The social context of OHS laws is being poorly handled

Australian lawyer Michael Tooma is mentioned regularly in the SafetyAtWorkBlog, mostly because Tooma is one of the few who consider workplace safety in the broader social context.  In The Australian newspaper on 10 February 2012 Tooma wrote that new work health and safety laws being introduced in Australia present

“…a march … into the traditional heartland of the public safety, product safety and professional liability territory, and it brings with it a criminalisation of what was once an exclusively civil liability domain.  The new laws did not invent this trend, they just perfected it.”

Right-wing commentators would jump on this and declare “nanny state” but it is vitally important to note that this trend of “protectionism”, or the “compensation culture” as described in the United Kingdom, did not originate in occupational health and safety (OHS) laws.  The OHS profession, business operators and workers will need to learn to accommodate and manage this social trend that has been imposed.

Tooma writes that ”

“…we have not had a proper debate about the incursion of the laws into nontraditional areas and its impact on the resources of firms, regulators and ultimately work safety standards.”

The debate may already be over.  WorkSafe Victoria seems to be the main conduit for workplace bullying complaints even though the vast majority of calls do not constitute workplace bullying.  But some of those calls may relate to genuine abuse, exploitation and harassment so where to next, after WorkSafe says “it is not us”?  Government needs to acknowledge this trend that their laws are supporting and prepare by restructuring or, at least, coordinating.

The new OHS laws have taken the workplace well outside the confines of the factory fence or the office building.  There is a certain logic to wrapping the workplace around the worker but there has been little preparation for educating about the public places where that worker goes.  The coffee shop, the footpath, the park bench, the bus, the airport terminal, the fast food restaurant, the beach ……..  All are now exposed to work health and safety laws because work is, or can be, conducted there.

“All it takes is one high-profile disaster, a high degree of culpability by an agency or firm, and the associated public outcry — and you will have all the necessary ingredients for regulatory adventures into expansive interpretations of these laws” [says Tooma].

Australia is on the cusp of such a disaster and the inevitable outcry will be substantial.  Questions will be asked such as why did the OHS regulator fail to act?  Why are Government Ministers exempt from accountability under the OHS laws?  Why did the government agencies not coordinate their responses better?   Why didn’t someone do something to prevent the incident?

These questions are inevitable in Australia, just as they have been in the United States in relation to many major industrial disasters and in the United Kingdom  with rail disasters, Piper Alpha and other events.  But where such disasters have generated new safety laws and regulatory bodies and approaches, Australia seems to have written the laws before the events and is hoping that existing regulatory structures will cope.  They won’t cope and the government will struggle to answer questions that have been complicated by their own actions.