OHS as an industrial relations tool

Recently Queensland’s Attorney-General Jarrod Bleijie has been asserting that a review of union right-of-entry provisions is needed because unions have been using occupational health and safety (OHS) issues as an excuse for industrial relations (IR) action.  Such assertions have been made for decades in Australia to the extent they have become fact.  Below is an article looking at one of the sources of the Attorney-General’s assertions.

In a media statement dated 5 October 2013, Bleijie stated:

“For too long, we have seen construction unions using safety as an industrial weapon in this State… Quite frankly, their abuses of the current right of entry provisions are designed to bully contractors until they get their way. Sites are being hijacked and workers held to ransom.

“I have personally heard of stories from hard working Queenslanders who have been locked out of their workplace because of militant union activity.

“Earlier this year, a major contractor lost 42 days of work due to illegal strike activity in the first year of their enterprise agreement. This practice will end.”

Some of this statement was quoted in a Sunday Mail article on 6 October 2013 following the minister’s speech at an awards ceremony with the Master Builders. Like most political media statements there is a large amount of hyperbole but this article’s focus will be on the OHS elements of the statement.  As such the Attorney-General’s office was asked for further information.  A spokesperson provided the following responses:

“Reports indicate for example that for the period from 6 July 2011 to 8 January 2013, the Office of Fair and Safe Work Queensland received 34 Workplace Health and Safety issues that involved right of entry notice from building unions on Queensland construction sites. Inspections by Workplace Health and Safety Officers has found that the matters raised on entry notices are typically very general but once on site a broad range of issues are identified. Workplace Health and Safety Inspectors have usually found that:

• the Principal Contractor is already addressing issues;
• that the issues raised are in excess of the standards required by the legislation;
• or that the issues are not valid.”

The number of OHS issues raised over 18 months in the construction industry does not seem excessive, or representative of risk, as construction is a high risk industry.  However the figures may indicate the lack of effective consultation between workers and businesses as there seems to have been a need to involve the state’s OHS regulator.  This lack of consultation may be supported by the statement that “the matters… are typically general…”  and that “the Principal Contractor is already addressing issues”.

In much of the debate and discussion on union right of entry and OHS issues, it seems to be forgotten that the principal responsibility for creating and maintaining a safe workplace sits with the principal contractor, employer and/or PCBU. One of Bleijie’s points is that unions are being called to inspect OHS matters at building sites when the OHS regulator should be the first point of contact.  His right of entry amendments are intended to

“… ensure the safety regulator is the first port of call for any safety concerns..,”

Legislation will help with this focus but the Queensland Government should perhaps analyse why the unions are preferred over Work Health and Safety Queensland (WHSQ).  Is WHSQ suitably resourced on OHS matters in the construction industry?  Is the response time by WHSQ appropriate?  Does WHSQ have sufficient OHS support programs for the construction sector?  Are the WHSQ inspectors seen as legitimate authorities in construction?  Would changes to WHSQ reduce the perceived need to go to the unions on OHS matters?

Industrial Dispute

In Bleijie’s media statement, the Attorney-General states

“Earlier this year, a major contractor lost 42 days of work due to illegal strike activity in the first year of their enterprise agreement.”

His spokesperson would not quote the case but SafetyAtWorkBlog believes the case is Laing O’Rourke Australia Pty Ltd v Construction, Forestry, Mining and Energy Union [2013] FCA 133. The implication is that the industrial dispute was due to safety issues but, as with most industrial disputes, there is more to it.  The judgment does list safety issues from the affidavits of the union personnel.  These include

• “unsafe cutting of boards generating high quantities of carcinogenic dust
• exposure of live electrical cables
• non-compliant wiring of electrical boards
• out-of-date electrical leads and electrical equipment
• inadequate lighting,
• housekeeping problems,
• trip hazards,
• incorrectly built temporary scaffolding,
• inadequate lighting in stairwells,
• insufficient fire extinguishers
• uncapped sewerage pipes
• insufficient access to ladder
• lack of proper signage and edge protection,
• insufficient access and egress
• blocked access to the nurse call system.”

Many of these issues could lead to serious injury and are common to construction sites and are usually easy to rectify.  Construction company representatives rejected that the safety issues on the

“site created an imminent risk to the health and safety of any worker at the site.” (para 20)

In a safety review, Laing O’Rourke’s HSE Manager

“…opined that none of the items identified by those inspections posed an immediate or imminent serious risk to the health and safety of personnel on the M&A Project, a number of items had been dealt with immediately following the inspection, and no-one working on the M&A Project was at greater risk than workers working on any project within the Brisbane central business district.” (para 21)

The dispute seems to have not come from the presence of these hazards but from the union and Health and Safety Committee’s (HSC) belief that Laing O’Rourke Australia Construction P/L (LORAC)

“…appears unwilling to address matters that relate to safety unless those maters [sic] can be described as an imminent risk.” (para 19)

The determination of “imminent risk” is clearly important in determining safety priorities and, it appears the HSC’s perception of “imminent risk” differs considerably from that of the principal contractor.  This type of difference of opinion is common on all worksites and can usually be worked out through consultation and without resorting to intervention by the regulators.

