emitted by earthmoving machinery and agricultural tractors (1990).

AS 2153 Tractors and machinery for agriculture and forestry - Technical means for ensuring safety (1997) (replaces previous AS 2153 Guarding of agricultural tractors and Machinery which had become outdated by International standards)

AS 2294 Earthmoving machinery - protective structures Parts 1, 2, 3, & 4. Updated in 1997 amending items relevant to tractors re; ROPS, FOPS (falling object protective structures).

AS 2664 Earthmoving machinery - Seat belts and seat belt anchorages (1983).

AS4024.1 Safeguarding of Machinery - Part 1: General Principles (1996).41

Standards Australia has a policy of adopting international standards wherever possible, and in 1998 a reported 25% of Australian Standards mirrored ISO standards.42 International standards provide helpful information pertinent to the safe design, manufacture, distribution and use of agricultural machinery. Some such standards include: SAE J167 Overhead Protection for agricultural tractors - Test procedures and performance

requirements (relevant to FOPS) (1986). SAE J386 Operator restraint system for off-road work machines (relevant to seat belts) (1993). ISO 3449 Earthmoving machinery - Falling object structures - Laboratory tests and

performance requirements (1992). ISO 4254 Tractors and machinery for agriculture an forestry - Technical means for ensuring

safety (1989). There are various other ISO standards which are applicable to agricultural tractors and machinery. According to the Tractor Machinery Association, “in areas of machine design where there is no Australian standard available, designers would be 'well advised' to refer to a relevant ISO standard for guidance; subject to checking that there is no conflict between the ISO standard and any aspect of local OHS regulations.”43

40 TMA Guidelines op cit,p9. 41 Note: there is also a new OHS management Systems AS 4801-2000. 42 Senneff MD “Internationally Recognised Safety Standards - Can one size fit all?” Farm Injury Prevention 99. 43 TMA Guidelines op. cit, p 12.

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The status of Australian standards and the adoption of international standards by Australian designers and manufacturers will be discussed further in Part 2. 3. Specific Regulations and Codes Having examined the general duties under the main OHS legislation and the broad provisions of the National Standard for Plant, it is necessary to examine some of the more specific and detailed regulatory approaches to farm machinery safety and safe work practices contained in regulations and codes of practice. Whilst it can be said that the states and territories have the same OHS core requirements and end objectives, a survey of regulations and codes of practice from each state and territory reveals the structure and wording used in each jurisdiction can vary substantially. However, the duties and obligations placed upon designers, manufacturers, importers and suppliers of agricultural machinery “do not differ substantially from state to state”.44 In writing this section we are particularly indebted to the Tractor Machinery Association of Australia which, through its OHS guidelines, has made a substantial contribution to this area which we acknowledge and build upon. 3.1 Definitions In general, definitions in the OHS statutes are broader than the definition of “plant” in the plant regulations. When interpreting the OHS statutes it can be assumed that the main types of farm machinery fall under the broad definitions. However regulations tend to be more exact in specifying the relevant plant. Some of the specific regulations pertaining to plant and farm machinery in each state and territory are summarised below. It should be noted that the definition of plant in the national standard and state regulations is generally very broad, but that any farm machinery which was deemed not to fall within a particular definition would remain subject to the general duty provisions of the legislation described in section 1 above45. Definitions of the obligation bearers can also differ in each jurisdiction. A good example is provided by the TMA regarding 'self-employed' persons: “The Queensland Rural Plant Industry Code of Practice applies equally to employers and self-employed persons and refers to them collectively as 'producers' whereas the Victorian, South Australian and Western Australian regulations have sections specifically related to self-employed persons. For example the Victorian regulations state that : A self employed person must comply with the requirements of the regulations which are

specifically applicable to employers, as if they were an employer. A self employed person's duties only apply to people who may be exposed to a risk

arising from the conduct of the undertaking of the self employed person

The NSW OHS Reg 2000 states that the term employer includes 'self employed persons'…” 3.2 Australian Jurisdictions New South Wales Section 45 of the Occupational Health and Safety Act 1983 specifies that under this Act the Governor may make regulations “regulating or prohibiting the manufacture, supply or use of plant.”

44Ibid, piii. 45 For example, in Victoria, hand held plant such as powered secateurs and chain saws may not be covered.

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Drafting of new plant regulations in NSW has been in progress (albeit hampered by administrative problems) since the introduction of the National Standard for Plant (NSP).46 Towards the end of 1999 the OHS Regulations 2000, a 'consolidated set of performance based regulations,' was issued in draft format for public comment. These included plant and noise regulations to come into effect on 1 September 2000. The new regulations are based on the NSP and are generally similar to other states with some exceptions concerning guarding and fitment of ROPS to early model tractors.47 The 2000 regulations replace: OHS (Committees in Workplaces) Regulations 1999, which refers to powers regarding access to plant information held by employers; the Rural Industries (Machines Safety) Regulations 1972;48 OHS Noise Regulations issued in NSW in 1996 in line with the National Standard for Occupational Noise (NSON) have been embodied in the OHS Regulations 2000 and consequently the 1996 regulations have also been repealed. Victoria The extensive Occupational Health and Safety (Plant) Regulations 1995 were made under the Occupational Health and Safety Act 1985. These regulations have revoked previous regulations including: Occupational Health and Safety (Explosive-powered Tools) Regulations 1989, Occupational Health and Safety (Machinery) Regulations 1985, Occupational Health and Safety (Tractor Safety) Regulations 1986; and also regulations made under Boilers and Pressure Vessels Act 1970 and Lifts and Cranes Act 1967 and also under the Victorian OHS legislation is the OHS (Certification of Plant Users and Operators) Regulations 1994. In contrast to NSW, the new Regulations, accompanied by a Code of Practice for Plant, are drafted differently and include certain departures from the National Standards.49 The regulations stipulate specific duties of obligation bearers. Part 9 is specifically devoted to “Duties applicable to various persons in relation to roll-over protection on Tractors” (duty on supplier and employer or self-employed person; and certain tractor exemptions). Concerted lobbying efforts, for example by the Tractor Machinery Association of Australia, resulted in: regulation (903) being amended in November 1998 to require employers and self employed

persons to fit ROPS to all wheeled tractors used at their workplaces unless, for tractors manufactured or imported in to Victoria prior to 1 July 1981, such fitment is not practicable.

a definition for ROPS being added. an amendment to the Code of Practice was published as a supplementary publication (namely

Amendment No. 1) and deals specifically with the interpretation of the new ROPS regulation. The TMA described this amendment as being “ of particular value to the agricultural machinery industry as in addition to elaborating on the ROPS regulation it contains useful information for tractor users on the safety factors influencing roll overs and other aspects of tractor safety.”50

There are numerous Codes and Guidelines available to Victorian farmers. The main OHS strategies in Victoria have involved awareness raising, promotion, education and training; with the additional aspect of legislation requiring change coupled with enforcement campaigns. Implementation has tended to focus on a single issue (eg ROPS, as discussed later) and the creation of organisational

46 Tractor Machinery Regulations 2000 (NSW). 47 Ibid. 48 Other regulations made under this Act include Chaff-cutting Machines (Safety) Regulations 1980 and Local Government Industries (Machine Safety) Regulations 1979. 49 TMA Guidelines op. cit, p4. 50 Ibid.

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partnerships around these issues. State-wide activities and policies have been supported by financial and other support of local level activities.51 Queensland The Queensland Division of Workplace Health and Safety (WHS) undertook a revision of all existing codes under the WHSA 1989, and in 1999 made a number of amendments in the form of the Plant Advisory standard 2000. Codes of Practice for the Safe Design & Operation of Tractors (1991), Safeguarding of Rural Plant (1992), and Plant (1993) had been made in anticipation of the release of the National Standard for Plant. The WHS identified various inconsistencies between previous codes. For example, The Code of Practice for Safeguarding of Rural Plant was revoked in 1995 and was replaced by Code of Practice for Use of Rural Plant at a Rural Workplace (known as the Rural Plant Code) which was designed as a comprehensive code for all users of all types of rural machinery. Despite the fact that the Rural Plant Code applied specifically to end users, it provided a source of reference information for designers, manufacturers, importers or suppliers. However, confusion remained due to the fact that the requirements for tractors under the new Code differed in some ways to the Code of Practice for Safe design and Operation of Tractors.52 The Plant Advisory Standard 2000 revoked and replaced the Code of Practice for Plant (1993) and the Code of Practice for Safe Design & Operation of Tractors. The new Advisory Standard was created with several supplementary documents regarding particular industries. Advice for designers, manufacturers, suppliers and end-users is contained in Supplement No. 3 Safe Design and Operation of Tractors. This includes advice regarding managing risks associated with tractors, including ROPS, FOPS, seatbelts and guarding. Another new code The Rural Plant Industry Code applicable to end-users was released in 1999 to replace the previous plant code and complement Supplement No.3 of the Advisory Standard 2000 (Safe Design & Operation of Tractors). The introduction of these new Codes and Advisory Standards has eliminated the earlier confusion between the Code applicable to designers, manufacturers and suppliers and that for end-users.53 South Australia In 1995, Occupational Health Safety and Welfare Regulations were enacted under the OHSWA, with Part 3 concerning plant. This is an extensive document implementing the National Standard. Of particular note is regulation 3.2.26 regarding Powered Mobile Plant, which imposes a duty on employers to minimise risk to health or safety; and further provisions on protective devices and collision control. Section 3.2.26(4) requires ROPS on tractors and refers to testing requirements of AS1636 ‘Agricultural Wheeled Tractor Roll-Over Protective Structure Criterion and Tests.’ These regulations were issued as part of a new consolidated set of Occupational Health Safety and Welfare Regulations which also include new noise regulations. Various amendments to the regulations came into effect in June 1996 regarding the installation of ROPs on tractors, and the requirements for tractors and agricultural machinery have not been affected by subsequent amendments.54 To supplement these regulations there are no specifically drafted codes of practice relevant to tractors or agricultural machinery in South Australia. Certain Australian standards however, are specifically approved as codes of practice. Western Australia The Occupational Health Safety and Welfare Act 1984 provided for the making of the Occupational Safety and Health Regulations 1996 which implement the National Standard for Plant. Part 4 deals 51 Lesley Day and Keith Ferguson “A Tale of two states: Farm Injury Prevention in Queensland and Victoria” Farm Injury Prevention 99. 52 TMA Guidelines op. cit,, p5. 53 Ibid, p5. 54 The latest amendment being reprint No 11 of October 1999.

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with Plant, for example regarding registration, general duties, information provision and record keeping. Regulation 4.44 covers Powered Mobile Plant, with s4.45 relevant to tractors in particular. The regulations have been subsequently amended, the latest amendment being OS&H Amendment Reg (No 3) 1999, but this not changed the requirements for tractors or agricultural machinery.55 Western Australia has no specifically drafted Codes of Practice relevant to tractors or agricultural machinery, but various OHS Guidelines have also been published pointing out the practical side of interpreting the regulations, for example, Safetyline “Safety on the Farm – your legal duties” published by the West Australian Government.56 Tasmania The main OHS statute, the Workplace Health and Safety Act 1995 provided for the Workplace Health and Safety Regulations 1998. Division 3 of Part 4 (Hazards) deals with plant. It is a comparatively brief section detailing some specific duties for control of risk and registration of plant and plant design. The regulations were aimed at providing “the final legislative framework for Tasmania to align with the National Position.”57 The new Tasmanian regulations differ from those of most other states in that requirements for powered mobile plant and issues such as guarding of plant are not specifically referred to.58 Otherwise the regulations are generally consistent with the NSP and the NS for Occupational Noise. To supplement the fact that there are no Codes of Practice relevant to tractors or agricultural machinery, various Guidelines can be obtained from the Tasmanian Workplace Standards Authority. An example is the Rural Workplace Health & Safety Guide which advises the requirements for farm machinery, including ROPS fitment on tractors.59 Northern Territory The Work Health Occupational Health and Safety Regulations 1992 made under the Northern Territory’s Work Health Act 1986 were updated and reissued in 1996. They incorporate noise control and plant regulations and detail the duties and obligations of employers and workers including specific requirements with respect to plant, equipment and processes and general hazards. Part 8 concerns Plant. S110(8) in particular concerns riding on a tractor, and regulation 123 regarding powered mobile plant was amended in 1996 with regard to ROPS and collisions. It is similar to the other state and territory regulations implementing the National Standard. Pa The Northern Territory’s Work Health Act 1986 provides for the establishment of a work health authority to promote self regulation of workplaces and co-operation between employers and workers in overcoming hazards. The Northern Territory Work Health Authority has the power to penalise for breaches of duties required by the Act. The Authority can issue notices to rectify safety deficiencies and, if necessary, prohibit certain activities. The Northern Territory has no codes of practice specifically relevant to agricultural machinery. Australian Capital Territory The Occupational Health and Safety Act 1989 provides for the making of Occupational Health and Safety Regulations. However, although there is a recent revised code for Manual Handling, there are no regulations relating specifically to agricultural plant in the ACT. The OHS (Certification of Plant Users and Operators) Regulations was introduced by the ACT government in November 2000 as part 55 TMA Guidelines op. cit, p6. 56 See http://www.safetyline.wa.gov.au. 57 Workplace standards Tasmania - Guideline Document on Machinery, http://www.wsa.tas.gov.au. 58 TMA Guidelines op. cit, p6. 59 See http://www.wsa.tas.gov.au.

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“of a strategy of rationalising safety regulations and adopting nationally uniform standards for plant operation.” Certain machinery used on farms could come under the definition of plant.60 The NSP and the NSON have been adopted in their complete form as Codes of Practice in the territory. Commonwealth Part 4 of the Occupational Health and Safety (Commonwealth Employment) (National Standards) Regulations 1994 deals with plant. Regulation 4.03 specifies relevant persons, 4.04 explains hazard and risk assessment, and 4.05 concerns elimination and control of risk. Further provisions concern providing information and registration of plant and plant designs. (Responsibilities under these regulations are discussed below). The main OHS impact at a Commonwealth level is the development of national standards as discussed in Part Two. Furthermore, the National Occupational Health and Safety Commission (NOHSC) is a rich source of guideline documents available for Australian farmers and other parties to help interpret OHS laws, standards and regulations. For example, “Core Training Elements for the National Standard for Plant”; “Plant design – Making it safe. A guide to risk management for designers, manufacturers, importers, suppliers and installers of plant,” and “Plant in the Workplace – Making it safe.” Although these guidelines do not have any legal impact unless specifically referred to in legislation, they have a vital role in providing information to the public to understand OHS regulations and Standards. 3.3 Responsibilities of Obligation bearers under Codes and Regulations, in light of legislation and the National Standard for Plant It is possible now to elucidate general duties common to the statutes, standards, and regulations. For example, the plant regulations by adopting the National Standard provide further detail of the steps required to discharge the broad general duty of the statutes, and require duty holders to engage in a process of risk assessment and control:

a) undertake a process of identifying hazards associated with plant;

b) assess the risks which have been identified in relation to those hazards, taking into account certain prescribed matters; and

c) control risks associated with plant, generally without describing how this must be

done.61

60 ACT Workcover “New Certification Processes for Plant Users and Operators” 05.01. The relevant plant includes: pressure equipment, loadshifting equipment, front end loaders, cranes etc. 61 Instead of the word 'control' the WA Regulations require duty holders to “consider whether the risk may be reduced…” (WA OSH Regulations 4.23 to 4.29 of Part 4).

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However, to illustrate further how the regulations and codes expand upon the general statutory duties and impose more specific duties, it is useful to examine specific issues in farm machinery safety in Australia. These issues, illustrating degrees of interaction between legislation, regulations, codes and standards, include: Powered Mobile Plant; Roll Over Protective Structures (ROPS); Falling Object Protective Structures (FOPS); seatbelts; guarding; and carrying passengers. We draw very substantially on the publications and expertise of the Tractor Machinery Association of Australia regarding the following. Powered Mobile Plant With the exception of Queensland and Tasmania, the regulations of other Australian states stipulate requirements regarding the risk assessment process for powered mobile plant (which includes tractors and any other self-propelled agricultural machinery). Queensland requirements are in an Advisory Standard 2000. Again, it is possible to summarise general requirements which are common to most of states are as follows: If during the risk assessment process, a risk is identified of: the machine overturning, or objects falling on the operator, or the operator being ejected from the seat; then the appropriate combination of operator protective devices must be provided to minimise the risk.62 Despite common general requirements there are significant differences between jurisdictions. For example, responsibility for risk assessment falls on different people in various states. In Victoria and Queensland risk assessment responsibility lies with the employer, whereas in South Australia and Western Australia it rests with both the designer and employer. There are also some inconsistencies between which, if any, standards are specified in each set of regulations.63 'Appropriate Operator protective devices' include for example ROPS, FOPS, and seatbelts; and these in turn each attract different requirements in each state and territory as discussed below. ROPS The following table sets out the regulatory requirements for ROPS in each jurisdiction. It is interesting to note that four Australian states have mandatory requirements (and Queensland has an Advisory Standard) stating that ROPS be fitted to all tractors manufactured after a certain date if they meet certain criteria, in addition to the regulations which require ROPS to be fitted to any tractor if it assessed that there is a risk of it overturning. Tasmania, Northern Territory and ACT have no specific ROPS requirements specified. The requirements are in the table below.64 State Regulatory requirement for ROPS Victoria A supplier must ensure that a tractor manufactured or imported into Victoria on or

after 1 July 1981 is not supplied without being fitted with a ROPS. An employer/self employed person must ensure a tractor is not used at their

workplace unless fitted with a ROPS (except if a pre-1981 tractor where it is not practicable to fit a ROPS).

Exceptions: where there is no likelihood of the tractor overturning; or the tractor is used in an orchard or in close proximity to a building or structure where it would not be practicable to carry out operation using a tractor with a ROPS fitted; or where the tractor is less than 560kg

South Australia If the testing criteria of AS1636 can be applied to a tractor, an employer must ensure the 62 TMA Guidelines op. cit, p28. 63 For example, in Victoria regulations do not specify standards for ROPS and FOPS, but the Code of Practice for Plant refers to AS 1636 and AS2294. While in South Australia and Western Australia the regulations stipulate the two Australian Standards, the Queensland advisory standard goes further to include 'equivalent overseas standard' too. Ibid, p28. 64Ibid, pp30-32.

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State Regulatory requirement for ROPS vehicle is securely fitted with a ROPS. Exceptions to this requirement include where the tractor is: Manufactured, imported, or originally purchased pre 1 January 1981; Installed in a fixed position no longer permitting use as a powered mobile plant; in a place where it is too low for a tractor fitted with a ROPS or is primarily used

under in or about trees; or A tractor with an unladen mass below 560kg or above 3,860 kg.

Western Australia

An employer/self employed person must ensure that a tractor of a mass greater than 800kg and less than 15000kg, manufactured, imported, or originally purchased after 1 January 1981, and used at a workplace on or after 1 September 1997, is fitted with a ROPS.

That person must ensure that the ROPS complies with AS1636 Exceptions: tractors installed in a fixed position; and ROPS may be lowered or

removed if being used under a tree or a place too low to work with a ROPS in operating position.

New South Wales If a tractor has a mass greater than 560kg and less than 15000kg:

Designers and manufacturers must ensure that the that the tractor is designed/manufactured to include a protective structure that conforms with AS 1636

Suppliers must ensure that any tractor designed and manufactured after 1 September 2000 complies with the above requirement for designers; and that a tractor designed and manufactured before the date complies, as far as is reasonably practical.

A person must not hire, lease, or use a tractor designed/manufactured before September 2000, unless fitted with a ROPS in accordance with regulations referenced in the new NSW regulations, or if the tractor is designed or manufactured after the above date, unless it is fitted with a ROPS conforming with AS1636.

Queensland As a general rule, any tractor for which a ROPS has been designed and

manufactured should only be operated if a ROPS has been fitted. Any new tractor greater than 560kg and less than 15000kg that comes under the

scope of AS1636 or AS2294 (ie a wheeled industrial tractor) should be designed and manufactured with a ROPS fitted or be fitted with a ROPS.

All tractors greater than 560kg, (supplied after 13 May 1991) to which AS1636 or AS2294 apply, should have a ROPS fitted at the time of supply.

Where a risk assessment identifies a risk of a tractor overturning, that risk needs to be controlled - preferably by a ROPS (applies to employers and self-employed persons).

Tasmania, ACT, NT

No specific ROPS requirements specified

As is apparent, different specifications in each jurisdiction can make summarising ROPS regulations in Australia problematic. There are variations between states regarding the minimum and maximum mass of relevant tractors, the date of manufacture for compulsory fitment, which ROPS standards are specified, and who is responsible for fitting ROPS. For example, in Victoria:

“the supplier is required to ensure a ROPS is fitted as well as an employer or self-employed user, in SA the employer is responsible, in WA the employer or self-employed user is responsible. In NSW designers, manufacturers, suppliers and users all have responsibility. In QLD the responsibility is at the point of supply but for users a ROPS is only a 'preferred method' of protection which should be fitted 'as a general rule.' Other states and territories without mandatory or advisory requirements place the onus of decision upon the end user but the manufacturer or supplier may also be implicated in this decision depending on the circumstances known at the time of sale.”65

65 Ibid p32.

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Further complications have arisen over the compatibility of overseas standards of ROPS imported onto Australian farms. Issues of standards and uniformity, implementation and regulatory compliance regarding ROPS are discussed further in Part 2. FOPS A distinctive issue concerning the fitment of Falling Object Protective Structures (FOPS) is that designers, manufacturers and importers cannot easily determine the risk without knowing the specific purpose the equipment will be put to by the end user. Safety therefore cannot simply be designed in at preliminary stages, and it is up to the employer or owner to assess the risk. FOPS fitment requirements generally come under the general risk assessment and control process for Powered Mobile Equipment in each state. Whether a FOPS should be fitted depends upon the use of the tractor and whether there is a risk of a falling object striking the operator or the material being handled. AS 1636 and AS 2294 are the two standards which are referenced in most state regulations for 'protective structures' (includes ROPS, and FOPS). Currently there is no reference to FOPS in AS 1636 (Regarding ROPS) but AS 2294 has been recently amended to include Part 3 which has two levels of overhead protection.66 See TMA Guidelines for further information on this amendment. A FOPS compliant with SAE J167 Overhead Protection for Agricultural Tractors may also be acceptable. In Victoria, Amendment No.1 of the Code of Practice for Plant states that “fitting a falling object protective structure which meets the requirement of SAE J167 or an equivalent standard is one way to achieve compliance with this regulation [711(2)]”. Seatbelts According to the Tractor Machinery Association of Australia “it is almost certain that a tractor can be operated in a manner (albeit incorrectly in most cases) which will subject it to a risk of overturning and consequently impose a risk of the operator being ejected from the seat.”67 Where such a risk is identified most plant regulations and codes of practice require the use of 'an appropriate operator protective device' to eliminate the risk. Victoria and Queensland specifically refer to the use of seatbelts for this purpose: Section 28.2 of the Victorian Code of Practice for Plant (Amendment No 1) contains information

about the use of seatbelts on tractors. It states that irrespective of the age of the tractor, if there is a likelihood of the operator being ejected, if it is practicable to do so the tractor should be fitted with a seatbelt complying with AS/NZ2596 and SAE J386 or equivalent standard.68

The Queensland Advisory Standard Supplement No.3 states that a seatbelt should be fitted to all seating positions on a new tractor in accordance with AS 2664 - Earthmoving Machinery - Seat Belts and seat Anchorages, and that the belts comply with the AS/NZS 2596 and SAE J386.69

It has been acknowledged (for instance in AS 1636) that the use of a seatbelt “significantly increases” the protection offered to a tractor operator where the tractor is fitted with a ROPS. However practice would seem to differ from the recommendation, for example, a survey in Queensland revealed that only 24.2% of tractors were found to have both ROPS and seatbelts.70

66 Confusion existed between OHS authorities and tractor suppliers when AS 2294 only contained a single level of overhead protection relevant to heavy earthmoving applications. To complete the cross reference between the 2 standards, Standards Australia intends amending AS1636 to note that a ROPS complying with Level 1 of AS 2294 Part 3 is suitable for an agricultural tractor. Ibid, p35 67 Ibid, p36 68 Ibid, TMA recommended a proviso be included in the NSP that a seatbelt only be fitted if attaching parts have been incorporated in the original design (similar proviso in SA and WA Regulations) . 69 TMA considers fitting belts in accordance with AS2664 is not applicable to an agricultural tractor as it is an earthmoving standard for a different type of belt. 70 Ferguson K “Defining tractor rollover injury exposure risk on Queensland Farms” Farm Injury Prevention 99.

