Cry of frustration in Industrial Manslaughter Bill 4

Over the last few months some in Australia’s trade union movement have renewed calls for the introduction of industrial manslaughter laws in various jurisdictions. The issue has appeared both on television and online.

Curiously the Australian Council of Trade Unions (ACTU) seems to have dropped the “industrial manslaughter” terminology it has used in the past. In a 28 April 2015 media release, the ACTU stated:

““Strengthening OHS laws to make negligent companies and individual directors liable sends a clear message to employers that they must ensure people are safe at work.”

and

“Current laws need to be strengthened so that companies and company directors are liable for our safety at work.”

It seems that the charge has been left to the South Australian Greens Parliamentarian, Tammy Franks, who has proposed amendments to the SA Work Health and Safety laws in Parliament on 6 May.  But what does Franks expect to achieve with this Bill?  Will it reduce harm or is it a heartfelt cry of frustration? More…

New research on OHS business case 2

cover of business-case-for-safe-healthy-productive-workSafe Work Australia recently released its second research paper related to developing or communicating a business case for occupational health and safety (OHS).  The paper has been authored by Sharron O’Neill and is called “The Business Case for Safe, Healthy and Productive Work – Implications for resource allocation: Procurement, Contracting and infrastructure decisions“.  O’Neill’s paper clearly challenges the dominant thinking of OHS and costs.

O’Neill states that the quality of previous analyses of OHS business costs have been “fundamentally poor”, partly because

“Rather than strategically examining the cost-benefit to business of work health and safety, the typical ‘silo’-driven analysis produces a narrow focus on a very different concept; the cost-benefit to business of health and safety interventions. This has obscured much of the potential for improving  organisational productivity and operational decision-making.” (page 4, link added)

More…

Whitlam’s dismissal diverted workers compensation reform 6

In October 2014, one of Australia’s Prime Ministers, Gough Whitlam, died at the age of 98.  Whitlam introduced major social reforms, many which still exist today (just).  One reform he valued but was not able to achieve was a national accident compensation scheme. It is worth noting when reading of the current economic and moral arguments over workplace responsibility and over-regulation that Whitlam’s national accident compensation scheme included workers compensation.

In 1974, during Whitlam’s time as the Prime Minister of Australia, the New Zealand government established a no-fault accident compensation scheme following the 1967 Royal Commission of Inquiry into Compensation for Personal Injury in New Zealand chaired by Owen Woodhouse.  Woodhouse was invited to assess the likelihood of a similar scheme being introduced in Australia.  He completed his inquiry (not available online) for such a scheme and legislation was drafted. The bill was in the Australian Parliament when the Whitlam government was dismissed by Governor-General John Kerr.  As a result of the political machinations of the Liberal Party of Australia, Australia missed the opportunity to have a national accident compensation scheme. More…

Fear of exposure rather than pride in their work 3

Due diligence” is an established business management concept that only recently came to be applied to occupational health and safety (OHS) in Australia through the Work Health and Safety (WHS) harmonisation process.  It’s credibility comes from the Corporations Act, principally, but also Consumer Protection and, partly, Environmental laws.

iStock_000015900242SmallThe attention given by OHS/WHS professionals and senior executives to due diligence is already changing how workplace safety is managed in a positive way but recently the Australian Institute of Company Directors (AICD) proposed weakening the broad due diligence obligations. If this proposal is accepted and implemented by the Australian Government that is sympathetic to business, could these changes diminish the  growing attention to OHS/WHS due diligence? More…

Sex, work, liability and safety 1

There is a constant tension between occupational health and safety (OHS) and workers compensation. OHS is intended to prevent harm and workers compensation is available for when harm cannot be, or has not been, prevented.  In Australia, these two elements of safety are administered by different organisations under different legislation but it is a distinction that baffles many.   The recent discussion about a sex-related workers compensation claim illustrates this bafflement to some degree.

This time last year Comcare filed an appeal over a Federal Court decision regarding

“A Commonwealth employee is seeking workers’ compensation for injuries sustained after a light fitting was pulled from the wall of a motel during sex, on a business trip.”

(A good summary of most of the legal proceedings is provided by Herbert Geer.)