Working Hours and Fatigue

A significant difference in this dispute though is the matter of working hours and fatigue.  According to the claim of the applicants, amongst other reasons

“LORAC needs to schedule work out of core hours in order to meet its construction schedule. LORAC also needs to schedule work on weekends and after hours because certain types of work (including installation of precast concrete) are safest done when the site and surrounding commercial and retail areas are depopulated.” (para 10)

Michael Ravbar of the CFMEU is reported to have objected to the work being undertaken out of hours due to “fatigue and safety reasons” (para 14).  One of the CFMEU’s positions was that

“the CFMEU is not presently prepared to authorise the performance of work outside of 6.00 am to 6.00 pm, and will not be prepared to do so until the applicants properly consult with the union and outline a thorough and detailed fatigue management plan and schedule for the performance of that work, and recognise the important role that the WHS Act confers upon the HSC.” (para 14)

The judge found several of the union’s arguments to be “weak and implausible” (para 33) and that on the issue of fatigue and working hours the CFMEU had been advised in writing that

“Further to previous correspondence and discussions pertaining to our notification of works to be carried out, outside normal working hours, please note the below. … The labour and supervision required to fulfil the requirements of the PM shift are a separate work crew to those performing the day shift to ensure the concerns around fatigue management are addressed.” (para 33)

Fatigue has been identified as a psychosocial hazard by industrial and OHS experts and regulators throughout the world but rarely has anyone provided advice on how to structure working hours to minimise fatigue-related risks.

Some would argue that the different nature of fatigue in individual workers negates management through shift rosters and working hours. Working hours relates directly to remuneration and so sit in the “pay” part of industrial relations but working beyond the hours allowed can generate fatigue, whose management sits in OHS.

This dispute illustrates how the management of OHS can affect a worker’s remuneration and how OHS professionals must consider industrial relations matters in determining a reasonably practicable control measure for workplace hazards.

The Politics

The Queensland Council of Unions has entered the fray and has been reported in the Australian Financial Review on 7 October 2013 (page 40, only available by subscription) claiming

“the 24-hour wait time would give employers time to cover up dangerous practices..”.

This echoes the position put by the Australian Council of Trade Unions whose Assistance Secretary Michael Borowick said in a media statement dated 7 October 2013

“… it was disappointing that the Queensland government would attempt to sway opinion by using false connection such as militant union activity and safety. “This is an unsurprising but still disappointing attempt to link strike action with laws around safety. The laws that govern workplaces need to be of the highest order and whether there is strike action at that workplace or not should have no bearing on this.””

The case quoted above seems to provide an example of how OHS matters are often entwined with industrial relations agendas.  Readers are encouraged to read the complete judgement to determine whether the union has exploited OHS for purposes other than safety and even then it could be argued that there is still insufficient information to choose a clear position.  However the judge believed that there is a suggestion of

“an agenda by the relevant union officials other that a pure interest in workplace health and safety issues.” (para 33)

This issue is unlikely to be a flash in the pan.  On 11 October 2013, the Brisbane Times has reported that  Bleijie has reiterated his determination for reform.   He says that his reforms are

“…about making sure that the regulator, ie, Workplace Health and Safety, are  the responsible safety officers, so if a site is going to be shut down for a  safety issue, it is the regulator and not union thugs that are going on sites  and completely shutting things down, just for the sake of shutting them down.”

[Describing unionists as “thugs” is not going to help and is confirmation of an anti-union ideology]

Opposition (Labor) politician Curtis Pitt references OHS harmonisation when, in the Brisbane Times article, he says

“What they did in Queensland was cherry-pick out the most difficult areas and  of course added their own in and pretended it was harmonisation…

“The devil is always in the detail with the Newman government.

“They are absolutely politically motivated and absolutely out to destroy  unions which have a very strong history of defending workers’ rights here in  Queensland.”

It may be ideologies that are driving this political push for reform in this area but the OHS harmonisation strategy always allowed for each State to amend the laws to meet their own needs, and the changes for right of entry for OHS matters proposed seems to be little different from the systems that are already in place in other Australian jurisdictions, and that have been introduced with minimal controversy.

Conclusion

The Laing O’Rourke case above may indicate union exploitation of OHS but it also illustrates the potential complexity of trying to manage safety ion a construction project.  It is unlikely that Bleijie’s amendments on right-of-entry will make worksites safer but it is also unlikely that they will make them any more dangerous.  The status of workplace safety is not dependent on external union access but can be improved by a union presence, as overseas evidence has found.  Whether unions are involved or not, safety is achieved by

• the setting of reasonable and clear safety targets in a project’s contract,
• everyone’s commitment to those targets,
• continuous and effective consultation and communication on safety issues, and
• clear roles and responsibilities.

It is important to continue to strip away, as much as possible, the hyperbole and rhetoric of industrial relations and politics to identify and verify the legitimacy of occupational health and safety issues and workplace hazards.  The OHS profession has long been shy of entering debates that include industrial relations and the world is worse off for the profession’s weakness.  However OHS professionals cannot afford this weakness if they are going to achieve their purpose of harm reduction.  Some workplaces are more dysfunctional on OHS than others, regardless of union presence.  OHS professionals must have finely tuned IR antennae to manage the influence of IR issues on achieving safe workplaces.  What they cannot afford is a dogmatic position to the reality of modern workplaces and the modern context of OHS.

The OHS profession is mute in Australia and has allowed the trade unions to become the sole effective voice for the morality of workplace safety.  Politicians place great store in the role of the OHS regulators but often fail to provide sufficient resources for those regulators to live up to the politicians’, and society’s, expectations.  Trade unions continue to advocate for improved pay and conditions, as they always have, but often mixup their IR strategies with their OHS goals.  Employers try to do what they can in achieving safe workplaces at the same time as maximising profitability.

Australian workplaces are complex. OHS is complex. Industrial relations is complex.  For what we are dealing with is people, and people are complex.  Instead of trying to simplify the process or win points against others, perhaps we should acknowledge the complexity, embrace it and work with it and develop a more sustainable strategy.

Kevin Jones