The President of the Australian Council of Trade Unions (ACTU), Ged Kearney, spoke briefly at the Workers Memorial Day ceremony in Melbourne Victoria on 29 April 2013. Kearney reiterated the call for industrial manslaughter laws in Australia echoing the statements by the ACTU’s Michael Borowick yesterday and the ACTU media release. In the media release Kearney is quoted as saying:
“There is still unfinished business, beginning with the need for industrial manslaughter legislation to be enacted in all jurisdictions. Why is it that in Australia you can cause someone’s death by action or inaction and be very confident that you will not go to jail? That is the only way to send this message home: no worker should die on the job.”
However details to justify this call for industrial manslaughter laws seem thin. The trade union movement needs to take care that mentioning industrial manslaughter laws is not used to fill the gap when lost for words, policies or initiatives on OHS. This weekend’s call for industrial manslaughter needs an explanation of how such laws fit in the new regime of Work Health and Safety laws. Is the penalty already there but under a different name? When should such a category be applied? Is ‘reckless endangerment” insufficient? And how can industrial manslaughter laws penetrate the managerial labyrinthine structures of the modern corporations so that the laws are not only applied to small business, as has occurred in England?
Perhaps, it is the mentioning of industrial manslaughter laws that is the point and not the laws themselves. Certainly a decade ago when such laws were mooted across Australia, OHS gained a very high profile. But the response did not lead to greater safety actions in workplaces. It often lead to senior executives looking for an “out” through insurance or restructuring or distancing themselves. With the new WHS laws emphasis on due diligence, does industrial manslaughter still fit? This is the type of question that the ACTU should be answering.
Kearney also pointed out that there are greater advances in OHS under Labor governments (but apparently not on industrial manslaughter laws!). Some would argue this point but there is no doubt that a Labor government provides a better audience for trade union lobbying and better support for the roles and presence of OHS representatives in workplaces.
The Secretary of the Victorian Trades Hall Council, Brian Boyd, was more sedate in his speech this morning than in previous years and focused principally on attacking those who are complaining about OHS red tape. Sadly he didn’t explain what he understands red tape to be.
Boyd says the employer associations see red tape as something that impedes productivity and profitability. They see OHS regulations (“What they hate the most”) as red tape and OHS generally “as a problem and not an obligation”. He sees this red tape criticism as criticising “the government of the day” as the generator of red tape.
This criticism may be sound if employer associations believe OHS regulation is red tape. It has been over ten years since Garry Brack said on morning television that OHS regulation is unnecessary. Expressions of such extremism have not been heard in Australia publicly for many years and one should acknowledge that employer associations and their representatives were present at the National Workers Memorial ceremony in Canberra yesterday. Some of them have also been strong supporters of OHS research and innovation such as on the corporate impact of a workplace fatality and the application of restorative justice in the OHS context.
The reality may be that employers perceive workplace safety as onerous and generating red tape when it may be that the administration of safety systems is poorly understood or badly managed or handled by inexperienced and poorly qualified safety people or handled as an add-on to another role such as that of a part-time paymaster (a real situation).
Boyd may have been referring to statistics released by the Australian Institute of Company Directors last week that said that a recent survey of company director sentiment found there was
“growing concern about the amount of regulation and red tape, which jumped from seventh to be ranked the equal second most significant economic challenge facing Australian businesses…” “According to the Index findings, directors believe that the level of red tape and board time spent on regulatory compliance has increased over the last 12 months, with regulation surrounding workplace health and safety and employing workers rated as having the highest impact on productivity.”
This concern sound serious but is it valid?. To date there is still no clear explanation of what red tape is. The closest was a statement by Victoria’s Red Tape Commissioner John Lloyd in January 2013. Lloyd considers red tape to have a:
“…broad definition – it’s not just the laws, regulations, rules, codes, it’s the whole range of government requirements placed on business and people in Victoria…”
He also sees his role as looking why red tape is there:
“….what’s the purpose of the requirement, the regulation, the rule or the form or whatever – what purpose does it serve and is that end of any use, does it serve any purpose for government, does it add any value and what is the cost”.
Just as with the current business lobbying over productivity, so red tape needs defining. As happens in OHS, often the risk is discussed without first understanding the hazard. It is the job of the OHS regulators and organisations like the trade unions to identify exactly what red tape is.