Australian employer groups are out for blood

For some reason several Australian newspapers on 16 February 2010 carried articles about the possibility of prosecuting the Federal Environment Minister, Peter Garrett, over recent deaths associated with an insulation rebate scheme, he launched and his Department administers.

The employers are drawing a long bow to support their calls.  They are linking several related OHS issues in order to score political points the recent High Court decision on New South Wales (NSW) OHS laws, the Federal Government’s programs for harmonising OHS laws and the insulation installer deaths.

Many of the employer groups calling for the Minister to be held liable for the workplace deaths were closely involved in the development of the draft Work Health and Safety Act and should know better.  In The Age, the Australian Retailers Association’s director, Yvonne Anderson asks:

“Why should a minister be excluded from due diligence responsibilities when they have the responsibility of running a major government portfolio?”

Under the Work Health and Safety Act, Minister Garrett does not have the control of the workplace.  That responsibility sits with the employers of the insulation installers.  The issue of due diligence relates to the Minister’s competence in establishing the insulation program and his management of it – a level of competence questioned by SafetyAtWorkBlog elsewhere.

Anderson’s comments raise the question of whether corporate management standards should apply to Parliamentarians.  It seems to SafetyAtWorkBlog that systems of accountability differ considerably between the political and corporate sectors and the assertion that the systems are the same is intended for political point-scoring rather than serious consideration.

NSW Business Chamber CEO, Stephen Cartwright says the same process of accountability should be applied:

“In many case, there is considerable distance between the workplace and the boardroom.”

Agreed, but there is a clear chain of responsibility from the CEO through the worker.  If there was not, the business leadership spruikers would not be able to claim that leadership can improve the safety of employees at every level of the corporation.  Cartwright seems to be letting his frustration with NSW OHS laws speak before proper consideration is given.

The High Court decision does not negate an employer’s responsibility to ensure a safe and healthy work environment, it clarifies the issue of who controls a workplace and, specifically, in a New South Wales context.  The rest of Australia is getting on with preparation for future OHS legislation rather than being anchored in the mire of NSW’s excessive OHS expectations.

The comments from David Gregory of the Australian Chamber of Commerce & Industry, a person closely involved with the development of the new national OHS legislation is clearly echoing the views of his organisation’s membership, regardless of how ill-informed they are on this matter.

The absurd assertion by the Leader of the Opposition, Tony Abbott, in Parliament last week that Minister Garrett could have been charged with industrial manslaughter under New South Wales law seems to have been a rallying cry for employer groups.

Some sense of clear thinking comes from those quoted in an article in The Australian, a newspaper that is usually more in sync with the business sector.  It states the core consideration at prosecuting a Minister for workplace deaths – the level of control:

“Experts say the likelihood of the federal Environment Minister being charged with occupational health and safety breaches would depend on the degree to which workplace safety authorities deemed he was in control of the circumstances under which faulty installation occurred.”

Ken Phillips says that the Minister could be one of many considered for prosecution.  Solicitor Malcolm Davis acknowledged that new national OHS laws (yet to be introduced) would make it easier to prosecute a Minister but says it was

“…very difficult to see how Mr Garrett or his department had control over a workplace.”

In a separate article in The Australian, the extremism of some in the employer association sector is epitomized by Garry Brack, CEO of the Australian Federation of Employers & Industries who described the actions of the NSW Industrial Court as being like Soviet Russia”.  Several years ago on Australian breakfast television, Brack could not see the need for OHS laws as he believed employers were fairly responsible on workplace safety.

The Australian article illustrates the bitter legacy of the New South Wales OHS laws and the huge change of attitude required by the employer groups in that State when the national OHS laws come into effect.  Employer groups in New South Wales want blood.

It also illustrates the magnitude of the challenge for Federal Workplace Relations Minister, Julia Gillard, in achieving consensus on the new laws, particularly with a spate of State elections in 2010.  Governments in several States are expected to change from the Labor Party, traditional friend of the union movement, to Liberal, the advocates of the free market and the business person’s friend.  It will be the new governments who Minister Gillard needs to rely on to mirror the national OHS laws in their own jurisdictions.  The ideal of harmonised OHS laws is looking further away than ever.

Kevin Jones

4 thoughts on “Australian employer groups are out for blood”

  1. Thanks, Neil for providing some technical backup for my legal understandings.

    I don\’t see the employers\’ arguments as legally justified. Political justification is a different discussion. Clearly, the groups, particularly in New South Wales, have not had the support of the Labor government to the extent they desired. Partly this is why the High Court decision regarding the Kirk case was greeted with jubilation – they have had so little to cheer about for years.

    I believe it is useful to place the recent media comments in the perspective of the national OHS harmonisation process which is acknowledged by many as a \”dry run\” for the review into workers compensation.

    To some extent the employer group criticisms of Environment Minister Garrett are aimed at a softer target on workplace relations that they would find with the Federal Workplace Relations Minister, Julia Gillard. Gillard is at the top of her game in the government and her portfolio and few would tackle her without very strong reasons.

    It is also in this context that I am surprised that Gillard has not commented on the insulation installer deaths as these are clearly within her OHS realm. It would be more difficult to land political blows on Garrett if she was standing next to him.

    It is perhaps unfortunate that footage of unsafe insulation installation practices to be aired on the Today Tonight TV program this evening did not occur in Gillard\’s electorate.

  2. Thanks for a thoughtful and well-reasoned comment on this beat-up, Kevin. It staggers me to hear people who have been attacking industrial manslaughter laws for years suddenly thinking they are a great idea to make political points. The press coverage here has been pretty odd- we move from a clip of a grieving mother of a 16-year-old straight to the Minister in charge of a nebulous funding program, with no mention at all of the young worker\’s employer, who presumably should have been ensuring some standard of safety!

    On the other hand, one good thing might come out of all this. In the new proposed Workplace Health and Safety Act s 244(2) provides a very explicit and pointed immunity for Ministers of the Crown from being \”officers\” of a Commonwealth entity and hence subject to the general duty under s 26 of \”due diligence\”. I think this is on principle wrong.

    I don\’t think someone in a policy supervisory role like Peter Garrett should be held liable in the current situation, but what about health and safety risks to employees in a Government department where the Minister simply gives a blanket direction to cut safety measures for budgetary considerations? Perhaps the current furore might put some pressure on Government Ministers to be held as accountable as other decision-makers are whose priorities can put people\’s lives and health at risk.

    I produced a paper on the personal liability issues under the WHSA recently which is available at http://works.bepress.com/neil_foster/27/ for some other problems with the current version of the legislation.

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