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Guarding A hierarchy of selection is specified in the regulations of all states where guarding is used as a control measure, with some variation in the wording in each jurisdiction. The TMA summarises it in the following way:71 a) if access to the area guarded is not required during the normal operation and maintenance

then a permanently fixed guard must be used, or b) if access is required then an interlocked guard must be used which only allows access

when there is no risk from the guarded area (on agricultural machinery this would generally be when the machine is stopped), or

c) if the above is not practicable, then a removable or opening guard must be used which can

only be removed or opened with the aid of a tool or key, or d) when none of the above are practicable, then a presence sensing guard must be used.72 Common general requirements (particularly on designers and end users) can be identified across the regulations. These include: Guards that use catches, pins or any other hand operable device to attach or secure the guard do

not comply with the regulations. Guards must be designed so that 'by-passing' them, whether intentionally or accidentally, is made

as difficult as is reasonably possible. Designers and manufacturers should ensure guards do not cause a risk in themselves (for example,

have sharp edges). As with ROPS, various standards apply to guards including AS 2153 for guarding in general, AS 4024.1 which applies to all machinery, and AS1121 guarding PTO drives. Whilst designers, manufacturers and importers recognise that guarding on their machinery should be constructed compliant with AS 2153, AS 4024.1, and AS 1121, the guarding must also meet other requirements of state Plant Regulations. Compliance with a referenced standard does not necessarily mean compliance with the regulations which reference it.73 An example of this is that the regulations of all states require opening guards be secured with a device that can only be operated by a tool or key, whereas AS2153 Part 1 does not have this requirement.74 Carrying Passengers Generally, all states have regulatory recognition of the fact carrying passengers on mobile equipment, such as tractors and other farm machinery, can be extremely dangerous where passenger safety is not provided for. Most passenger injuries occur because the passenger is thrown from the tractor. The

71 TMA Guidelines op. cit, p37. 72 Note: The NSW Draft Regulations do not currently include steps c) or d) above and require any guard which can be opened to be an interlocked type. Regulation 508 provides for only 2 options “a permanently fixed physical barrier, or if access to the danger point or area is required during normal operation, maintenance or cleaning, to be an interlocking type physical barrier.” (See Draft Regulations at www.workcover.nsw.gov.au Public Comment). TMA considers this to be an unreasonable requirement for tractors. (See TMA Guidelines op. cit, p37). 73 Ibid p38 74 In Queensland there is an anomaly between the Plant Advisory Standard 2000 and Supplement No 3 regarding AS 2153 which does not require guards only be opened with a tool or key. TMA p37.

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responsibility for adhering this regulation in all states is borne by employers and self-employed persons. The general rule is that the carrying of passengers is only permitted if the passenger is afforded an equal level of protection as that provided for the operator. The problem is that the zone of safety provided by the ROPS on most tractors only covers the operator when seated and not any passengers. Victoria and Western Australia have general regulations applying to all forms of powered mobile plant, whereas the South Australian regulations specifically refer to tractors. The Victorian Regulations state “An employer must ensure, so far as is practicable, that no person,

other than the operator, rides on a powered mobile plant unless the person is afforded a level of protection from exposure to risk which is equivalent to that provided to the operator.”75 The Code of Practice for Plant (Amendment No. 1) provides some guidance for the interpretation of this regulation.

The South Australian Regulations state “An employer must ensure that no person other than the

operator is permitted to ride on a tractor unless the person is seated in a seat specifically designed for carrying a passenger, and the seat is fitted with appropriate seat restraints and is located within the zone of protection afforded by the required operator protective devices.”76

The wording of the Western Australian regulations is similar to the above.

In Queensland, the Rural Plant Industry Code of Practice (section 7 Part G) gives a more detailed

description including specific mention of passengers riding on a tractor drawbar; and acknowledgment of the fact that passengers cannot be effectively protected by ROPS and 'safe adequate passenger seating is generally not incorporated into the design of tractors”. Passengers are also prohibited from riding on the tractor drawbar. The Queensland regulations specify two situations where it is reasonable for a passenger to be on a tractor: for instruction and training, or in situations of extreme emergency, (for example, transport from scene of a serious accident). Safe systems of work for routine instruction or training of tractor operators should be utilised, for example instruct by two way radio, or with the provision of a seat or platform with handrail to prevent the instructor from being thrown from the tractor or slipping and falling.77

More broadly, given the severity of the risks involved and the difficulty of protecting passengers adequately, there are good reasons for recommending that no passengers be carried on tractors (subject to very limited exceptions). Such a recommendation follows on from the limitation on passengers carried mentioned in the Queensland Rural Plant Industry Code of Practice described above.

75 Occupational Health and Safety (Plant) Regulations 1995; and see Code of Practice for Plant 1995 (Amendment No. 1). 76 Occupational Health, Safety and Welfare Regulations 1995. 77 Similar wording is contained in the advice given to employers and self-employed persons in the QLD Plant Advisory Standard Supplement No3 Safe Design and Operation of Tractors (section 3, part E).

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4. The Relationship between legislation, standards, and codes of practice 4.1 Summarising the legal relationship Implicit in the above account has been the distinctive relationship under Australian OHS regulation, between legislation, standards, and codes of practice. In this section, we seek to make that relationship explicit, in order to provide a better understanding of the overall architecture of the legislation, an appreciation of the complementary role of each of these legal mechanisms, and some residual limitations of the current practice in some jurisdictions. As described earlier, following the recommendations of the 1972 Robens Report the Australian regulatory regime sets out general requirements (general duties) in a principal piece of legislation, supplemented by statutory regulations and voluntary codes and standards providing more specific detail. Under the post-Robens legislation, these codes have a quasi-legal status78, in that while failure to comply with a code does not in itself involve a breach of the Act, it nevertheless has evidentiary value.79 That is, the onus is on the duty holder to prove, if challenged, that the action taken was at least as good as that set out in the code. This solution has the considerable attraction of providing more detailed guidance as to one acceptable way to comply with the general duties, while preserving duty holders’ options to devise their own means of satisfying those duties.80 The general intention was to reform the relationship between legislation, regulations and codes of practice by:

“a switch in emphasis away from the extensive use of statutory regulations towards greater reliance on standards and codes of non-statutory origin. In future there should be more discrimination and selectivity in making statutory regulations. Thus the system would comprise a main Act, plus statutory regulations, plus codes of practice; but the intermediate stage of statutory regulations would often be dispensed with.”81

However, the 'regulation' stage has not been totally dispensed with in Australia as envisaged by Robens, and the introduction of duties imposing general performance has not led to the removal of detailed standards. Rather, specification standards have been “rationalised and their coverage made more systematic under regulations or codes of practice.”82 Some states such as Queensland have favoured the use codes of practice (or Advisory Standards) over regulations, but there remain substantial variations in the degree of usage of the two instruments. The residual use of regulations rather than codes is, in terms of the overall Robens philosophy, unhelpful, because codes of practice provide a more flexible tool than regulations, as a means of filling in much of the detail which was lacking in the general duties. However, this problem is of diminishing importance because over time there has been a gradual shift to placing more OHS standards under codes of practice etc rather than under regulations.83 Within this latter group can be found a range of material described above, including the National Standard for Plant, approved codes of practice (referred to as advisory standards in Queensland) made under the OHS statutes, NOHSC standards, guidance notes issued by the OHS regulator, standards issues by industry associations, and other Australian Standards. As previously indicated, unless these documents are incorporated by reference into a regulation, they have no direct legal impact, beyond providing evidence of what a reasonable duty holder would do to comply with a certain legal obligation.

78 Robens intended the codes to be industry based and purely voluntary, whereas, under current legislative approaches, they are state based and quasi-regulatory. 79 There is some variation between jurisdictions as to the legal effect of the codes. See Brooks, A (1993), Occupational Health and Safety Law in Australia 4th Edition, CCH Australia Ltd, Sydney, p 476. 80 See generally Johnstone op. cit, chapter 7. 81 Robens op. cit 1972, p42, para 134; in Johnstone op. cit, p280. 82 Bohle and Quinlan op. cit p273. 83 Ibid. p267

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4.2 The role of codes of practice Much recent standards development has taken place through the vehicle of codes of practice, which have the considerable advantages identified above. However, such arrangements have been seriously criticised on three basic grounds: that they have become far too prescriptive in practice; that they are too general to be of practical value; and that they rely unnecessarily on government initiative84. In each case the critics have proposed specific solutions to remedy these problems. However, as we have argued elsewhere, in each case, the medicine they prescribe is far worse than the disease 85. Here, drawing from our previous work, we focus on what, for present purposes, is the most important of these issues: the broad and arguably over-general nature of codes of practice. Specifically, it has been suggested that the codes are so general that they commonly fail to provide industry with the practical guidance it needs in order to know how to comply. It is said that most codes of practice focus on how to manage a particular hazard in all workplaces in all circumstances. Yet few hazards lend themselves to one or two control measures that can be effectively adopted in every workplace. The result may be codes that are too broad to be of practical help in many workplaces. Instead, the development of voluntary standards and codes at individual enterprise and at industry levels has been advocated on the basis that “these are the best ways to promote best practice because they can accommodate well to the circumstances of individual workplaces”.86 Such codes are said to be particularly needed by small to medium sized enterprises. This proposal is misguided for a variety of reasons. In dismissing the value of hazard-specific codes, the critics seriously underestimate the contribution that such standards make, both in their own right, and as essential building blocks in the regulatory framework. There is evidence that “generic codes of practice for particular hazards are useful, and in some cases essential, starting points for an industry code...providing a set of principles and performance requirements which, where relevant, can be adopted by the industry to its needs”.87 In particular, hazard-specific codes provide important directions about how to handle such hazards. Not only do they assert the general principles of hazard identification, risk assessment and risk control, but they also provide hazard identification checklists which “draw the attention of those responsible for managing risks to the types of hazards they need to address which are different for different types of hazards and may be easily overlooked in a generic risk assessment”.88 They also commonly address a hierarchy of preferred control options and issues of design, information and training. They not only focus attention on the types of hazard expected, but also provide a process for resolving them.89 Accordingly, the jettisoning of the current general codes would be seriously counter-productive. There may be some value in supplementing the generic regulations/codes with industry-specific codes, where this is practicable. However, commonly it is not90, and there may be more to be gained by promoting and explaining the generic approach to individual industries, and in providing industry-specific information, advice, and training, than in industry-specific regulation.

84 See for example Industry Commission (Australia) op. cit. 85 This section is modified from Gunningham, N and Johnstone, R (1999) Regulating Workplace Safety: Systems and Sanctions Oxford University Press, Oxford UK. 86 See examples cited in Industry Commission, op. cit, n 11, Vol II p 366 and Vol 1 p 48. 87 Department of Industrial Relations, Occupational Health & Safety (Portfolio Response) Submission Number DR338 to the Industry Commission, May 31, 1995 p 4. See generally the evidence of the effectiveness of the Manual Handling Regulations cited by the South Australian Government Submission, above, n 11, p 2 to Industry Commission. 88 South Australian Government Submission, above, n 11, p 2 to Industry Commission. 89 Ibid. Where some of the codes fall short is in insisting that every risk be identified and assessed before prioritising, which is a task so demanding as to be unrealistic. Arguably, it would be more practicable to begin with risk assessment, and focus only on those issues that are demonstrably worthwhile addressing. 90 If such codes are to be developed by government then resources are limited and priority is likely to be given to generic standards. If they are to be developed by industry, then it must be said that industry progress in this direction to date, has been extremely slow.

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4.3 Relationship of Standards and Deemed to Comply Provisions In the Report of the Small Business Deregulation Taskforce Time for Business (otherwise known as the “Bell Report”)91 several concerns were identified that would be relevant to Australian farmers as small business people and employers, and a number of specific recommendations were made regarding the regulatory concerns of small business. In particular, the complexity of the OHS legislative regime was cited as contributing to poor levels of compliance by small business. Amongst the recommendations made to ease the regulatory burden on small business was Recommendation 15 suggesting that “OHS Codes of Practice where possible should include deemed to comply provisions.”92 This concept was only mentioned in a recommendation and was not further elaborated in the body of the Bell Report. Exactly what this term means or how it could be operationalised, was not explored. Indeed, even defining what the term meant has proved difficult. According to a report to NOHSC, “Deemed to comply”:93 normally refers to a legislative device enabling an alternative means of complying with

legislative or regulatory requirements to be considered as an acceptable means of meeting a duty.

is usually associated with administrative determinations in legislation that exempt, vary or

accept other means of satisfying duties than is defined in legislation or regulation.

There appear to be two definitions: first, the narrow legislative definition refers to categoric and comprehensive determinations of compliance; and second, the broader definition associates deemed to comply provisions with guidance or recommended solutions typically found in Codes of Practice.

There is also some confusion over the role of ‘deemed to comply’ provisions. Bottomley points out that the recommendation to incorporate the provision in codes of practice may be problematic to implement as only primary legislation or regulations have the power to deem, not codes of practice; and codes are dependent on the duties in Acts and regulations for the scope of guidance that can be provided:94

“One could say there is no deeming involved in codes, as in the construction of the provisions, a person has complied with a duty by following the provision of an approved code of practice, or indeed any alternative that is equal to or better than the code, in achieving compliance with the duty…”95

On balance, notwithstanding the intention of the Bell Report to benefit small business such as farmers, the ‘deemed to comply’ recommendation should not be supported because:96 “all stakeholders had difficulty in understanding what deemed to comply meant and could not

provide further insight into what was intended by the Bell Report recommendation.”

Applying the more narrow legislative interpretation, the recommendation to include deemed to comply provisions in Codes of Practice is not possible as the requisite powers are found in principal legislation or regulation. To deem the following of industry based codes and guides as satisfying obligations, would require appropriate amendment to principal legislation or regulation.

91 Small Business Deregulation Taskforce Time for Business (otherwise known as the “Bell Report”, Canberra 1996. 92 Ibid. p55. 93 Bottomley, op. cit, pp 3,9. 94Ibid, p10. 95 Ibid, p25. 96 Ibid, p64.

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“If the less literal interpretation of deemed to comply (ie alternative ways of meeting obligations as set out in Codes) is taken, then existing code powers in all jurisdictions provide ample flexibility to either develop sector specific codes or to incorporate existing voluntary, industry developed guidance as part of, or as stand alone approved codes.”

Considering that no jurisdiction currently has a formal definition of deemed to comply; codes of practice have evidentiary status for enforcement purposes but none are deemed to comply; and no jurisdictions have plans for deemed to comply provisions;97 it may be concluded the use of deemed to comply provisions will have minimal impact on the existing regulation of farm safety.

97 Ibid, Table of jurisdictions p71.

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5. Summary and Conclusion The principal OHS Act in each state and territory imposes a general duty on obligation-bearers outside the workplace (such as designers, manufacturers, importers and suppliers of farm machinery) and within such workplaces (such as employers, employees, self-employed persons and owners). The general duty can be summarised as requiring each party to ensure that plant and work processes are safe and without risk to health. However, the general duty is qualified to the extent that the obligation is only to do what is ‘reasonably practicable” and in some contexts, its application is limited to circumstances when plant is “properly used.” (there is some variation in wording between jurisdictions). The principal Acts provide for the making of regulations and Codes of practice to specify in more detail the requirements on the duty-holders, and to provide guidance as to how the general duty might be discharged. The principal mechanism which fulfils these functions is the National Standard for Plant which was introduced in 1994 to address the lack of uniformity in State legislation and regulations relating to plant. It created a single set of performance and process-based duties. In particular, it requires that hazard identification, risk analysis and risk control, be undertaken with the aim to eliminate, and where that is not practicable minimise, the risk to health and safety. Through adoption in each jurisdiction this standard (but with considerable variation in precise wording and interpretation98) is binding in all states and territories. Each State and Territory has OHS regulations (or an Advisory Standard in Queensland) relating to plant, but these are at different stages of development in different jurisdictions. Guidance as to compliance with the regulations can usually be found in Codes of Practice. Issues such as ROPS, FOPS, seatbelts, guarding and carrying passengers, illustrate how the regulations and codes expand upon the general duties in legislation and define more specific requirements, such as processes for risk assessment and control. Other Australian Standards and International standards, although voluntary unless specifically referenced/mandated in regulations, also provide guidance on how best to ensure the safety of farm machinery in Australia. A number of specific limitations of the current regime are identified in Part I and will be addressed in more detail in Part II.

98 For example, in Queensland this is achieved by an Advisory Standard.

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PART II: The effectiveness and appropriateness of current legislation and standards in improving farm machinery safety 6.1 Introduction It is difficult to measure the effectiveness of OHS legislation and farm safety regulation across Australia in purely statistical terms, given the limitations of available statistics, problems of interpretation. and the difficulty of benchmarking. However, it is practicable to adopt a qualitative approach to such evaluation, based on interviews with a representative group of stakeholders in conjunction with a broader and critical assessment of contemporary regulatory and policy arrangements, drawing on both the Australian and international literature. This is largely the task of Part II of this Report. In the following analysis, we examine a number of specific policy issues of central importance to achieving effective and efficient regulation and improving farm machinery safety. These include: appropriateness of current legislation and standards; issues of national uniformity; the relative efficacy of specification, performance and process based standards; the context for the design of appropriate and effective standards; and specific problems of interpretation and statutory language. We also examine the limitations of existing strategies and make recommendations for reform with respect to three major groups: (i) manufacturers, designers and importers, (ii) suppliers and (iii) duty holders at the workplace (including farmers and their employees). As will be apparent, these three groups operate in very different circumstances, and somewhat different policy instruments, and policy recommendations, will be appropriate in relation to each of them. 6.2 Appropriateness of legislation and standards The principal OHS legislation in each state has been designed largely with industrial/commercial workplaces in mind, and this may give rise to problems to the extent that strategies underlying these provisions do not translate to the rural workplace (ie, instead of a controlled indoor factory floor, a rural workplace may be an extensive external area). Similarly, the legislative provisions and contemporary implementation strategies tend to be aimed at (and better suited to) a certain management / employee structure, which may not apply neatly to a self-employed farmer or a family farm. For example, it may be impractical to apply an OHS Management System to a rural place of work. Other difficulties relate to enforcement. For example OHS inspection of remote farms can present logistical and resource problems, and prosecution may be either impractical or viewed as wholly inappropriate according to local cultural mores. Notwithstanding the fact that OHS legislation was designed largely with other industries in mind, the current regulatory regimes are sufficiently broad, flexible and robust as to accommodate to the circumstances of rural industry and of farm machinery without substantial revision provided appropriate account is taken of the specific circumstances of rural industry in the more detailed codes and regulations. Specifically, the general duty provisions provide principles-based guidance on the obligations of all the major players and incorporate generally appropriate requirements for manufacturers, designers and importers, suppliers, and all relevant duty holders at the workplace (ie the farm) itself. The essential aspiration is that all duty holders should ensure health safety and welfare as far as reasonably practicable, with more specific duties being stipulated in relation to matters such as providing a safe place of work, a safe system of work, and the appropriate dissemination of information. In relation to

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plant, a particular duty in most jurisdictions is that items supplied for use in a workplace will be “safe and without risks to health when properly used”. However, potential difficulties lie at the next level down, namely the relevant regulations and codes of practice. We have already described this regulatory regime in Part 1, highlighting not only its major provisions and essential features, but also a number of limitations in relation to rural industry in general and farm machinery in particular. To summarise, the main problems are: (i) The problem of achieving national uniformity

(ii) Defining the roles of manufacturers, designers and importers

(iii) Defining the role of suppliers

(iv) Defining and enforcing duties of the user at the workplace

(v) Deciding between specification, performance and system-based standards

(vi) Appreciating the context for designing appropriate and effective standards

(vii) Problems relating to particular statutory language and interpretation

6.3 National uniformity

“One especially significant feature of the regulatory framework in Australia is the fragmentation that arises from its multi jurisdictional character. Countries like New Zealand, Sweden and Britain with a unitary political structure have a single set of OHS laws. Among those countries with a federal political structure, some, such as the USA, Germany and Malaysia, have still enacted laws that provide for overarching federal government control of OHS while others, like Canada, remain closer to the Australian approach of continuing to rely on state/provincial or territory legislation.”99

The history of uniformity of OHS standards under Australia’s federal system has been an unsatisfactory one, with different jurisdictions adopting very different approaches, at considerable expense to industries operating inter-state. Worksafe Australia reported that the costs caused by non-uniformity of OHS regulations not only impact upon workplace health and safety (injury and disease) at an individual level, but also on a far greater scale, can discourage investment and affect Australia's competitive position in the international economy. Worksafe identified considerable direct and indirect costs associated with complying with non-uniform regulations. For example, modifications to imported farm machinery to comply with a state requirements would constitute a direct cost; and time and effort spent obtaining constant advice of different regulations and standards is an indirect cost that can affect Australian farmers.100 Recognising the severity of the problem, a National Uniformity Taskforce was established in 1991, and subsequently all the states agreed to pursue national uniformity in OHS standards101. Plant was identified as a priority area for attention, and a broader agenda was agreed, which involved not only a commitment to uniformity but also the replacing of prescriptive requirements with uniform process and performance based standards. At a more basic (lower) level “individual firms can innovate and establish processes… and the more effective strategies will then be adopted by other firms without the need to alter legislation or regulation.” Furthermore, it can be argued that firms will be able to adopt

99 Bohle P, and Quinlan M “Managing Occupational Health and Safety. A Multidisciplinary Approach.” 2nd ed. MacMillan Publishers Australia Ltd 2000, p308. 100 Worksafe Australia, (1996) Economic Impact Analysis on the National Standard for Plant, Australian Government Publishing Service Canberra. 101 Industry Commission Report on Occupational Health and Safety (1995) n8, Vol II, p260.