The case has received wide media attention mostly for the salacious matter of the case, and some political attention, but the purpose of the appeal, according to Comcare, was

“… to seek a High Court ruling on the boundaries between private More…

MP wants to close a dodgy loophole but vision is what’s needed 3

One of the most discussed posts on this blog concerned an insurance company that paid the fines awarded against a company director. The company director had been found guilty of OHS breaches that led to the death of a worker. Yesterday, South Australia’s Deputy Premier and Minister for Industrial Relations. John Rau, said that he will be taking action to close the loophole that allows for this situation. But this is unlikely to succeed and may be a distraction from the more significant issue of new penalties for deterrence.

In a media release, not yet available online, Rau states that

“Insurance should not be the preference over safe equipment and safe workplace standards….

Whilst most employers do the right thing, this dodge effectively means that the incentive for a company to provide a safe environment for its workers is diminished or eliminated.”

Rau’s current strategy for closing this loophole, which is not really a legal loophole at all, is weak. Rau, a Labor Party politician, says that he will bring the matter to the attention of the Federal Minister for Workplace Relations, Bill Shorten. However, Australia is ten days away from an election that the current (Labor) government is tipped to lose.

More…

A busy week in Victoria – politics, reviews and common law 2

Victorian Workcover Authority (VWA),was in the pages of the Australian Financial Review in July 2013 over several issues –

  • CEO Denise Cosgrove told staff of her wonderful holiday in  Daylesford in the same email in which she advised of a review of operating budgets “including people costs” and of job losses,
  • Former Minister for Workcover, Roger Hallam, has been appointed to undertake a review of the Victorian Workcover Authority ,
  • Hallam is said to have been on the panel that appointed Cosgrove recently to the CEO post,
  • Cosgrove has pushed for a change in common law (Common law was controversially dropped during Roger Hallam’s time as Minister).

There seems to be many issues bubbling away at VWA – common law, declining profitability, “dividends” and a secret review. More…

Insurance over OHS prosecution hits the deterrence effect 26

In response to proven breaches of occupational health and safety laws, judges usually apply financial penalties to companies and individuals.  These penalties, like all court-ordered punishments are to deter the offenders from re-offending but also to show others the consequences of their actions.  But what if an insurance company would pay for that penalty in return for regular premium payments?  If the offender does not pay the penalty, deterrence is gone.

On 27 June 2013, a company and its director were fined $A200,000 each in relation to workplace incident that resulted in the gruesome death of one man and a near miss for another but the director had taken out a general  insurance policy and the insurance company paid out!!??.  A fine of $A200K awarded but the offender may pay no more than $A10K. More…

Short-sighted redefinition of worker 3

In May 2013, Workcover Queensland supported the government’s intention to change the definition of worker to match that of the Australian Taxation Office (ATO).  The definition re-emphasises the significance of the employer/employee relationship.  Workplace health and safety laws through most of Australia have recently changed to remove the reliance on the employer/employee relationship with the intention of clarifying the lines of responsibility for preventing harm.  The diversity between workers’ compensation and OHS definitions unnecessarily complicates the management of a worker’s health through the linear experience of employment.

The government believes such changes will reduce “red tape” but only in the narrow context of workers compensation.  The Work Health and Safety Act expands the definition of worker but another piece of legislation in the same State restricts it.  Inconsistencies of concepts are likely to lead to duplications, confusion and arguments that may generate as much unnecessary business and legal costs as the initiatives were intended to save. More…

Latest review into workers compensation provides OHS clues Reply

Cover of src_act_review_reportThe Australian Government has released its report into a review of its national workers’ compensation scheme, Comcare, and the Safety, Rehabilitation and Compensation (SRC) Act.  Some of the media (and politicians), as it often does, has focused on the seemingly absurd compensation claims.  Few cases have gained the same degree of national and international attention as the sex case for instance, and although most workers’ compensation reports focus on post-incident treatments, there is a glimmer of  hope on occupational health and safety (OHS) in this latest review.

The report, the latest undertaken by Peter Hanks QC, states that one of the guiding principles of the SRC Act should be an acknowledgement that

“The benefit and premium structure should promote incident prevention and reduce risk of loss.” (page 25)

This would be a wonderful benchmark to apply but is likely to be overshadowed by the compensation and rehabilitation issues of the review, unless OHS professionals and practitioners continue to remind regulators that prevention is better than cure.

Peter Hanks admits in a 2012 video interview on his review that injury prevention is not part of the terms of reference but there are elements of his report that require serious consideration by OHS professionals in consultation with their Human Resources (HR) colleagues. More…