Participants at the 2010 Safety In Action conference and the 2010 ASSE Conference will be familiar with lawyer, Michael Tooma‘s faith in due diligence to improve safety management in Australia. In the lead-up to his appearance at another Australian OHS conference in October 2010 he has again restated his faith but this largely ignores the changed political context of OHS harmonisation on which the new Work Health and Safety laws are based.
I have mentioned Australia’s current peculiar political position elsewhere. The uncertainty of Federal politics overlaps and could greatly affect the OHS harmonisation process, or rather, its application. It seems even more likely that the Labour Governments in Queensland and New South Wales will fall at their next State elections rendering the fast becoming an ideal of OHS harmonisation dead.
Tooma (pictured right) makes no mention of the changed political reality in a recent media release concerning his upcoming conference appearance although he is willing to take a pot shot at the Federal Environment Minister, Peter Garrett, over the lack of accountability over the deaths, fires and injuries that resulted from the botched home insulation scheme.
“Without prompting from the expert panel that recommended the laws or the Workplace Relations Ministerial Council, Tooma says, the legislation expressly excludes Ministers from the scope of this new duty. “Ministers are expressly excluded from the definition of officers for a public sector organisation,” he says.
“Remarkably, this decision appears to have occurred only a few weeks after Peter Garrett sounded the alarm bells in Cabinet on the safety risks associated with the insulation scheme.””
Where, previously, Tooma has questioned the integrity of the exemption, he now calls for the reversal of the decision.
“Company directors, including non-executive directors, are required to exercise due diligence in relation to their company’s safety compliance. Ministerial decisions impact on the safety performance of programs run by their departments. There seems little justification for excluding them from a duty to exercise due diligence to ensure compliance by their departments.”
(Safety Impact Assessments, anyone?)
A reversal of such a clearly political exemption is only likely to occur through a further political decision but which political party is willing to set a precedent by sacrificing a government Minister for a bad workplace safety decision? The Australian Greens maybe, but not if its influence relies on a coalition with a major political party.
Michael Tooma is always worth listening to and I have watched him captivate a room in OHS conferences previously, particularly in his home town of Sydney, but the best of Tooma often comes through discussion and conversation. If you are able to be at The Safety Conference in Sydney in October, ask hard questions of him as lawyers enjoy a contest. The question I would ask is “is OHS harmonisation still workable when Western Australia won’t support it and the country becomes almost evenly divided between the conservative and labor parties?”
The catastrophic mismanagement of the insulation scheme resulted in several deaths, scores of fires and 10s of thousands of homes being unsafe.
Whilst the cannot be held responsible for the work of shoddy installers, this event will go down as a case-study in failure to manage change.
Any decent OHS Management System (OHSMS) recognises the risk associated with change. These systems require consultation and risk management to be applied as part of any major modifications to operations or processes. However, on face value, the insulation scheme was a situation where a government introduced enormous change on a market place without any consideration for the skills, labour, resources etc available.
Face value that is, until you realise that risk assessment and consultation was done. Done and ignored. Someone needs to answer for that!
As I understand it, WA is intending to adopt all aspects of the model WHS Act except those relating to union powers. As I have heard it, they would still adopt the model Act in the same form otherwise, including the same clause numbering etc. Also in 2009 Barry O\’Farrell supported a Victorian-style OHS model in the NSW Liberal Party\’s submission to the harmonisation consultation stage, & that is essentially what was arrived at in the model Act. So I don\’t think national harmonisation is by any means dead yet – after all, as you stated earlier, it started life as a Howard Government / Productivity Commission initiative.