Employer association criticises Australia’s new Work Health and Safety laws

On 9 September 2011 The Australian newspaper reported  that the executive director of the Independent Contractors of Australia, Ken Phillips, had serious concerns over the new Work Heath and Safety laws to be introduced in Australia in 2012.

Phillips has received legal advice that identifies serious shortcomings in the new laws compared to the existing Victorian OHS laws. These include eliminating the right to silence and protection against self-incrimination during incident investigations by OHS regulators.  The article says that the ICA’s analysis

“…shows that the new system would also empower workplace inspectors to seize entire businesses without the oversight of a court, something that is currently not permitted in Victoria.”

It also reports that Phillips fears

“…the scheme would lead to a recurrence of what happened under the former workplace safety system in NSW where “ordinary people were prosecuted even if they had no control over the business”.

The overall significance of the article is that Ken Phillips and the ICA are principally concerned about post-incident ramifications.  There is nothing in the article about the elements of the new laws that encourage or require positive actions on injury prevention.

Some may find the ICA’s 2008 submission on the national OHS law review of interest.  Others may like to read Phillips’ book, Independence and the Death of Employment.  On online review included the following significant quote from Ken Phillips’ book:

“If, as individuals, businesses and societies we are to move forward, we must recognize the nature of the employment contract. Where we reject employment, we find new liberty, strength, equality and self-worth. Societies function better without employment. Businesses are more successful without employment. Individuals are happier without employment. Yet working without being employed is not easy. In fact, non-employment goes against the natural grain of some powerful human instincts. But the revolt against employment, against concentrated power, is a sign that we are becoming more civilized.

A contrasting review of the book is available in the Griffiths Review.  In that review Professor David Peetz is quoted as questioning the advocacy of the independent contractor relationship:

“…replacing employment relationships with commercial contracts would mean that “all power rests with the corporation basically, which is what it’s all about. Can you imagine a part-time waitress in a restaurant being an independent contractor, paying for her own workers’ compensation? It’s a joke to think that it would be in the interests of so many employees. And in reality for many employers it would be a nightmare – it’s actually economically efficient to have employment relationships. The bid to force everybody to become an individual contractor is really driven by ideology rather than efficiency.”

The employment relationship is an important workplace consideration (perhaps the most important) but OHS laws do not focus responsibility on the individual but on the system of work.  The logical extension of some of Phillip’s points is that if the employment relationship has been replaced by individual contracts then each individual is also responsible for their own safety.  (The issue of individual accountability for workplace safety will be discussed in an upcoming blog article by Col Finnie)

The Australian article, on 9 September, like many others, reports on people who are looking at the wrong end of the OHS laws.  They are concerned over punishment and not prevention, risks and not opportunities.

Kevin Jones

reservoir, victoria, australia

19 thoughts on “Employer association criticises Australia’s new Work Health and Safety laws”

  1. Andrea – I\’m an OHS professional and I remember that accident. How brave you are to write about it here. Sixteen years ago my husband fell from a roof and became a paraplegic. The victims are not upheld by the system. Possibly you\’ll never read this comment, such a long time after the original post, but just in case – YOU ARE NOT ALONE.

  2. My 18 year old son, my only child was a 1st year apprentice in his first job. Less than a year into his apprenticeship, he was pulled into a very old and exceptionally unsafe horizontal boring machine. His body was torn to pieces. He died in my arms in hospital the next day. I was dragged through 6 ½ years of court rooms Mr Phillips. I know perfectly well about legal rights afforded to those defending matters of OHS negligence.

    Make no mistake; this was a journey under the complete control of the Company and its lawyers. The courts placated this every step of the way. I don’t recall the courts ever asking whether I was coping. Yes indeed, I recall wondering often, when does this stop – when did this so called justice system become so brutal on the human spirit? Indeed, please spare me the rhetoric.

    Look, you’re position is to lobby on behalf of your members and I respect that. My role is to challenge the thinking of the likes of you and your members. I represent people who have had their world obliterated precisely because of negligence in the workplace. If I thought for one minute we had it right – that ‘this’ system was working, I would not be here.

    There are too many untruths told in court by employers and employees – there are too many conflicts of interest. Truth be told, I don’t think these matters should be under the courts control at all. There is too much evidence that remains unchallenged and that hinders the flow of information; of educating for future exposures – and that does NOT equal improved workplace safety.