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new strategies in a much shorter time period than it would take governments to amend legislation and regulations.102 Subsequently, jurisdictions have acted on this commitment in somewhat different ways. For example, the Northern Territory has now fully adopted the performance approach and repealed all the pieces of prescriptive OHS legislation, South Australia has made a substantial advance with the introduction of consolidated regulations in 1995, and Queensland has not only repealed its industry specific legislation, but in 1995 enacted an even more advanced Workplace Health and Safety Act.103“ Nevertheless, under the current federal system the daunting goal of national uniformity has yet to be achieved, though there is considerably more uniformity now than there was a decade ago.104 We examine the limitations of the current approach in the next section below. Before doing so, it is important to note that the barriers to directly integrating OHS law at a national level are primarily political rather than legal, as heads of power (such as s51xxix implementing ILO Convention) could arguably be utilised by the Commonwealth to legislate if desired.105 However, since legislative intervention at federal level is extremely unlikely, it is more constructive to examine means of improving the level of national uniformity by other means - in particular, by the use of standards. We do so by analysing the role that standards (including the National Standard, Australian Standards and international standards) play in achieving uniformity of plant regulations in Australia, before going on to make some specific recommendations for change. 6.3.1 The National Standard As discussed in Part One, the NSP was created in an attempt to facilitate national uniformity and rationalise the existing body of plant regulations. Supporters of the strategy have argued that knowledge requirements which are outlined in a single Act and set of regulations are more transparent and accessible to affected parties than requirements which are dispersed throughout a variety of Acts and regulations. Dispersed requirements, such as currently continue to exist in some Australian jurisdictions, make it more difficult for a person to be sure that all requirements have been identified. Understanding of the requirements is likely to be higher when rules are written by the people who have to make them work.106 Consistent with this philosophy, the NSP essentially provides drafting instructions for parliamentary counsel in each jurisdiction to “give effect to the requirements of the National Standard in a manner which achieves consistency with definitions used in their principal OHS legislation and conforms to requirements set down in statute for making of subordinate legislation.”107

102 See “Economic Impact Analysis of National Standard for Plant”, Worksafe ibid. p8. There may be problems in translating 'firms' to 'farms' in this context due to factors like remoteness and communications - innovations may catch on less quickly or be geographically or industry specific. 103 Gunningham N (1996) “From Compliance to best Practice in OHS: The Roles of Specification, Performance, and System-based Standards” p10. NSW - consolidated OHS regulation based on the South Australian model. Australian Journal of Labour Law Vol. 9. 104 “Planning Occupational Health and Safety” 5th Edition CCH Australia Ltd, 2000, p202. This is despite the fact that the National Uniformity Taskforce Priority Standards gave “Plant” highest priority ranking: See, Johnstone R, (1997) Occupational Health and Safety Law and Policy: Text and Materials, LBC Information Services, Sydney, p309. 105 Bohle & Quinlan op.cit. p309 106 See “Economic Impact Analysis of National Standard for Plant”. Worksafe op.cit. 107 National Occupational Health and Safety Commission (NOHSC), (1994) National Standard for Plant (NOHSC: 1010), Australian Government Publishing Service, Canberra. p vii. Examples of drafting notes: to Section 47 Duties of Owners “Note: some jurisdictions will need to amend the principal Act or adopt the duties of owners under existing duties of employers, occupiers, or self-employed persons” (p33 NSP); and re S37 Powered Mobile Plant “Note: States/Territories which have regulations in this area will need to put into place transitional requirements to cover the 12 month period” (for fitment of ROPS) (p26 NSP). There are also specific “Implementation Issues” notes, for example re s6 Incorporation of references “An administrative system will need to be established for Authorities to agree on acceptable comparable standards (including overseas standards) on a national basis” (p10 NSP).

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However, there has been a failure to consistently implement the National Standard for Plant, causing confusion and seriously threatening the effectiveness of the standard.108 The following statement, from one industry representative interviewed, is typical:

“The problem is that we have a set of national guidelines but within these the states all adopt their own approach. Its ridiculous, no one is taking the lead to achieve real uniformity... The whole thing needs review and this means getting all the stakeholders together. But the state/federal labour ministers have said there will be no new national OHS standards-so its therefore a question of revision of existing standards. Co-operative federalism is here to stay and this means there remain serious inconsistencies between jurisdictions”

Among the more serious problems of the National Uniformity Process generally, are those identified by an Industry Commission report. (See box). Industry Commission's assessment of the National Uniformity Process109 Concerns with the process included: “The manner in which the different jurisdictions have implemented national standards

has been inconsistent: some jurisdictions have incorporated common essential requirements (CERs)into their OHS legislation or regulations (making the CERs mandatory), while others have resorted to approved codes of practice, or guidance notes (thus permitting a variety of ways of achieving the same result).

The content of implemented standards can differ markedly from the national standards

established by the NOHSC. The state governments have argued that these variations enable governments to meet local concerns.

Progress in the implementation of standards has been slow, as a result of the consultation

and regulatory impact requirements in some jurisdictions and the difficulty of tailoring national standards to the needs of different jurisdictions.

The national uniformity program has not had clear and consistent operational

objectives… the priorities of the program have been determined by focusing on workers' compensation costs, rather than on those hazards imposing high costs on the community. The program has focussed on generic codes for a particular hazard, which provide little practical guidance to those in workplaces who actually have to control the risks.”

Criticisms of the National Standard on Plant include: that it is manifested and enforced differently in each jurisdiction (for example, problems exist in Victoria regarding second hand plant), and that overlaying prescriptive measures with performance based regulations produces an incompatible combination of instruments. It has been estimated that the introduction of the National Standard for Plant could result in a 24% reduction in the level of plant related fatalities and plant related compensation claims. However, it was also predicted that if states only adopted sections of the NSP, rather than the standard as a whole, the cost benefits of uniformity would be negligible.110 108 Lynch, S & Russell B (1998) Resolving Cross Border Issues: Inconsistent Application of the National Plant Standard: Executive Summary, Occupational Health and Safety Administration Group Working Paper, 6th October, Sydney. Lynch and Russell address three critical issues independent verification of plant design, use of international standards for plant design, inspection of plant by competent persons. 109 Johnstone op.cit.p312. 110 Economic Impact Analysis of National Standard for Plant”. Worksafe ibid. p69 Direct OHS benefits from compliant employers were calculated at an estimated $1,468.7 million, with substantial indirect benefits.

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To date, there is little doubt that a lack of consistency in the implementation by the jurisdictions of the National Standard for Plant is causing confusion and may seriously threaten the effectiveness of the standard (Lynch & Russell 1998). Lynch and Russell address three critical issues:

independent verification of plant designs - Clause 69(2)(b) prohibits the designer and the design

verifier of registrable plant from being “employed or engaged by the same person” unless the designer uses a quality assurance system. Some jurisdictions do not require organizational independence of the design verifier;

use of international standards for plant design - Clause 70(3)(a) requires the design verifier to

verify that the design complies with one of eight Australian Standards or another comparable standard deemed acceptable by the authority. Some jurisdictions do not enforce this requirement but rather permit plant to be verified to any technical standard or engineering principle; and

inspection of plant by competent persons - Clause 71(4)(c) requires the applicant for registration

of an item of plant to include “a statement that the plant has been inspected by a competent person and safe to operate”. Some jurisdictions do not require registrable plant to be inspected by a competent person.

Lynch and Russell recommend that all jurisdictions: agree to the principle of functional independence for design verification; agree to develop a list of comparable international design standards for plant acceptable in all jurisdictions; and agree that the requirement for documented risk assessment will be substituted for inspection by a competent person111. The extent to which each state has adopted the NSP is as follows:112 NSW Adopted as regulations in 1996, (new regulations are due to come

into force in March/April). Victoria Adopted in regulations in 1995, with a code of practice. Queensland Adopted in Advisory Standard in 1997; schedules not yet adopted. South Australia Adopted in 1995 as regulations. Western Australia Adopted in regulations in 1995. Tasmania Adopted in consolidated regulations in 1997. Northern Territory Majority of provisions in regulation of 1992; detail to be put into

codes. ACT Adopted as a code in 1995; regulations 1998. 6.3.2 Australian Standards We described a number of relevant standards relating to farm machinery and their roles in Part I of this Report. It is important to reiterate that standards in themselves are not legal documents. They only have force when referenced in legislation. However they do play an important role in underpinning expectations of consumers that products will be “safe, reliable and fit for purpose.”113 Globally there are over half a million published standards (with over 1000 recognised standards development organisations worldwide).114 According to Standards Australia, there are over 6000 Australian Standards, 2400 of which are referenced in legislation, with the remainder used on a voluntary basis. 111 Lynch and Russell (1998) Resolving Cross Border Issues: Inconsistent Application of the National Plant Standard: Executive Summary, Occupational Health and Safety Administration Group Working Paper, 6th October, Sydney. 112 Johnstone op.cit. p311; and Labour Ministers' Council (May 1999) Comparative Performance Monitoring. Comparison of Occupational Health and safety arrangements in Australian jurisdictions. Commonwealth of Australia.. 113 “Standards and Standardization” Published by Standards Australia International Ltd, 2000; and “Knowledge is Power. Risk Minimization PLUS powerful competitive advantage through the intelligent use of global Standards” Standards Australia Research and Information Services 2000 114Standards Australia ibid p4.

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There are currently 60 different standards which relate to tractors alone.115 However, of all these standards for the agricultural machinery industry, according to the TMA the only instance of states prescribing mandatory compliance with a specific Australian Standard is regarding the compulsory fitment of ROPS meeting AS 1636 requirements on certain tractors.116 There has been some criticism of the excessive referencing of Australian Standards in OHS legislation. Concerns surround the elevation of technical standards and codes to the status of quasi-legislation, but without the requisite cost benefit analysis or adequate consultation, and with potential to be anti-competitive.117 Concerns have also been expressed118 that:

Australian standards are not developed in a tripartite forum (no union representation usually , due to lack of resources);

governments should make law, not unrepresentative bodies such as Standards Australia committees;

Australian standards are not written in a style suitable for adoption (this principally relates to the use of ‘should’ and ‘shall’ and what these terms mean in a guidance document);

they are five years behind current thinking (developers of new technology do not generally give it to their competitors until they have the next generation ready to launch);

there are legal difficulties introduced when Australian Standards are updated ie, does everyone have to update to the new standard?

committees are stocked with persons with self-interest as their priority. Nevertheless, many have argued that notwithstanding their faults, Australian standards are still the best aid to national uniformity we have. 6.3.3 International Standards There are 17000 international ISO standards.119 Standards Australia has a policy of adopting international standards wherever possible. Approximately 33% of current Australian standards are “fully compatible or substantially aligned” with International standards. However, OHS is one of the areas of industry where no International Standards exist. (Others include the building and construction industry). Around one third of Australian Standards simply have no international equivalent (on this basis, it can be said that where an International Standard does exist, over 50% of Australian Standards are fully or substantially aligned).120 A trend in recent years in the Australian tractor industry has resulted in “the almost exclusive use of fully imported tractors fitted with ROPS as opposed to local manufacture of ROPS. The former being built compliant with overseas standards.”121 This has required an amendment of AS 1636 to clarify the equivalency of imported ROPS. The adoption in 1997-8 of ISO 4254 is a clear indication that Australia, as a large importer of agricultural equipment, has a preference for internationally recognised standards. However Senneff identifies certain barriers to uniform implementation such as: differing farming practices worldwide, differences in affordable technology, inconsistencies with international standards and national or regional laws; excessive prescription (ie, international standards can be more design prescriptive than 115 See www.standards.com.au. - There is an automatic review process whereby standards dealing with rapidly developing topics are reviewed within 7 years, and most others within 10 years of their publication. p10 116Tractor and Machinery Association of Australia (2000) Occupational Health and Safety Guidelines Third Edition, TMA Australia, p9. 117 For example in the Bell Report - Bottomley, B (1998) Deemed to Comply Project: Final Report National Occupational Health and Safety Commission.p16. 118 The insights of John Randall on this issue are gratefully acknowledged. 119 “Rural Standards. The best baa none” (undated pamphlet) Standards Australia Publication. 120 “Standards and Standardization” Standards Australia International Ltd 2000, p13. 121 TMA Guidelines op.cit p32.

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performance based, limiting choices available to the designer, for example ISO4254-1 and ISO 4253)122 123 124. 6.4 Summary and recommendations The history of uniformity of OHS standards under Australia’s federal system has been an unsatisfactory one, with different jurisdictions adopting very different approaches, at considerable expense to industries operating inter-state. The barriers to directly integrating OHS law at a national level seem to be primarily political rather than legal, and as legislative intervention at federal level is extremely unlikely, it is more constructive to examine means of improving the level of national uniformity by other means - in particular, by the use of standards. This was the approach taken by a National Uniformity Taskforce established in 1991, which identified plant as a priority area for attention; and subsequently all the states agreed to pursue national uniformity in OHS standards125. A broad agenda was agreed, which involved not only a commitment to uniformity but also the replacing of prescriptive requirements with uniform performance based standards. Out of this process emerged the National Standard for Plant, which was created in an attempt to facilitate national uniformity and rationalise the existing body of plant regulations. However, there has been a failure to consistently implement the National Standard for Plant, causing confusion and seriously threatening the effectiveness of the standard.126 Despite the fact that the NSP has been largely adopted in various forms by the states now, the Industry Commission has levelled criticism at the manner in which the NSP has been implemented; the content adopted; the slow progress of implementing standards; and the lack of clear and consistent operational objectives. As well as the National Standard, there are over 6000 Australian Standards, 2400 of which are referenced in legislation, with the remainder used on a voluntary basis. There are currently 60 different standards which relate to tractors alone.127 There is also considerable potential for international standards to play a role in furthering OHS uniformity in Australia. Strong arguments have been made, for example by the TMA, in favour of generic standards internationally; whilst other commentators

122 Senneff MD (1999) “Internationally Recognised Safety Standards - Can one size fit all?” Farm Injury Prevention 99 Proceedings Papers. 123 “Occupational Health and Safety Management Systems Standardization - An ISO Contribution?” Marc Sapir, International ISO Workshop, Geneva, 5-6 September 1996; “International standardization and the management of health at work” and “International standardization of health and safety at work (II): ISO Work to be shelved?” Newsletter of the European Trade Union Technical Bureau for Health and Safety, No.3 June 1996, and No.4 November 1996 p12. 124 Publication of ISO 9000 series and the terminology standard (ISO 8402) has attempted to bring some harmonization on an international scale to national standards which in many cases have proved inconsistent and confusing (Lack 1996:606). The ISO 9000-9004 and the American National Standards Institute (ANSI)/American Society for Quality Control (ASQC) Q90-Q94 series documents contain information relevant to systematic management for product and service development, design, production, and installation activities, including safety and health aspects. OHS aspects relate to matters such as purchasers requirement specifications, development planning, process control, risk considerations for the customer, quality in specification and design, design review and product safety and liability. For companies conducting business internationally ISO 9000 has become a worldwide quality defacto standard, over and beyond specific domestic regulatory requirements. Emphasis upon adoption of and compliance with international quality standards should be integrated into the standard development process, if serious attempts are going to be made to promote and encourage world's best practice. 125 Industry Commission op. cit., p260. 126 Lynch and Russell op. cit, address three critical issues independent verification of plant design, use of international standards for plant design, inspection of plant by competent persons. (see Gunningham N, Johnstone R, and Burritt P, Safe Design Project “Review of OHS Legal Requirements for Designers, Manufacturers, Suppliers, Importers and Other Relevant Obligation Bearers” A Report prepared for the NOHSC, March 2000.). 127 See www.standards.com.au. - There is an automatic review process whereby standards dealing with rapidly developing topics are reviewed within 7 years, and most others within 10 years of their publication.

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have identified certain barriers to uniform implementation of standards, such as national peculiarities. Where should we go next? Within the political constraints of co-operative federalism, there simply is no “magic bullet”

capable of overcoming the many of the problems of lack of uniformity, and no credible way to coerce the states into uniformity;

It is recommended that all jurisdictions agree to develop a list of comparable international design

standards for plant acceptable in all jurisdictions; A related solution would be to treat the issue on a standard by standard basis with the aim to

accept only best practice international standards, as we argue below (see designers at 2.6); The appropriate body through which to pursue further standardisation initiatives within

cooperative federalism is NOHSC, which has the appropriate consultative tripartite mechanisms and processes. However, only if the political will exists, are further national uniformity initiatives likely to bear fruit.

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7. Manufacturers, Designers and Importers128

“Design failure is human error one stage removed from the accident, but it is easier to apportion blame to the user, by virtue of an operating error, even though the design was at fault.”129

Policy instruments which effectively influence the behaviour of this group are absolutely fundamental to improving farm machinery safety. Unless the machinery to which individual users are exposed, is safely designed and manufactured, there will inevitably be an unacceptably high level of risk involved in its subsequent operation. That is, large numbers of downstream users can be effectively safeguarded if we “get it right” at the design stage. We have described in Part One, the general duties, regulations and codes to which this group is subject, noting that it comprises a combination of performance, specification and process based standards. It is essential that the best standards are imposed in the first instance because the opportunities for subsequent feedback and amendment to design and manufacturing practices are extremely limited. Our interviews suggest that certain members of the industry130 will notify a manufacturer if they find a glaring safety problem with a piece of machinery. However they also suggest that local users have little influence over most tractor manufacturers because it is now the norm for the substantial majority of farm machinery to be imported131. The key role in terms of “building in” OHS at the outset, is that of designers of farm machinery. It is their responsibility to ensure that appropriate account is taken of safety considerations at this crucial stage. If designers are not sensitive to human and safety factors in machinery design then serious but unanticipated risks can arise. For example if workers have to stand or work between items of equipment eg, a tractor and trailer or cultivation equipment, in order to couple the items together, there will be a trapping point. However, this is often unanticipated by designers who indeed may compound the problem by providing tractor control equipment which can be operated from that position. The role of manufacturers is much more limited (although it should be noted that the designer and manufacturers are often for practical purposes, the same entity), and mainly involves producing products to the designer's specifications. As one of our respondents put it: “the only role of manufacturers is to ensure designers comply with standards.” However, it should also be noted that manufacturers provide operators’ manuals with each piece of machinery sold to an importer, and perform risk and hazard testing on the machines before they are exported. Even so, it will usually be the designer who developed the content of the manual. And in the case of Australia, the large majority of both designers and manufacturers are overseas and beyond the direct reach of the law. 128 Existing Statutes and Regulations tend to confuse the roles of obligation bearers (e.g. a manufacturer does this, a supplier does that) when in fact the functions often overlap and are interchangeable. Similarly, an employer 'wears several hats' and may assume the function of a designer in the workplace when new plant and equipment is being modified, of a manufacturer, or of a supplier when selling plant second hand. It is the control of the design and design-associated activity that leads to a responsibility as an obligation bearer, not their classification as a manufacturer, supplier, etc. In short, consideration could be given to the identification of a set of risk related activities of functions rather than focussing on obligation bearer groups. If this was achieved then education and training “down stream” would be far less significant and less necessary. As most jurisdictions now regulate (or set performance standards) for a set group of obligation bearers (designers, manufacturers, suppliers, importers, etc) it would be possible to devise simplified OHS legislation that is generally applicable to all relevant obligation bearers involved with certain, specified risk-based activities. 129 Crabb RJ, “Health and safety in the Agricultural Engineering Design Process” ADAS Consulting Ltd - Ergonomics Unit, Health and Safety Executive, Contract Research Report 306/2000,p72 130 For example Farmsafe Queensland. 131 Certain smaller implements and cultivation equipment is made in Australia so there is some scope for limited influence at the design and manufacture stage.

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7.1 A context: designers’ attitudes and behaviour In determining how to achieve best practice in safe design it is helpful to remember the economic constraints under which designers operate, and the incentives to which they are subject. An extensive UK report concerning “Health and Safety in the Agricultural Engineering Design Process”132 concluded that human factors and health and safety are not perceived or incorporated by agricultural engineering designers as a fundamental part of design, but rather are incorporated at a late stage in the design process. In essence, they are often regarded “as bolt on measures to satisfy legislation.”133 It was found that the fundamental driver in design was to meet the demands of the market place, which emphasise functional mechanical design for a competitively priced product, rather than the needs of the end user. Because the modern market place is volatile as it is heavily linked to profitability, the implementation of health and safety was found to be almost wholly reactive to legislation, for example, adding a guard at the final stages of production, when it is too late in the process to do other than take measures such as adding guards134.

“Little, if any, regard is given at the inception of the design process to producing inherently safer designs that recognise human factors … Current machinery design may not be as risk-free as it could be because designers do the minimum, or only what is required to satisfy legislation. The requirement for a risk assessment is satisfied when laid over the design process, often at the end of it, and is not required to be an integral part of the process.”… “The numbers of accidents occurring within the agricultural industry continue to be a tragic manifestation of inherently poor design.” 135

However, it should be noted that a different view is sometimes taken in the USA where it is believed that useful innovations can be introduced notwithstanding that these are engineered onto, rather than contained in the original design. For example work on designing sensors to detect human presence around dangerous farm machinery has been part of a NIOSH/CDC funded program. This might take the form of sensors around the potential hazard area between a tractor and a towed attachment; a sensor mounting rail on the rear of a tractor to detect anyone approaching a rotating PTO shaft attached to an implement.136. Finally, it is likely the case that much more attention is given to safety features in design when a new type of equipment or device is being manufactured, notwithstanding market pressures and price considerations. And to a large extent, since such machinery is produced for the international marketplace, those standards must be acceptable to a substantial range of countries. However, even so, safety standards do often fall short of those required in Australia especially where the machinery is imported from Russia, China or is imported second hand. 7.2 OHS Issues at the Design Stage Against this backdrop, and remembering that the large majority of farm machinery in Australia is imported, what approach should be taken to regulate the design/manufacture/import stage in order to ensure regulatory best practice, and through it, to minimise the risk exposure of farmers and other end users? Remembering that for the most part, such controls as are imposed will take effect at the import stage, (albeit that it is manufacturers who do the safety testing) and that it is difficult and for the most

132.Crabb op. cit, p72 133 Ibid, p1. 134 This is despite the issuance of advice to designers- see Safeguarding Agricultural Machinery- Advice for Designers, Manufacturers, Suppliers and Users, Health and Safety Executive, HSE Books, UK, 1998. 135Ibid, p3 - 4. 136 Shutske J, Gilbert B, Chaplin J, Gunderson P, “Sensor Evaluation for Human Presence Detection”, Department of Biosystems and Agricultural Engineering, University of Minnesota. See www.gaia.bae.umn.edu/~fs/sensweb/. However, these designs are add-ons as criticised by Crabb and are not safety features designed in at the initial stages

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part, wholly impractical to influence overseas designers directly beyond imposing regulation at the import stage, where should we go next? Importers (who in some circumstances including receiving plant from interstate, include suppliers) can potentially play an important OHS role. All machines imported come with operators manuals from the manufacturers (for example, a package with a manual in various languages and sometimes a video). This is forwarded with the machine to the Australian dealers who then pass it on to their customers. Attention is paid to required documentation and record keeping throughout this process. Whether importers embrace the broader role that might have been contemplated in the current legislation (including the conduct of broader risk assessments) is highly doubtful. As one respondent, echoing the views of regulators in particular, told us “Machinery designers are not sophisticated in their knowledge of safety features [and] if you import machinery into WA you take on the duty of the designer, manufacturer and importer, these are huge duties, but dealers don't have a clue in [particular state].” It should also be noted that operators’ manuals are often not provided with second hand machinery, or where they are, the extent to which they are accurate and properly explain the machine’s operation is questionable. A number of difficulties confront importers, in terms of effectively discharging their OHS responsibilities. Primarily, these relate to resolving differences between Australian standards and overseas standards. First, our respondents pointed out that the major importers of farm machinery in Australia (which include AGCO Australia Ltd; John Deere Ltd; Case Newholland; and Kubota Tractors Australia Pty Ltd137) have to import machinery which satisfies Australian standards (otherwise it is not cost-effective because of the number of changes which have to be made). A particular problem can arise if there are any differences between imported machinery which complies with international standards and Australian requirements. For example, European manufacturers put passenger seats in tractors and it is questionable whether these satisfy Australian safety requirements (although arguably they do). But because of the uncertainty and fear of liability in the event of an accident, Australian suppliers (and some Australian farmers) take the seats out because they don't comply with local standards (despite the fact some farmers would prefer the seat remained for training drivers etc). According to the TMA, this increases the cost of the product to the disadvantage of farmers (see section on inconsistent design standards below). There is no perfect resolution to this problem, since if the seat remains, there is a temptation to use it for childcare purposes. Whether it is better to remove it to avoid this temptation or to let it remain but require better safety conditions (ie safe design and seat belt requirements), thereby facilitating its use for training purposes, is a moot point. One experienced industry respondent made a broader point:

“People are interested in doing the right thing but they need direction For example, the code of practice on front end loaders provided by TMA. The argument we had concerns whether a self levelling device should be mandatory. As it goes up the bucket should stay parallel with the ground- so there is no tipping backwards as the contents of the bucket go up. The problem is we know people are operating it inappropriately. The problem with the self-leveller is it can’t bring the load down quickly - its part of the design. But when it is used inappropriately, then there is sometimes a need to get the weight down quickly (eg moving silage from one side of fence to the other, not on level ground-reaching as far as possible to get silage away from the fenceline- so you have the tractor sitting on its side trying to lean over, If the weight is high, the greater is the increased chance of tipping. If it does start to tip, you can still save it provided you get the weight down quickly- we know people do that - we know people put attachments onto front end loaders and ask them to do things they are not designed for. We need to take that knowledge into the design phase. While the

137 These importers deal with approximately 90% of Australian farm machinery imports.

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level lift is improving safety, there may be some instances where other factors should be taken into account and where it may not be the safest system to use.”

