John Darley’s delay on Work Health and Safety laws is unproductive

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.”

Darley  sees

“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.

Kevin Jones

13 thoughts on “John Darley’s delay on Work Health and Safety laws is unproductive”

  1. I had cause to have lunch this week within the Parliament House (yes I know I need to get a better class of friend) there was much chatter in regard to the Harmonisation concept in regard to two people.
    One was John Darly MLC -sorry the discussion is covered by confidentuality.
    One was in regard to a comment made by a very senior manager of WorkCover Corporation SA who in a presentation to a collection of workers compensation industry providers and representatives admitted that it is not likely that the Harmonisation concept will proceed due to lack of political will.
    Make of it what you will, just reporting what I see & hear.

  2. Respectfully Kevin, I very strongly disagree regarding the role of SafeWork SA. To suggest their purpose is primarily education and guidance quite frankly doesn\’t even make sense.

    Enforcement and responsibility are not the same thing. The OHS&W Act is a statute that falls under a criminal code. Do you genuinely believe that no one is responsible for its enforcement? Imagine the chaos on our roads if there was no statutory regulator to enforce the road rules. I don\’t disagree with the idea that I am responsible for my own actions .. if I drive too fast and I have an accident, that is my responsibility. However you and I both know that without enforcement of laws by bodies other than those who have to abide by the laws, very few would be followed in a willing spirit. Even decent people sometimes drive faster than they should because they are late for something.

    Here\’s the real difference though between you and I going about our daily lives and a business operating with the responsibility of employees under its control. One is represented by several powerful lobby groups – whose agendas and deep pockets aid the political campaigns of those who write the laws. The humble Joe and Betty don\’t really have that kind of civil rights campaign group behind them. That\’s why things are a little less strict when it comes to the way we regulate business.

    So no Kevin – in a screaming heap I would go down with my sword to argue that SafeWork SA are there primarily to enforce OHS laws. There are plenty of very capable, highly educated individuals and companies to guide and assist a business to improve safety. There are Unions that are funded to assist in those matters. The regulator needs to get out of that area and focus on its job.

    Now … because I love a debate, let\’s just clear up another issue.

    You say the regulator does not make the laws. Actually I should say if that were true, then law schools all across the Westminster system have had it wrong – because that is precisely where laws are made / written.

    In this case it happened to fall on the Federal Parliament – but it still came under the banner of the Executive of the Minister in charge of workplace safety. I would hesitate a guess that the states safety bodies played a role in an advisory role of sorts also.

    The application of the law actually comes to us by way of the courts Kevin. The Magistrates and Judges have to \’apply\’ the statute and interpret its meaning. There is an entire law unit dedicated to \’Statutory Interpretation\’ because it is such a complex beast. When a Judge has to figure out what Parliament intended when an Act was written – and when all other rules fail to bring about an answer – the Judge may need to refer to the debates that went on in parliament in order to find the intention or true meaning of the wording. It is not the job of the Judge to decide which interpretation he or she prefers, it is all about what parliament intended. This is an important aspect of the separation of powers – that one area does not assume the role of another.

    The problem here of course is that these long winded avenues of interpreting law usually comes on the back of long winded appeals to higher courts. Caught up in all of that is some poor worker\’s family who get dragged along for the ride. Been there done that and it\’s barbaric.

    I am well aware that the \’power brokers\’ at the Desal Plant would likely be in a far less comfy place with the new order of control of the WHS Bill. I get that … I personally am very comfortable with the PCBU and how finally we have some real accountability but the fact is that the legislation is not yet in force.

    Once again Kevin, I would argue that the best laws does not mean the best results will come. BHP BIlliton have been convicted as a result of a death of a contractor working on its site. Normetals were convicted of failing their duty of care – they did not employ Brian Murphy. Prosecuting companies that are not direct employers and that undertook a level of site control is not new or unusual so let\’s keep that in perspective.

