On September 24 2019, the Council of Small Business Organisations Australia (COSBOA) called for the withdrawal of the Boland review into Australia’s work health and safety (WHS) laws.
In a media release COSBOA’s CEO, Peter Strong, states:
“The report solely focusses on workers, giving zero consideration to the mental health of employers and the self-employed….”
This is a curious response as work health and safety laws use the inclusive term “worker” which includes employers who also work for the business. There have also been many cases over the last few years where executives have taken time off or changed jobs due to the mental stress that the positions can create, and those executives are as entitled to workers compensation, employee assistance support and other health and safety-related services as any other worker.
The Boland Review of which Strong is so critical said this of psychological health duties under the WHS laws:
“The model WHS Act defines ‘health’ to include ‘psychological health’. This means that the primary duty of a PCBU is to ensure, so far as is reasonably practicable, that workers and other persons are not exposed to risks to psychological health and safety arising from the work carried out by the business or undertaking…..”
page 30
“Worker” relates less to company position or role than “employee” and even if it didn’t, to OHS/WHS duty extends extend to “other persons” of which executives would be part.
The media release also states that if the Boland recommendations are implemented
“…it could see employers sent to prison if one of their employees self-harms a result of a mental health condition…”
This is hyperbole but it makes a connection that many have discussed in private but few publicly. If Industrial Manslaughter laws are introduced, as recommended by Boland, could a Person Conducting a Business or Undertaking (PCBU) be prosecuted if their negligence resulted in a suicide of a worker? It is possible, but for many reasons Industrial Manslaughter prosecutions for WHS breaches are generally unlikely and a prosecution related to work-related suicide would sit within that unlikelihood. Industrial Manslaughter laws only apply to deaths so, unless Strong is being delicate about suicide, his argument is shaky.
Only recently lawyer Jackson Inglis reviewed the work-related suicide of Brodie Panlock and concluded that the employer could have been prosecuted under industrial manslaughter laws if they had existed at the time. Inglis’ perspective supports Strong’s concern about prison but one may argue that prison was exactly the place for the owner of Cafe Vamp. If he had been imprisoned, how different small businesses’ approach to work-related mental health would be!
Strong says:
“It is the combination of these two recommendations [psychological health and Industrial Manslaughter laws] that leads to the concern that employers could be held responsible for the mental health of their employees and potentially charged with manslaughter if a mental health condition results in an employee self-harming.”
Brodie Panlock’s suicide seems to provide an excellent example of how these two recommendations can and should work in reality and not in the “ideological view of the world” Strong mentions elsewhere in the media statement.
Peter Strong seems also to miss the safety point of this issue. If one’s primary concern is to avoid prosecution over negligent workplace decisions, don’t make negligent workplace decisions. Appropriate workplace health and safety management policies, knowledge and practice have always been the most effective way to avoid prosecution and it also creates safe and healthy workers. Who woulda thunk?
Strong concludes the media release with this quote:
““This report if acted on will add to the mental health problems of Australia – unless we only allow machines to employ people. This report reflects attitudes that are stuck in the past and fail to grasp the reality of the modern world and the modern workplace.”
This is a nonsense. The Boland report is a single report and it was a review of the current WHS laws. Strong seems to ignore that broader WHS context of work-related mental health but he has not ignored the Productivity Commission inquiry into mental health as COSBOA made a submission to that inquiry (Submission 537). The submission reiterates many of the points he makes in the September 2019 media release.
COSBOA continues to be a member of the Mentally Healthy Workplace Alliance, which Strong references, which is an influential collection of major business groups and mental health advocates which makes his September media release even more odd. One would have thought his concerns about the mental health of small business owners and the self-employed could have been addressed through this Alliance. They were certainly discussed at length in a Safe Work Australia online seminar in 2016, to which the Mentally Healthy Workplace Alliance’s website provides a direct link.
SafetyAtWorkBlog is baffled by the content and statements in the COSBOA media release. It is also confused about the timing of this statement. Is it because National Work Health and Safety Month starts next week? Is it because Industrial Manslaughter laws are planned to be introduced by the Victorian and Northern Territory government by the end of 2019?