A second issue is that importers must ensure that the machinery they import is appropriate to Australian conditions and the Australian market138. John Deere for example, design and manufacture machinery in the factory based in the US. The machinery exported are “Australian versions of the US models.” Certain modifications are made for the Australian market, for example, cheaper parts such as cheaper tyres are fitted than those used for the US market, to make the tractors more competitive in price; and air-conditioning systems are fitted into the cabins whereas some US models have heaters installed. (ie, it is the same model built to US standards, but adjusted for Australian market). The essential point is all major changes take place overseas and as a consequence the Australian market has only very limited impact, and such impact as it has is largely limited to issues of price and function, not safety. This can result in the import of machinery with features which are not suited to Australian conditions, (eg devices which accumulate dust and clog) which in turn encourages farmers to remove guards and exposes them to greater risk. A third concern, in terms of importers' role in furthering OHS, relates to safety testing. In practice, our respondents suggest that safety tests are not performed in Australia by importers, notwithstanding that legislation in some jurisdictions can be interpreted as requiring this. All tests are done by the overseas manufacturers - often with a certificate of compliance accompanying the manual. There is a trend in the EEC to include the certificate of testing with the machine, making it easy for subsequent handlers of the machine (including suppliers) to demonstrate its risk assessment history. However, it was suggested that North American machines do not always adopt this approach. But, if it is indeed the case that no testing actually takes place in Australia, the precise role of the importer is unclear, and their compliance with regulation, problematic. Importers and the TMA expressed the strong view that physical testing should be done at source overseas, and not by Australian importers and suppliers. This is supported by TMA Position Paper recommendation 2 - “the most suitable time to conduct a risk assessment is at the point of design and/or manufacture”…and that the provision of a notification certificate by the designer/manufacturer covering the risk assessment process, will be sufficient to cover a product used as stipulated in the operator's manual. In support of the TMA position, it is certainly the case that the large majority of overseas importers are reputable and professional and can reasonably be relied upon. It is also the case that TMA provides substantial support and information to its members to facilitate compliance. However, there remain circumstances, particularly in relation to second hand machinery imported from Japan and from other parts of Asia, where the issue may be more problematic. In this case, in legal terms, the importer already has a duty in respect of testing. The greatest incentive for them to take this seriously relates to possible liability and civil damages in the event of an accident. And the broader legal requirements relate to conformity with an Australian standards or equivalent, raising the possibility that equivalence would not be satisfied in some circumstances. The solution in these circumstances must involve forceably reminding the importer of their broader legal obligations through education, inspection, and ultimately, enforcement. 7.3 Inconsistent Design Standards It has been argued by the TMA in particular, that much money could be saved, at no significant loss of safety, by accepting products into Australia that are manufactured in accordance with existing standards. TMA has suggested that OHS legislation should be amended to facilitate this “rather than being prescriptive about specific design features”. There is some appeal in this argument. As we have indicated, notwithstanding efforts to achieve national uniformity, considerable variations between the regulations of different jurisdictions still exist, and this imposes substantial additional cost on TMA members amongst others. Tailoring products to meet the needs of small markets can significantly 138 A contrary view was expressed by one respondent that 'Australian farming conditions are not significantly different to conditions of overseas countries where tractors are manufactured. [and] have just as much dust and matter to accumulate in the guarding and filters of farm machinery.

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increase the final cost of manufacture, and in turn raises the purchase price. The TMA view is that: “by accepting products manufactured in accordance with a recognised standard (such as AS; SAE: ISO; ASAE; ANSI etc), Australian farmers would gain access to the standard products available in Europe, Canada, or the USA, potentially at reduced costs.”139 This may well be an acceptable view to the extent that international standards represent regulatory best practice (which as more and more equipment moves between Europe and America, they increasingly do). However, it is by no means clear that this is always the case. A lowest common denominator or compromise approach is not unknown in standards development (or, it must be acknowledged, in legislation). One solution which would seek to steer a middle path between the concerns to minimise the cost of imported farm machinery and the need to maintain best practice regulation (or at least to aspire to this) would be to treat the issue on a case by case (ie standard by standard) basis. To the extent it could be demonstrated that a relevant international standard did approximate best practice, then this might be deemed to be the relevant standard, but not otherwise. It would seem likely that in the large majority of circumstances, such a requirement would be satisfied. It should be noted that the problem of inconsistent design standards is a common one, not peculiar to Australia. In the UK, a survey of designers showed that EU standards were currently preferred and that a common standard would be welcomed. However, it was thought that commonality was unlikely to be achieved as standards would be liable to individual interpretation: “even if there was an international standard, it would be interpreted differently in different countries anyway, and would be a nightmare to interpret.” (p31) This resonates with the views of the TMA and others in Australia, where even to the extent that apparent common standards exist, there are reportedly substantial differences of interpretation between jurisdictions. Moreover, standard design is not always competitively neutral and may disadvantage one nation and benefit another. For example, current EU standards were perceived to have been developed to the advantage of French and German designers to the disadvantage of UK design.140 When the EU Machinery Directive was introduced, British designers became more aware of legislation. However they have not kept up to date since and some designers reported confusion at the lack of a common standard reflected in various sources of information, legislation and standards. Whether adoption of particular international standards would disadvantage the remaining Australian designers and manufacturers is not known, but merits serious consideration should TMA proposals be taken further. The relatively small number of Australian designer/manufacturers often appear to take a more active local role in OHS promotion. However, most such designers/manufacturers are confined to smaller agricultural and cultivation equipment, with the larger machines all imported. Some of these local manufacturers go some considerable way towards promoting OHS and the safety of locally produced equipment. For example, one respondent in this group pointed out that their machinery is “designed from the ground-up on the premises [and that a] complete risk assessment is done in house on each item designed and manufactured”. They also supply training to any purchaser comprising: 1) 60 page operators manual 'features and processes' and 2) “opportunity to come in for a 1 day training course - explaining the manual and the features of the machinery, and discuss loader experiences. This is run every 2-3 months, with a maximum of 10 people in training sessions. However, in general, farmers are generally not keen, overall attendance is low and they have become “very disappointed with lack of enthusiasm generally”. 7.4 Risk Assessments Risk assessments pose problems at a number of levels. Australian designers encounter increasing problems in conducting the risk assessments for which they are clearly responsible. As one of our interviewees pointed out: “The problem in a day to day sense is that people are trying to deal with OHS issues against a backdrop of losing considerable industry technical expertise, for example, in the 139 Position Paper: Occupational Health and Safety Legislation for Agricultural Machinery in Australia: Tractor and Machinery Association, Melbourne, undated. 140 This is due to the fact that British designers did not promote their own design ideas to the EU at the development stage. Crabb, op. cit. p15.

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Standards Association of Australia, and key products people in various companies. So when people such as designers , want to find the answers, they find it very difficult. For example, where should we locate the hydraulic controls? They can’t find anyone with the technological expertise to provide the answers-and a designer isn’t going to sit down and try and work out for themselves some obtuse technical requirement in a regulation- and we end up in a mire with no one able to explain”. In terms of importers and suppliers, the National Standard on Plant requires a management procedure for risk control at each level of the supply chain. The TMA has argued that such a degree of risk assessment is unnecessary because: “a large percentage of products manufactured in, or imported into Australia, are produced by reputable organisations who have incorporated hazard identification and risk assessment procedures in their normal business. “141 The TMA’s particular concern is with the requirement in some jurisdictions that a ‘local’ risk assessment be conducted by the person importing the product into the state, and the details recorded. Its view is that “such processes are unlikely to add value, where the designer has already completed an assessment, and given that the expertise of the local assessors (usually dealer personnel) is unlikely to be at the same level as the designers”.142 In the light of the recent UK evidence referred to earlier, we are far less optimistic about the quality of risk assessment by overseas designers. Nevertheless, it remains likely that they would have considerably more capability to conduct an appropriate assessment than local importers. Provided Australian OHS standards are maintained (see above) the additional imposition of a risk assessment on local importers may, given their current lack of expertise, achieve little. Against this backdrop, two choices are available in respect of the large majority of standard (unmodified equipment) which is imported: to devote considerable resources to improving the capability of importers to conduct such an assessment (through training, education and incentives), or to adopt the proposition put by the TMA. In cost-benefit terms, the latter may be the preferred option, but there is no firm evidence on this issue. In relation to the minority of equipment that is modified from the original configuration, or will be operated outside the intended design criteria, current legislation, which requires the completion of a hazard identification process and risk assessment procedure, would continue to apply. Equally in the case of second hand machinery imported (particularly from Asia) which has serious safety shortcomings, and where it cannot be demonstrated that an adequate risk assessment has already taken place, the onus is on Australian importers to discharge this role. As indicated earlier, this should be reinforced by prosecution if necessary. TMA recommend that their “Industry Guidance Note for Manufacture and Supply of Agricultural Tractor-mounted Front-end Loaders in Australia” could serve as a suitable model for future legislative changes, emphasising designers and manufacturers as being the most appropriate source of expertise in specialised areas and that the requirement for suitable hazard identification and risk assessment ensures appropriate safety measures are incorporated into the product. Under this approach, the relevant legislation (eg The National Standard for Plant and enacting legislation in each jurisdiction) would move towards full performance-based guidelines, with references to appropriate standards and guidance targeted at the most appropriate duty-holders.143

141 TMA Position Paper op.cit. , p3. 142 Ibid. 143 Ibid.

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7.5 The Gap between Theory and Practice Finally, a number of issues arise in relation to the gap between theory and practice in the guarding of agricultural machinery. The most important of these concerns overly prescriptive requirements. A number of graphic illustrations of this problem were given by our respondents:

“the regulations talk of guards by tool or key. But we get farm safety groups saying listen, why put these guards there. We can’t maintain it quickly and make adjustments etc on the job, so we take off the guards. So it ends up being counterproductive to have “tool or key”- it should be made easier to take off (and put back on)- so one company says, we’ll put on a clip guard- a flip clip, its safer because we don’t end up throwing the whole guard in the shed because its too difficult to keep on. So in the end it achieves greater safety to have a more relaxed requirement. But the jurisdictions look at the words of the requirement and some allow clips and some don’t, so designers/manufacturers, don’t know where they stand…we would adopt the interpretation that a clip was ok and leads to better OHS outcomes and is not necessarily inconsistent with the laws. But companies are at a point with design where they have to make a decision and adopt what they believe meets requirements”

Similarly, it was pointed out by the TMA that harvesters, for example, need to be regularly cleaned for chaff build-up, to minimise the risk of fire. If guards are difficult or time consuming to remove, in practice they will be removed once and thrown in the shed, thus defeating the original purpose: “the local distributor puts an additional flat sheet guard of metal over the top. The distributor says, we comply with OHS requirements-its all beautifully guarded- Yes, when it leaves the factory, but not on the farm- the guards come off to service it and they stay off”.” A number or respondents suggested that, as one put it: “it needs leadership to provide a resolution to all these problems and nobody is providing it. Without leadership the regulators at the coalface in the states have no support to move to a consistent interpretation.” The NOHSC would be the obvious body to provide such leadership because it already has the appropriate consultative procedures in place, because it is tripartite and because it brings in all the jurisdictions and players together and in so doing would achieve buy in. In this context, there may also be value in the broader process and performance based approach of the National Standard, and in avoiding unduly prescriptive specification standards. Notwithstanding all the problems we have raised above, and the number of significant unresolved issues at the design and manufacturing stage which we have identified, it must also be acknowledged that users such as farmers pointed out that design and manufacture of safety features on new machinery has been far better in recent years, and therefore often the greatest danger is with modified old machinery and the prohibitive cost of updating. Summary and Recommendations Unless the machinery to which individual users are exposed, is safely designed and manufactured, there will inevitably be an unacceptably high level of risk involved in its subsequent operation. The key role in terms of “building in” OHS at the outset, is that of designers of farm machinery. It is their responsibility to ensure that appropriate account is taken of safety considerations at this crucial stage. Recent British research suggests that that human factors and health and safety are not perceived or incorporated by agricultural engineering designers as a fundamental part of design. A particular policy challenge in Australia is that it is difficult and for the most part, wholly impractical to influence overseas designers directly beyond imposing regulation at the import stage. Importers (who some circumstances including receiving plant from interstate, include suppliers) confront a number of difficulties in terms of effectively discharging their OHS responsibilities. Primarily, these relate to resolving differences between Australian standards and overseas standards.

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It has been argued by the TMA in particular, that much money could be saved, at no significant loss of safety, by accepting products into Australia that are manufactured in accordance with existing standards (AS, ANSI, ISO etc) without the imposition of additional legislative requirement. We recommend steering a middle path between the concerns to minimise the cost of imported

farm machinery and the need to maintain best practice regulation (or at least to aspire to this) would be to treat the issue on a case by case (ie standard by standard) basis. To the extent it could be demonstrated that a relevant international standard did approximate best practice, then this might be deemed to be the relevant standard, but not otherwise (the large majority of international standards would likely meet this test).

Whether adoption of particular international standards would disadvantage the remaining

Australian designers and manufacturers is not known, but merits serious consideration should TMA proposals be taken further.

Risk assessments pose problems at a number of levels. In terms of importers and suppliers, the

National Standard on Plant requires a management procedure for risk control at each level of the supply chain. The TMA has argued that such a degree of risk assessment is unnecessary because: “a large percentage of products manufactured in, or imported into Australia, are produced by reputable organisations who have incorporated hazard identification and risk assessment procedures in their normal business. “144

Overseas designers have considerably more capability to conduct an appropriate assessment than local importers, who in practice, do not fulfil this role effectively at present. Against this backdrop, two choices are available in respect of the large majority of standard (unmodified equipment) which is imported: to devote considerable resources to improving the capability of importers to conduct such an assessment (through training, education and incentives, and if needs be, prosecution), or to adopt the proposition put by the TMA. In cost-benefit terms, the latter may be the preferred option, but there is no firm evidence on this issue. In relation to the minority of equipment that is modified from the original configuration, or will be

operated outside the intended design criteria, and in relation to equipment which is imported which manifestly does not meet required safety standards (eg second hand machinery from Asia) current legislation, which requires the completion of a hazard identification process and risk assessment procedure, would continue to apply.

It needs leadership to provide a resolution to a number of unresolved problems. Without

leadership “the regulators at the coalface in the states have no support to move to a consistent interpretation.” The NOHSC would be the obvious body to provide such leadership because it already has the appropriate consultative procedures in place, because it is tripartite and because it brings in all the jurisdictions and players together and in so doing would achieve buy in.

144 Ibid.

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8. Suppliers Suppliers play an important intermediate role in the chain between manufacturer and importer on the one hand and end user on the other. It is a role explicitly recognised by Australian OHS legislation which, as described in Part I, imposes both general and more specific obligations upon this group of duty holders (for example some jurisdictions requiring local risk assessments). However, the extent to which, or the enthusiasm with which, suppliers take on their legal responsibilities, would appear to be seriously constrained. Regulations and codes are perceived to be aimed more at manufacturers, and consequently suppliers focus more on knowledge of operating manuals. Those surveyed stated that the main ways of discharging their general legislative duties involved carrying out and certifying risk assessments with customers, passing on Operators Manuals for each piece of machinery (and general manuals where second hand equipment has no original manual); and fitting tractors with ROPS. (although we must point out that a small minority pro-actively promoted OHS by providing extra information and gave priority to keeping abreast of OHS developments). Distributors saw their particular role as even more limited. As one told us: “the ultimate supplier is responsible for informing customers. We discharge our legal duties by delegating to the supplier to do the risk and hazard assessment with the customer.” In a practical sense the supplier’s role involves physically demonstrating to the customer the features of the machinery being purchased, for example “start at the front left wheel, work around the vehicle explaining to customer.” The main issue was the extent to which, and the spirit in which, this duty was discharged. In some cases, substantial emphasis seemed to be upon protecting themselves from legal liability. For example, there was a considerable concern with getting every customer to sign a certificate saying that operators manual was supplied, and to the effect that they “understand safety aspects and to limit liability” of the supplier. There was also a substantial emphasis upon balancing time spent with a customer with the cost involved. For example, one respondent observed that the reality of business is that you “can't sit down and go through the letter of the law with each customer as you don't have time to do that and run a business.” Another took the view that the customer would have common sense and “it is not my position to advise… People who supply parts, it is not their job to advise on safety.” Where second hand farm machinery is sold, sometimes there is no operators manual available so general machinery association manuals are often supplied, or suppliers “instruct to the best of our knowledge if there is no manual.” Some suppliers charge extra for manuals for second hand machinery and view it as “an added extra - [farmers] must buy it or they can go and photocopy it. 9 out of 10 situations - we give them the opportunity to take a manual home to copy… It is impossible to supply manuals with everything sold, we have a library of manuals here, but it comes down to common sense.” Our interviews also suggested that the knowledge which suppliers had even of what their legal obligations were, differed substantially. One stated: “I never read the regulations at work. I would read the Operators manual rather than regulations or codes. I would die of shock if I had to read the regulations.” Another similarly reported: “I don't know much about specific regulations”, while members of the TMA were likely at the very least, to have read the considerable information that comes directly from that organisation, although they might well not read the Regulations and codes themselves. The degree of safety detail explained by suppliers can vary depending on the customer. For example, for a “new customer with no idea” suppliers will tend to go through machine safety in detail, and for an “old customer who's been farming for generations and have bought 20 items etc” they can go through safety features in less detail. One respondent stated “all equipment is supplied with a manual… and for every machine a risk assessment is done with the customer so they know the dangers, especially with Sydney-based hobby farmers.” Certainly the changing composition of the farming community was noted by many suppliers interviewed, and common sense applied in adjusting the degree and type of advice to the type of client, with hobby farmers reasonably being a subject of

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much greater attention than old hands. For example, one supplier pointed out that there are now “more first time users of tractors and this is a big problem, you can't assume they know safety issues.” Suppliers also play a specific role in the various ROPS rebates schemes in Australia in terms of providing and fitting structures. In this respect too, a major emphasis was on protecting themselves from legal liability: “The onus is on farmers to use ROPS. The supplier is covered as they have advised the farmer to use a ROPS, but it is up to the farmer not to leave it [ROPS] folded down.”

There is some disparity between attitudes of suppliers as to their role in promoting the safety scheme. Some suppliers do their own advertising (such as Case who do roadside mailbox mail-outs to small land holders who are unaware and difficult to contact, with a limited effect), while others rely on Machinery Associations or Worksafe bodies to disseminate information. As one put it: “We don't do active advertising of the rebate scheme, but our distributors have put us on the internet”. Overall then, suppliers tend to see their role as somewhat limited. A common theme of the interviews with suppliers was that they could only do so much in discharging their duties, and the rest was down to the common sense of the end-user of the machinery: “It all comes down to common sense but I have known old farmers make mistakes. It is human nature and there are always going to be fatalities…It is all common sense even if there are a million regulations.” Many suppliers felt the principal responsibility for accidents lay with farmers themselves, and blamed the causes of accidents on apathy (not reading manuals) and familiarity, while recognising that hobby farmers, albeit inexperienced, were much more likely to read the instruction books and manuals. The point was made that it is the ultimate responsibility of the farmer to ensure that maintenance is carried out and operator instructions are followed. The fact that farmers removing a ROPS, guard or switch are unlikely to put it back on, cannot be controlled by suppliers. Nor can they monitor maintenance on the farm unless machinery is brought to them. In terms of reassessing the role of suppliers in promoting OHS, it is perhaps useful to examine an overseas example. On Canada's Prince Edward Island, machinery dealers go beyond mere customer service and take an active role in promoting farm health and safety. They are involved in the Farm Health and safety Program and attend a schedule of fairs and exhibitions. The specific initiatives are to promote the importance of tail lights on towed implements, to promote the fitment of ROPS and seatbelts, and to encourage guarding and shielding of machinery. Dealers have created incentives (such as discounts) for farmers purchasing ROPS, tail light kits or guards from sponsoring businesses; and have donated prizes for farmers at the fairs and exhibitions145. The capacity of suppliers, broadly defined, to play a more positive role would also be facilitated if they found it easier to identify and understand their statutory obligations. The TMA has produced Occupational Health and Safety Guidelines which it periodically updates, and which play a valuable role in this regard. Nevertheless, the complexity of dealing with various jurisdictions and modifying products to suit, suggest, in the view of the TMA, that a separate “Code of Practice for Machinery Dealers” be developed, addressing issues such as: supplier responsibilities (particularly with modified plant); the use of product compliance certificates; providing guidelines for conducting hazard identification and risk assessment processes, and ensuring compliance with the legislation. There is also some ambiguity as to the extent to which farmers might in some circumstances fall under the definition of “supplier”146. For example, where farmers sell second-hand equipment they might plausibly fall under the relevant definition in some jurisdictions. For example, the Western Australian

145 “Farm machinery dealers Contribute” Farm Safety News at http://www.virtuo.com/farmsafety/news/contribute.html. 146 For a summary of the relevant statutory definitions and further analysis see Gunningham N, Johnstone R, and Burritt P, Safe Design Project “Review of OHS Legal Requirements for Designers, Manufacturers, Suppliers, Importers and Other Relevant Obligation Bearers” A Report prepared for the NOHSC, March 2000, at p 10. It should be noted that in Victoria, the Victorian Farmers’ Federation has argued that the definition of ‘supplier” needs to be clarified in terms of the obligations it imposes on farmers in relation to second hand machinery.

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definition is that “supplier” means “a person who supplies plant…by way of sale, lease, exchange or hire, whether as principal or agent, and includes an importer, wholesaler, distributor or retailer.” The responsibilities of the supplier would appear to have been significantly broadened by virtue of the very recent decision in WorkCover v Arbor the implications of which are examined at 12.1 below. Summary and Recommendations Suppliers play an important intermediate role in the chain dealing with manufacturers and importers on the one hand, and end users on the other. It is a role explicitly recognised by Australian OHS legislation which, as described in Part One, imposes both general and specific obligations upon this group of duty holders. However, the extent to which, or the enthusiasm with which, suppliers take on their legal responsibilities, and seek to influence farm safety, would appear to be seriously constrained. Those surveyed stated that the main ways of discharging their general legislative duties involved carrying out and certifying risk assessments with customers, passing on Operators Manuals for each piece of machinery (and general manuals where second hand equipment has no original manual); and fitting tractors with ROPS. Many did so with a strict eye to protecting themselves from legal liability, and mindful of the extra time it would take to provide appropriate information. Others took a common sense view. While the limited role adopted by suppliers was understandable a more pro-active approach would have merit. The role taken by suppliers on Canada's Prince Edward Island, might serve as a model. There, machinery dealers are involved in the Farm Health and safety Program and attend a schedule of fairs and exhibitions. They actively promote the importance of tail lights on towed implements, the fitment of ROPS and seatbelts, and encourage guarding and shielding of machinery. Dealers themselves have created incentives (such as discounts) for farmers purchasing ROPS, tail light kits or guards from sponsoring businesses; and have donated prizes for farmers at the fairs and exhibitions. In the Australian context, it is unlikely that any such initiatives will be pursued without significant incentives, which in themselves might not be justified in cost benefit terms. We recommend: As a minimum we recommend a greater emphasis on educating suppliers about their legal duties

under regulation and what is necessary to discharge them adequately, that consideration be given to greater use of suppliers as a vehicle through which to disseminate

information about various OHS machinery safety initiatives (see under ‘education and information’ elsewhere in this Report).

a concerted effort to provide suppliers with practical guidance on what is required of them in

manner which is readily accessible and meets their needs. In this context, the proposal of the TMA for the development of a Code of Practice for Machinery Dealers, has very considerable merit. This might best be facilitated by the establishment of a Working Group of the Major Stakeholders, but would not be practicable without additional government funding.

