Impairment argument fails to convince Fair Work Commission over unfair dismissal 6

On 16 January 2015 the Australian newspaper (paywall) reported on a Fair Work Commission (FWC) decision involving an unfair dismissal claim by a worker who, as a result of a random drug test, was found to have methylamphetamine in her system “at levels four times above the minimum detection level”.  The company, Downer EDI Mining, sacked the worker, Leah Cunningham, as she presented a hazard to her work colleagues. The newspaper article was called “CFMEU slammed for drugs defence” and the FWC decision is Tara Leah Cunningham v Downer EDI Mining Pty Limited (U2014/1457) (14 January 2015).

The Australian, a newspaper with no love for the trade union movement and the CFMEU in particular, focussed on the apparent absurdity of a trade union, that places such a high priority on workplace safety,  contesting the dismissal of a worker who presented a hazard to herself and others at work.  The newspaper quotes Commissioner Ian Cambridge:

““It was highly regrettable to observe during the hearing that an organisation, which apparently conducts campaigns which strongly advocate safety in the workplace, could contemplate a proposition which, in effect, would countenance a person driving a 580-tonne truck whilst having methylamphetamine in their body at a level four times the reportable cut-off figure,” he said in his decision this week.

“Any realistic and responsible pursuit of the case on behalf of the applicant should have been confined to the development of evidentiary support for the applicant’s explanation for the presence of the methylamphetamine. Indeed, much greater energy and focus should have been devoted to such an evidentiary position rather than any attempt to defend the indefensible.”

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Trade Union Royal Commission affects OHS credibility 3

Whether one believes that the Royal Commission into Trade Union Governance and Corruption is a political witch-hunt or a genuine attempt to clean up a corrupt industry sector, the Royal Commission seems to have revealed an abuse and exploitation of occupational health and safety (OHS) – an exploitation that has received next to no attention. The release of the Commission’s interim report allows for a quick analysis of this situation.

Former Prime Minister Julia Gillard was a particular target of the Commission in relation to a “slush fund” established by her then-boyfriend, Bruce Wilson, commonly referred to as the “AWU affair“.  The “slush fund”, known as the Australian Workers Union Workplace Reform Association, was developed, according to Gillard

“… to support the re-election of union officials who would campaign for workplace reforms including better occupational health and safety.” (Interim Report, Vol 1, page 99)

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Political statements on OHS need to be tested 3

Today Australia’s Employment Minister, Senator Eric Abetz, released a statement concerning a change to the renewal of Comcare licences in the spirit of reducing business red tape but there are two mentions of workplace safety that are curious.

In the statement entitled “Comcare self-insurance licence change“, Senator Abetz has welcomed:

“…a reform that will see businesses save more than $1 million a year which can be reinvested in Work Health and Safety and jobs.”

and states

“This reform will reduce the regulatory burden, remove the cost of licence extensions in years two and four, and push back the costs of audit until year eight as well as ensure safer workplaces.”

The argument on reducing OHS red tape is that the cost savings can be reinvested into occupational health and safety measures but there seems to be no independent evidence to support this belief. More…

Workplace Safety finally gets a mention in the Victorian election campaign (sort of) 4

On 25 November 2014 the Federal Minister for Employment, Eric Abetz, attacked the Victorian Labor Party over its pledge to revoke the Construction Compliance Code which, primarily, deals with industrial relations but also has some occupational health and safety (OHS) requirements.

Abetz states that

“the Victorian Shadow Industrial Relations Minister [Natalie Hutchins] falsely claimed that the Code would not improve workplace safety, despite the numerous improved safety standards that it contains.”

The claim, apparently in the Herald-Sun newspaper, cannot be verified except through a reference in a news.com.au article. The original quote seems unavailable.

It is curious that this OHS criticism has come from a Federal Parliamentarian instead of from Victoria’s own Industrial Relations Minister and Attorney-General, Robert Clark. Clark echoed Abetz’s statement yesterday but where Senator Abetz mentions the possible OHS ramifications of the Opposition’s Leader Daniel Andrews’ tearing up (page 16 of the ALP 2014 Platform) of the Construction Compliance Code, Robert Clark hardly mentions the workplace safety context. More…

Shadow IR Minister addresses trade union OHS conference 4

O'Connor photoAs part of Safe Work Australia month, or perhaps coincidentally, the Australian Council of Trade Unions held its annual occupational health and safety (OHS) conference in Melbourne, Australia.  On the morning of day 2, the conference heard from the Shadow Minister for Employment Relations, Brendan O’Connor.  The Minister is from the Australian Labor Party (ALP) and had a sympathetic audience but he made several interesting points, particularly when he diverged from the scripted speech (which will be available online shortly) and when he took questions.

Royal Commission into the Home Insulation Program 

O’Connor supports the ALP position that the Home Insulation Program (HIP) Royal Commission was a purely political affair to target previous ALP government ministers.  He emphasised that the Royal Commission was the last in a long line of inquiries into worker deaths and OHS prosecutions related to the HIP program and that this inquiry has achieved very little change.  O’Connor said (ad libbed)

“…. that Royal Commission has not recommended any changes to the regulations or obligations on employers to do the right thing at the workplace. It’s almost worse than doing nothing, than to use the health and safety of the workers as a political weapon against your political opponent. That’s how dismissive this government is with respect to health and safety.