Peter Strong is right to be concerned about Industrial Manslaughter laws as the experience in the United Kingdom is that it is primarily small business that is prosecuted, but his connection of this to work-related mental health, suicide and self-harm is bizarre. Let’s hope other media pick up the media release and give COSBOA opportunities to explain beyond a short media grab of outrage.
It is quite easy to understand why the states of Victoria and WA are somewhat reluctant to countenance harmonisation. It merely reduces or even absolves duty of care on behalf of corporate behemoths to align with the Friedman doctrine and free market fundamentalism with its malevolent freedom to harm, which consists of five critical elements:
Rule of markets
Attacking social services
Privatisation
Eliminating democracy
Deregulation
The entire harmonisation process was railroaded via extensive and persistent lobbying from Peter Hendy during his tenure with the ACCI and Garry Brack at the Employers Federation. This aggressive lobbying and sinister intent initially commenced back in the late 1990s during the review of NSW OHS legislation. However the attorney general Jeff Shaw with guidance from Professor Ron McCallum was fully aware of the consequences. The relentless attacks continued under the Howard government with the dissolution of the independent NOHSC and were supported by Kevin Rudd, who also sanctioned the disastrous home insulation program. This debacle required the intervention of Greg Combet with admirable support from Dr Martin Parkinson and Martin Bowles.
Industrial manslaughter is merely a trojan horse that favours corporate brigands, reinforces free market ideology and undermines common law rights.
A faith is something you die for, a doctrine is something you kill for. There is a world of difference – Tony Benn
Bernard, I agree that neoliberalism and its continuing dominance of Australian politics deserves more attention, especially its “trickle down” effects on worker health and safety. Harmonisation was a failed experiment for many reasons but I believe the major one was that there was a belief that OHS was above, or separate to, political discourse and that has never been the case. To paraphrase a popular OHGS term, harmonisation became OHS regulation as imagined, rather than as is done. The business groups were critical of harmonisation but the pool of opposition was much broader that the two you mention. Other business groups weren’t as opposed but stressed the need for flexibility in decision-making which reasonable practicability provided.
Shaw and McCallum did what they could given the fierce business opposition in New South Wales and the persistence from the trade unions for absolute OHS duties. The harmonisation process was also always about changing and hopefully improving what was already in existence. Creating a new OHS legislative structure would have been a very different exercise.
I share some of your concerns about the home insulation program and often regret that the Royal Commission into the program never gegen rated a published book on the saga as there are important commercial, public service and policy lessons.
I don’t think IM laws are quite as active as you suggest but I am certain that promises of justice have been made by some advocates that will never be satisfied and are likely to create more anger and psychological harm.
Jeff Shaw and Professor Ron McCallum actually maintained the absolute standard of duty of care under the NSW OHS Act, which was lowered during the harmonisation process under Kevin Rudd who was subsequently rewarded with life membership of the ALP. Expulsion or rustication would have been a more condign option, especially following the home insulation program.
The original intent of harmonisation was to ensure alignment with ILO C155, which the Howard government somewhat reluctantly ratified in 2004.
The only two people who fully understood the sinister neoliberal intent of harmonisation with its lowering of the standard of duty of care was Kristina Keneally in NSW and Rachel Siewart in WA.
Most of this occurred on Tony Abbott’s watch during his DEWR ministerial tenure. It even involved the appointment of a former BHP executive Jerry Ellis as chairperson of the ASCC, which was the precursor to SWA. Garry Brack and Peter Hendy did not oppose harmonisation, they agreed to it but on their terms and conditions, which favoured big business.
Much of this emanates from the US in the 1970s with the Lewis Powell memo and collaboration with Bryce Harlow a former Procter and Gamble executive director and John Harper from Alcoa.
The response from the SIA and NSCA was deplorable and is reflected via their endorsement of zero harm ideology and the Boland whitewash. Both of these dog and pony shows should amalgamate with the AiG and the ACCI.