Legislation should be written in plain English so that the obligation bearers can understand their

duties and responsibilities. The Plant Safety Trainer's Guide provided by WorkCover (South Australia) has been developed specifically with this in mind, to assist in the development of an understanding of OHS legislation and duties. The Guide addresses the full life-cycle of an item of plant and includes coverage of the responsibilities that designers, manufacturers, importers, suppliers, owners, and installers and erectors have under the Regulations.

Consideration should be given to more third party testing. For example, some equivalent of the

motor vehicle 'rego-check' for farm machinery. This would in the form of an inspection by an

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independent mechanic, not the supplier. However, this must be balanced against the extra costs involved.

8.1 Second hand, modified, and old machinery The issue of outdated machinery or second hand machinery has been discussed in sections of this report concerning suppliers, ROPS, and the problems of certain jurisdictions such as Queensland. We expand upon some of the problems here. The regulations generally include reduced requirements on suppliers regarding the provision of safety information with used plant, for example, where there is no original manuals suppliers should endeavour to locate a manual or equivalent appropriate safety information. However, with regard to other aspects of the second-hand machinery business, regulatory requirements are increased. For example, a person who modifies an old machine takes on the responsibility of the designer for those modified parts and affected parts and functions. Modification can include the installation of attachments not approved by the original designer. Both suppliers and farmers need to be aware that by attaching a front-end loader to a tractor or a spray tank to an ATV, they may assume the responsibilities and liabilities of the designer.147 The TMA guidelines address this issue specifically but broader dissemination of the nature of these extended responsibilities, by regulators, and bodies responsible for farm safety information dissemination, is also important. Our interviews of various stakeholders yielded a number of responses on the second-hand machinery issue. It was noted to be a particular problem in jurisdictions such as Queensland with a relatively older tractor fleet. For example, older tractors in particular can be more expensive to fit with custom-made ROPS, whereas most new tractors can be fitted with 'off the shelf' models. The options left to farmers are to “meet the cost; fit an exemption (for example use as stationary anchor for irrigation or in an orchard); or don't use the tractor any more.” The latter option is sometimes recommended by regulatory authorities: “we advise farmers to stop using the old machinery as powered mobile plant, and take wheels off and use for pumping water etc.” Suppliers faced difficulties discharging their legal duties regarding OHS information where there was no original Operator's manual available to provide with an item of used machinery. The options for the suppliers in such circumstances are: “instruct to the best of our knowledge if there is no manual”, to supply “general machinery association manual, or to charge farmers for supplying an extra manual “[farmers] must buy it or they can go and photocopy it.” One farmer summarised the problem as being

“older gear and the prohibitive cost to upgrade…[machinery] now is designed with safety in mind, but I have old gear as I can't afford the new stuff. …guards on belts etc that are retrofitted on old equipment are the most inconvenient…I have made some of my own guards and my own rules about certain bits of my machines.”

Problems associated with second hand machinery are encountered overseas as well. In 1998, the Health and Safety Executive in the UK issued a warning to farmers and dealers concerning the problem of second-hand Japanese tractors being sold at auction. The problems included: the tractors not meeting UK safety standards; lacking approved cabs or roll-bars; the absence of operator manuals; control markings in Japanese; and inadequate guarding. Furthermore, it was deemed unlikely that the particular models could be retro-fitted with adequate safety features. HSE indicated that the official UK importers of the brands had no knowledge of the shipments and no liability, however that any auctioneer, dealer, employer or farmer using the tractors could be breaking the law and be liable to prosecution.148

147 See TMA Guidelines op. cit. p25. 148 “Safety matters” The Newsletter of the Agriculture Industry Advisory Committee, Printed and Published by the Health and Safety Executive3/98, UK. See www.hse.gov.uk/safmat12.htm.

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Summary and recommendations Second hand or modified machinery can cause particular safety concerns, given that older equipment often does not incorporate adequate safety precautions, and modifying equipment can result in the introduction of new hazards. Regulations have addressed the issue by on the one hand increasing certain regulatory requirements (for example, a person who modifies an old machine takes on the responsibility of the designer for those modified parts and affected parts and functions), while on the other, imposing reduced standards where it might be unreasonable to do otherwise (for example, suppliers may supply a lesser degree of information – depending on what is reasonable - in relation to used plant if the original manual is unavailable). However, suppliers are not necessarily fully aware of their responsibilities in relation to second hand or modified equipment. For example, there appears to be a lack of awareness in Australia of the fact that by attaching a front-end loader to a tractor or a spray tank to an ATV, a farmer or supplier may assume the legal responsibilities and liabilities of the designer. Many concerns were identified by respondents. One of the biggest problems is the prohibitive cost for farmers in upgrading to new equipment, leaving them the option of modifying old tractors (which can be problematic as many are not originally designed to have frames fitted), or buying cheaper second hand machinery. The second hand issue is of greater concern in certain jurisdictions such as Queensland with an older tractor fleet. A particular problem arises with the import of second hand tractors from Japan and elsewhere in Asia because these often have very inadequate built in safety mechanisms. No easy resolution to the risks of second hand machinery is available, particularly given the economic costs to farmers of upgrading or retro-fitting safeguards. Some regulatory authorities take the view that if old machinery is not maintained and no longer meets safety standards, the wheels should be removed and the machine must not be used as mobile plant. To the extent that it is maintained, the TMA recommend:

“That used or existing agricultural machinery be acceptable for use, provided that it is equipped with at least the level of protection provided at the time of delivery. This is of particular importance for agricultural machinery dealers as acceptance and resale of trade-ins is an accepted part of the business. Operation of such machinery must be guided by the outcome of a risk assessment, conducted by the owner/operator/employer and may include work practices and administrative controls.” 149

A number of particular issues need to be addressed as a priority: There is currently a hole in OHS legislation in relation to second-hand tractors imported from

Asia. These are a serious safety problem which is not adequately addressed by the current regulatory regime (which usually comes in from smaller suppliers and not via the larger, reputable importers).

Greater efforts (including enforcement where necessary) should be made to ensure that suppliers are aware and accept their increased level of responsibility in relation to modified equipment

Farmers also modify machinery and in so doing take on the responsibility of a designer. Again, they need to be made aware of this responsibility and assisted in discharging it.

Given the considerable tension between safety of second hand equipment and economic imperatives (particularly at the farm) consideration should be given to providing economic incentives such as subsidies, for improving highly dangerous second hand equipment.

149 TMA “Position Paper on Occupational Health and Safety Legislation for Agricultural Machinery in Australia” Recommendation 4, Executive Summary.

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9. Duty Holders at the Workplace The farmers in the paddock are the end-users who ultimately benefit from good regulation, or fall victim to (bear the brunt) of poor farm machinery safety regulation. It is often not until a tragic incident occurs and is reported, that suppliers, manufacturers or designers may become aware of a fault, and regulatory authorities will take investigative and enforcement action. Farmers interviewed all knew of other farmers who had been involved in serious accidents or had lost their lives. Various machinery was mentioned including tractors, PTO shafts and augers in particular. One farmer interviewed knew of another who lost both arms in a PTO that had no guard on it; and another “bloke got killed trying to start an old tractor with a jump lead and a battery, it started and ran over him.” A different interviewee told of two farmers that he had known being run over by tractors, and 3 people who had fallen in bins, one of whom “lost half a leg in a bin auger with no guards, and has had an artificial leg for 25 years.” Yet another friend of the farmer “lost his hand in an auger accident - he turned it off but the motor was still ticking over, he reached in and it jump started.” Nor had this particular interviewee escaped injury himself:

“I got caught in a PTO putting hay into mill - a loose coat I had on got caught while feeding stock… my own father got his clothes taken off in a PTO - stripped naked.”

Stories such as this are certainly not unique to our study or to Australia150. In the USA, NIOSH is regularly publishing alerts, for example after five separate incidents when farmers and members of their families were scalped when their hair became entangled around inadequately guarded rotating drivelines or shafts of farm machinery driven by power take-offs. The publications graphically detail circumstances of the injuries and outline safe work practices in the hope of alerting other farmers to the dangers.151 The Health and safety Executive in the UK has publications specifically focussed just on the dangers of PTO shafts detailing gruesome cases of horrific injury.152 Similarly regulatory bodies in Canada disseminate information, for example about recent cases of arm amputations whilst attempting to clear moving machinery of jammed material. Farming Newsletter are also a source of detail on accidents, for example, cases of death by augers in Minnesota, the victims ranging from a 13 year old boy to a 70 year old labourer.153 As noted, workers in agriculture run at least twice the risk of dying on the job as workers in other sectors, with over one third of deaths being tractor related.154 As indicated in Part One, the vast majority of OHS duties have traditionally rested on the employer as the person directly responsible in the workplace. Other obligations are imposed on owners, employees, and self-employed. As noted, suppliers claim many injuries are caused by lack of maintenance of tractors which is ultimately end users responsibility. Suppliers acknowledge that poor maintenance is sometimes due to expense of tractor parts, and have received complaints about the cost of making machinery safe, However, the recurring theme brought up by suppliers interviewed is that the vital element is ultimately the common sense of the user. 150 Cassell and Day’s careful research identified “two potent clusters of factors constraining the adoption of safety measures on Australian farms…First, a prevailing complacency about farm safety among farmers. This appears to be based on a low perception of personal risk or a machismo attitude toward risk-taking, inter-linked with some resistance to changing traditional work practices and to outside influences which threaten farmers’ independence. Second, the uncertain economic conditions in agriculture”. See A Cassell and L Day “Constraints on the adoption of safety measures on Australian farms” Journal of Occupational Health and Safety –Aust NZ 1998, 14 (5) 447-456. 151 “Preventing Scalping and Other Severe Injuries from Farm Machinery” NIOSH Alert, DHSS (NIOSH) Publication No.94-105, USA. 152 “Power take-offs and power take-off drive shafts.” Agricultural Safety Health and Safety Executive, 6/97, UK. 153 “Agricultural Auger-related Injuries and Fatalities - Minnesota 1992-1994, MMWR Weekly, September 15, 1995/44(36);660-663. 154 “ILO warns on farm safety. Agricultural Mortality Rates remain high” (1997) ILO Press release ILO/97/23, Geneva.

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Three main strategies are available to influence the behaviour of duty holders at the workplace, such as farmers, owners and employees, and to safeguard children and other family members. These are education and information, incentives, and regulation. We address each of these categories in this section. 9.1 Education and Information To be effective, farmers must know of the existence of regulatory instruments and codes and have access to relevant information. Our interviews suggest that the various regulatory instruments affecting farm safety have a very limited effect without the support of education and awareness campaigns. We note that various organisations, such as Farmsafe Australia and the Rural Training Council of Australia are continually endeavouring to improve farm safety education packages for Australian farmers.155 The Managing Farm Safety resource package developed by Farmsafe Australia is an example of one particularly useful practical tool to assist in the management of health and safety risks on farms. While not a Code of Practice, it has nevertheless been based upon appropriate principles and management tools for controlling health and safety risks on farms and will assist primary producers in meeting their legal requirements156. A review of the Farm Safety Core Learning Guides and training packages is currently under way by the Rural Training Council of Australia. Their Equipment Operation Guidelines currently outline generic OHS duties and responsibilities in a general fashion without reference to specific standards. Specific regulations are generally not referred to in the packages as they would become outdated too quickly and differ in each state. In terms of training generally, the feedback is that many agricultural students find OHS law core units boring and unenjoyable, whereas farmers (industry view) regard the competency units as absolutely essential and believe they should be mandatory. A common complaint is the number of laws in Australia of which farmers must be aware. NSW Farmers Association has been promoting 2 day educational courses to address the difficulties of farmers complying with the law. However, many of the concerns of farmers surround 'hiring and firing' legalities rather than OHS. Similarly Farmsafe Australia (through authorised farm safety training centres) runs 2 day Managing Farm Safety Courses.157 Workers compensation authorities also make a contribution. Currently, the Rural Industry Team of NSW Workcover Authority is distributing a million copies of a risk assessment checklist for farms, with information regarding the sorts of issues farmers need to address on their property to meet their OHS legal requirements. NSW Workcover also launched a Rural Safety 1800 Hotline in July 2000.158 Various problems have been identified with these strategies. For example, Workcover WA distributed 10,000 safety documents recently but report having seen no improvement at all. Another factor often mentioned was farmers' lack of time to read through information on OHS regulations even in industry guidelines, because the latter can be of considerable length in themselves. Problems have also been identified in terms of the source of educators. Farmers in Western Australia for example, tend to take more notice of Farmsafe WA than the government department, and are more open about their problems to the former. The WA Department in particular, has met with some resistance in their attempts to educate farmers about OHS. One initiative aimed at hands-on demonstrations for fruit

155 See: Farmsafe Australia (1994) Managing Farm Safety. A self-help program produced by Farmsafe Australia in the interests of creating a safer environment on Australian Farms. 156 Houlahan JB “Managing Farm Safety program: How its tracking to the year 2000” Farm Injury Prevention 99. 157 At the University of Ballarat. 158 Farmers can phone this service and be put through to a representative from either Farmsafe, NSW Farmers Association, Workcover, or the Unions, or receive information packs

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growers attracted no volunteers to participate from the industry. Finally, some research challenges the assumption that education does necessarily lead to behavioural change159. Alternative strategies which have met with some success have been to educate young farmers in Agriculture college, and to target farmers’ spouses, for example by addressing CWA meetings, as “they may have more time to read and can badger farmers to be more safety conscious.” Despite the efforts of Farmsafe etc, there are still many farmers (such as those interviewed) who have not attended any machinery safety courses or heard about any (some had attended chemical safety training, but not regarding machinery). One respondent said that the only direct OHS education of farmers he knew of was when insurance companies used to come and talk to the local farmers discussion group about once a year. It has been argued that the rural industry is hard to target and there is a need to establish new parameters to measure and evaluate current and future changes, ie to measure exposure and awareness. Strategies relating to education and awareness campaigns internationally have been discussed above in relation to remote farmers and their use (and potential use) of the internet, and with regard to educating children about farm safety. It is interesting to note some further initiatives. The preferred method of educating generally regarding OHS regulations in the UK, seems to be by distributing guidance documents from Health & Safety Executive. For example, new leaflets on the Provision and Use of Work Equipment Regulations 1998. Many of these documents are freely available and recognise time constraints that small businesses and individuals have on reading regulations. The pamphlets in turn are supported by more detailed books which can be purchased, and by an HSE Hotline.160 There are also various prevention programs and research initiatives under way currently in a variety of other jurisdictions.161 Canada is in a similar situation as Australia in that education strategies depend on state or provincial authorities. Canada has a well-established network of farm safety associations, each with informative websites and numerous information resources. Some of the programs include: the Farm and Ranch Safety and Health Association of British Columbia which “offers a

comprehensive collection of videos, training kits, presentation packages and written materials.”;

the Atlantic Canada Farm Health and Safety provides information to those working in farm safety (eg managers) and to specific groups such as children;

the Canadian Farm Safety Information Sources of the Farm Safety Association of Ontario which

provides bilingual OHS information; an Agricultural Safety Audit Program has been developed for farmers by farmers as a voluntary

self-assessment tool tailored to the agricultural workplace, with a free hazard identification booklet.162

'Ontario 4-H' is a specialised Farm Safety Club which targets youth aged 10-21, featuring a hands-on approach to learning farm safety.

159 See for example, PD Ellkind “Correspondence between knowledge, attitudes and behavior in farm health and safety practices” Journal of Safety Research, Vol 24, 171-179, 1993. 160 See http://www.hse.gov.uk/press/e99075.htm 161 “Prevention Programs to Improve the Health and Safety of Farm Families” Funded projects, Southeast Centre for Agricultural Health and Injury Prevention, University of Kentucky (1999), USA. 162 Joint initiative by the Ontario Agricultural Human Resource Committee and the Workplace Safety and Insurance Board. See “Safety First! The Farm is as Safe as you make it.” Health Canada, see http://www.hc-sc.ca/hpb/lcdc/publicat/farmfam/vol7-2/ff7-2a_e.html

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The Rural Health Extension Program translates medical research into useful information for farmers in Saskatchewan, as does the Canadian Agricultural Injury Surveillance Program nationally.

There are further programs aiming to educate specific target groups such as farmers with

agricultural injury disabilities, and farm family health;163 and target specific issues such as Farm Accident Response Management & Safety Training (F.A.R.M.S) aimed at accident response situations. Guidance can even be obtained on how to best communicate farm safety visually in safety guides.164

It appears that extensive information is available. However problems may still arise regarding a) easy access to the information, and b) time to sit and read it. The Canadian Centre for Occupational Health and Safety does run one-day courses entitled “Using the Internet to Access Health and Safety Resources”. However these involve time, cost and travel.165 The United States has NIOSH funded projects on agricultural OHS each year, and NIOSH supports various centers for agricultural disease and injury research, education and prevention, for example, the Greater Plains Center for Agricultural Health in Iowa.166 Each of these centres in turn, develop similar initiatives to the Canadian agencies, and the result is a sometimes bewildering array of information brochures, guidelines, courses, and advice. The valuable role of Farm Safety groups should not be underestimated in Australia. For example, the Kondinin Group focuses on providing information to farmers, and spends over $25,000 every month conducting independent evaluations on agricultural products and services; with a view to disseminating practical and time-saving ideas to Australian farmers. In particular the Kondinin Group publishes a comprehensive monthly magazine tailored to the farming community.167 Summary and Recommendations To be effective, farmers must know of the existence of regulatory instruments and codes and have access to relevant information, without which the various regulatory instruments affecting farm safety have a very limited effect. Education and awareness campaigns are particularly important as are the initiatives of organisations such as Farmsafe Australia and the Rural Training Council of Australia. The greatest challenge is not developing appropriate information (although this is obviously essential) but ensuring that it is effectively disseminated, read, digested, and implemented. Much depends upon how the information is presented and packaged, and upon who presents it. Drawing on what limited empirical literature is available, it would appear that a number of issues are crucial to successful policy implementation: developing industry-government partnerships – the aim of such partnerships is to actively engage

an industry in the development of a OHS strategy that is tailored to their particular circumstances. This generates ownership, thus increasing awareness and the level of commitment to its implementation, and emphasise improved OHS practice. The activities of Farmsafe Australia have been particularly important in improving education and training and in supporting farmers to

163 See “Inventory of Canadian Farm safety/ Rural Health Programs and Research Activities at www.isn.net/~virtual/cgi-bin/searchccasrh.2pl 164 For example “Farm workers using all-terrain vehicles, should be depicted wearing helmets, goggles, pants, work boots, gloves and long sleeves.” Farm safety News “Guide to Communicating Farm Safety for Editors, Illustartors, Cinematographers, and Photographers.” Media Guidelines – www.virtuo.com/farmsafety/news/media.html 165 CCOHS “Education and Training” - www.ccohs.ca/products/courses/internet course.html. 166 See “Agriculture. NIOSH Research Projects” - “Supported Educational Resource Centers (ERC) Agricultural training Programs)” US Department of Health and Human services, Public Health Service, Centers for Disease control and Prevention, NIOSH, 1997. 167 “FARMING AHEAD with the Kondinin Group” February 2000, No. 98.

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improve OHS through establishment of relevant mechanisms to identify and define common risks and their control;

the right people disseminating the information – Information must not only be transmitted, it must

also be received. This is most likely to be achieved where there is face-to-face distribution from trusted sources (customers, suppliers and competitors, industry peers, networks and associations) that emphasises practical solutions. Information should also be sector specific (as with various Farmsafe Australia safety checklists and self-help programs), and delivered in a coordinated fashion. The various forms of information delivery must be effectively coordinated, to minimise duplication, preferably by government.

developing codes of practice – small enterprises often require much more specific guidance on

what is required of them than their larger counterparts. Codes of practice are an effective way to provide practical guidance as to how to achieve compliance, and may be a valuable vehicle for promoting improved ohs practices; and

exploiting third party leverage – most small businesses have some interaction with professionals

(banks, lawyers, insurance companies) and rely on them as credible sources of information. This provides opportunities for using such professionals both to disseminate information and to exert pressure on farmers. On the basis of enlightened self-interest (backed-up by government persuasion), banks might require an OHS check list for loan approval, and insurers might seek a statement of hazards identification and control.

Particular initiatives that merit further attention include:

self audit and assessment approaches (cf the current NSW risk assessment checklist for farms, with information regarding the sorts of issues farmers need to address on their property to meet their OHS legal requirements, and the various Farmsafe Australia checklists);

Rural Safety 1800 Hotlines (NSW WorkCover)

Targeting farmers wives, for example by addressing CWA meetings

Other strategies addressed elsewhere in this Report include exploiting the internet, and specific campaigns relating to children and young persons.

Above all, a coordinated and strategic approach to these and related issues is essential. Here, the activities of Farmsafe Australia and the Australian Agricultural Health Unit have been and will continue to be of critical importance. The fundamental approach has been to develop appropriate principles and management tools for managing farm OHS through a process of analysing relevant industry records, consideration of legislative requirements and consultation with industry representatives. Farmsafe, through its national committees and its industry and government partners plays a vital role in developing OHS best practice and in providing the training and tools to implement a risk management approach to farm health and safety, as exemplified by its “Managing Farm Safety” training course. 9.2 Targeting different types of farmers Not all farmers have similar attitudes or circumstances, and a effective policy strategy must be designed to take account of these differences. According to many interviewees, particularly suppliers, hobby farmers represent a particular problem. For example, a Yass dealer claimed that almost 50% of his business would now be with hobby-farmers and people new to the land (whereas 90% used to be people who had been farmers for generations). Such first time users present a challenge because suppliers cannot afford to assume they have any farm machinery OHS knowledge prior to purchase. On the other hand, there is perhaps an increased likelihood that some new users will read the fine print

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on Operating Manuals than experienced farmers.168 The latter group present rather different problems. As one dealer pointed out, the average 'cocky' is old, more familiar with machinery, but also more apathetic about reading manuals, and probably far more deaf due to years of exposure to machinery noise, and less mobile. The familiarity of this group with farm machinery can in itself breed carelessness. Disparities also exist between trainee farmers at technical college and farmers from Agricultural college 20 years ago when OHS was not an issue. For the latter group, reading regulations and codes may be less effective than informal methods of teaching. Certainly this type of training has a far more dramatic effect than the impact of reading codes, and it would be unwise to ignore the value of practical safety training from old-hands who have learnt by mistakes rather than by reading regulations and Codes. This is a different environment to Agricultural College or OHS Workshops, as it is 'real-life training'. Hazard perception amongst different types of farmers can impact upon (reduce) the effectiveness of OHS regulations. In Australia for example, flat land grain or cotton farmers are less interested in the issue of ROPS than other farmers as the tractors used often have air-conditioned cabins and the land is flat so there is no perceived hazard. The regulations are therefore considered not really relevant to the types of hazards they perceive. Research has been carried out in the United States on the hazard perceptions of different farmers. For example, despite there being extensive data on farming being one of the most hazardous occupations globally,169 a survey of farmers in California revealed only 10% thought farming was more hazardous than other occupations, in other states 50% thought that it was.170 Other research found that farm employees considered control to be external ie, “given over to God, luck or bosses”, whereas farmers (employers) believed more in personal control over safety, whilst acknowledging worker responsibility.171 Studies have also been done on monitoring farm employee safety in the United States;172 and in Canada, work has been done on the hazard perception of young farmers.173 9.3 The use of Incentives: ROPS The substantial costs of some safety improvements act as a very considerable disincentive to their introduction by farmers. Exhortation and coercion by means of law, may achieve some positive response (and in the case of the latter, some considerable hostility). However, to the extent that funding is available, economic incentives in the form of subsidies often achieve the greatest success. This is demonstrated by the experience of ROPS rebates.