Let’s set up a Royal Commission. Let’s summons a former Labor Prime Minister and other Ministers but, of course, all of which we could accept and we supported the establishment of the Royal Commission if that’s what they chose to do, with one caveat – that was, go ahead with the eleventh inquiry into these tragic deaths but make sure that when there are findings about the deficiencies in the law that protects the interests of working people, particularly young workers, do something about it.

Well we’ve seen nothing. We’ll see nothing in terms of changing the law by this government because that was purely a political exercise. To me this underlines how cynical this government is when it comes to health and safety. It only saw it as a political exercise and, I’m afraid to say, you won’t see too many good policy changes as a result of that Commission.”

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Where is the evidence for new moves on drug and alcohol testing? 11

On 1 July 2014, the Victorian Government introduce a mandatory drug and alcohol testing regime for the sections of the construction industry.  According to the government’s media release:

“New requirements for tighter screening of drug and alcohol use at construction workplaces across Victoria will commence from 1 July, helping to ensure a safer and more secure environment for workers.”

This decision has been made on the basis of “widespread reports of workers being intoxicated, and of drug distribution and abuse” but the rest of the media release reveals other reasons for these changes including political pressure on its Labor Party and trade union opponents in the months before a close State election. Premier Denis Napthine has indicated that the move is also about cracking down on “outlaw motorcycle gangs dealing drugs on the sites”.

But are reports of potential criminality on building site enough to introduce a drug and alcohol testing regime? It is worth looking at some of the existing research on drug and alcohol use (or its absence) in Australian and Victorian work sites.

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Analysis needed on new workplace bullying data Reply

In December 2013 I wrote:

“The Age is correct in saying that claims of workplace bullying are “set to soar”. This has been predicted for some time, even privately by members of the Fair Work Commission, but the number of claims does not always indicate the level of a problem.” (link added)

Recently the Fair Work Commission (FWC) released its first quarterly report into anti-bullying  applications and the statistics indicate that there is no soaring of claims.  Sadly the report does not provide analysis only facts. More…

Red tape (again) and Obama’s support – Melbourne’s Workers’ Memorial Day 2014 1

IWMD 2014 01A short time ago the International Workers Memorial Day commemoration in Melbourne, Victoria, concluded. The ceremony was less sombre than in previous years with, it seemed, fewer families and relatives of deceased workers.  Certainly there was no speech from a family member, nothing from workplace safety advocates other than the three trade union speakers, Meredith Peace, Brian Boyd and Michael Borowick (all pictured right), however there were tears for some in the crowd and wreaths were laid prior to a minute silence.

The politics was reduced this year as there were no noisy protests from the back of a tray truck and no march on Parliament afterward, however politics is never far from the surface of this type of event. Michael Borowick, Assistant Secretary of the Australian Council of Trade Unions (pictured below right, with microphone), was the more effective of today’s three speakers.  (Audio of his presentation is available below)

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Australia’s Construction Code and the Home Insulation Royal Commission Reply

On 17 April 2014, Senator Eric Abetz, Australia’s Workplace Relations Minister, released the Building and Construction Industry (Fair and Lawful Building Sites) Code 2014 and supporting guidelines.  This Code is, fundamentally, an industrial relations Code however there is an occupational health and safety (OHS) element that needs to be noted, particularly when considered against the background of the Royal Commission into the Home Insulation Program.

Section 6.2.1 of the Code’s Guidelines says:

“Improving the industry’s WHS&R [Work Health Safety and Rehabilitation] performance requires positive measures that aim for prevention rather than correcting things when they go wrong. This initiative is directed at making WHS&R management an integral part of the organisational culture of companies and enterprises.”

The aims of this section are laudable – “positive” actions, “integrated, pre-emptive instead of reactive – but there are also hints that role of safety in this Code has not been fully thought out.

Things

The use of the term “things” is of concern. More…

The CFMEU should make a case for union OHS representatives 2

In late March 2014, the Construction Forestry Mining and Energy Union (CFMEU) was fined $A1.25 million over a violent dispute at the Emporium construction site that occurred in 2012.  In its media release about the fine, the CFMEU’s state secretary, John Setka, says:

“The protest at the Myer site in 2012 was about safety.”

Yes and no.  The dispute was about the representation of workers on safety matters, which is a different thing.  Setka goes on:

“Building workers need someone on site who genuinely represents their interests, and that doesn’t happen when that person is hand-picked by the boss.”

The core issue in this dispute seems to be that the CFMEU will not accept the Health and Safety Representatives (HSR) chosen by the workforce at the Emporium site, which is being built by Grocon P/L.  The CFMEU has its own HSRs that it believes will better represent the workforce on OHS matters.

The dispute represents an ideological dispute that seems more about unionism and industrial relations than about safety, but worker safety may still be the lose.

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