Conservative media begins to examine new OHS laws

Workplace health and safety made the front cover of the Australian Financial Review on 1 July 2011 (once the liftoff financial special cover was thrown away).  When this happens there is a serious issue to be dealt with or it is a beat-up.  Today’s article entitled “Danger: work safety laws just got stricter” (not accessible online) is a bit of both.

Reporters Fiona Carruthers and John Stensholt reference several cases that should have generated considerable debate in the OHS fraternity.  The first is the case where Clean Seas was fined $A27,000 after not preventing an alcohol-affected diver from entering the water where he blacks out and requires hospitalisation.  Curiously they also discuss, in a textbox, fines handed out to RailCorp and Esso, events that occurred in 2003 and 1998 respectively.

Perhaps not surprisingly a financial newspaper focuses on the financial penalties of OHS breaches, injuries and deaths but the timing of the article is also curious as the law changes, stemming from the OHS harmonisation process, have been scheduled for some time and do not come into effect across Australia until 1 January 2012.

The new laws are described as having an intention to encourage employers to improve safety management but most of the article discusses after-the-incident prosecutions and penalties.  Peter Wilson of the Australian Human Resources Institute says that

“what you find is employers work hard for a while to improve workplace safety, then the foot comes off the pedal, and safety standards tend to lapse”.

Wilson has other positives to say about the productivity benefits of a safe workplace but, significantly, there are no employer associations in the article who would echo these sentiments.  The reporters reference court decisions, Peter Wilson and lawyer Michael Tooma.  The absence of a quotes or statements from the industrial sector is a major weakness in the article.  But then again, there is no quote from the Safety Institute of Australia or the National Safety Council either.

Carruthers and Stensholt state that “one of the hardest aspects” is that employers are held responsible for possible careless actions of an employee and use the Clean Seas prosecution to illustrate their point.  They neglect that the legislative focus on the “system of work” rather than individual actions has been a foundation of OHS laws in Australia for decades and will continue to be so.  The “blame the worker” argument continues to raise its head (most recently in relation to bullying  – a cause for great concern) years after the perspective was killed in John Matthews’ OHS book.  Behavioural-based safety is the recent incarnation of this unhelpful approach.

A more robust example would be how an employer may impose production or delivery deadlines that a worker cannot meet with working unsafely.  The unsafe deadlines in the trucking industry are one example.

Tooma summarises the “new” safety management requirements:

“You need to anticipate employee negligence and do your best to put in place systems that are as foolproof a possible….A system that relies on following correct procedure is not a system at all.  If your system is vulnerable to people making mistakes, then it is vulnerable to incidents……”

Every management system requires continuous enforcement to be effective.

The reporters close their article with another quote from Tooma:

“It’s about second guessing employees to the nth degree.  Overall, I think that’s a good thing.  We know people make mistakes in everyday life – work is no exception.”

 Kevin Jones

Categories business, Duty of Care, economics, executives, hazards, law, lawyers, media, OHS, safety, UncategorizedTags , ,

4 thoughts on “Conservative media begins to examine new OHS laws”

  1. Thanks for the thoughtful reply Kevin.

    I guess my frustration comes with the defence arguments in prosecution matters. It seems that even when prosecution charges are met with a plea of guilty, the plea submissions by the defence team all too often make reference to the employee being somewhere they ought not to have been or having done something they ought not to have done – whether it is justified or not.

    In relation to Tooma\’s comments? With respect, when he puts two words like \’employee\’ and \’negligence\’ side by side and then adds foolproof to the mix – that you have to second guess them to the nth degree? He would have come across a little less troubling for me had he replaced the word \’foolproof\’ with something like \’human-proof\’. There is a significant difference.

  2. I find this concept of \’employee negligence by choice\’ a little hard to swallow.

    Don\’t get me wrong, there are examples of workers doing foolish and dangerous things – antics, showing off and the likes. Obviously in those examples there should be no tolerance. Any worker willfully putting their own or other workers safety at risk for the sake of a few laughs needs to be shown the door.

    However, there seems to be common theme amongst upper management in too many companies that paints this picture of management tirelessly trying to control risks at the whim of employees who don\’t share the same safety values. This makes no sense at all. I think the more common problem is that employees tend to do what is \’done\’. If safety procedures are ignored because the job gets done faster (easier with less fuss), then the lack of enforcement comes back to the overall attitude of the company management.

    Clear boundaries / rules with a consistent and reliable consequence – it is after all, the most dependable training system in the world.

    I came to think about this a lot more in the time I spent working with horses after my son was killed. There I was trying to train a 600kg claustrophobic panicoholic to get into a small dark closed in box (a horse float). With patience and kindness, he eventually walks in (going completely against his own deeply engained survival instinct). If I take the time to make sure that all the hatches are secured, that the float is properly hitched, that a door can\’t fly open .. then I have done my job as his leader. He has no confusing history to second guess what I am asking of him.

    If I make a mistake – if I one day forget to hitch the float properly (and this has happened) then it will be me kicking my own backside to kingdom come for letting him down.

    A good leader is one that understands his influence on those around him. A successful leader is no different to an employer – and at the very top the attitudes of management will be that which determines what employees do.

    We tend to second guess what we do not understand or what is least known. Tooma would be wise to remember this.

    1. Andrea, I can\’t see any \”employee negligence by choice\” and the requirement to manage the safe system of work is a well-established OHS principle.
      It is far more common for shortcuts in safety procedures to be taken because of, amongst others,
      • time or production constraints
      • a lack of understanding of the consequences
      • inadequate training, and
      • inadequate \”handover\” or shift-change information.
      The only worksite I have ever seen where workers purposely hurt themselves is in a prison workshop, a unique working environment where workers apply a very different set of personal and workplace values.
      I also think you misunderstand Michael Tooma\’s words. Safety management must consider a very wide set of behaviours and workplace factors in the development of safety policies and procedures. Incident investigation needs to be as exhaustive as possible but produce a realistic and practical action plan for remediation. I am no fan of \”as far as is reasonably practicable\” but this concept will be a major factor of safety legislation and management throughout Australia in January 2012 and it is one that provides some employers with more leeway than they have had before. It will be fascinating to watch how it may be used.

  3. First time I\’ve heard a reference to Matthews\’ classic for a long time. With the new laws, it would be a good time for new edition, don\’t you think? Long overdue.

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