168 For example, one respondent stated “hobby farmers tended to be more highly educated people such as solicitors and accountants from the city - more likely to read the fine print.” 169 For example, an ILO Report stated “Workers in agriculture run at least twice the risk of dying on the job as workers in other sectors… with an estimated 170,000 agricultural workers killed each year.. and the fatality rate may be as much as one-third higher than reported” “ILO warns on Farm Safety. Agriculture Mortality Rates Remain High. “ ILO Communication (ILO/97/23) 22 October 1997, Geneva. 170 Farrar J A, Schenker MB, McCurdy SA, Morri A “Hazard Perceptions of California Farm Operators” Journal of Agromedicine, 1995 2(2) 27-40. 171 Grieshop JI, Stiles MV and Villanueva N, “Prevention and resiliency: A Cross Cultural View of Farmworkers' and farmers' Beliefs About Work Safety” Journal of Human Organisations 1996, 55(1) 25-32. 172 “New Directions in the Surveillance of Hired farm Worker Health and Occupational Safety” A Report of the Work Group Convened by NIOSH, 1995, to Identify Priorities for Hired Farm Worker Occupational Health Surveillance and Research, NIOSH/NORA. 173 Affleck, M, “Young Farmers' Viewpoint on Farm Safety” PEI Farm Health and Safety Program Farm safety News at www.virtuo.com/farmsafety.

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Success factors relating to ROPS Rebate Scheme 1. There was a well known device for preventing serious injury from Tractor Roll Over.

2. There was a standard in place for construction and fitting of ROPS.

3. IT was already compulsory to fit the device to tractors weighing over 560 kgs coming into service since 1st July 1981 with minor exceptions.

4. The figures showed that there was a continuing stream of victims (approximately half the number

of deaths on Victorian farms were caused by tractors and of those half were the roll over of tractors not fitted with ROPS).

5. The Victorian State Coroner had been assiduous in putting the facts to officials I the Victorian

Farmers Federation. 6. The OH&S Organisation was active in agriculture and recognised it as a problem area and had

appointed officers with a rural empathy. 7. The conference of the VFF supported overwhelmingly the proposition from Farmsafe Victoria that

there should be compulsion to fit ROPS to pre 1981 tractors. It amended the resolution at the conference by removing a condition and accelerating the process.

8. There were enough people in the Department and on the Minister’s staff prepared to make it

happen. 9. The VFF handled the adminsitration which was entrusted to an enthusiastic, active member of

staff. Source: John Dawson, Chair, Farmsafe Victoria. As well as highlighting certain difficulties in regulatory stipulations, ROPS regulation is an issue particularly useful for illustrating strengths of certain regulatory strategies (for example, combining regulatory tools with education awareness campaigns) in Australia.174 In Victoria in 1997/98, a ROPS rebate scheme facilitated fitment of ROPS to previously unprotected tractors, via a rebate of $150 to farmers for each pre-1981 tractor fitted with a ROPS meeting the Australian Standard 1636. The situation before the scheme commenced was grim: during the period 1992-1996, tractors accounted for 61% of farm work related fatalities amongst adults in Victoria; and roll-over events accounted for 33% of these tractor related fatalities.175 The situation was summarised as follows:

“The problem we faced was that you don't win friends and influence people by passing laws that require them to spend money. It doesn't matter how badly it is needed it doesn't matter how good or logical the law is when you pit logic against the hip pocket nerve, you're 'gunna' lose every time.”176

174 The effectiveness of ROPS in preventing death in the event of a tractor rollover has been demonstrated in Sweden, Great Britain and Norway eg in Sweden the tractor rollover fatality rate decreased from 15 per 100,000 tractors to less than 1 per 100,000 as the legal requirements for ROPS moved from ROPS on new tractors to safety cabins on all tractors - Day L, Rechnitzer G Monash University Accident Research Centre “Evaluation of the tractor rollover protective structure rebate scheme” Farm Injury Prevention 99 Proceedings Papers. 175 Day and Rechnitzer op. cit. 176 Woods, B Victorian Workcover Authority “Victoria's rollover subsidy - A safety success” Farm Injury Prevention 99 Proceedings Papers.

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The scheme has been successful with the number of unprotected tractors in Victoria reduced by 70%. The proportion of tractors in the state without protection is now just 7% as against 24% previously (from an estimated 17,420 to 5,290).177 Another benefit of the scheme has been increased farm safety awareness generally and strengthened partnerships between organisations.178

“The success of the rebate scheme appears to be founded on a number of equally important and inter-related factors. The combination of regulatory amendments, publicity, and the rebate clearly provided the impetus for the action required to increase ROPS fitment. While the regulations themselves, and the perceived threat of subsequent enforcement, were significant factors, the effect would not have been as dramatic had these strategies been used in isolation. There had been considerable development of the partnerships over previous years, and the scheme was implemented at a time of increasing impetus in farm safety in Victoria.”179

In light of the success of the Victorian scheme, NSW have focussed on the estimated 22,000 tractors not fitted with ROPS in the state.180 Reasons why these tractors are not fitted with ROPS include farmers claiming: they never drive fast on tractors, experienced operators don't have accidents, and they work on flat country. Research has shown that 90% of tractor accidents occurred at speeds of less than 8kph; 75% of operators involved in accidents had more than 5 years experience on tractors; and 60% of all accidents occurred on slopes less than 5 degrees.181 In addition to the human suffering, the death of NSW farmers from tractor roll-overs is potentially costing the industry in the order of $5 million every year.182 A new ROPS rebate scheme has been introduced in NSW with a rebate to farmers of $200 per tractor (approximately 25% of the total cost of purchasing and installing a ROPS). The scheme commenced May 2000 and is intended to continue until December 2001. The scheme is advertised through the media and other forums such as newsletters of industry groups and agricultural show days. Any information sent to farmers regarding the scheme also includes general farm safety information. It is intended that at or near the completion of the ROPS rebate component of the scheme, a compliance campaign will be initiated.183 Suppliers/dealers involved in the ROPS rebate scheme have had differing views of their educational role. Certain dealers have undertaken active advertising of the scheme for example writing letters or roadside mailbox mail-outs. Others have preferred to leave the advertising up to authorities and organisations such as Farmsafe NSW in newspapers; or for example, have been advertised on the internet by their distributors. Certain members of the industry claim that it is not possible to generalise about the cost of ROPS as problems can arise in fitting frames to old machines not designed to have them. As noted, this is a problem in Queensland. Conversely, manufacturers (based in southern states) claim they can cover 80-90% of the fleet with cheaper 'off the shelf' ROPS models now. Proposed legislation ( part of Rural Industries Legislation package) is currently before the Queensland government. This contemplates ROPS legislation with subsidy, mirroring the Victorian scheme with a 3 year phase in period commencing January 2001. ROPS promotions have had some success overseas and ROPS have been internationally recognised as the best method of preventing tractor roll-over fatalities for some years. The focus overseas seems to be more on ROPS awareness and education, rather than on a specific rebate scheme such as in Australia.

177 Day and Rechnitzer op. cit. 178 Woods, op. cit. 179 Day and Rechnitzer op. cit. 180 Farmsafe NSW “ROPS are Tops for Saving lives” Information sheet. 181 Ibid. 182 Farmsafe NSW “The NSW ROPS Rebate Scheme - Saving Lives Media release” Reducing Farm Injury - Health Promotion for safer Farm Environments 2000. 183 Farmsafe NSW “ROPS Rebate Program” Press Release.

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A multitude of ROPS fact sheets are available from agencies across the US, for example AgriAction information sheets: “ROPS. An Investment you can Live With”, and “Farm Tractor Safety.”184 There are also community-based initiatives such as “Trac-Safe” aimed at reducing fatalities, involving amongst other things, distribution of worksheets, guidelines and facilitators' manuals for group presentations and training. Results of the program so far suggest that educational programming is having a positive effect on tractor safety. This differs from some of the Australian schemes in that there is no substantial government rebate on the equipment, rather the focus is on information sessions where the incentive package that is distributed, is sponsored by local businesses and includes coupons, safety items, and stickers for participants.185 In the UK, the Health and Safety Executive also disseminates information sheets and has programs such as “Tractor Action” including training guides, safety steps, and videos.186 The seriousness of roll-over fatalities is addressed in Canada by a similar array of information sheets, publicity to increase awareness (including ROPS bumper stickers) and education courses, for example, Safe Tractor Day 2000 aimed at farmers and school children.187 Summary and recommendations The substantial costs of some safety improvements act as a very considerable disincentive to their introduction by farmers. Exhortation and coercion by means of law, may achieve some positive response (and in the case of the latter, some considerable hostility). However, to the extent that funding is available, economic incentives in the form of subsidies often achieve the greatest success. This is demonstrated by the experience of ROPS rebates. The Victorian ROPS Rebate scheme for example, has met with particular success in reducing the number of unprotected tractors and the number of roll-over fatalities. These benefits were achieved not by introducing the subsidy in isolation but by combining it with a number of other components: strengthened partnerships between organisations; the introduction of regulatory amendments, and publicity. The result was not only a substantial success with reducing fatalities but increased farm safety awareness generally. Similar schemes have been implemented in other Australian states, such as NSW, using a similar combination of monetary incentives combined with education and awareness campaigns.

It is clear that a ROPS rebate is a very successful approach. We acknowledge that there are some jurisdictional differences, for example fitting ROPS to the older tractor fleet in Queensland could be more expensive than fitting to the newer machines in the southern states. Nevertheless, we recommend a rebate scheme based upon incentives, education and partnership, in conjunction with a positive publicity campaign, backed up after an appropriate period by regulatory enforcement, should be introduced in relevant jurisdictions which have not so far done so, and continued for a defined period in those that have. In doing so, the amount of payment will be critical (the Western Australian experience was that it was necessary to double the initial amount to get adequate take-up188). So too will equity issues: those who chose to fund their own ROPS should not perceive themselves to be punished while those who chose to break the law are rewarded with a rebate.

184 High Plains Intermountain Center for Agricultural Health and Safety, AgriAction Sheet IS-99-04, Department of Environmental Health, Colorado state University, June 1999. And IS-98-02, revised August 1999. 185 “Trac-Safe” a Community-based Program for Reducing Injuries and Deaths from Tractor Overturns. US Department of Health and Human Services, Centers for Disease control and prevention. The Facilitator's Guide was funded by NIOSH through a cooperative agreement with the Great Plains Center for Agricultural Health at the University of Iowa's Institute for Rural and Environmental Health, USA. 186 HSE “Tractor Action” see http://www.hse.gov.uk/pubns/indg185.htm; and HSE Information Sheet AS no 22(rev) “Prevention of Tractors Overturning”, Printed and Published by HSE 3/97, UK. 187 For examples, see Farm Safety News “Lessons on safety around tractors” and “Farmers as Safety Officers” at http://www.virtuo.com/farmsafety/; and “Roll over protective Structures” Work safe Bulletin No. 100 ; and Safe Tractor Operation” A Guide. Good Farming is no Accident at http://www.gov.mb.ca/labour/safety/publicat/bulletin/bltn100.html. 188 Personal communication, senior OHS regulator.

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We also recommend that consideration should be given to extending this incentive strategy to other serious safety hazards. For example, Victoria is working on developing a similar scheme regarding Safe Access Platforms on tractors. It is hoped that with this approach, run-overs fatalities can be reduced just as roll-overs were under the ROPS rebate scheme. However, we note that not all of the factors which facilitated the success of the ROPs rebate (described in the box above), exist in the case of Safety Access Platforms189 and we also note the reservations of the TMA in relation to the value of Safety Access Platforms. The Victorian experience should act as a ‘pilot’ scheme, on the basis of which it can be determined whether, or to what extent, its application elsewhere. 9.4 Regulation and Enforcement Although legislation has imposed substantial responsibilities on a designers, manufacturers, importers and suppliers, enforcement of these provisions has been extremely limited. Generally there have been very few prosecutions of designers or other parties who are somewhat removed from the hazardous incident, although a 'number of OHS agencies are becoming more active in this area.'190 In part, the difficulty of enforcement relates to “the shift to using duty of care as the basis for prosecutions [which] has been a gradual process. Inspectorates were more familiar with specification standard regulations and less confident about the apparently more ambiguous nature of duty of care requirements (this point did not apply where risk assessment was incorporated into regulations).”191 The issue of enforcement has always been sensitive in rural Australia. In broad terms, most inspectorates view enforcement in terms of farm visits and compliance visits to check up on ROPS, and to issue notices requiring it in cases where it has not been done. That is: “The focus is on encouraging and improving compliance but if we do strike intransigence, we will issue notices under the Act”. There is some shift of approach being contemplated in some jurisdictions. As one inspector reported: “the enforcement issue is often skirted around but that is going to change.. in the future there will be plenty of carrots but the odd stick too.” Consistent with this, the Victorian Workcover Authority General Guidelines for Prosecution state: “The authority will use promotion, education and advice to encourage compliance with legislative provisions. Where these methods are inadequate, compliance will generally be secured through the use of formal notices and directions, civil recovery and other enforcement methods provided for under the legislation.” Prosecution will be resorted to in some circumstances and used to as a deterrent. The authority will take this action when it is required in the public interest. 192 In New South Wales WorkCover is launching a compliance scheme. Field officers will inspect farms and issue improvement notices following a “softly softly approach” whereby inspectors go in with good news about the rebate and claiming tax back. The strategy aims for a balance between 'information/assistance and compliance/enforcement actions' such as issuing Improvement, Prohibition or Penalty Notices. Greater enforcement problems are experienced in the outlying states because of the difficulty of visiting farms in remote locations. According to the Work Health Authority NT there are “so many workplaces that are so large” it is impossible even with regional offices in Katherine and Alice.

189 John Dawson points out that a) there are many run-overs which will not be prevented eg jump starting from the ground with tractor in gear. b)the access platform does not have a standard. The design principles are established but there is no mechanism in place to ensure proper construction c) there is no prescribed legislation requiring them (although modern tractors of good design are often so equipped). 190 Bohle P, and Quinlan M op. cit. There have been a series of cases in Victoria involving prosecution of equipment hire firms following equipment faults, and insufficient knowledge or qualifications of operators: Director of Public Prosecutions v Ancon Travel Towers Pty Ltd, 1998). An example of an Erector/Installer being prosecuted: Stevenson v ATCO-APM Drilling Pty Ltd (1992) 45 IR 421 - See Johnstone p266. 191 See Bohle and Quinlan op. cit. p273 192 Labour Ministers' Council “Comparative Performance Monitoring. Comparison of Occupational Health and safety arrangements in Australian jurisdictions.” Commonwealth of Australia, May 1999.

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The greatest difficulty with prosecution, however, remains the political one. As one Western Australian regulator put it, enforcement is: “politically difficult, legally it isn't…the legislation says that a farm is a workplace like any other, but due to the fact that it is also a home creates a different sensitive scenario for inspectors who don't visit homes as a rule.” For this reason, Worksafe is more:

“sensitive dealing with farming communities – we don't do drop in inspections…there was an attempt to prosecute a couple of years ago when a farmer's daughter was buried in a silo… the Dept tried to prosecute the farmer.. there was a huge outcry from the public and the farming community and it spoilt the relationship with the farming community for years.”

This highlights the difficulty of applying enforcement policies intended for industrial or commercial workplaces, on the private farm which is also the home. Yet a number of interviewees made the point that: “Legislation is useless if it can't be enforced”. The most recent enforcement statistics available from the Health and Safety Executive in the UK are interesting. In the “Agriculture” category the number of offences prosecuted between April and September 1999 was 45 compared with 162 during the same period last year. Actual convictions however have decreased from 39 to 28. Fewer Improvement Notices were issued in 2000 than in the previous year (364 compared with 508 in 1999); similarly less deferred prohibition notices were issued (7 compared to 14 previously). Immediate prohibition notices however increased from 368 in 1999, to 411 in 2000. There appears to be a trend in issuing immediate prohibition notices and a massive increase in the number of prosecutions, while there is a decline in issuing Improvement and Deferred Prohibition notices. It is interesting to juxtapose the preference for harsher enforcement options with the 22% increase in Agricultural fatalities in the same period (23 in 1999 compared with 28 in 2000);193 ie, stricter enforcement options haven't decreased the fatality rate. Summary and Recommendations Although legislation has imposed substantial responsibilities on designers, manufacturers, importers and suppliers, enforcement of these provisions has been extremely limited. The issue of enforcing OHS duties on users within the workplace such as farmers, has always been sensitive in rural Australia. Enforcement can be politically difficult rather than legally difficult, as the application of these general OHS strategies is not always appropriate to the farm workplace. For example, prosecution of farmers involved in machinery accidents is hugely unpopular. In practice, most jurisdictions have focussed on encouraging compliance, many to the virtual exclusion of enforcement. Some regulators indicated that a significant re-evaluation of this approach was taking place and that this was likely to result in a somewhat greater emphasis on enforcement, even to the extent of prosecution, where other strategies failed. The difficulty for regulators is in striking a balance between providing information/assistance and compliance/enforcement actions. There may be a fundamental problem in applying enforcement policies intended for industrial or commercial workplaces, on the private farm which is also the home. Yet “Legislation is useless if it can't be enforced”. Against a backdrop of not only political hostility to prosecution in the rural sector, but also extremely limited regulatory resources, what enforcement strategy should be adopted? Although it should be regarded as a last resort, experience suggests that an underpinning of government regulation coupled with (at least a perceived) credible threat of inspection and enforcement, is necessary to persuade the reluctant, the recalcitrant, and the incompetent, that other, less coercive approaches, are worth adopting. Yet the numbers of importers, suppliers and farmers so vastly overwhelms the number of inspectors that it is wholly impractical to inspect, let alone enforce, 193 Richard Delleman, “Injury and Enforcement Statistics April to September 2000” Health and Safety Executive Board Paper HSE/00/P272, December 2000., UK.

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against a significant number of them. Even so, the impression of enforcement for serious and deliberate breach can still be maintained through a judicious use of targeted enforcement, occasional prosecutions accompanied by broad publicity, blitzes on particularly serious hazards and the use of less resource intensive instruments such as on the spot fines194, prohibition and improvement notices. 10 The Relative Efficacy of Specification, Performance and Process Standards 10.1 Performance standards instead of specification rules In designing OHS standards and in securing compliance on the part of target groups, it is vitally important to determine what types of standards to adopt195. For example, what kinds of measures are most likely to achieve best policy outcomes? What techniques are most likely to influence the behaviour of duty holders, to be flexible, produce OHS benefits at an acceptable cost, provide practical guidance to duty holders and be easy to enforce? It has been pointed out that: “in many circumstances the real problem facing policymakers is not to select the best strategy for achieving compliance but to decide what it is the regulated are to be asked to comply with”.196 In this context, traditionally, two main types of standard were thought to be available: specification and performance standards. A specification standard is a standard which tells the employer precisely what measures to take and which requires little interpretation on the employer’s part. Such a standard is defined in terms of the specific types of methods that must be used in a specific situation and in terms of its emphasis on the design and construction of these safeguards. Specification standards have the virtue of identifying precisely what is required of the duty holder, and thereby also of enabling employees and inspectors to readily ascertain whether the employer has breached those standards. They have particular attractions to small and medium sized enterprises, which may lack the technological sophistication or resources to apply broader based (and necessarily less precise) performance standards to the particular circumstances of their own operation. These standards also offer administrative simplicity and ease of enforcement. Empirical evidence confirms the reluctance of inspectors to relinquish the detail of specification standards in favour of broader based (and perhaps more ambiguous) performance standards.197 Specification standards are more appropriate to some circumstances than to others. For example, they have “a static, machine-type and substance-type focus, whereas many hazards arise not from these static features of a workplace, but from the organisation of work therein”198 and cannot be dealt with in this manner. Hazards such as occupational stress, manual handling or occupational overuse syndrome, demonstrably lend themselves to a different approach, one that is either outcome or process-oriented. On the other hand, specification standards remain particularly important “where there is a high degree of risk and [there are] specific controls which are applicable to all circumstances where the risk occurs

194 It should be noted that on the spot fines are opposed by the National Farmers’ Federation because inter alia a number of bases upon which they can be issued are subjective eg that a piece of machinery is “unsafe”. The NFF view is that the serious and deliberate breach of OHS laws should see appropriately harsh penalties applied, and that on the spot fines have no place in that context. Our own views, supportive of the use of on the spot fines (albeit recognising that the degree of inspectoral discretion needs to be constrained), are set out at length in Gunningham et al, On the Spot Fines, A Report prepared for the National Occupational Health and Safety Commission, 1999. 195 See generally N Gunningham and R Johnstone Regulating Workplace Safety Oxford University Press, UK (1999), Chapter 2 which forms the basis for the following discussion. 196 A Hopkins,’Compliance With What?: The fundamental regulatory question’ (1994) 34 British Journal of Criminology 431. 197 La Trobe/Melbourne Occupational Health and Safety Project (W G Carson; W B Creighton; C Henenberg; R Johnstone), Victorian Occupational Health and Safety: an assessment of law in transition, Department of Legal Studies, La Trobe University, Victoria, 1989. 198 A Brooks, ‘Rethinking Occupational Health and Safety Legislation’ (1988) September The Journal of Industrial Relations 348 at 353.

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[which are] essential to control the risk”.199 Such circumstances commonly arise in relation to the design, selection, maintenance and use of plant and materials, and in relation to the control of dangerous goods. Indeed, even the Industry Commission, which is generally hostile to this approach, acknowledges that “in some circumstances, mandatory technical requirements are appropriate. For example, it may be more efficient to have key safety elements included in the design of plant and equipment than to engineer them in subsequently”.200 There are however, serious disadvantages to the use of specification standards across the board. Specification standards, to be effective, must usually be extremely detailed to cover all kinds of machines and plant layouts, and even then, may be incapable of preventing much OHS damage Such an approach tends to result in a mass of intricate detailed law, difficult to comprehend or keep up to date. Moreover, because such standards are prescriptive they do not allow duty holders to seek least cost solutions and accordingly are unlikely to be cost-effective in the majority of circumstances. Similarly, they inhibit innovation and do not encourage best practice In contrast, a performance standard is one which specifies the outcome of the OHS improvement but which leaves the concrete measures to achieve this end open for the duty holder to adapt to varying local circumstances. That is, rather than specifying exactly how to achieve compliance, a performance standard sets a general goal and lets each duty holder decide how to meet it. A considerable attraction of performance standards is that because they focus on the outcomes to be achieved rather than on the precise hazards to be controlled or the means of controlling them, they can accommodate to changes in technology and the creation of new hazards (unlike specification standards which commonly fail to keep pace with technological change). Performance standards also allow firms flexibility to select the least costly or least burdensome means of achieving compliance. On the other hand, because they are sometimes imprecise, performance standards are to that extent more difficult to enforce than specification standards and inspectorates have commonly experienced considerable difficulties of adjustment. Over the last few years most policy makers and commentators have swung heavily in favour of the use of performance rather than specification standards. Of particular influence has been Michael Porter and Claus van der Linde’s argument that a well designed regulatory system can foster innovation by concentrating on outcomes (ie performance standards) rather than on techniques (ie specification or technology based standards). This is because performance standards free up an enterprise to respond to a regulator’s requirement in the way it best thinks fit.201 However, as indicated above, performance standards offer less guidance to duty holders as to what is required of them and this presents particular problems for small and medium sized enterprises such as farms. For these enterprises, effective compliance will be facilitated by the provision of more precise guidance as to how to identify and resolve problems. This could be provided for through technical data sheets and other advisory material which could be issued not only by regulatory agencies, but also by independent standard setting bodies or by industry itself. However, it may also be desirable, as is indeed the case under current occupational health and safety legislation, to insert a statutory provision making clear that compliance with the advisory material/code of practice will be deemed to be compliance with the performance standard202.