I have not suggested IM laws are active but I can certainly see through the brutal intent of neoliberalism and its deification of the Friedman doctrine with its worship of profit irrespective of the social consequences.
In November 2017, the former executive director of SafeWork South Australia, Marie Boland was appointed by Safe Work Australia to review the model work health and safety laws. The subsequent report was released in February 2019 and concludes the model laws are operating largely as intended and support for the harmonisation objective remains strong. It is quite an extraordinary statement given the primary object of the model Act is to provide for a balanced and nationally consistent framework and secure the health and safety of people at work. After almost two decades, the chimera of harmonisation has merely absolved duty of care on behalf of corporate behemoths. National uniformity resembles a dog’s breakfast and has become increasingly complicated and vexatious. Several jurisdictions have embarked on a race to the bottom and implemented distinct health and safety statutes covering their mining and resources sectors, which are administered by alternative state government authorities. This generates potential conflicts of interest and increases the risk of regulatory or policy capture. It is exacerbated by a minefield of industrial manslaughter legislation, which is fraught with complex legal technicalities covering the burden of proof pertaining to negligence and recklessness and the act is not culpable unless the mind is guilty. Meanwhile, the International Labour Organization C176 Safety and Health in Mines Convention 1995 remains unratified by the Australian Government.
In Queensland there are currently 118 confirmed cases of mine dust lung diseases and a recent state parliamentary inquiry revealed a catastrophic breakdown of a regulatory system that was intended to secure and protect the health and safety of coal miners. It is somewhat enigmatic but the disease uncannily disappears amongst New South Wales coal miners although absence of evidence is not evidence of absence. Recent media reports confirm a Gold Coast stonemason succumbed to silicosis and almost 100 Queensland tradesmen are diagnosed with the disease. Some victims are categorised as terminally ill and an additional 800 employees are undergoing diagnostic testing at a cost of approximately $1.5 million. Many patients will require lung transplants and it will place enormous strain on a struggling public health system. A senior physician has predicted the problem will escalate and the crisis could be become much worse than asbestos related diseases. The response in New South Wales from its resources regulator is reminiscent of the ban the burka movement and typically blames the victim via a silica symposium using another pejorative slogan….Unmasking those who don’t work safe. How will industrial manslaughter work in cases where diseases manifest many years after initial exposure, especially if year and a day caveats apply?
Any estimation of expenditure covering workplace injuries and diseases requires consideration of an extensive range of direct and indirect parameters and it is quite a complex exercise. However, since 1993 the allocation of costs endured by incapacitated employees has increased by a staggering 157% with a corresponding decrease of 88% for employers. It suggests other exogenous risks such as the gig economy, contingent labour hire and the exploitation of vulnerable workers may be significant contributory factors.
After almost five decades it appears the legislative framework may even be irrelevant and the current structure can hardly be described as operating as intended unless it inadvertently advocates androcide or democide. Indeed, it is underpinned by the precautionary principle or Vorsorgeprinzip, a German sociolegal term that reflects the Hippocratic Oath and medical profession maxim………….First, do no harm.
Substantive evidence, which includes significant issues such as silicosis, the home insulation program, asbestos related diseases, the F-111 deseal reseal victims, the resurgence of black lung and a recent spate of mining fatalities across Queensland, confirms Australia’s performance is rather abysmal. Moreover, if the current framework is operating as intended, industrial manslaughter legislation is an unnecessary encumbrance. This raises serious concerns about the structure of Safe Work Australia, especially its leadership, tripartite arrangements, alleged independence and excessive ministerial influence. An increasingly prevalent patronising disposition of unaccountable power must always be challenged and…………………A moment is all it takes.
Any ministers, parliamentary secretaries, senior executives, troglodytes, public serpents or other spineless panjandrums holding positions of economic, social and political influence must be confronted with the following five questions:
1) What power have you got?
2) Where did you get it from?
3) In whose interests do you exercise it?
4) To whom are you accountable?
5) How do we get rid of you?
Any leader or minister who is unable to answer the final question does not live in a democratic system or believe in the process.