Fatigue dispute illustrates ideological clash

The Australian newspaper reports today (26 July 2011) of a clash between the Construction Forestry Mining & Energy Union (CFMEU) and BHP Billiton over fatigue management.  Fatigue management is one of the workplace hazards scheduled for a draft code of practice under the OHS harmonisation process.

The CFMEU believes that the current mining-related guidance  is inadequate.

“The Construction Forestry Mining and Energy Union says the government buckled under industry pressure and abandoned plans for binding industry standards that would minimise the risk of workers doing successive 12-hour shifts and then driving long distances on public roads.”

The flaw in the CFMEU’s campaign is that it has been selective in its choice of fatigue documentation.  Looking at the industry sector rather than the hazard or risk limits the hazard control options.  In the current case the CFMEU is not acknowledging many of the fatigue guidancesand documents that are available from Workplace Health and Safety Queensland or from some of the other States and even from overseas as this Safe Work Australia document from 2006 shows.

In fact the narrow selection of guidance in this instance makes a strong case for greater collaboration in the development of information across industry sectors and State jurisdictions – one of the aims of harmonisation.

The dispute illustrates the constant ideological  tension between regulatory prescription and operational flexibility that, in safety, has resulted in the increasingly dominant concept of “as far as is reasonably practicable” in the hope of achieving an acceptable balance.

Although the CFMEU can be criticised for its strategy, OHS regulators too often leave guidance revision too long.  Often industry knowledge or hazard research progresses quicker than a regulators’ capacity to update.  (This challenge is equally shared by Standards Australia)  In this circumstance the guidance can become a drag on innovation and change.  It could be argued that a ten-year old guidance such as the guidance in dispute, Guidance Note for Management of Safety and Health Risks associated with Hours of Work Arrangements at Mining Operations, has become such a burden.

The  Australian article refers to the Queensland coroner’s findings into deaths of several mine workers.  The findings are available online and should be mandatory reading for any OHS professional interested in fatigue management.  The CFMEU’s frustrations with the Queensland Government’s delay in implementing the recommendations of Coroner Annette Hennessy’s February 2011 report are understandable.  If the government is delaying due to the upcoming national model code on fatigue, that is understandable, they should at least be upfront about it.

As discussed elsewhere in SafetyAtWorkBlog, some States’ coronial recommendations MUST be responded to by safety regulators.  It will be fascinating to see if this requirement becomes a national requirement as the preventive documents, policies and safety guidelines of  Australia become harmonised.

Kevin Jones

3 thoughts on “Fatigue dispute illustrates ideological clash”

  1. Hi Kevin,
    In the article you make the following point – with further explanation. –
    Although the CFMEU can be criticised for its strategy, OHS regulators too often leave guidance revision too long.

    I believe this expectation still places too heavy a burden on \’regulators\’ to be keeping up with the vast range of issues that present across all industries. Regulators will never have sufficient resources to deal with it all in a timely manner.

    The intention of the OHS legislation reform, commenced in the 1980\’s, was based on the recognition that regulators cannot keep up with technological change – and OHS research certainly informs technological change.

    The legislative approach established back then, and continued in subsequent versions, was to encourage communication and consultation between employers and affected stakeholders. Surely there are grounds to place an obligation on employer and employee representative bodies to consult and communicate on industry based issues and establish industry based Codes of Practice.

    My biggest concern in all of this is that while we continue to expect regulators to do all the work, in general, Industry employers will continue to expect the taxpayer to pick up the costs associated with researching and regulating the industry that they are making profits from.

    Surely a better approach, from a regulatory perspective is to ‘encourage’ the industry to take up the issues and deal with them. If employer/ee bodies can’t come to agreement then regulators could provide mediation services.

    At least then the costs will be born by the affected industries – and obviously passed on to the consumers of their products and services.

    Cheers
    Les

    1. Les, I agree with many of your points and than you for your contribution.

      Industry associations are regularly encouraged to develop safety guidance but often this remains within their industry or their membership. I worked on a Dairy Safety guide issued by WorkSafe but the level of industry involvement in the guidance could easily have justified independent distribution. However there are distinct advantages with such a document going out under WorkSafe\’s banner, particularly its distribution network of physical copies and the prominent place in the internet for soft-copy guidance.

      Resources are a constant pressure and this is likely to become even more complicated through the harmonisation process. Indeed due to this potential complexity, the construction of industry-specific guidance by industry associations should receive greater prominence. For instance, much of the current debate/dispute between the WA and Federal governments over harmonisation could be diffused if major (an minor) industries took on some of the OHS advisory burden by distributing guidance broadly to their own industry sector instead of just to their own association members. This would also apply to many of the trade unions who are perhaps better placed than many for OHS advice.

      The Safety Institute of Australia has often been approached for financial support of safety books and guidance material, by individuals and, recently Standards Australia, but it has not been in a position to support these requests. With the SIA\’s corporatisation, and its potential plans for a commercial arm, it may take up the opportunity of producing OHS guidances or books by building on its research journal processes.

      The challenge is to advise without being legally held responsible for the application of that advice. Disclaimers can only go so far.

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