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.
The lower house (thanks, Rex) of the Australian Parliament has passed amendments to its industrial relations laws, the Fair Work Act, to allow for matters concerning workplace bullying to be heard in its Commission, once the laws pass the Senate.. But recent media and parliamentary discussion on this action seems to forgotten the welfare of the bullied workers.
Professor Andrew Stewart of the University of Adelaide is reported to have said that there is a risk that the Fair Work Commission will be “swamped” with bullying complaints and that a system of filtering should be applied. Such a mechanism is supported by Professor Ron McCallum who said in The Australian on 14 June 2013:
“I would agree with the Coalition that there should be some filtering mechanism because we don’t know how many complaints there are going to be,” he said. “There’s been wildly varying suggestions.
Australian politics is currently embroiled in a dispute generated by a contractor entering the telecommunications pits of the asset owner. Some, or many, of the pits contain asbestos and the contractor’s work, the laying of new fibre-optic cables, may disturb the asbestos. There are many other concerns but that is the nub.
The Australian newspaper has been running on this issue for many weeks but one article in today’s edition called “Taking a dig: will Bill come up short?” (page 9 – online paywall), by David Crowe, caught my attention. Crowe reports that:
“The Australian has been told Telstra chief executive David Thodey wrote to Shorten in December 2009 to argue against his proposal for a ‘‘proactive’’ program to remove asbestos from the company’s pits. Thodey gave three reasons for not proceeding: the cost; the risk of releasing asbestos; and the fact plans for the NBN were in train but had not been locked in.”
I realise that the OHS legislative concept of “reasonably practicable” does not extend to all facets of life but if it were applied to the current asbestos exposure (and I think it could) Thodey’s three reasons given above would be crucial in any potential prosecution, particularly if the reasons in Thodey’s response to Bill Shorten were listed in order of priority. In OHS law, cost is the last element to be considered in determining a reasonably practicable hazard control measure.
Today Australia hosts a No2Bullying conference. It is a timely conference as the debate on Australia’s changes to the Fair Work Act in relation to workplace bullying heats up.
Lawyer Josh Bornstein is particularly critical of the politicisation of the amendments and believes this increases the instability or remedies available to victims of workplace bullying by increasing pressure on under-resourced OHS regulators.
The amendments are unlikely to reduce the incidence of workplace bullying in Australia as they address post-incident circumstances.
As the new legislation is being passed through Parliament, the industrial relations, political and legal context will dominate the media, More…
This week in Australia the conservative Liberal Party released its much-anticipated industrial relations policy. Most commentary is that the policy is thin but in terms of occupational health and safety, the Liberal Party is supportive of the changes made concerning workplace bullying. Sadly, the commentary is often lazy.
One example of a careless headline is in the Herald Sun newspaper for 11 May 2013, “$20 million Budget boost to stop workplace bullying“. The Australian Government’s changes to the Fair Work Act do not prevent bullying, it only provides further options for remedy. OHS is principally about preventing harm and the Fair Work Act changes do not help in this aim. More…
Yesterday Australia opened its National Workers Memorial in Canberra. The Workplace Relations Minister Bill Shorten, spoke at the ceremony with, largely, an edited and reduced version of the speech he presented in Brisbane earlier last week. The Canberra speech dropped all the ANZAC Day references and spoke about the importance of remembering.
“By erecting this monument, we tie the lives and memories and families of thousands of Australians to this place. We stand here in this place as a mark of respect from a civilised community as an expression of failure and regret. That’s what all memorials are, and this one is no different. This is a symbol of the mourning for those lost too early from our tribe Australia.” More…
On the 28 April edition of the ABC TV show, Insiders, Gerard Henderson displayed a common misunderstanding about the role and existence of regulations. In discussing the childcare industry Henderson, Executive Director of the Sydney Institute, said that regulations always increase business costs, as if regulations are the start of a process when regulations are almost always a reaction to a hazard, an abuse, an exploitation or a risk.
Business leaders seem to be incapable of understanding that they have the power to reduce what they see as OHS red tape by changing their behaviours, perhaps by embracing and implementing safety leadership.
Many politicians and commentators have linked recent factory explosions and collapses around the World Day for Safety and Health at Work on 28 April. More…
The chair of Safe Work Australia, Rex Hoy, makes an extraordinary challenge to the manufacturers of quad bikes. In a media statement released on 26 April 2013, he
“…has called on the designers and manufacturers of quad bikes to urgently reconsider improving the design of quad bikes so they are not prone to roll over.”
This sounds a sensible and safe suggestion but independent Australian research is still to be completed on whether these work vehicles are prone to roll over as a result of their design, and not simply driver (mis)behaviour.
Hoy notes that people continue to die whilst riding quad bikes and is quoted saying:
“We cannot sit by and watch people being killed and seriously injured by these vehicles. Everyone has a responsibility for quad bike safety but it must involve a safer product. We need to ask ourselves how much a life is worth opposed to the cost of a crush protection device.”
Quad bike designers and manufacturers have been emphatic in their position that rollovers are, primarily, the fault of driver behaviour and that crush protection devices are likely to contribute to rollovers or exacerbate worker injuries from rollovers. More…
For several years Australia has been designing and constructing a National Workers Memorial. This weekend, on the World Day for Safety and Health at Work, Australia holds its first national remembrance day at the new memorial on the banks Lake Burley Griffin in Australia’s capital city, Canberra.
The memorial has been coordinated by the National Capital Authority who has established a website for this memorial. The website will have live coverage of the inauguration ceremony at 11.00am AEST. More…
28 April is the annual day of remembrance for those people who have died at work. It has various names depending on local politics but the World Day for Safety and Health at Work, established by the International Labour Organization. This year ceremonies are being held on many days around April 28. On Wednesday 24 April, Australia’s Workplace Relations Minister, Bill Shorten, spoke at the remembrance ceremony in Brisbane. The official speech is illustrative.
Shorten states an occupational health and safety principle:
“…we know [workplace deaths] are preventable. They are not accidents.
Let me repeat this: by far most deaths and serious injuries are predictable safety failures.
It’s not a systems’ failure or risk assessment failure, or hazard identification failure…and all those other handsome words without tears.
It is the failure that springs as a readymade monster from the knowing tolerance of small daily hazards at the daily tasks.” (emphasis added)
Even given the qualifications in the highlighted statement above Shorten believes workplace incidents are safety failures that occur due to a “knowing tolerance” of hazards. The risk is not in the hazards themselves but in our tolerance of these hazards. More…