Principled pragmatism – Human Rights included in OHS Due Diligence

On 16 August 2012, Australia’s Workplace Relations Minister, Bill Shorten, said in Parliament, in relation to new asbestos management initiatives, that”

“On 14 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 and today I reaffirm our commitment to this principle…” (page 13, Hansard. emphasis added)

It is very common to hear safety professionals and company executives echo the statement that workers should return home in an uninjured state.  But few would be aware or, perhaps, agree that this is a human rights statement.

Following an earlier blog post, one reader has pointed us to the United Nations Guiding Principles for Business and Human Rights that were released in 2011. According to the author, John Ruggie, these principles:

“… highlight what steps States should take to foster business respect for human rights; provide a blueprint for companies to know and show that they respect human rights, and reduce the risk of causing or contributing to human rights harm; and constitute a set of benchmarks for stakeholders to assess business respect for human rights. The principles are organized under the UN Framework’s three pillars:

• The State Duty to Protect against human rights abuses by third parties, including business enterprises, through appropriate policies, regulation, and adjudication.
• The Corporate Responsibility to Respect human rights, which means that business enterprises should act with due diligence to avoid infringing on the rights of others and to address adverse impacts with which they are involved
• The need for greater Access to Remedy for victims of business-related abuse, both judicial and non-judicial.”

Corporate Social Responsibility (CSR) has always had the potential to apply to a business’ own conduct and to the manner in which workers’ safety was managed, but the CSR perspective never gained traction in Australia in the area of OHS.  There are many reasons for this inaction.  Some saw CSR as focusing on environmental responsibility, an area that gained considerable traction.  CSR discussion was also dominated by offshore corporate conduct.

In short, standards were applied to others or elsewhere, instead of to ourselves.  Primarily this is because self-analysis is enormously challenging and it may reveal uncomfortable secrets or corporate deficiencies that can only be remedied by changing the way business is done.

In Ruggie’s comments above, the second bulletpoint is most relevant to the discussion of safety at work and its mention of “due diligence” should not be overlooked or dismissed.  In this time of OHS legislative change in Australia, due diligence has gained increased discussion and interest but none of this has had a hint of a human rights argument. Including human rights in the legislative obligation for due diligence is both an opportunity and challenge.

It is the “right thing to do” to keep workers safe and free from health threats. This is the belief behind Minister Shorten’s statement to Parliament and it is a belief with which few would argue.  Further in Hansard, the opposition conservative coalition agreed, mostly, with the Minister’s actions over asbestos management. Sussan Ley stated:

“In conclusion, may I say that we do believe it is important to address this in a bipartisan manner so that we can ensure that Australians are not struck down by this disease and can live to see not just their children grow up but their grandchildren and even their great-grandchildren.”

However it is unlikely, should this discussion on human rights gain corporate attention, that businesses would be comfortable being held to account for OHS not only through the traditional enforcement processes and courts but also through the various Human Rights commissions and tribunals.

Australian corporations are not unaware of CSR obligations but CSR has always been voluntary, a “nice to have” but one that can be “missed” for a couple of years, or downplayed in Annual Reports.  If CSR was enforceable in courts other than the court of public opinion that can always be “spun”, the position of Australian businesses would be very different.

The magnitude of the challenge to corporate operations in Australia from the Guiding Principles for Business and Human Rights can be seen in these words from John Ruggie:

“The Guiding Principles provide practical and concrete recommendations to governments and companies on the policies and processes they may put in place to manage these risks. And in particular for companies, the systems to help integrate respect for human rights throughout the enterprise to help meaningfully prevent and address their involvement in human rights abuse. In this regard, what I recommend is human rights due diligence.  It can be incorporated within broader enterprise risk-management systems, provided that it goes beyond simply identifying and managing material risks to the company itself, to include risks to rights-holders.” (emphasis added)

“The process should include …..:

(a) … adverse human rights impacts that the business enterprise may cause or contribute to through its own activities, or which may be directly linked to its operations, products or services by its business relationships;”

Compare this to the primary duty under Australia’s model Work Health and Safety Act:

“(1) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of:

(a)  workers engaged, or caused to be engaged by the person; and
(b)  workers whose activities in carrying out work are influenced or directed by the person, while the workers are at work in the business or undertaking.

(2)  A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.”

There are obligations in both quotes above for the protection of workers and those potentially affected by production.  An argument that a safe workplace is a basic or fundamental human right can be mounted and should be done so but, at the moment and particularly in Australia, this remains an argument and not a fact.  The issue of OHS as a human right can be argued against on the basis that the United Nations has not specifically stated this and until the UN does so, there is room for a counter-argument.  This counter-argument may seem petty, ill-founded or self-serving but it can still be made.

The increased impetus to OHS as a human right that has come recently from Ruggie’s Guiding Principles should be supported.  The Guiding Principles are the morality from which the corporate statements of  “safety is our highest priority” and “our people are our most valuable asset” are being made but it would be a brave company (in the Yes Minister tradition) to express this morality in the context of a human right because this adds a serious level of authority and scrutiny to the risk management process.

However for the Guiding Principles to have the clout they deserve, that clout can only come from the “brave” corporate sector.  Human Rights and Safety advocates can lobby for these values but that lobbying can create a backlash and a compartmentalisation of the values to the Left of politics, “soft” economics, and qualitative business practices that are always less of a priority than profits.  Business must discover and embrace these Guiding Principles themselves for them to truly be applied as intended.

There needs to be many more statements like the one quoted by Ruggie below before the Human Right to Workplace Safety is accepted without dispute.

“Martin Liptonof Wachtell, Lipton, Rosen and Katz has remarked that the “Guiding Principles insightfully marries aspirations with practicality. It identifies a host of tangible opportunities for Nations and businesses to contribute to the goal of preventing human rights abuses. ….. In short, Guiding Principles encapsulates the Special Representative’s stated commitment to “principled pragmatism,” reflecting the world’s fundamental human rights expectations in a balanced way that takes account of the varied, complex global business landscape.”

Kevin Jones