    I\’ll say it again – people who have nothing to hide, hide nothing. This has nothing to do with murder Mr Davies. It is just as painful and harrowing to have your loved ones death turn into a legal circus in the Industrial Courts.

  3. If I understand the argument correctly, Andrea Madeley is seeking to privilege incidents involving safety at work over serious crime. You can murder somebody, but the law protects your right to remain silent when the matter is investigated. There must be many occasions when this protection must seem outrageous to those close to the matter, but it is the way things have been in law for a long time. Am I misunderstanding?

  4. Regarding work safety insurance for the independently contracting waitress referred to by Prof David Peetz, I\’d have thought that was something trade unions might see a role for themselves in offering.

  5. Good grief. How dare you accuse me of insulting the victims crime. Of course this is legal argument and its a human rights and justice argument. And its about securing safer worksites. The issues are all interlinked. For goodness sake read what I\’ve been saying at http://www.contratworld.com.au and don\’t go attributing attitudes to me that I do not hold.

  6. Please do not insult the victims of crime and the cruel consequences a right to silence can have on those people.

    This is a legal rights argument and nothing more.

    You believe it should be a legal right to remain silent for fear of self-incrimination and I am a firm believer in the old saying, “he who has nothing to hide, hides nothing”.

  7. Oh that right so trash human rights then. Sounds like star chamber. So lets get right of basic human rights under criminal law. The end justifies the means does it? Give me a break. Go have a look at the Vic OHS laws that secure the right to silence.

  8. On the right to silence you have a right not to incriminate yourself – yes, that’s what our law says is fair and from the outside it likely looks harmless enough. However if what you care about is prevention, then surely one of the most critical aspects of a workplace tragedy is being able to determine precisely how and why it was able to happen in the first place.

    To do that, this precious ‘right to silence for fear of self-incrimination’ becomes an absolute impediment to solutions. If a regulator cannot control (or seize) the area where a serious incident occurred, vital evidence is not secured. There’s yet another impediment.

    If we’re really serious about *prevention*, then surely the last thing we want is to make evidence collection more challenging! I mean, the priority should be to allow the regulator to move in quickly and gather all the evidence / statements needed so as to determine what actually happened in the first place – right? Well, apparently not …

    Do you have any idea how much vital evidence is never challenged or raised in court because of the many legal issues that surrounds how it was collected – whether it’s admissible etc?

    Look, that may be commonly understood and accepted in legal circles but it is not acceptable to those who are affected by these tragedies. Those who have a willingness to comply generally are not the ones who will be screaming about their right to silence. We’ll leave that for the person(s) who knew they was operating on shaky footings and now require legal help to dig their way clear. Ahh, and of course the criminal court is exactly the place that will hand them that shovel …

    Spare me – this is all about damage control … nothing to do with safety and saving lives.

  9. On the right to silence issue. OHS law is criminal law. Confidence in justice under the law is central to the willingness of most people to comply. Removal of the right to silence lessens confidence in the law. It increases suspicion of the regulatory authority. This breaks down the relationship that the regulatorty authority has with the community and the partnership that is needed if prevention is to be maximised. Again read what I say. Look at our comparison to the Victorian current OHS laws. It specifically secures the right to silence. Read the Vic Maxwell report into safety that established the principles behind the Vic OHS Act. I would hold the Maxwell report up as one of the finest dicsussion of the OHS laws around

  10. Take this comment \”The overall significance of the article is that Ken Phillips and the ICA are principally concerned about post-incident ramifications. \” WRONG. Our major concern is prevention. The removal of the word \’control\’ from the duties of care create confusion over who is responsible for safety. This reduces clarity in responsibilites and the focus that everyone at work must have on safety

  11. Mr Phillips gave us a link to follow and all I was able to read was the following:

    \”We have to oppose the rollout of the new work safety laws across Australia. They will damage safe work. The new laws (a) remove the right to silence and protection from self-incrimination (b) enable the regulator to \’seize\’ businesses without court supervision (c) create confusion over who is responsible for safety. This puts safety at risk.\”

    Mr Phillips the only confusion I\’m struggling with right now is just how the \’right to silence or a protection from self-incrimination\’ might put safety at risk in the workplace. Or … or whether a \’regulator siezes\’ a piece of plant or equipment and documents as evidence when there\’s been a serious incident – please explain how this might damage \”safe work\”?

