New book on OHS laws challenges current understandings of workplace safety

With the change of political heart from some of Australia’s state governments over the harmonisation of occupational health and safety laws, many academic and legal publishers revised their book plans as the national market was less national. However, some continued to publish understanding that although OHS harmonisation had a political deadline of 1 January 2012, refinement of the laws would continue for several years.

Federation Press has released a new book by prominent labour lawyer, Michael Tooma, and academic, Richard Johnstone, called “Work Health & Safety Regulation in Australia – The Model Act“. The title states an immediate limitation that other publishers squibbed at. The book is based on the Model Work Health and Safety Act and not, necessarily, the versions of the Act implemented at State level. Production timelines are responsible for this but it makes it even more important to follow the writings and research of Johnstone and Tooma to understand developments.

The Social Context of Safety

The authors reiterate an important element of the WHS Act in their introduction:

“[the laws] are no longer workplace or occupationally based, nor predicated on the employment relationship; rather the laws protect persons involved in ‘work’ in a business or undertaking, and, in addition, protect ‘others’ whose health and safety is affected by work. Consequently the scope of the Model Act is limited only by the imagination of those entrusted to interpret them and to enforce them.” (page 3)

This paragraph summarises well the elements of the laws that are causing so much fear in the Australian business community.  Instead of fear, there should be a dialogue about how Australia can manage this transition of Work into Life. These laws have the potential to break the barrier of the factory fence and the office revolving door in the thinking of the community and government. I would argue that the nature of work has already broken these boundaries and that these laws reflect those changes. But those who look to industrial and safety laws instead of reality have missed this transformation and are trying to reinstate old methods of control onto a society that needs new controls, new guidance and new beliefs.

In a telling footnote to the quote above, the authors anticipate debates on the laws’ potential applications by referring to current discussions on the application of the duty of care of the persons conducting business or undertaking (PCBU) on family violence, and to “the application of the legislation to the tobacco industry” in relation to public health.

Criticism

The authors are not afraid to poke at recent OHS reviews. Much has been made of the significance of the reports  of the National Review into Model Occupational Health and Safety Laws (Richard Johnstone undertook a review of the first report in 2009) but the authors say that

“The challenges meticulously identified in the first part of the National Review’s First Report serve only to highlight the extent of the inadequacy of the reform program recommended by the National Review in its first two reports.” (pages 36-7)

Page 97 says that the Model Act lets down the “progressive vision of the primary duty” of care by being based on outdated concepts of work.

Inspecting  Due Diligence

Tooma has a series of books for rival publisher CCH Australia on the WHS Act and its application to various corporate sectors (the second in the series is set for release within a month or so). The first concerned the duty of officers but there is a slightly different tone in the chapter in this book on The Duty of Officers. A curious point that challenges Australia’s OHS regulators is that

“…work health and safety regulators can now focus, at least in part, their inspections and enforcement activities on ensuring that officers are taking reasonable steps to exercise due diligence.” (page 135)

I am unaware of any OHS regulator who has an inspectorate suitably skilled and resourced to investigate due diligence. (Workplace Standards Tasmania seems to struggle to have sufficient inspectorate resources for an established workplace hazard like bullying)  Indeed such investigations have sat with national corporate regulators and for OHS due diligence to be investigated properly, there would need to be much greater inter-agency cooperation.  This would have seemed highly unlikely except that only last week the Attorneys-General established cross-jurisdictional enforcement on laws about motorcycle gangs.

Right to Prosecute

In a short discussion on the new book with SafetyAtWorkBlog, Tooma emphasised the role of competition in the reporting of OHS breaches.  In the chapter on Worker Representation and Participation, the authors suggest

“…that there be a general third-party right to initiate prosecutions, exercisable by a union, an NGO (such as a workers’ health action group or an institute concerned with the protection of workers’ rights), a competitor or a group of workers.” (page 193)

Business groups are likely to be enraged by this suggestion, worker advocates and grieving relatives should be ecstatic.  The authors footnote a clarification about competitors which helps clarify this concept.