199 South Australian Government, Occupational Health & Safety, Submission Number 147 to the Industry Commission, October 18, 1994 in Industry Commission, Work, Health & Safety: Inquiry into Occupational Health & Safety Volume I Report and Volume II Appendices Report No 47, AGPS, Canberra, 1 September 1995 in Vol I p 75. 200 Ibid. 201 M Porter and C van der Linde “Green and Competitive: Ending the Stalemate” Harvard Business Review, Sept-Oct 1995, 120-134 at 129. However, it should be noted that while the Porter and van der Linde view is in some respects (eg the extent to which it is rational for enterprises to pursue win-win solutions) a controversial one, the overall benefits of performance over specification standards in the large majority of situations is now widely recognised. 202 See N. Gunningham and R. Johnstone Regulating Workplace Safety: Systems and Sanctions (1999) Oxford University Press 1999 Chapter 2.

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Finally, there is an important role for manufacturers and suppliers in disseminating the information contained in codes and technical data sheets. Although manufacturers already have a duty which includes the provision of information, this could be more sharply focussed so that it becomes clear that it includes issuing any relevant technical data sheet or code of practice with the plant or substance itself. In summary, it is essential to rationalise and reduce the total number and complexity of regulations, to emphasise process and performance standards rather than specification standards, to substantially reduce the weight of specification standards, and to replace them, where necessary, with technical data sheets and similar documents. It is comforting to see that some state regulators, at least, have already advanced substantially down this path.203 10.2 Process Standards Notwithstanding the considerable contribution that both specification and performance standards have made to improving OHS compliance and performance, both approaches have a substantial limitation: namely they only require enterprises to achieve minimum standards and provide no incentives or encouragement to go beyond those minima. They do not encourage continuous improvement or industry best practice. Certainly, for some enterprises, particularly those with little expertise, sophistication or commitment to environment (eg many small firms, those with high labour mobility), it may not be realistic, at least in the short term, to expect compliance with anything more than the legal minima, and even bringing them up to this standard may be a considerable achievement. Performance and specification standards both continue to make a substantial contribution in this regard. For some enterprises, at least, the law could do far more by developing a different approach. For these enterprises, there is considerable potential in developing a new phase of standard design - process standards which provide considerable flexibility and enable enterprises to devise their own least-cost solutions. Process standards address procedures for achieving a desired result. These standards specify the processes to be followed in managing nominated hazards and have been most used in respect of hazards that do not lend themselves to measurement, or to address risk assessment more generally. They are based on a systematic approach to controlling and minimising risks using an “identify, assess, control” strategy. The advantages of process-based approaches over prescriptive regulation, are well known.204 Regulators should recognise that performance and process-based approaches are most appropriate when the desired OHS outcome cannot be clearly specified, and where there is evidence that the specified process will result in better OHS outcomes. There will, however, still be situations in which other types of OHS standards will be more appropriate, or at least should operate in tandem with process-based standards. For example, in relation to hazardous substances, it might be possible to specify a minimum achievable target that must be achieved by suppliers or manufacturers. There may also be instances where the regulator can say with confidence that a particular safeguard is, and will remain, the most effective and efficient means of preventing work-related illness. In those circumstances, detailed technical specification standards may still be a desirable form of regulation. From discussions with representatives of the jurisdictions in our previous work: (i) there is support from stakeholders for performance-based regulation (especially Victoria), for a greater focus on control at the design stage and placing a duty on those who supply products to workplaces.205 203 See for example South Australian Occupational Health, Safety and Welfare Regulations 1995, Northern Territory and Victoria (based on Victorian Submission (1994) to Industry Commission (1995)). 204See Gunningham, N and Johnstone, R (1999) Regulating Workplace Safety: Systems and SanctionsOxford University Press, Oxford UK,Chapters 2 and 3. 205 Also note, TMA “Position Paper on OHS Legislation for Agricultural Machinery in Australia” Prepared by the STAC of the TMA, August 1998. Note TMA recommend their Industry Guidance Note for manufacture and

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Summary and recommendations There is a general trend to replace outdated prescriptive regulations with broader based performance standards, in conjunction with process standards. This trend is apparent both within Australia (eg the National Standards on Plant/Hazardous Substances) and internationally (eg the Process Safety Management Rule (USA), the Construction (Design and Management) Regulations (UK), and the Health and Safety Framework and daughter Directives in the European Union). The most important characteristic of such measures is their approach to managing hazards by incorporating the three fundamental steps of hazard identification, risk assessment and risk control (underpinned by a series of either principle-based (ie general duties) or performance-based standards. Under the National Standards approach, and indeed under the legislation of individual jurisdictions, this trend is likely to continue. There is support from many but by no means all stakeholders for performance-based regulation. As a number of respondents have pointed out, products are evolving so quickly that specification standards would very rapidly become outdated, and the flexibility inherent in the performance standards approach becomes imperative to accommodate this change. The intention of the Robens Report, and of the main OHS legislation of each Australian State was that specification standards be substantially replaced by performance standards, and that greater reliance be place on codes of practice rather than regulations. However, the process of replacing specification standards has been an extremely slow one. We recommend that: the process of rationalising and reducing the total number and complexity of regulations should

continue; the weight of specification standards should be substantially reduced, such standards being

reserved for exceptional situations: for example, where there is a high degree of risk and there are specific controls which are applicable to all circumstances where the risk occurs which are essential to control the risk;

in most circumstances performance and process standards are the most appropriate ways of

providing guidance as to how to comply with the general duty requirements. To preserve flexibility of response, such guidance can often be provided in codes of practice rather than in regulations;

small employers, in particular, often require quite specific guidance as to what is required of them.

Such guidance should continue to be given, but this is most appropriately done through technical guidance documents rather than through legally binding and prescriptive specification standards

the duty of care imposed by legislation on manufacturers and suppliers to disseminate information

should be broadened so that it explicitly requires them to include the information contained in any relevant codes or technical data sheets.

supply of agricultural tractor-mounted front-end loaders in Australia, could serve as a suitable model for future legislative changes, emphasising designers and manufacturers as being the most appropriate source of expertise in specialised areas and that the requirement for suitable hazard identification and risk assessment ensures appropriate safety measures are incorporated into the product. “Under this approach, the relevant legislation (eg The National Standard for Plant and enacting legislation in each jurisdiction) would move towards full performance-based guidelines, with references to appropriate standards and guidance notes. See TMA Draft: Industry Code of Practice for Manufacture and Supply of Front end loaders for use on agricultural tractors in Australia Contains a mixture of precise specifications and standards, and general goals.

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11 A Context for Design of Appropriate and Effective Standards Obviously the law does not operate in a vacuum, and regulations which ignore the social and physical context of their subject are likely to be inappropriate and therefore ineffective. To illustrate this point, we explore a sample of important issues for regulation on Australian farms: child safety, changing technology, and remoteness of farms. 11.1 Child Safety on Farms Child safety on farms is an issue of very considerable concern not only in Australia but also internationally. The number of accidents involving young people and farm machinery is very high. Approximately 20% of all deaths on farms in Australia are children aged 0-14 with drowning, ag-bike accidents, and farm machinery accidents the most common.206 In the United States an estimated 30,000 children under 20 are injured and 300 children die per year in farming accidents, making them twice as likely to die than urban children. 207 Children under 16 years comprise 20% of all farm fatalities, 90% of these being male. The three primary agents responsible have been identified as tractors, farm machinery and livestock. Tractors are the leading cause causing 50% of all farm fatalities. Machinery is the second cause with children caught in grain augers or PTO shafts being common. Similarly in New Zealand, over the last decade accidents on farms have been responsible for the most fatalities of people under the age of twenty in work-related accidents Thirty five per cent of these have been of children under the age of five. Our own research confirmed the importance of this issue and the extent to which children are currently exposed to a very high and unacceptable level of risk. For example, it was not uncommon for respondents to tell us of farming children driving tractors and ATVs from a young age. One interviewee's neighbour (a city hobby farmer) had just bought his 9 year old daughter a new ATV while another described her early experience as follows:

“I would have been about 8 or 9 and my sister about 5 or 6… we used to drive the tractor while Dad stood on the back tray to throw hay to the cows.. we yelled to dad when we approached the fence and hit the brakes - one pedal each… dad would climb over steer the corner and continue.. there was no ROPS, but we were probably only doing about 4 km per hour though.”

While another began driving a tractor at age 8 while her father stood on the tow bar to throw feed to the cattle, with her and her sister (age 6) sharing a brake pedal each Such research as has been conducted on the likelihood of young workers having accidents on farms, suggests the importance of: children operating tractors and other machinery; whether children have the mental development to identify; assess and react adequately to hazards in the working environment of a farm; and whether their physical development enables them to operate a machine safely208. There are particularly disturbing statistics in states like Queensland, such as there being an increased injury risk associated with child operators due to the fact that half the tractors driven by children under 15 years did not have ROPS.209 In Australia, while general duties of care under the principal OHS Acts do extend to non-employees in a workplace, such as children and young persons, the very high incidents of accidents involving this group suggests additional measures need to be devised. In this context, the creation and continuing

206 Fragar LJ, Page AN, Gray L, Franklin RC “Child Safety on Farms: A Framework for a national strategy in Australia” Farm Injury Prevention 99.Proceedings Papers. 207 Ibid. 208 See Hawthorn S “Why young workers are more likely to have accidents on farms” Farm Injury Prevention 99 Conference Paper. 209 Ferguson K “Defining tractor rollover injury exposure risk on Queensland Farms” Farm Injury Prevention 99.

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implementation of a Framework for a National Strategy in Australia for Child Safety on farms210, is to be warmly welcomed. One of the particular virtues of this approach is its recognition that the problem of child safety on farms is multi-dimensional, that solutions will require input from a wide range of parties, will need to be long-term and appropriately resourced and capable of being initiated or incorporated into existing/ongoing programs. (see box below). Components of framework for National Strategy on Child Safety on Farms

1. Establish a national framework for action

2. Identification of key hazards for children on farms

3. Identification of effective strategies to control key injury risks

4. Identification of educational needs and development of resources for children, parents and teachers 5. Identification and development of flexible child care options

6. Promotion of strategies to farm parents, farm managers, schools, service providers and others

7. Identification of further research needs

8. Evaluation of the national strategic plan.

What sorts of initiatives are likely to be most appropriate and effective in protecting children and young persons from the danger associated with farm machinery? This is an issue in relation to which there is only very limited empirical evidence, and where “there is very little published data on the efficacy of interventions to address the causal factors underpinning these injuries”.211 Nevertheless, a number of tentative suggestions can be made. Before doing so it is important to recognise that this is an area where traditional regulatory strategies have only limited value. For example, while it would be possible to legislate to ban persons below a certain age from driving certain machinery (tractors or ATVs) it would be difficult in social and economic terms for many farmers to comply with them. Commonly the entire family unit is involved in farming and a prohibition on the involvement of children and young persons would likely simply be ignored. For example, in the UK, although it has been illegal to carry children under 13 on tractors since 1957, and despite the existence of Prevention of Accidents to Children in Agriculture Regulations 1998, fatalities are still often due to children being passengers on tractors. Our general view is that, given the impracticality of inspection and enforcement, particularly in remote areas, it would be wiser to focus on a range of other preventative strategies. Nevertheless, the law has a moral force, even when it is not practicable to enforce it fully, and a balance must be achieved between protecting the economic interests of farmers in being assisted by junior family members, and entrusting a vehicle to children at a developmental age where the risks are extremely high. it would be wise to consider imposing a minimum age for the use of tractors and ATVs, which seeks to achieve this balance, as is the case in some Canadian jurisdictions, as well as the UK.

The principal such strategies are educational and focus on two targets: children and young persons directly , and/or farmers and related personnel. In terms of the former, it is worth noting that around 25% of Farmsafe Queensland work is currently focussed on children on farms and the uniqueness of the farm as a workplace. Current issues include: unsupervised shearers’ children and farmer's liability for children while a parent is working. Workcover in Victoria conducts Child Safety Days in rural schools, involving farm walks and farm visits to educate children. New South Wales Workcover is designing a rural website for farmers and school children. In the UK also, there has been a recent focus on children directly, with a campaign focusing on educating children on risk awareness, an interactive

210 Fragar LJ, Page AN, Gray L, Franklin RC “Child Safety on Farms: A Framework for a national strategy in Australia” Farm Injury Prevention 99.Proceedings Papers. 211 Ibid.

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magazine aimed at 5-9 year olds “Stay Safe on the Farm”212 and a further booklet aimed at farmers which provides practical guidance on reducing risks to children and young persons on the farm213. In New Zealand, prevention strategies have included training for high school children on driving ATVs. In terms of information and education targeted at farmers, the US approach has been to produce information sheets containing recommendations for action which emphasise: always know where family members are when moving machinery; never leave keys in the ignition of unsupervised tractors; do not allow passengers on tractors and ATVs; discuss potential hazards with children; ensure loose clothing is worn; create restricted zones; and set a good example for children (and general advice regarding ROPS, seatbelts, and guards). There is also a new education regime aimed entirely at children called, “Farm Safety - 4 Just Kids.” Somewhat similarly, a campaign has been launched in the UK to reduce deaths and injuries to children on farms,214 again focusing (in part) on adults responsible for children on farms. A new guidance leaflet has been produced: “Preventing Accidents to Children on Farms” The Chief Inspector of Agriculture for the HSE stated “although child deaths in Agriculture have declined over the years to a total of four in 1999/2000, the figures and the circumstances are still unacceptable. This campaign, consisting of press advertising, guidance, inspections and enforcement where necessary, is another step towards our aim of eliminating deaths and reducing injury.” The provincial governments in Canada also produce guidance information aimed at farmers on the issue of child safety. For example, Manitoba’s “Good farming is no accident Guides” recommend practical ways for “farmproofing your child”215 such as: leading by example, restricting areas, not using machinery rides as treats or rewards, use protective devices, and fully asses a child's ability to perform tasks - both physically and mentally, and discuss health and safety routinely.216 (See child ATV statistics in next section). Summary and recommendations Statistics suggest that children and young persons are at an unacceptably high risk of farm accidents and that a disproportionate number of fatalities are related to use of farm machinery and in particular to vehicle use. Traditional regulatory strategies may have limited value in this context, given the difficulties of inspection and enforcement. Nevertheless, the law has a moral force, even when it is not practicable to enforce it fully, and a balance must be achieved between protecting the economic interests of farmers in being assisted by junior family members, and entrusting a vehicle to children at a developmental age where the risks are extremely high. It would be wise to impose a minimum age for the use of tractors and ATVs, which seeks to achieve this balance, as is the case in some Canadian jurisdictions, as well as the UK. However, the main policy focus should be on information and education campaigns directed at two discrete audiences: farmers themselves and/or children and young persons. Guidance leaflets with recommendations as to what precautions to take in relation to children, have and should be the most prominent mechanism used to target farmers. For children, the preferred approach is campaigns focusing on educating children directly on risk awareness and training for high school children on driving ATVs. The lessons learned from the “Giddy Goanna” approach to educating children from 2-12 may have particular virtue in this context. 217

212 “HSE launch new Child Safety in Agriculture Campaign” Press release E095:00- 16 June 2000. Health and safety Executive, UK. 213 Preventing Accidents on farms Health and Safety Executive, HSE Books, March, 2000. 214 “HSE launch new Child Safety in Agriculture Campaign” Press release E095:00- 16 June 2000. 215 “Farm safety for Children” Good Farming is No Accident - A Guide, see http://www.gov.mb.ca/ safety/publicat/agricult/farm001.html. 216 “All-terrain vehicles are not toys” Farm Family Health Vol8, No1, Spring 2000. 217 Brown PM, Harding P, and Alexander CM “Giddy Goanna: A Unique and Entertaining Approach to farm Injury Prevention for Children and Their Families” Farm Injury Prevention 99.Proceedings Paper.

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However, beyond all else, such initiatives must be located within an overall strategic framework. Such a framework is now being developed by Farmsafe Australia in partnership with industry and government agencies in terms of the evolving National Strategy for Child Safety on Farms. 11.2 Changing Technology Many farmers interviewed, reported that the All Terrain Vehicle or “Four wheeled Bike” (ATV) was more convenient for many uses and had to some extent replaced the use of small tractors. However, there is no equivalent regulation of ATVs in Australia as there is for tractors, notwithstanding the popularity of theformer.218 Research done by the Victorian Workcover Authority showed that in Australia while the major group killed in machinery fatalities overall was those over 60 years old,219 the most at risk group for ATV injuries is adolescent or teenage boys. This suggests that a shift in regulatory focus may be required, which recognises the particular hazards involved with ATVs, not least because such vehicles involve “a compromise design - performance and versatility are achieved at the cost of stability.”220 Such a focus would include a prescribed minimum age as recommended in the previous section. It would also closely track British initiatives to design a ROPS for ATVs. The importance of targeting ATVs was reinforced by many of our interviews. The following extract from an interview is representative of the attitude of many farmers and of the hazards they face:

“I now do most of my work on the four wheeler instead of a tractor … I have rolled the bike once - for no logical reason, I have driven up that slope many times… there is a wristband that is attached to the ignition to cut off the power source if you thrown, but I never wear it.… ATVs have a little sticker on them saying 'I person only' but it is common for farmers carry family members.”

Another farmer stated “I've rolled the ATV. My daughter rolled the four-wheeler when she was young, but it had a kind of ROPS on it - I had put on a kind of frame to carry implements, but it acted as a ROPS.” The problem of ATVs has been recognised in the US for some time. From 1982-1998, across the states 2,900 people have died in ATV accidents, with 40% of the victims under 16 years of age, and 20% under 12 years. The fatality rate did decrease in 1987 after manufacturers discontinued production of 3 wheeled ATVs, but the number of deaths “continues to increase steadily.”221 Tactics adopted to address the problem have included providing information sheets with statistics and horror stories; and the National Safety Council has made recommendations including that children under 12 should not drive ATVs, and that passengers must never be carried. There is also an ATV Distributors' Safety Hotline. A similar approach is used in the UK. There the Health and Safety Executive distributes information sheets containing safety facts and legal requirements. For example - professional training as required under the Health and Safety at Work Act 1974 and the Provision and Use of Work Equipment Regulations 1998. The latter require roll-bars where there is a risk of the machine rolling over. Recommendations for future action also include protective clothing such as gloves, goggles, and helmets to British Standard 6658:1985, as 22% of serious ATV injuries in the UK involve head injuries.222

218 See Alford RL “The Changing role of ATVs in the Rural Workplace” Farm Injury Prevention 99.Proceedings Papers. 219 Day and McGrath op. cit. 220 Alford. Op. cit. 221 “All Terrain Vehicle (ATV) Safety” AgriAction Information Sheet (IS-99-06) High Plains Center for Agricultural Health and Safety, USA. 222 “Safe Use of all-terrain vehicles (ATVs) in agriculture and forestry” Health and Safety Executive, Agriculture Information Sheet No 33, July 2000, UK

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There are also some disturbing statistics noted in Canada. For example in 1996, 440 children were admitted to hospital due to accidents with ATVs. In three of these incidents the driver was under 5 years old, and 32 cases where the driver was between 5 and 9 years. The minimum age required to drive an ATV varies in each province - in some provinces there is no legislated age, while in others it ranges from 12-16 years. Most provinces require helmets and protective clothing to be worn.223 ATV safety has also been an issue of great concern in New Zealand in recent years. A press release in 1997 stated that tractors and ATVs accounted for three-quarters of the death toll on farms.224 By 1998, it was reported that ATVs “killed more New Zealanders at work than anything else, accounting for 7 of the 44 workplace fatalities,”225 and consequently ATVs were the initial focus of Worksafe week 1999. ATVs remained the “number one killer of farm workers and their families” in 2000. It was stated that “while an ATV is a valuable workhorse in farming operations, everyone associated with their use must realise the potential dangers involved in their use.”226 Strategies for addressing this problem in New Zealand have involved: the formation of partnerships between OSH and rural groups to focus on accident prevention in the

“Together to Zero: Eliminating Workplace Deaths Strategy” (launched in 1997) with the theme of Worksafe Week being “Play your Part” involving ATV training;

a new Approved Code of Practice for Operator Protective Structures on Self-Propelled Mobile Mechanical Plant was launched to provide guidance to employers about the practical steps of reducing machinery roll-overs;227

making safe operation of ATVs a key area in the national strategy, with new resource kits being

provided to farmers identifying critical factors to consider before commencing ATV use. These factors include skill of user, towing, terrain, maintenance and passengers.

“As a first step towards developing a best practice guideline for using ATVs safely we went to the

main users of ATVs, the farmers, to gather their hands-on knowledge of the dangers and pitfalls of using what can be very dangerous machines”228 The key messages to emerge were that speed and terrain were the major factors, and that training for novices and restrictions on ATV use by young people were required. The majority of those interviewed stated the best way to get farmers to use protective equipment was through seminars and training courses, specifically with information in video form, or with photos and diagrams.

