OHS is now a fundamental human right. So what?

Last year the International Labour Organization (ILO) added occupational health and safety (OHS) to its Declaration on Fundamental Principles and Rights at Work. So what? I hear you cry. According to one trade union website:

“Contrary to Conventions – which are subject to ratification by individual Member States to be applicable, all Member States (187 Members) are expected to respect, promote and realize Fundamental Principles and Rights .”

This change has been a long time coming. Expect to hear a lot of discussion about this change at the 23rd World Congress in Sydney later this year, if not Ap[ril 28 and May Day. What Australia will say about this change is unknown, but it will be expected to say something.

The Declaration now says the International Labour Conference:

“Declares that all Members, even if they have not ratified the Conventions in question, have an obligation, arising from the very fact of membership in the Organization, to respect, to promote and to realize, in good faith and in accordance with the Constitution, the principles concerning the fundamental rights which are the subject of those Conventions, namely:
(a) freedom of association and the effective recognition of the right to collective bargaining;
(b) the elimination of all forms of forced or compulsory labour;
(c) the effective abolition of child labour;
(d) the elimination of discrimination in respect of employment and occupation; and
(e) a safe and healthy working environment.”

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What is missing is the get-out-of-jail-card of “so far as is reasonably practicable” (SFAIRP). It is refreshing to read an official OHS document without that equivocation. Is a safe and healthy working environment achievable in reality, everywhere? No, but this declaration now clearly shows that the attempt (not just commitment that requires no action) to achieve safe and healthy work environments is a condition of membership to the ILO, a United Nations’ “agency whose mandate is to advance social and economic justice by setting international labour standards” of which Australia was a founding member.

ILO Declarations and Conventions get little public attention in Australia except, usually, by the trade union movement and, sometimes, Labor Governments, as exists currently at the Federal level. They are grand statements that appear usually after significant industrial relations or political scandals, but there is a positive duty in the Declaration above.

It says that members are expected to “respect, to promote and to realize,” the fundamental rights of a safe and healthy working environment. These verbs deserve serious consideration. Wiktionary includes these definitions for Respect:

  • To have regard for something, to observe a custom, practice, rule or right.
  • To abide by an agreement.
  • To take notice of; to regard as worthy of special consideration; to heed.

Each of these reinforces Trust, a commodity that seems to be in short supply between citizens and governments across the world.

Respect has a chequered political history. Each attempt to politically exploit Respect has faded away to an embarrassment that should never be repeated, and that is why Respect in the ILO Declaration may do nothing more than tighten the political sphincters of Australian politicians. They may downplay Respect, but this does not invalidate their obligations to the fundamental principle and right. They also need to remember that Respect is earned.

Promote. Australian politicians would all say that this already happens. Federally, they will say this quite loudly as it is almost always the States and territories that have to implement and enforce OHS.

Politicians need to ensure that safe and healthy working environments are realised. These environments must occur; there is no wriggle room, and there is no SFAIRP. In Australia, this can be handballed to the local jurisdictions for most workplaces, but it is harder to make the case in politicians’ own workplaces where rapes are alleged and masturbation over parliamentarians’ desks is more than alleged.

It is useful to note that the Declaration applies to the government and not just to the Ministers for Workplace Relations or the department of workplace safety. So watch out for any mention of OHS in government budget statements and strategies. The Declaration allows us to legitimately assess any government decision or policy for its positive impact on working environments.

The Preface of the Declaration written by Guy Ryder, former Director-General of the International Labour Organization, deserves to be read in full but below are some gems:

“This landmark decision addresses concretely all working women and
men in all occupations and all kinds of workplaces across the world. The loss of life, accidents, and diseases caused by inadequate safety and protection of the working environment remain a dire reality in every country, from the poorest to the most prosperous. The consequences in terms of lives lost or damaged as well as the economic costs to enterprises and the economy are enormous.”

“Occupational safety and health is a moving target. While some
improvements take place, new occupational risks emerge due to technological innovation or organizational change. Physical hazards can be compounded by mental health problems and harassment and violence at work.”

“Measures for occupational safety and health are a crucial ingredient in any policy mix aimed at preserving a liveable planet.”

“Health and safety at work is also firmly established in contemporary
human rights law”

“Effective protection of the right to health and safety at work should
be one of the basic aims of national policy,”

That workers had a right to a safe and healthy work environment was always a stretch and more hyperbole than reality. But in June 2022, the hyperbole became an unarguable reality. It is unlikely to improve workplace safety just by its existence, but mention of it should start appearing in Parliamentary Hansards, speeches on International Workers Memorial Day, May Day and in National Work Health and Safety months, and, almost certainly, the 23rd World OHS Congress. It adds gravitas to the purpose of every OHS advocate.

Kevin Jones

2 thoughts on “OHS is now a fundamental human right. So what?”

  1. speeches alone do not help much-OHS rights and obligations have been set out in Australian legislation for decades-the need is proper enforcement

    1. Peter, I am not sure about the legislated rights, but I am no lawyer. The duty of care in the OHS laws is dependent on the employer upholding that duty. My impression is that the new fundamental right means that the worker has that right regardless of what the employer does. It does not overwrite the duty of care but strengthens the employer’ inability to dispute their obligation to provide a safe and healthy working environment.

      But I would love an OHS lawyer to Jin this conversation.

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