Early this century, according to a draft conference paper* in the SafetyAtWorkBlog archives, the late Eric Wigglesworth OAM posed the following question:
“In addition to our basic human rights of freedom of speech and freedom of religion, should there also be freedom from injury as a basic human right?”
The expectation of a safe and healthy work environment and a workplace without risk is often expressed as a human right, but is OHS a “human right” and what does it mean?
According to one website
“on June 29, 2008, the XVIII World Congress on Safety and Health at Work signed the Seoul Declaration on Safety and Health at Work.”
According to the International Labour Organisation
“…the Declaration also emphasizes that the right to a safe and healthy working environment should be recognized as a fundamental human right.” [emphasis added]
The Seoul Declaration mentions human rights only in passing but the reference exists. It is one thing to make a statement and to do so on a global platform but to make this applicable at specific industrial or national levels seems different.
A list of the members of the XVIII World Congress shows the following Australian organisations as signatories:
- International Association of Labour Inspection,
- International Ergonomics Association, and
- Industrial Foundation for Accident Prevention.
No OHS regulators, as other countries have. No government departments. No national representative. It seems that signing the Seoul Declaration may illustrate a level of commitment or an ideological stance but, in Australia at least, the position of OHS as a basic or fundamental human right is rarely argued.
In an earlier SafetyAtWorkBlog article on this issue, one reader commented:
” The question is not whether [OHS] should be a human right but how to effectively ensure that workers human rights are respecte[d] and enforced.”
It is odd is that in the recent debates on OHS law reform in Australia, human right has not been argued. Johnstone, Bluff and Clayton refer to ILO Conventions in their latest book Work Health and Safety Law and Policy but only to OHS Conventions and these do not mention human rights.
From the other direction, the Universal Declaration on Human Rights does not mention a specific right to a safe workplace and other work-related rights require additional argument. This is discussed in the earlier article.
Is a human right to a safe and healthy workplace needed? Australia already has legislative obligations on employers, employees and Persons Conducting a Business or Undertaking. Is this enough?
What is the advantage of having “freedom from injury as a basic human right”? Will this make workplaces safer?
It can be argued that having ” freedom from injury as a basic human right” will unnecessarily complicate the management of workplace safety but, more significantly, complicate the processes for reparation from a workplace injury or illness.
The Victorian Charter for Human Rights and Responsibilities was introduced before the XVIII World Congress and provides “20 fundamental human rights” but workplace safety is not specifically mentioned. However, Australia’s OHS laws are quickly transforming away from the “workplace” to the “work” and increasingly including work’s public responsibility and may make some of these 20 fundamental human rights more relevant to work situations.
There is one human right in the charter that could relate to the hazards of work – Section 10 – “Your right to protection from torture and cruel, inhuman or degrading treatment”. The Victorian Equal Opportunity and Human Rights Commission describes this section as:
“People must not be tortured. People must also not be treated or punished in a cruel, inhuman or degrading way. This includes protection from treatment that humiliates a person. People must not be subjected to medical treatment or experiments without their full and informed consent.” [emphasis added]
Workplace bullying anyone?
The trap with that question is that the human rights charter is based on the International Covenant on Civil and Political Rights 1966, according to the Charter’s explanatory memorandum, and needs to be seen in the context of civil and political rights and probably not the workplace. However, whether workplace bullying could be argued under the Victorian Charter is up for debate or, at least, clarification by some of this blog’s legal readers.
In the 2009 book Unhealthy Work – Causes , Consequences, Cures, Ellen Rosskam argues for a “rights-based approach’ to workplace health based on Article 7 of the UN International Covenant on Economic, Social and Cultural Rights. That Covenant clearly states
“The States Parties to the present Covenant recognize the right of everyone to the enjoyment of just and favourable conditions of work which ensure, in particular:…..
(b) Safe and healthy working conditions;”
Australia ratified this Covenant in 1975 according to a signatories list. Perhaps more should be made of this.
The Covenant above seems to present a stronger argument than in other work-related UN documentation but a clear resolution of safe work as a human right, perhaps importantly, an enforceable right, is difficult to find.
It seems that a human right is only a human right once it has been tested in a court of law and found to apply to a specific circumstance. This seems not to have occurred in Australia so it allows speculation like that above.
It is interesting to speculate further on how the Australian workplace would change, if at all, if “freedom from injury [was] a basic human right”. Would workplace safety be improved if this human right was expected? Companies could argue strongly on their corporate social responsibility but would they be willing to incur the cost of satisfying human rights obligations on a process that only had legislative obligations previously? Would human rights obligations cost any more?
Industry associations may argue that applying human rights to workplace safety would simply be a manifestation of the global nanny state but is not increased regulation a symptom of the corporate sector’s lack of commitment in, or application of, self-regulation?
SafetyAtWorkBlog readers know well that the author is not a lawyer and speculation may be ill-founded but it is useful for the question of human rights and work health and safety to be asked, particularly in Australia at this time of OHS legislative review and in the development of a national code for the prevention and management of workplace bullying. It is likely that the issue of psychological health at work is a potential turning point on human rights at work.
* Accident Mortality in the 20th Century – Learning from Australian History