An earlier article today provided a reminder of a County Court judge’s criticism of OHS management-speak in a 2004 decision concerning the death of Robert Sergi on a rail bridge construction project near Geelong.
In response to some of the safety initiatives outlined to the Court by the lawyer for Leighton Contractors Ross Ray SC, Judge Gebhardt said:
“Mr Ray pointed to an array of safety initiatives introduced by his client and a welter of documentation was tendered.
I gained the impression from the documents tendered that some form of managerial “hocus pocus” bewitched the company which sought to satisfy the needs and interests of workers with hierarchical and self-serving layers of bureaucratic “bubble-squeak/’ what Mr Ray described as “complex speak”. When the language is destroyed, reality fades and there is no basis for sound and sensible communication. Workers are not instruments, but participants and conversation with them should occur on that basis.”
It is fair to expect that a judge would have come across a large amount of legal jargon through their career and that this could be an advantage in trying to translate management-speak but clearly, in the above situation, this is not the case.
Judge Gebhardt’s comments were addressed to the lawyers in the Court but the final line of the paragraph is an essential reminder of the importance placed on consultation with workers. Doubly so, with Safe Work Australia’s plans to develop a code of practice on risk management and consultation.
The construction site in question had, as most civil engineering projects have, a mass of contractors working on site. Contractor management is painful and dangerous when not done properly and Judge Gebhardt notes this. But rather than looking down the organisational chart of contractual links, Gebhardt addresses the top of the chart.
Judge Peter Gebhardt said, according to a Worksafe media release at the time, there were too many “contractual voices” on the project.
“Where there are large organisations the directors and senior management will do well to remind themselves of the objects of the (Occupational Health and Safety) Act on a regular basis. Corporate distance should not be allowed to lead to disengagement. People’s lives are at stake. The Act is a shield.”
The objects of OHS Acts are often neglected when developing safety management systems and processes for supervising contractors because regulations, Codes and Standards take on great immediacy but the judge emphasises the benefit of reminding oneself of OHS principles and objects. To remind ourselves below are the objects of Australia’s model Work Health and Safety Act 2010, slightly edited:
“The main object of this Act is to provide for a balanced and nationally consistent framework to secure the health and safety of workers and workplaces by:
(a) protecting workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work [or from specified types of substances or plant]; and
(b) providing for fair and effective workplace representation, consultation, co-operation and issue resolution in relation to work health and safety; and
(c) encouraging unions and employer organisations to take a constructive role in promoting improvements in work health and safety practices, and assisting persons conducting businesses or undertakings and workers to achieve a healthier and safer working environment; and
(d) promoting the provision of advice, information, education and training in relation to work health and safety; and
(e) securing compliance with this Act through effective and appropriate compliance and enforcement measures; and
(f) ensuring appropriate scrutiny and review of actions taken by persons exercising powers and performing functions under this Act; and
(g) providing a framework for continuous improvement and progressively higher standards of work health and safety; and
(h) maintaining and strengthening the national harmonisation of laws relating to work health and safety and to facilitate a consistent national approach to work health and safety in this jurisdiction.”
Clearly harmonisation is a fundamental purpose of this Act but, significantly, there is not equivocation in the object, no “as far as is reasonably practicable”. That “get out of jail free” card is included elsewhere.