“The inclusion of competitors may seem surprising at first but currently represents the manner in which laws concerned with food health and safety standards and consumer protection are most effectively enforced.  Competitors have the greatest interest in ensuring that competing businesses do not get an unfair price advantage by cutting health and safety corners and therefore will use the full extent of their commercial resources to enforce legal obligations against their competitors.  It is the application of this motivation that will act as the greatest deterrent for breaches of the legislation.” (page 193)

This concept needs considerable thought.  Firstly, the concept is a market-based tool, so it should be palatable to the business sector.  It may also be applicable to government contracts which have often been criticised for assessing tenders on monetary measures only and not emphasising the need for adequate safety resources – the lack of “safety in (contract) design”.  The concept also releases workplace safety from the fixed workplace definition and illustrates a pathway of integration with other social/public safety processes and practices.

“Final Observations”

The final chapter discusses a range of issues that may confront, or prick, dominant positions.  The authors emphasise the significant difference in work structures from the 1970s to today but they don’t only refer to the technologies that allow people to work from home.  They discuss the outsourcing of work overseas and to other jurisdictions and how this affects the primary duty of care.  Indeed they are getting close the elements of Corporate Social Responsibility as outlined by Professor Niki Ellis in September 2011.

The authors are very critical of the lack of attention given to psychosocial hazards in the Model WHS Act, the National OHS Review reports and the currently released National Codes of Practice.  They state that

“..there are no provisions in the Model Regulations dealing with psycho-social risks – including stress, bullying, other forms of harassment and fatigue – despite their prevalence in workplace illness statistics.” (pages 264-5)

They also note that there are no

“provisions dealing with emerging issues such as nanotechnology and electromagnetic radiation through the proliferation of mobile devices and other communication devices as work tools …” (pages 264-5)

Some may argue that the evidence remains inconclusive on the risks of these emerging issues however the many lessons of the past show that a lack of action at early stages of possible risk can have enormously damaging long term effects.

The authors state that these issues are compounded by a “piecemeal” approach to Rick Management in the legislation and by the

“failure of the Model Act and Model Regulations to require all PCBUs to engage in a proactive and systematic process of identifying and controlling hazards and risks.” (page 265)

The Safety Institute of Australia will be happy that the authors criticise the lack of specialist expertise.  The authors say that such a requirement

“would have spurred the growth of a viable profession and applied additional pressure to the health and safety services industry to organise itself to meet such an increased demand.” (page 266)

A curious recommendation and one that is unlikely to gain support from the business sector, as it chases any reduction of business regulation, is a

“licensing scheme for officers to ensure they are equipped, through pre-licensing training and competency assessment, with the skills required to discharge their due diligence duty.  This reform would reinforce the move to proactive assurance rather than reactive enforcement.” (page 135 & 269)

This recommendation makes enormous sense and supports the assertion of the safety profession and the “c-suite” about safety improvements stemming from executive leadership.  Shouldn’t executives be held accountable for their safety leadership?  The authors suggest such licensing would reduce the need for external inspection of due diligence, the type of intrusion at which many executive bristle.

The authors also discuss a change to the enforcement approach of OHS with increased emphasis on the need for a “systematic approach to work health and safety management “.  Much more discussion is required on the issues arising from statements like

“PCBUs who are incident free but have no systems in place should be prosecuted for failing to proactively ensure the health and safety of their workers.  While good fortune sometimes protects the unworthy, the regulatory system should not.” (page 271)

This seems to be addressing those companies who have been running on immature OHS management systems due to a misperception that, as no incidents or injuries have occurred, they are a low risk workplace with a reduced need for a safety management system – those managers who run on “luck”.

Work Health & Safety Regulation in Australia – The Model Act is a book that deserves close reading but, more importantly, needs discussing.  The important issues raised in this book need serious consideration at the senior levels of government.  Sadly, it would seem that the opportunity for the necessary level of change in the WHS Act at a national level has passed.

The authors point to the scheduled 2014 review of the WHS laws for a glimmer of optimism.  Their optimism will be rewarded if the safety and health stakeholders take up the opportunities raised by this book and begin a public debate on safety management instead of on “red tape”.  However optimism will fade if, as most pundits project, the current federal Labor Government which is supportive of OHS reform, loses power to the conservative parties.

The book includes the type of issues that should have posited in the early stages of OHS harmonisation however the Review was about reforming existing OHS laws and not about future safety needs.  Tooma and Johnstone provide the best discussion yet on how the WHS laws are likely to change the management of safety and health in Australia.  Overall it seems Australia is in for continuing confusion on safety management for several years to come due to missed opportunities.

Kevin Jones