    Let me remind you please Kevin, there was a worker whose was left with permanent injuries to his leg – who showed the conditions he was working under at the Desal Plant with photographic evidence and who was NOT once interviewed by SafeWork SA about the incident. There is still serious questions as to whether that incident was even reported. Media activity in September 2010 suggest SafeWork SA were unaware of it … so what does that say?

    Thank God for the enquiry .. Darley has every reason to be concerned about the department. It might have something to do with the notion that he actually gives a toss about worker safety. Fancy that hey?

  3. Really Kevin, I am curious as to whom or what would motivate such a commentary on a politician that is so well respected in the state of South Australia. I can only ascertain that your information that which forms your opinion is not completely unbiased.

    On the Union Right of entry John Darley said: \”I also accept the argument that union right of entry provides a means of having more eyes and ears on the ground but, again, I come back to the point that we should not have to rely on union officials to do the job of SafeWork SA in relation to safety breaches.\”

    So please Kevin, what is wrong in suggesting that South Australia deserves a statutory regulator that actually does what it is there for? You conveniently failed to mention other pertinent comments by Mr Darley during his speech – included those relating to the appalling state of affairs at the Adelaide Desalination Plant and the regulator\’s inept ability to deal with what was going on there! How many calls have you fielded from South Australian workers who have tried to get SafeWork SA to deal with safety issues in their workplace Kevin? How many?

    Shame on you for suggesting that John Darley is playing a political game — and then in the same sentence, passing your negative judgement on our parliament structure and what so many of us regard a safety net – the Legislative Council.

    I spent 2 hours sitting with John Darley, Connie and Jenny last month and not once did I have a notion that John was dithering. I do have a copy of his speech.. Oddly enough ***NOTHING OF*** what John Darley said gave me the impression he was against the Bill. What he is saying is absolutely correct – he has pointed out two sides to an argument – he has highlighted areas of contention – and he has said these require further debate — clarity.

    We have a South Australian politician – and I say again, a very highly respected one … who is saying the WHS Bill needs more debate. He is doing his job exactly as it should be done.

    That is to ensure that every piece of statute that governs us — that being the citizens of South Australia – are written in a clear and concise manner — that the Executive adequately and properly enforce and that the law is then applied as intended by the judiciary. That is what the Westminster legal System is designed as — the essence of ensuring that all three players get it right … the separation of powers — the Parliament, the Courts … and yes Kevin, the Executive too … the Departments that are supposed to do their job as well.

    1. Andrea, thanks for taking me to task.

      My 17 July 2012 article is based on the speech John Darley made to the South Australian Parliament in June 2012. I have read the speech several times and believe that my comments are justified speculations and interpretations. As soon as the original Hansard is available online I will provide a link. I believe some websites already have an unofficial draft of the speech.

      My other article that mentions John Darley was on May 29 2012.

      Both articles link back to the available sources of my information.

      You ask about the role of SafeWorkSA. I believe that the role of OHS regulators is NOT to make workplaces safe. OHS legislation clearly states the primary responsibility for safe workplaces is with the employer and, nowadays, the PCBU. A secondary responsibility rests with the workers. The role of an OHS regulator is provide information and support for the duty holders to understand their obligations and to apply the information in ways to make workplaces safer. In cases where OHS laws are clearly breached, OHS regulators have the authority to investigate and prosecute.

      I note your comments in the Adelaide media on the Desalination Plant issue. I would argue that the new OHS duties of due diligence on senior company executives in the model Work Health and Safety laws MAY have made it easier to prosecute the \”far more influential power brokers calling the shots on this work site who appear to have slithered under the wire\”, had the WHS Laws currently stalled in the SA Parliament by John Darley been in place and able to be prosecuted against.

      John Darley does seek clarity but it seems to me he is not talking with those State governments or agencies that have already achieved sufficient clarity to pass very similar WHS laws. Business costings of the new OHS laws in South Australia has been addressed. Concerns of major State and Federal industry associations have been addressed. Conservative State Governments have introduced the laws with little problem. Victoria has not introduced the new WHS laws for political reasons but many of the elements of the WHS laws that are contentious in SA and other States have been introduced in Victoria progressively over the last decade with initial concern but total acceptance after a short time. That is why the model WHS laws took the Victorian OHS legislation as a template.