Summary and recommendations All Terrain Vehicles (ATVs) have to a significant extent replaced the use of small tractors. However, there is no equivalent regulation of ATVs in Australia as there is for tractors, notwithstanding the popularity of the former. ATV use is a major source of death and serious injury on farms, not only in Australia, but also internationally. A shift in regulatory focus may be required, which recognises the particular hazards involved with ATVs, not least because such vehicles involve a compromise design involving substantial instability. Such a focus would include a prescribed minimum age as recommended in the previous section. It would also closely track British initiatives to design a ROPS for ATVs. It might also be appropriate to

223 “All-terrain vehicles are not toys” Farm Family Health Vol 8, No1, Spring 2000. 224 Press Release: “Farming: New Zealand's deadliest industry” Occupational Safety and Health Service, 9 October 1997, see http://www.osh.dol.govt.nz/touch/press/1997/PR971009.html 225 Press release - “OSH calls for Farmers to think 'safety'“, Occupational Safety and Health Service, 4 October 1999, see http://www.osh.dol.govt.nz/touch/press/1999/PR991004.html 226 Press release - “Dangers of ATVs” Occupational Safety and Health Service, 31 May 2000. 227 Press Release - “New safety Measures target Machinery Roll-over deaths” Occupational Safety and Health Service, 17 March 1999, see http://www.osh.dol.govt.nz/touch/press/1999/PR990317.html 228 Charles Pitt, OSH Business Advisor “ATV injuries and Deaths linked with speed and terrain” 28 October 1998, Occupational Safety and Health Service, see http://www.osh.dol.govt.nz/touch/press/1998/PR981028.html

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contemplate training for novices (as is required in the UK). The latter also require roll-bars where there is a risk of the machine rolling over, and contemplate requiring protective clothing such as gloves, goggles, and helmets (here we note that New Zealand farmers were equally divided on the issue of mandatory helmets). There should also be a continuing focus on the provision of information sheets emphasising the dangers, reinforced by statistics and graphic stories of particular incidents, and a statement of legal requirements (eg in relation to passengers). Particular consideration should be given to certain aspects of the current New Zealand approach, including: the formation of partnerships between OSH and rural groups to focus on accident prevention and incorporating ATV training; the introduction of a more specific Code of Practice to provide guidance to employers about the practical steps of reducing machinery roll-overs; and the provision of resource kits to farmers identifying critical factors to consider before commencing ATV use. 11.3 Remoteness of farms There is often a lack of available information for people in remote areas where certain specialist skills and services are not available and where redesign and alteration of farm machinery could be undertaken in ignorance of their legal responsibilities under the OHS legislation. Queensland is a good example of a jurisdiction where there is a dispersed rural community that is hard to target. For instance, 84% of Queensland is remote, as compared with other states such as 11% of Victoria where implementation of certain schemes has been more successful. Also, the total area of agricultural establishments in Queensland is 14 times that in Victoria (the average size of establishment in Queensland is 4876 hectares as compared with 348 hectares in Victoria).229 Generally in Queensland the major strategies for farm safety have included education and training, awareness raising, and legislation aimed at creating an environment for change. Implementation of these strategies has had a focus on a wide range of hazards through extension services, activities and field officers. There has been a strong emphasis on forming coalitions with other service providers.230 However, it is important to note that implementation of the concepts in the advisory standard for plant can be problematic due to the remoteness of many of the end users, and their lack of accessibility by government agencies. As noted, enforcement and compliance in remote locations is problematic. There are severe resource and budget limitations and the large majority of farms may never be visited by an inspector. The problems of educating remote farmers, (notwithstanding good networks) are exacerbated by the fact that there are now fewer people farming, with the result that those who are left work longer, have less relaxation time, experience a greater degree of stress, and have less time to do workshops or otherwise inform themselves about best safety practices or their legal requirements. Remote farmers however, are excellent at taking up available technology, and in any future OHS awareness campaigns or educational schemes, the internet will play a crucial role. Recent work by the National Farmers Federation in Australia has found “internet usage in rural and regional areas almost doubled between 1999 and 2000 from 10% to 19%, according to the Australian Bureau of Statistics. And 50% of on-farm house-holds now own a computer - the same proportion as in metropolitan homes.”231 By early 2001, 30,000 rural Australians were benefiting from “cheaper and vastly improved” telecommunications services. NFF President Ian Donges emphasised that: “reliable, affordable and local call access to an Internet service provider was vitally important as many rural 229 A Further issue in QLD - Fatigue Management legislation implemented 1998 applicable to canegrowers - industry guidelines have been developed to help employers and employees meet these obligations. Example of penalty compliance: Trost GJ and Poggi PJ “Fatigue Management Legislation and its implications for the sugar Industry Field sector” Farm Injury Prevention 99. Proceedings Papers. 230 Lesley Day and Keith Ferguson “A Tale of two states: Farm Injury Prevention in Queensland and Victoria” Farm Injury Prevention 99. Conference Paper. 231 “Telecommunications win for Rural Customers” NFF Press release NR 10/2001, 14 February 2000.

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dwellers had been unable to take advantages of basic on-line services, such as internet banking and farm business information.. because their phone lines were dropping out for days at a time.”232 Similar problems have been addressed in remote parts of Canada, where the enthusiasm for internet resources is also increasingly rapidly. The Canadian government has established the “Canadian Rural Partnership” and recently published some success stories in “Rural Canadians on the Internet.”233 Demand for electronic information from the Agriculture and Agri-food Canada's Electronic Information Service (ACEIS), is increasing at a rate of 200% per year.234 ACEIS went on-line in February 1995 offering 22 categories of information, and is currently accessed 35,000 times every day. There are specific websites in Canada devoted to farm safety235. These sites target both farmers and their families and contain various forms of safety information. With improvements in telecommunication quality and cost, and the enthusiasm for remote rural communities to utilise internet resources, websites may be used for more than just checking “the weather and the bank account” and become a prime target (resource) for improving OHS regulatory awareness in remote areas of Australia. Summary and recommendations There is often a lack of available information for people in remote areas where certain specialist skills and services are not available and where redesign and alteration of farm machinery could be undertaken in ignorance of their legal responsibilities under the OHS legislation. Direct inspection is impractical in such a context and implementation of conventional extension services can be problematic due to the remoteness of many of the end users. The problems of educating remote farmers are exacerbated by the fact that those farmers who are left have increased workloads and less time to devote to self-education. Remote farmers however, are excellent at taking up available technology, including the internet. With improvements in telecommunication quality and cost, and the enthusiasm for remote rural communities to utilise internet resources, websites should be used as a prime resource for improving OHS regulatory and machinery safety awareness in remote areas of Australia, along the lines of the Canadian model. Cost-effective strategies for increasing internet use by farmers include further subsidies on telephone charges or on computer purchase and related costs.236.

232 Ibid. 233 “Rural Canadians on the Internet” Canadian Rural Partnership, Government of Canada, see http://www.rural.gc.ca/internet/story4_e.html. 234 “Farming, ranching and the Internet” see http://www.agr.ca 235 These include the Farm and Ranch Safety and Health Association of British Columbia - www.farsha.bc.ca, the Atlantic Canada Farm Health and Safety website - www.virtuo.com/farmsafety, and the bilingual Canadian Farm Safety Information Sources - www.fsai.on.ca. 236 Note that a cyber café has been set up for farmers in Cobar under the auspices of the Regional funding under The Commonwealth Rural Partnerships Programme.

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12: Problems relating to Interpretation of Statutory Wording As discussed in Part One, there are various contentious issues regarding interpretation of machinery legislation and regulation. The critique of “when properly used” 237 The general duties imposed by the OHS Statutes on designers, manufacturers and suppliers etc, outlined above, tend to be qualified by two expressions: that of practicability or reasonable practicability (a defence in NSW and Queensland) and “when properly used”. This latter expression severely reduces the scope of the duty owed by the designer, supplier, importer or manufacturer to design, test, examine, research and provide information to users so that it is safe and without risk to health when properly used. The expression “when properly used” addresses a legitimate concern of duty holders. It was probably included to prevent an upstream duty holder from liability for risks to workers arising from the misuse of the plant or substance at the employer’s workplace. The upstream duty holder can argue that the plant or substance was safe when it left the duty holder, and only gave rise to risks to workers when in the employer’s workplace, when it was used in a manner not intended by the upstream duty holder. This concern is easily met by the existing requirements of (reasonable) practicability or reasonable precautions and proper diligence, discussed above. It is argued, further, that there are cogent policy reasons for removing the expression “when properly used” and simply relying on practicability as the qualification for the duty. It is quite foreseeable that plant and substances will not be properly used, and it may be quite feasible for the designer, manufacturer or supplier to take steps in the manufacture or supply of the plant or substances to ensure that the plant or substances are safe and without risks to health even when the plant or substance is not properly used (an approach taken in s 19(1)(c)(ii) of the OHS(CE)A (Cth)). To take the simplest example, the manufacturer can specify that when operating a machine an employee must not get her hands near the trapping space of the machine (that is what is meant by “proper use”). This suggests that even without a guard, the machine is safe when properly used (see Herless Pty Ltd v Barnes238, 239Yet traditionally the employer (or occupier) has had an absolute duty to guard the machine, and to do everything possible to avoid injury even to a careless employee (see for example, Dunlop Rubber Company v Buckley240). It seems strange that such a duty, qualified by reasonable practicability, is not imposed upon designers, manufacturers and suppliers. If the employer or employee had subsequently modified the machine after it was supplied of course the manufacturer or supplier could argue that at that stage the machine was out of its control, and that all it could (reasonably) practicably do was to design, test and manufacture the machine to be as safe as was reasonably practicable, and to provide information about its proper assembly and use. This critique is consistent with the “designed-in safety” argument outlined in the previous pages of this Report. The “when properly used” qualification removes incentives from designers to design plant or equipment that is as safe as it might possibly be. This argument is bolstered by the provisions of the various Plant and Hazardous Substances regulations, which, as shown above, require upstream duty holders to conduct risk assessments and to introduce control measures to remedy identified risks. These proactive duties to identify and control risks require upstream duty holders to do all that is practicable to identify and control foreseeable risks. These duties are undermined by the “when properly used” qualification in the general duties imposed upon the same duty holders (with the exception of the WA OSH Regulations ss 4.23 and 4.28). 237 Safe Design Project op. cit. p37-38. 238 Industrial Relations Commission of Victoria in Court Session, Garlick AP, (unreported), 26 September 1986. 239 Discussed in Johnstone 1997 op cit,:265-266. 240 (1952) 87 CLR 313.

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However, see the implications of the recent decision in WorkCover v Arbor at 12.1 below. The concepts of “reasonably practicable” and “practicable”241 The general duty contained in all of the Australian OHS statutes imposes an absolute duty on the employer and obligation bearers, but in all statutes (apart from the WHS (Qld)), this duty is qualified by the expression “reasonably practicable” or “practicable” (see Table 4 below). Similarly, in the UK, the duties imposed by the HSW Act and subsidiary legislation imposed thereunder, are limited by the phrase “so far as is reasonably practicable”242. A number of factors are taken into account to determine what would be reasonably practicable:

Nature and severity of the hazard;

Knowledge of severity of the hazard;

Knowledge of solutions;

Availability of solutions;

Common standards of practice; and

Cost of solutions.

Case law has held that the overriding question is whether, as a question of fact, it was reasonably practicable to take any precautions other than those that had been taken.243The test is the objective standard of the reasonable person in the position of the duty holder. The existence of a universal practice is evidence, but not conclusive evidence, that it was not reasonably practicable to use some other and safer method (Martin v Boulton and Paul (Steel Construction) Ltd244). As Table 4 below indicates, the definition of “practicable” in the statutes that use that expression is substantially the same as the meaning given to “reasonably practicable” by the courts. In all of the Australian jurisdictions, apart from New South Wales and Queensland, the onus of proving practicability is upon the prosecutor. Section 53 of the OHSA(NSW) sets out a defence of reasonable practicability, and a defence that the commission of the offence was due to factors over which a person had no control. The defendant has to prove the elements of these defences on the balance of probabilities (the civil onus) (Carrington Slipways Pty Ltd v Callaghan.245 In the WHSA(Qld), sections 26 and 37 provide that when there is in force a regulation covering the risk, it must be followed to comply with the general duty. A person must follow relevant advisory standards; or adopt another method that identifies and manages exposure to risk. Where there is no guidance in the regulations or advisory standard, the person must take reasonable precautions and exercise proper diligence to ensure the obligation is discharged. It is a defence for the duty holder to show (on the balance of probabilities) that she or he followed the relevant regulation or advisory standard, or, where there is no regulation or advisory standard about exposure to a risk, that she or he chose any appropriate way and took reasonable precautions and exercised proper diligence to prevent the contravention. Reasonable precautions has through s 22 of the Act, been defined to mean: identify hazards;

assess risks that may result because of the hazards;

241 Safe Design Project op. cit.p34. 242 (Fink 1997: 4 243 Johnstone 1997 op cit:204. 244 [1982] ICR 366 (QB).

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decide on control measures to prevent or minimize the level of the risks;

implement the control measures; and

monitor and review the effectiveness of the control measures. Proper diligence has been defined to mean: that you have in place a system of supervision to ensure that the control measures are being followed. Summary and recommendations As discussed in Part One, there are various contentious issues regarding interpretation of machinery legislation and regulation. In particular, the expression “when properly used” addresses a legitimate concern of duty holders. It was probably included to prevent an upstream duty holder from liability for risks to workers arising from the misuse of the plant or substance at the employer’s workplace. The upstream duty holder can argue that the plant or substance was safe when it left the duty holder, and only gave rise to risks to workers when in the employer’s workplace, when it was used in a manner not intended by the upstream duty holder. This concern is easily met by the existing requirements of (reasonable) practicability or reasonable precautions and proper diligence, discussed above. It is argued, further, that there are cogent policy reasons for removing the expression “when properly used” and simply relying on practicability as the qualification for the duty. It is quite foreseeable that plant and substances will not be properly used, and it may be quite feasible for the designer, manufacturer or supplier to take steps in the manufacture or supply of the plant or substances to ensure that the plant or substances are safe and without risks to health even when the plant or substance is not properly used (an approach taken in s 19(1)(c)(ii) of the OHS(CE)A (Cth)). To take the simplest example, the manufacturer can specify that when operating a machine an employee must not get her hands near the trapping space of the machine (that is what is meant by “proper use”). While noting that the worst anomalies caused by the phrase ‘when properly used’ have been addressed by WorkCover v Arbor (Section 12.1 below), to the extent it is followed in future, we nevertheless believe a statutory solution would provide greater certainty to all concerned. Accordingly we recommend: The term 'when properly used' which permeates most Australian statutes concerning design and

manufacture of plant, be removed. It has no useful purpose and (at least as interpreted prior to WorkCover v Arbor) seriously conflicted with the more recent risk assessment approach. The probability and consequences of improper use are matters which should necessarily be included in any risk assessment. To exclude it is antithetical to that process and provided (at least prior to WorkCover v Arbor) an undesirable loophole which seriously weakens that approach.

it also made it possible (at least prior to WorkCover v Arbor) that suppliers and other obligation

bearers could make available instructions and other information as to ‘proper use’ with which it is almost impossible to comply and thereby avoid the effect of the statutory provisions’

the information requirements appear to be too narrow, for example because they do not extend to

the supply of additional information as it becomes available, or as to proper means of storage or disposal.

245 (1985) 11 IR 467.

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12.1 WorkCover v Arbor Products In May 2001, at a time when this report was about to be finalised, the New South Wales Industrial Relations Commission released its decision in WorkCover Authority of New South Wales v Arbor Products International (Australia) Pty Ltd246. The case has important implications in terms of the suppliers’ responsibility under OHS legislation and the interpretation of the phrase ‘when properly used’ in particular. The facts were that the defendant had supplied the Yass Shire Council with a mobile wood chipping machine. A casual labourer employed by the Council had operated the machine at a Waste Transfer Station operated by the Council. Both his arms became caught in the machine and he lost his left arm to just below the shoulder and his right arm to just above his elbow. The defendant was charged with supplying a machine for use at work by employees of the Shire Council in contravention of S 18(2) (a) of the Occupational Health and Safety Act (NSW) 1983 in that they did fail to ensure that the machine was safe and without risk to health when properly used. By a 2-1 majority the Commission reversed the judgment of Marks J. They found that, on its proper construction s18(2) (a) is not intended to provide protection to a supplier of plant which is unsafe or poses a risk to health by allowing, for example, a defence that unsafe plant was not used according to the supplier’s operating manual or a defence that unsafe plant was not ‘diligently’ maintained (in circumstances where the supplier knew the machine was to be used for an improper purpose). Rather, the central issue was whether the plant supplied for use at work was safe and without risks to health. If the answer to that is ‘no’ then, prima facie, the supplier has committed an offence under s 18(2) (a) of the Act. If the answer is in the affirmative but a person uses the plant improperly or in a manner for which it was not designed then the supplier, if charged with an offence, may rely on the defence of ‘when properly used’. The majority felt that Marks J had given too much weight to the provision by the defendant of a manual and training to the Council and its employees. In their opinion the machine in question was inherently unsafe. It was relatively easy for someone to reach into the machine and come into contact with the feed rollers; it was relatively easy to bypass the safety mechanisms. Moreover, the duty owed is owed not only to the careful employee but also to the hasty, careless, inadvertent, inattentive, unreasonable or disobedient employee in respect of conduct which is reasonably foreseeable. Ultimately, the Commission concluded that the qualification (when properly used) is “intended to limit liability of a supplier where the plant which is supplied is safe (in the sense that the safety is ensured) but such plant becomes unsafe because of misuse (for example, the willful misuse of a machine by removal of a guard). It was plainly not the intention of the legislature to allow, by the use of that phrase , a limitation in the obligations arising under the sub-section where the defendant had, for example, provided an instruction manual or advice on how to use the plant supplied or had provided training for employees the proper use of the plant at work where the plant was unsafe”.

246 [2001]NSW IRComm 50.

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13. Conclusion The issue of farm machinery safety is both complex and challenging. No single policy instrument is likely to be wholly effective in dealing with it. Nevertheless, a number of strategies have been identified which in combination are likely to prove much more effective than any one operating in isolation. We identified a range of duty holders at each stage in the supply chain, and appropriate legislative duties that are necessary in relation to them. However, it was also recognised that in some cases (as with designers who are located overseas) the reach of the legal system is very limited, and the use of both international and Australian standards is likely to prove crucial in respect of some of these issues. But in many other respects the law can make a substantial contribution to improving OHS providing it is appropriately designed and effectively implemented. The general thrust of our argument has been that Robens-based approach of performance standards supported by codes of practice and guidance notes is the correct one. This is because of the greater flexibility it provides in most circumstances and because a stricter specifications standards approach would, for the most part, be both impractical and inhibit safety innovation. Nevertheless, where duties can be clearly defined and the consequences of failure to comply involve serious risk, this does not preclude the introduction of more specific standards underpinned by the enforcement ‘teeth’ to make them effective. We noted a number of serious deficiencies in the current approach, not least being lack of uniformity (despite the introduction of National Standards), a failure to remove old-style prescriptive legislation from the statute books, and the failure to develop the necessary codes and guidance notes to a sufficient extent to underpin the broader general duties owed by in relation to farm machinery. More specific solutions were identified in relation to specific problems such as are involved with child safety, changing technology and remoteness of farms. In terms of enforcement, a mixed approach is recommended, with advice and persuasion being the preferred strategy but escalating to the use of administrative notices, on the spot fines and ultimately, prosecution in extreme cases to give credibility to the overall ‘enforcement pyramid’. Beyond all else the virtues of pursuing an optimal policy mix were emphasised. For while education, training and information play crucial roles, so too, should positive incentives, and, in extreme cases, prosecution. The success of the ROPS scheme exemplifies the benefits of a combination of instruments: of subsidies used in conjunction with strengthened partnerships between organisations, underpinned by regulation and publicity, and culminating in demonstrable success in terms of improved OHS awareness and most tangibly, substantially reduced fatalities.

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14. Recommendations

National Uniformity The appropriate body through which to pursue further standardisation initiatives within

cooperative federalism is NOHSC, which has the appropriate consultative tripartite mechanisms and processes.

The National Standard for Plant is potentially the most effective mechanism through which to facilitate national uniformity and rationalise the existing body of plant regulations but can only achieve positive results if it is consistently implemented. All jurisdictions (working through NOHSC) should give priority to ensuring such consistency.

All jurisdictions, working through NOHSC, should develop a list of comparable international design standards for plant on a standard by standard basis, with the aim to accept only best practice international standards.

Manufacturers, Designers, and Importers NOHSC should provide leadership in addressing the numerous unresolved problems concerning

the role and regulatory responsibilities of manufacturers, designers and importers, because it already has the appropriate consultative procedures in place, because it is tripartite and because it brings in all the jurisdictions and players together.

Suppliers A greater emphasis should be placed on educating suppliers about their legal duties under

regulation and what is necessary to discharge them adequately. Farmsafe Australia, which already has very considerable experience in information and education strategy and delivery, is the appropriate body to take on this role.

A concerted effort should be made to provide suppliers with practical guidance on what is required of them in manner that is readily accessible and meets their needs, primarily through the development of a Code of Practice for Machinery Dealers. A Working Group of the Major Stakeholders should be convened by NOHSC and funded by the Federal Government, to facilitate this.

There is currently a hole in OHS legislation in relation to second-hand tractors imported from Asia. Each jurisdiction should address this problem through legislative amendment.

Greater efforts (including enforcement where necessary) should be made by inspectorates in each jurisdiction to ensure that suppliers are aware and accept their increased level of responsibility in relation to modified equipment.

Consideration should be given by state regulators to providing economic incentives such as subsidies, for improving highly dangerous second hand equipment.

Duty holders at the workplace Education and Training

A coordinated and strategic approach to a variety of important education and training issues is essential. Here, the activities of Farmsafe Australia and the Australian Agricultural Health Unit have been and will continue to be of critical importance. Farmsafe, through its national committees and its industry and government partners, should continue to take steps to identify OHS best practice and provide the training and tools to implement a risk management approach to farm health and safety.

Incentives

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consideration should be given to extending the successful ROPS incentive strategy to other

serious safety hazards. For example, Victoria is working on developing a similar scheme regarding Safe Access Platforms on tractors. The Victorian experience should act as a ‘pilot’ scheme, on the basis of which it can be determined whether, or to what extent, to extent its application elsewhere.

Regulation and Enforcement

a tiered, or ‘pyramidal’ enforcement policy should be adopted by state regulators, focusing on education, advice and persuasion, but gradually escalating to a range of administrative and other sanctions. Prosecution should be reserved for a small range of situations of an egregious nature, where deterrence is necessary to send a message to the broader farming community about the importance of taking essential precautions for their own protection and that of their families and associates. Such prosecution may have greater acceptance within rural communities where the offence in question is specific rather than general.

Comparison of Specification, Performance and System Based Standards state and territory OHS agencies should continue the process of rationalising and reducing the total

number and complexity of regulations; the weight of specification standards should be substantially reduced, such standards being reserved

for exceptional situations: for example, where there is a high degree of risk and there are specific controls which are applicable to all circumstances where the risk occurs which are essential to control the risk;

in most circumstances performance and process standards are the most appropriate ways of providing guidance as to how to comply with the general duty requirements. To preserve flexibility of response, such guidance can often be provided in codes of practice and technical guidance notes rather than in regulations;

small employers, in particular, often require quite specific guidance as to what is required of them. Such guidance should continue to be given, but this is most appropriately done through technical guidance documents rather than through legally binding and prescriptive specification standards;

however, in cases where there is a clear danger and a specific and known solution (as with ROPS) then there is no in-principle reason against the introduction by each jurisdiction, of specific legislation with teeth, rather than merely guidance notes;

government OHS inspectors require greater training in order to effectively administer performance than specification standards because of the greater discretion involved;

the duty of care on manufacturers and suppliers to disseminate information should be broadened so that it explicitly requires them to include the information contained in any relevant codes or technical data sheets.

A context for the design of appropriate and effective standards Child Safety on Farms the main policy focus should be on information and education campaigns directed at two discrete

audiences: farmers themselves and/or children and young persons. Guidance leaflets with recommendations as to what precautions to take in relation to children, have and should be the most prominent mechanism used to target farmers. For children, the preferred approaches include campaigns focusing on educating children directly on risk awareness and training for high school children on driving ATVs. Farmsafe Australia remains the most appropriate body to orchestrate such initiatives.

such initiatives must be located within an overall strategic framework. Such a framework is now being developed by Farmsafe Australia in partnership with industry and government agencies in terms of the evolving National Strategy for Child Safety on Farms.

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Changing Technology

ATVs present particular hazards, not least because such vehicles involve a compromise design involving substantial instability. State regulators should introduce a prescribed minimum age, training for novices, require roll-bars where there is a risk of the machine rolling over, and require protective clothing such as gloves, goggles, and helmets.

There should be a continuing focus on the provision of information sheets emphasising the dangers, reinforced by statistics and graphic stories of particular incidents, and a statement of legal requirements (eg in relation to passengers).

consideration should be given to the formation of partnerships between OSH and rural groups focusing on accident prevention and incorporating ATV training; the introduction of a more specific Code of Practice to provide guidance to employers about the practical steps of reducing machinery roll-overs; and the provision of resource kits to farmers identifying critical factors to consider before commencing ATV use.

Problems relating to Interpretation of Statutory Wording The term 'when properly used' which permeates most Australian statutes concerning design and

manufacture of plant, should be removed by each jurisdiction. It has no useful purpose and (particularly as interpreted prior to WorkCover v Arbor) seriously conflicted with the more recent risk assessment approach.

State regulators should extend the statutory information requirements (which appear to be too narrow) to include the supply of additional information as it becomes available.

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