South Australia still has not passed the Work Health and Safety legislation that would bring it into line with most of the other States of Australia. A major obstacle to the Bill’s progress in the South Australian Parliament is the “dithering” of Independent MP John Darley.
On 28 June 2012, Darley spoke to the WHS Bill in the Legislative Council (page 1641). Darley reviews the status of WHS laws in Australian States, mentions Victoria’s flawed PricewaterhouseCoopers costings report but without expressing an opinion on it and acknowledges the support from major industrial and employer associations for the laws, but he seems very sympathetic to minority views on workplace safety.
Darley refers to the views of the Housing Industry (HIA) and Master Builders’ Associations (MBA) on “control”, two groups he acknowledges are “the most vocal opponents” of the Bill, and states
“Any person who does not have direct control of a risk should not have responsibility for eliminating or minimising the risk”.
Consider this position in relation to workplace psychosocial hazards. A bully would be breaching OHS laws by bullying another worker but those executives who establish the culture of a workplace that condones the bully’s actions would not be facing any penalty. This scenario seems to contradict a dominant safety principle that compliance and respect stems from the active example shown by an organisation’s leader. How will the legislative obligation for a “positive duty of care” in workplaces apply with in-direct control?
Darley says that the government is prepared to
“insert an additional clause that further qualifies a PCBU’s responsibility by providing that, if a person does not have direct control of a particular risk, the extent to which they must eliminate or minimise the risk depends on the extent to which they have the capacity to influence the matter.”
This provides considerable wriggle room in corporate compliance by weakening the concept of the Person Conducting Business or Undertaking but, apparently the MBA and HIA remain unsatisfied.
On “union right of entry”, a contentious element in the WHS laws in those States that have not already resolved the issue, Darley considers the HIA/MBA objections in detail but does not mention a union position to balance the legislative debate. Instead, curiously, he ties union right of entry with the performance and conduct of SafeWork SA. Darley appears to be no friend of SafeWork SA and yet is a member of a committee investigating SafeWork SA. On grounds of fairness, it would have seemed better to avoid any comment on any SafeWork SA issues until after the findings of the Parliamentary Committee on Occupational Safety, Rehabilitation and Compensation. The apparent sympathies Darley has for the dogged positions of the HIA and MBA indicate a challenge for the chair of committee, Australian Labor Party MP, Steph Key.
Darley indicates that
“a significant change in the culture and attitude of SafeWork SA”
is required for any new OHS legislation. He says that
“workers do not trust SafeWork SA.”
“no point in introducing new laws if they are not accompanied by adequate resourcing in the areas that count, not just in areas that appear in government television advertisements or awards for good performance, but in expenditure for more inspectors on the ground at the coalface, ensuring accidents do not occur in the first place.”
Darley misses a core element of not only the new WHS laws but the existing OHS laws in South Australia. The primary duty of care and safety responsibility in any workplace is held by the employer and not the OHS regulator.
His comments imply that South Australia is unlikely to have any new Work Health and Safety laws until the Key Committee inquiry is completed and SafeWork SA complies with any Committee recommendations for change. No date is set for the inquiry’s conclusion.
The HIA and MBA may feel comfortable by not having union OHS reps entering their worksites but, extrapolating from Darley’s position, these worksites would likely have greatly increased scrutiny from SafeWork SA inspectors. What would be easier to resolve, a union stopping unsafe work on a construction site or a government agency stopping the work?
And is Darley really suggesting that, as the Work Health and Safety harmonisation process is intended to achieve, increased worksite intervention from a government safety regulator will reduce the “red tape” cost of compliance?
Darley says in Hansard that he looked into the matter of red tape during a visit to New South Wales. (It has been suggested that he is currently undertaking a similar trip to Queensland.) Given his predilection for information from HIA and MBA, it is not surprising that some of the “stakeholder groups” he met were from the building industry. In fact he states
“the impression I got from builders was one of too much red tape.”
The constant oversight of safety on worksites by SafeWork SA, Darley expects, will surely help that. Not.
Darley also fundamentally misunderstands the reason for the new Work Health and Safety laws. He states
“The intention of this legislation is not to bog businesses down in paperwork: it is to improve workers’ safety.”
Not really. As mentioned in the first report of the National Review into Model OHS Laws in October 2008, the harmonisation of workplace safety laws in Australia was to:
“… cut red tape, boost business efficiency and provide greater certainty and protections for all workplace parties.” (page ii)
Even earlier, the original Inter-Governmental Agreement for Regulatory and Operational Reform in Occupational Health and Safety from July 2008 states that safety was only one of four objectives
“The fundamental objective of the reform covered by this Agreement is to produce the optimal model for a national approach to OHS regulation and operation which will:
(a) enable the development of uniform, equitable and effective safety standards and protections for all Australian workers;
(b) address the compliance and regulatory burdens for employers with operations in more than one jurisdiction;
(c) create efficiencies for governments in the provision of OHS regulatory and support services; and
(d) achieve significant and continual reductions in the incidence of death, injury and disease in the workplace.”
A decrease in workplace injuries and harm does not come from laws but from the application of those laws. Modern work health and safety is a shared responsibility between workers and employers and, now formally, the community but with the principal responsibility still remaining with the major beneficiary of production, the business owner or, in modern parlance, the PCBU.
Darley’s s obstruction of the WHS laws through the South Australia Parliament is not benefiting the people he says he is delaying the laws for, the workers. The delay is robbing businesses of the opportunities to apply new safety management practices with the support of the law and the South Australian Government. His constant criticism of SafeWork SA is shortsighted as the WHS laws are not about one State’s OHS regulator.
Since 2008 Australia has applied a national OHS compliance and enforcement policy. Since February 2011, Australia has had a “Framework for a common approach to inspection work” as part of the Heads of Workplace Safety Authorities structure. Consistency on OHS inspections and enforcement has been established well before Darley’s recent concerns with SafeWork SA.
Leadership is a buzzword in occupational health and safety at the moment. It is a concept that we should admire, trust and reward. Darley is not displaying leadership on the issue of the Work Health and Safety laws. From his speech to Parliament on 28 June 2012, it appears that he is overly influenced by the loud voices of minority business interests and his perspective is affected by an apparent animosity towards SafeWork SA. Neither of these issues help the workers of South Australia to be safer or businesses to be more productive and profitable.