The harmonisation challenge in Australia gets more difficult

There are few motivations that are more effective for improving workplace safety than facing a grieving relative.

On 17 September 2009, the impact of the OHS law harmonisation on workers and their families came to the fore in an article in the Sydney Morning Herald (SMH) entitled “Deaths at work put sharper focus on liability”.  The workplace support advocates make a clear case for holding those who control the workplace accountable for injuries, illnesses and fatalities that occur in their businesses.

A letter sent to the Federal Minister for Workplace Relations, Julia Gillard, by the Workplace Tragedy Family Support Group reportedly says

”Dealing with a serious injury or the death of a family member is difficult, particularly if there is no sense of justice.  Employees must be able to seek justice against employers who do the wrong thing,” said the conveners’ letter.

Families wanted to know the responsible organisation had been held to account, the letter said.

Justice, but not revenge.  The avoidance of this justice and accountability through companies choosing to go out of business has been highlighted in New South Wales many times, so it is understandable that the reduction of the avenue to pursue justice that may occur in the OHS harmonisation process can generate such letters to politicians.

A significant element in the SMH article is the inclusion of the union perspective.  Trade unions often provide grieving relatives the only support, particularly in the period shortly after a workplace fatality.  And there is the shared grief of losing a loved one and losing an often long-serving union member.

This article and the letter to the Minister add an important emotional and social element to the development of the new national model OHS laws.  Whether the government will incorporate mechanisms to achieve justice in the legislative framework or in secondary processes could give a good indication to the broader political picture of workplace safety over the next decade.

Kevin Jones

Categories death, Gillard, government, grief, justice, law, OHS, politics, safety, UncategorizedTags , , , , ,

2 thoughts on “The harmonisation challenge in Australia gets more difficult”

  1. I have been reading this blog for a short time now, and am interested both in the topics raised and the nature of some of the debate.

    I think that this post highlights a fundamental conflict of interest in current health and safety laws that is limiting the ability to move safety and health forward; it also highlights to me a need to start challenging some of the basic structures around the regulation of safety and health. For example, are health and safety laws about justice for victims of workplace accidents, or are they about ensuring safe systems of work at a workplace?

    Perhaps there is a case for moving the \’justice\’ elements of safety regulation out of safety legislation into other arenas. After all – who do the fines from safety prosecutions help? The victims? No. The organisation prosecuted? No – in fact resources that could have been devoted to safety are diminished!

    Perhaps there is a case to be argued that improved safety performance would be better served through strong, independent investigation and sharing of lessons that are not constrained or limited by the processes of usual court proceedings. Investigations and sharing of lessons that are resolved in a matter of months – and so remain fresh and useful. Not years, becoming forgotten and stale.

    Investigations that have strong powers of compulsion – a coronial court on steroids, and are not restricted by concepts such as legal professional privilege.

    Investigations that exist wholly and solely to determine the cause of accidents and to share lessons, not to determine guilt, liability and penalty.

    That is not to say justice is not important, but perhaps the avenues need to be reconsidered. Is there a case to have criminal sanctions for safety and health breaches contained within the criminal law and dealt with their? Or in industrial legislation, like the Fair Work Act? Do we need to revisit the rights of victims of workplace accidents and their families to seek compensation against their employers?

    Is it time for something different, and not just technocratic tinkering at the edges for the sake of consistency. After all – is there any real benefit in regulation that is consistently ineffective?

    1. Greg

      I think your point on penalties is very valid. The government is making mileage out the increased penalties in most States but for years, OHS lawyers and researchers have questioned the OHS benefits of financial penalties. The contemporary status of the proposed laws would be more valid if alternate penalties were integrated into the legislation. And there are alternatives

      There is a database of solutions that Safe Work Australia, I believe, has been developing (or is that the Safety Institute of Australia) but these are very basic and focus on engineering solutions. These are necessary aids to small business but don\’t add much for the safety manager. I am a strong advocate of sharing solutions and get frustrated with those companies and experts who hold back on the solutions for reasons of intellectual property, or copyright.

      I find that the best legal OHS cases have come through the NSW Industrial Magistrate and I would support such an OHS court nationally. I have written elsewhere of an Ombudsman.

      It is frustrating that Victorian Magistrate\’s Court cases are not reported on or decisions published as this would reflect an accurate level of legal and prosecutorial effort by the regulators.

      I sympathise with the desire for a fresh approach to OHS but it is unlikely to occur in the current harmonisation process as the timelines are tight and the institutional baggage has still not been settled. I have been reading a lot about Robens lately and wish that there was a similar change of approach for the next four decades.

      Some labour lawyers and academics are starting to speculate but this is in the realm of fantasy because the federal government has already planned its path

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