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.”
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 that in the recent debates on OHS law reform in Australia, human rights have 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 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 include 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 workplace 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 in human rights at work.
* Accident Mortality in the 20th Century – Learning from Australian History
As workers in a democratic society, and in one of the richest nations in the world, it is hard to imagine that we would need to worry about human rights in the workplace. However, multi-national companies and small concerns alike, they can all breach the rights of their workers in favour of putting a few more zeros in the profit column.
Bill Shorten agrees:
\”The Hon Bill Shorten MP: Minister for Employment and Workplace Relations, Financial Services and Superannuation
Madam Deputy Speaker, on the 14th of March this year, in my first Ministerial statement on workplace health and safety in this place, I said that every Australian who goes to work should return home safely.
I know both sides of the House endorse this universal, human right. \”
Hi Kevin,
I\’m sure you won\’t be surprised to know that I support a charter of workplace rights – here\’s one …
http://www.ohsrep.org.au/storage/documents/VTHC_OHS_Charter.pdf
Hi Grant,
I just got around to checking out the link in your comment above.
I fully understand the concept of a \’charter of rights\’ but I am at a loss to understand why such a document should be so one sided.
There is much about the Workers\’ rights and Employers\’ responsibilities but what about the inverse – worker responsibility and Employer rights?
I have long held the the idea that every right has an associated responsibility and every responsibility has an associated right – see my first comment above.
I am aware of the age old differential in power between employer and workers but that doesn\’t negate the need to recognise that employers should have rights too. See also my first comment above re the worker who took an unncessary risk and injured herself despite her employer\’s attempts to prevent same.
Further, I fail to see how a right to \”Travel to and from work in safety and with appropriate protections\” can placed as a responsiblity on employers. Surely EVERY ROAD USER, along with EVERY BUS OR TRAIN USER – whether travelling to work or not – should have that right and yet, as road, bus and train users, the majority of us take unncessary risks and are exposed to the behaviours of others placing us at risk and which behaviours employers have abslutely no control over.
Let\’s get real and place responsibilities in appropriate places, and take responsibility for ourselves, before we start demanding rights from others who cannot grant them.
Hi Kevin,
My initial repsonse to the question \”should there also be freedom from injury as a basic human right?” is that, whilst many (the majority?) of employers attempt to provide a safe working enviornment, employers are unable to prevent workers taking unnecessary risks that may result in injury.
As an example – I was just dealing this morning with a workers comp claim where an employee attempted to use a faulty piece of equipment, without notifying her supervisor, and suffered a back strain. We have clear requirements and procedures for reporting hazards and an organisational \’culture\’ that takes these thing seriously (we provide services to people with disabilities so they may also be at risk when workers take such risks). The worker subsequently let slip that she also has a pre-condition that may have contributed in some part to this resultant injury.
My second response is to the question \”Is a human right to a safe and healthy workplace needed?\” – I thought that under the current (NSW) law, the imposed responsibility on employers to ensure (so far as reasonably practicable) safety of employees (and others) essentially establishes a \’right\’ that employees\’ should expect that their safety be ensured (so far as reasonably practicable).
But what is \’safety\’? Or a \’safe work environment\’?
Compare eg (I\’ve done work in all of these) the Forestry Industry against the Steel Industry as against the Aged Care industry and the Finance Industry and the concept of \’safe work environments\’ would vary from group to group even within each industry, depending on which part of the industry the group exists.
Surely an \’inalienable\’ right needs to be capable of being clearly stated and defined such that is can be applied to every person irrespective of context?
I see these two questions as distinct and different enough that they need to be considered separately because the path to ahieve either is significantly different.
I hold to Bency George\’s comment above \”To treat a human as a human do we need any laws?\” But unfortunately we do need laws because it depends on whether you are doing it to someone else or they are doing it to you as to how humans treat humans.
And in a societal setting that advertises \’you are number one\’ we are becoming more and more selfish, at the expense of the other people around us.
Even if we establish a human right to a safe workplace, good luck with making it so – any more than we are making existing laws so.
On the issue of what is safety and a safe working environment, I think the OHS harmonisation in Australia has sidestepped this question be putting the focus on the work being done rather than the place in which it occurs. This seems to have taken workplace out of safety consideration or, at least, granted it far less relevance than it previously. I think that the various reviews found that the \”old\” focus on workplace created an artificial delineation between public safety and work safety that the nature of work, and the hazards associated with that work, had shown to be anomalous. The new focus on work is an attempt to change our understanding of safety and generate control measures that the changing nature of work.
I think the discussion of safety as a \”human right\” may also require a parallel discussion of \”human responsibilities\”. The Victorian Charter title includes both rights and responsibilities. Perhaps, my article should have reflected this. Next time.
Kevin, we may be looking at that issue of safe workplace/work environment differently –
For as long as I have been \’doing\’ OHS (20+ years) I have always portrayed a \’job\’ or \’task\’ as something that is performed:
– in a \’place\’,
– using plant/substance and
– following a process
– by people.
A Job Safety Analysis (JSA) then should include a review of the surrounding environment as well as the immediate workspace for things that might \’bite\’ the worker while they are focussed on the work.
Even the new law requires PCBUs to ensure [s19(3)(a) the provision and maintenance of a work environment without risks to health and safety]. This is not significantly different in NSW to the old law at this point except for \’reasonable practicability\’.
I don\’t see that as diminishing the concept of workplace/work environment. Rather I see it as expanding the concept that the \’workplace/work environment\’ IS wherever the work takes place.
The change in the law simply expands the concept to include beyond the boundaries of the property that the employer (PCBU) has immediate control over.
Again, this is a useful view in my current role as our workers take clients with disabilities into community settings such as parks, shopping centres, swimming pools, bowling alleys and even sailing lakes – hence our employees\’ workplaces/work environments ARE those community settings. And how can this PCBU provide and maintain safe work enviornments in such places?
And many of our clients have behavioural issues and so we only ever have marginal or notional control over some risks in these \’workplaces\’.
So, accordingly, we document risk assessments on transport/locations/actvities/client disability constraints, etc in order to maximise safety for all involved.
It isn\’t rocket science – it just takes a little effort.
As far as health and safety in the workplaces, my view is that we should understand these issues as being part of the labor relations and as such employer and employees should discuss their problems under government regulations.
Dori Barreiros, PhD – Brazil
My question is To treat a human as a human do we need any laws?Australia should get tougher on their laws.When these bullies go to work in Saudi Arabia or Singapore do they bully anyone there? They will think twice, because these countries hold very tough on their rules. Australia is a safe haven for criminals because everybody can twist and turn the policies the way they like , not theway it should be working.
Bency, I echo Les\’ comments. History has proven that self-regulation of workplace safety, and human dignity, has not worked and that laws are required to reflect society\’s humanitarian values.
\”It can be argued that having “freedom from injury as a basic human right” will unnecessarily complicate the management of workplace safety ….\”
Abolition of slavery created similar difficulties for owners / employers!!!
Thanks Grant. Do you have any comment on some of the questions posed in the article, such as would workplaces be safer with OHS recognized as a human right? If OHS is not recognised as a human right, can workplaces be made safer through some other mechanism?