SafeWorkSA responds to Gottliebsen OHS article

On 23 May 2011, prominent Australian business writer, Robert Gottliebsen published an article in BusinessSpectator entitled “Saying no to Canberra’s IR dopes“.  The article was uncharacteristically contained major errors on the application of new harmonised OHS laws.

The article generated considerable discussion on some Australian OHS discussion forums but the article’s website has attracted only one comment.  SafetyAtWorkBlog is in possession of a copy of the full reply sent to BusinessSpectator by SafeWorkSA, the OHS regulator in South Australia, a state that featured in Gottliebsen’s article.  SafeworkSA’s reply is reproduced below as it is yet to appear on the BusinessSpectator website, a week after it was sent.

“From:  Bryan Russell, Director of Strategic Interventions, SafeWork SA & SA Representative on the Strategic Issues Group – OHS with Safe Work Australia.

Robert Gottliebsen’s commentary of 23 May on South Australia’s actions regarding the Model Work Health and Safety Bill contains several serious errors that need to be addressed.

For the record, let me emphasise the following.

The Work Health and Safety Bill 2011 was reintroduced to the South Australian Parliament on 19 May 2011.

The Bill was tabled in the same form before the Legislative Assembly (Lower House), where the current Minister for Industrial Relations, Patrick Conlon, sits.

The SA Government is on the record as stating that the Bill was withdrawn from the Legislative Council (Upper House) on 3 May 2011 due to the recent change of Ministers.

Contrary to Mr. Gottliebsen’s assertions, we have observed no “community outrage” generated by radio talkback hosts. There was debate over one morning on claims by the Housing Industry Association that the cost of a new home would rise, as a result of compliance with regulations on fall protection.

The regulations are in line with current national standards and in SA; these will be ushered in as part of the new legislative package.

The concept of PCBU (person conducting a business or undertaking) replaces the previously narrower concept of ‘employer’ and expands the range of entities that must take responsibility for safety in a workplace.

The Model Act recognises that more than one person can have the same duty concurrently and provides that each person must discharge their duty to the extent to which they have, or would have, the capacity to influence and control a safety outcome.

As an example, multiple contractors on a single construction site will ALL have responsibility for the health and safety outcomes of activities under THEIR control.

Regarding the removal of the right to silence, Clause 172 of the South Australian Work Health and Safety Bill 2011 (SA Bill) mirrors Section 172 of the national Model Work Health and Safety Act (Model Act) on this aspect.

It does remove the privilege against self-incrimination, and means that persons must comply with requirements made under these provisions, even if it means that they may be incriminated or exposed to a penalty in doing so.

This provision recognises that the right to silence can limit the information available to inspectors or the regulator, which in turn may compromise their ability to protect life and limb at work.

The imperative to ensure safe workplaces is considered sufficiently important as to justify some limitation of the right to silence.

That said, Clause 172(2) instead provides for a ‘use immunity’, which means that the answer to a question or information or a document provided by an individual when required by the regulator is not admissible as evidence against that individual in civil or criminal proceedings.

By making the information, document or answer inadmissible in proceedings against that individual, the provision strikes a balance between the common law right to silence and the need of the inspector to obtain information critical to good safety outcomes.

As with the previous provision concerning ‘control’, the SA Bill does not deviate from the substantive provisions of the Model Act.

In summary, Mr. Gottliebsen does your readers a regrettable disservice through the amount and extent of mistaken information in his commentary.”

Kevin Jones

reservoir, victoria, australia
Categories communication, government, law, media, OHS, politics, safety, Uncategorized, workplaceTags , , , ,

4 thoughts on “SafeWorkSA responds to Gottliebsen OHS article”

  1. That\’s how the ball rolls isn\’t it? The most important evidence hides behind an immunity clause. Prey tell, please someone explain to me how the heck I explain that to a widow or a young person who has just lost their parent?

    The tragic irony of course is that they will never know what\’s hidden from them. The very people who deserve to understand why their lives have been torn apart have no rights at all.

  2. Fair comment Tony, but Gottliebsen\’s article was a shallow unresearched and inaccurate article. If he is going to shoot from the hip to get an op ed out there quickly he should at least have the professionalism to correct it when it is shown to be patently wrong on both fact and law.

  3. If there was as much consideration given to the proactive inspection of workplaces to prevent the appalling number of injuries occurring I think I might have some sympathy for SafeWork SA.

    And as some form of rebuttal in respect of comment by radio commentators there have been plenty of issues relating to workplace safety and workers compensation that are damning, I refer to radio 5AA where Leon Byner has advocated on a large number of occasions for workers at risk or injured as a result of entirely inadequate policing of OHS law.

    I would suggest it is not a clever idea for the bureaucracy to stick its head up to often.

  4. Good to see a response. One correction. The Gottliebsen article attracted at least one other response, one by me, on the date o
    It was published. My comment pointed out the errors of fact and law.

    When it was not published, but a supportive comment was published I twice submitted follow up comments and invited the editor to publish my comment, correct the article or at least have the courtesy to respond to me by email or call and say why they would do neither.

    The editor did none of the above which I consider unprofessional, unethical ( to leave a clearly erroneous article uncorrected) and just old fashioned arrogant and rude!

    By the way, the deep research source for the Gottliebsen article was a \”talk back radio host\” on SA radio. I hope he uses better sources for his investment advice.

    Cheers, Graham

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