      It seems to me that many South Australians have serious concerns about the operation of SafeWorkSA and have done for some time. These will likely be addressed in the Parliamentary Inquiry into SafeWorkSA however the introduction of the national WHS laws in South Australia has come well after many of these concerns were first raised. I think John Darley, and others, are confusing two different issues – new WHS laws and the performance of the OHS regulator. The regulator does not make the laws, particularly in this national circumstance, it applies the laws.

      I think if the WHS laws debate is seen in this way – two battles to be fought at different times, in different ways and from different fronts – South Australian businesses could get on with managing the safety of their workers, which is the responsibility of the employers, under national WHS laws and the operational performance of the regulator in one specific jurisdiction can be addressed through a specific strategy. It is the mixing of the two issues that has lead to some of the confusion in South Australia on which John Darley is unnecessarily seeking clarification.

      Thanks again for writing. Debate and discussion on OHS matters has been absent too long in Australia

  4. Wayne if John Darly MLC does not have a true grasp of what he is talking about, then do not lay the blame at his feet, lay the blame where it belongs at the feet of Minister Wortley MLC and the rest of the advisors who have done little to nothing at all in the way of ensuring the people who need to be able to work within the legislation (should it be removed from life support) actually come out in support of it.

    It is John Darly\’s right to delay and to question until all the concerns have been addressed.

    1. John Darley is playing a political game but that is the career he has chosen. His delaying is being successful because the Parliamentary structure currently in South Australia allows him to do this. It is disappointing that he has chosen this action and I suspect that the information he is being provided, or is relying on, for his decision is inadequate.

      On the point above about a lack of support for the new Work Health and Safety laws, there are many statements in support of the legislation at State, Federal, industry and union levels. Several States are already working successfully under almost the same WHS laws with very few contentious issues.

  5. It has long been thought that John Darley MLC will hold the casting vote in regard to this legislation. I am aware that numbers have been counted and deals may have been done (the common scratch my back…)
    However there have been other changes in SA with new \”players\” settling in to the table who may have different ideas.
    Then there is the set of toes that were stood on quite heavily, these were toes that should have been avoided, but they weren\’t.

    As for the legisaltion itself, it will most likely die a slow death of disinterest.

  6. John Darley approaches OHWS from the perspective of workers who have been injured and the total failure of legislators and others to put in place any system that holds people to account in an effective manner

    The authorities are barely active at the coal face and the injury rates continue to escalate in numbers and cost with very little in the way of penalty incurred by those held responsible by law for the safety of workers.

    I believe John Darley is a man of integrity and does not trust those responsible for the mess that has been created across the country in respect of OHSW.

    SafeworkSA is an ineffective organisation understaffed and underfunded.

    WorkCover SA fails at all levels to treat injured workers with respect and dignity with their emphasis on cost reduction to the detriment of recovery outcomes. All matters of concern to John Darley.

    I would rather see john \”dither\” as you put it, to ensure the best outcome for workers.

    The tens of thousands of small businesses who pretty much only give token support for OHSW are by far the largest suppliers of injured workers to the system. Model OHSW laws don\’t seem to have had much effect to date, so why would a whole raft of convoluted changes to those laws give any incentive for the largest employment sector in the nation to change their ways. What \”nerve\” do you expect to hit with such changes and how exactly do you believe these changes will have any effect at the coal face and on small business attitudes.

    Kevin, your article smacks of frustration that one man can hold up the works so to speak. Any delay in a decision for the benefit of workers safety is fine by me.

    John Darley is held in high regard in South Australia. As an independent he has the trust of the people, more so than the major parties

  7. This is an opinion of someone who is guided only by the substantial influence held over him via donations and/or other corrupt influences. He speaks of no sense nor does he have any grasp on the subject.

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