    1. Much of the harmonisation discussion has focussed on the punishments to be imposed after a workplace incident or death. The increase in penalties and the increased risk of accountability has been a focus of much of the commentaries for some time and the stories in the Australian media in the last week reflect this post-incident or prosecution concern. However the over-emphasis on these elements of the laws ignores the aim of the OHS laws over the last 30 to 40 years, and that is prevention.

      Instead of asking how one can avoid prosecution or minimise the risk of being prosecuted, one should be asking, will these laws

      • make it easier for me to prevent my workers being injured or injuring themselves?
      • make it easier for OHS regulators to prosecute those companies and individuals who are dismissive of safety obligations?
      • make it easier for OHS regulators to educate workers and businesses on the application of OHS laws to their specific circumstances?
      • encourage hazards to be eliminated at the design stage?
      • limit the importation of equipment that does not meet Australian safety standards and expectations?
      • provide clarity on how to comply with OHS legislation?

      The Regulatory Impact Statement is important but the harmonisation process has never been about improving the management of workplace safety but about revising the OHS legislative framework to assist companies, workers and regulators to have a clearer and more coordinated approach to safety management.

      In some States the hardest challenge lies in the future with trying to improve workplace safety from this harmonised framework and to delineate OHS obligations from those of public liability.

      In some ways we should not necessarily be focussing on the details of the legislation but asking whether we can build on legislation, whether we can use it even though it may not meet our expectations or ideologies. There will be revisions and tweaks in the future as there always is with legislation, regrettably. Perhaps we should accept the introduction date of 1 January 2012 but start planning the strategy for changes after that date.

  12. There\’s a terrific amount of misrepresentation of my position in both the article above and some of the comments. Read what we have to say on our website http://www.contractworld.com.au and you\’ll find our position is on of enhancing safety. I\’m happy to debate the issue based on facts but not misrepresentation

  13. I\’m still trying to get my head around all the legal stuff that continues to putrefy the trenches here.

    Ken Phillips is concerned about a lack of criminal rights and that right to silence and protection against self-incrimination during an investigation?

    I concur – let\’s make it fair.

    Ken Phillips gets his criminal rights if we get a decent penalty for a crime that causes death and serious long term injuries to workers through negligence. I’m all for the bargaining table. If they want the rights of a criminal then they accept the wrist-slap monetary penalty is off the table.

  14. I am responding to Mr Phillips assertions that “ordinary people were prosecuted even if they had no control over the business”. In my experience the workers in Victoria, who can be prosecuted under at least two laws, have no particular issue with this. I assume Mr Phillips has no problem with the worker who fired a nail gun at a fellow employee several times before hitting him in the eye being prosecuted under safety laws and effectively put in a form of custody for 4 months. Does he also have a problem with the way the employees at Cafe Vamp were treated after bullying a vulnerable worker who subsequently committeed suicide. I agree that a person should not be prosecuted for matters over which he or she has no power or control, but a person\’s own behaviour is something that is very much within a workers power to control.
    To Dr Doug Osborne. You should not be surprised by organisations succumbing to Groupthink (Wikipedia has an excellent summary), especially governmental departments (see Groupthink – Irving Janis). Paul \’t hart of ANU is a local expert and he may well be viewing the harmonisation process through an academic eye, in my opinion.
    What you should be surprised about is organisations of sophistication allowing Groupthink to rule their decision making processes when remedies and preventative measures are well known. It appears to me the whole harmonisation project has been more about seeking consensus even if it is at the expense of creating safety laws that work.

  15. Before there can be any meaningful federal OH&S law it is essential that there be a very full public inquiry into WorkSafe Victoria since they seem to be being held up as some kind of good example. Nothing is further from the truth in the area of workplace bullying. At best they are a rogue organisation. They claim they are outside the Victorian Equal opportunity Act with regard to Discrimination. They have ignored the Charter of Human Rights. They have ignored previous findings by the Ombudsman against them. They have ignored the Solicitor Generals requirements on conducting investigations into complaints against themselves. They have failed to act as Model Litigants as is required of them. The list goes on.
    Mr Gordon Rich-Phillips as the responsible Minister has also blithely ignored every communication to him regarding these matters.

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