Kevin Jones

Contractor management in Australia’s new OHS laws

When reading the draft documents for Australia’s harmonised OHS laws, it is very useful to run various scenarios or hazards through one’s mind and see how these could be affected or managed. The most challenging hazards are the psychosocial hazards (or bio-psychosocial as they were referred to at the recent Comcare conference in Canberra) of stress, mental health and all their varieties. If the laws are truly to be for the modern world, they need to incorporate modern hazards and maybe suggest ways of managing them.

An older but often more persistent hazard involves the management of contractors on one’s site. Many hours are spent each year by companies on the selection of contractors, induction, monitoring, arguing and legal action (often in that order). Regardless of the quality of one’s experience, managing contractors can be challenging.

Will the new OHS laws proposed by the Australian Government make it easier to manage contractors?

According to Andrew Douglas, a workplace lawyer based in Melbourne, at the moment, the employer of contractors is directly responsible for the safety of the contractors. If the contractors work off-site, then that responsibility may extend to the principal.

Douglas believes that under the new national regime, based on the current draft papers, the relationship will be different. He says

“The key change is the imposition of broad, non-delegable and concurrent duties on persons who conduct a business or undertaking. The duty is owed to any persons or workers who the business or undertaking exercises control or influence over.

As a result, principals owe a primary duty to contractors and contractors’ employees working onsite. Further, directors and senior managers owe a positive duty to exercise due diligence to ensure the business complies with the OHS legislation.

By December 2011 , there will be no doubt that businesses will owe an identical duty to any worker on site as they does (sic) to their own employees.”

It may be well worth reading the draft document repeatedly with a different hazard group with each reading or, even better, use one’s colleagues or staff to read the drafts with a particular hazard in mind and then workshop the results.

Kevin Jones

Part of Andrew Douglas’ paper on contractor management is available HERE

GHS is coming to the United States

On 30 September 2009 the Occupational Safety and Health Administration in the United States said in a media statement:

A proposed rule to align the Occupational Safety and Health Administration’s Hazard Communication Standard (HCS) with provisions of the United Nations Globally Harmonized System of Classification and Labelling of Chemicals (GHS) will be published in the September 30 Federal Register.

Jordan Barab, acting Assistant Secretary of Labor for OSHA said

“The proposal to align the hazard communication standard with the GHS will improve the consistency and effectiveness of hazard communications and reduce chemical-related injuries, illnesses and fatalities…… Following the GHS approach will increase workplace safety, facilitate international trade in chemicals, and generate cost savings from production efficiencies for firms that manufacture and use hazardous chemicals.”

On 6 October 2009, Safe Work Australia released the draft “Australian Criteria for the Classification Hazardous Chemicals”.

The closing date for comments is 18 December 2009.

Safe Work Australia stresses what the draft is not and the web page on the issue is very important to read.

Safe Work Australia says it

“…will be preparing guidance material for different audiences on the GHS and introducing two training courses (as basic and an expert one) to understand GHS classification.”

It should also be noted that the draft Classification Criteria is being revised in the context of the OHS harmonisation program of the Federal Government.

Kevin Jones

The retention of leave indicates a broken business

The Australian Chamber of Commerce & Industry (ACCI) has released a statement that discusses the economic and personal costs of presenteeism in relation to Australia’s new National Employment Standards.

In the statement the ACCI mentions:

“…the colossal national stockpile of annual leave and its toxic impact on the wellbeing of business and employees.”

“It doesn’t take Sherlock Holmes or even Dr Watson to deduce that employees who take their annual leave are far less likely to take a ‘sickie’ due to fatigue or illness.”

The statistics quoted by ACCI include:

123 million days stockpiled nationally.

$33.3 billion value to national leave stockpile.

73% of national leave stockpilers are likely to be managers and earn more than $70K per annum.

71% of leave stockpilers nationally are likely to be male.

73% of leave stockpilers consider work/life balance to be important to their lives.

70% of leave stockpilers consider taking leave to be a good way to achieve work/life balance.

It is not unreasonable to assert that the excessive retention of leave by an individual is an indication that that person does not understand that annual leave is an important element of their own mental health and safety at work.

If an executive believes they are indispensable to the company then that executive is making poor OHS decisions that flow to other employees. Just as positive change can come from the senior management so can unhealthy work practices. The retention of leave is just such a practice.

In a broader corporate and management context, the retention of excessive leave is an indication of a poorly managed business. Leave, and its mental health benefits, should be integrated into the operational business strategy. No one should be indispensable in a work role, although it is acknowledged that Plan B’s are not always as effective as Plan A’s.

Business continuity and risk management demand that contingencies be put in place for prolonged absences, or short leave breaks.

ACCI has to be admired for bringing the retention of leave to the attention of its members but the release is principally an information leaflet for a government tourism website. Being physically absent from work is very different from being mentally absent from work.

To achieve a proper break from work, contact with the workplace and clients must be severed. Even in this situation it may take several days to break out of “work mode”, to stop reaching for the mobile phone, to stop worrying about whether a work task is being done and to start the process of relaxing.

A “good” workplace, a “workplace of choice”, should have work management structures in place to allow its employees to recuperate from the pressures of work. This is beyond flexible work structures and needs a business to thoroughly understand the mental health needs of its workers and business continuity.

Kevin Jones

The original research data for the figures above has been located and is available elsewhere on SafetyAtWorkBlog

France Telecome becoming a case study

The managerial turmoil at France Telecome over a spate of work-related suicides is likely to become a case study in failed change management, firstly, and public relations, secondly.

A report in The Guardian on 6 October 2009, points to a (French) video of the company’s chairman and CEO, Didier Lombard, speaking to Telecome’s managers in January 2009. The paper reports that Lombard says

“those who think they can just stick to their routine and not worry about a thing are sorely mistaken”.

The article goes on to say

“He went on to suggest that staff outside Paris spent their time at the beach, fishing for mussels, adding those days were “over”.”

The last quote sounds like a joke between colleagues but as suicides had already occurred at the time of this speech, it was in poor taste even then.

For those outside of France, Lombard was set on the path of making the company relevant to contemporary ICT needs. A short article from 2005 says

“France Telecom Chief Executive Didier Lombard is merging telephone, Internet and mobile offerings under the Orange brand as part of a three-year program called NExT, an acronym for New Experience in Telecom services.”

There are similarities with a range of telecommunications companies that needed to change – British Telecom, New Zealand Telecom and Telstra to name a few. Telstra’s management change earlier this century with Sol Trujillo and Phil Burgess caused considerable shareholder and political turmoil with their change strategies.

Organisational change from administrative agencies to commercial entities can be a life challenge but it can be done with time and careful planning. The suicides at France Telecome seem to be an extreme example of how this process can be mishandled. However, just as with cancer clusters, the actual cause is often difficult to identify and sometimes can remain a mystery or coincidence. The circumstances at France Telecome need to be carefully studied from when the change management process began, well before the first suicide.

At the moment we are in the period of shock and panic responses by the company. Every suicide heightens this panic. Hopefully the measures being put in place now by the company will achieve a more considered, and long-lasting, corporate result.

Kevin Jones

Civil liability and work-related diseases

On 4 October 2009, Queensland’s Attorney-General Cameron Dick released details of his intentions to increase the compensation available for individuals and their relatives through his Civil Liability and Other Legislation Amendment Bill. Below is a table which shows the level of the increase.

It needs to be pointed out that this is not workers’ compensation but OHS legislation is blurring the demarcation between workers compensation and civil liability in the context of safety management. New Australian legislation is placing OHS obligations on workers and employers for the off-site effects of workplace activities.

The Attorney-General, who is also the Minister for Workplace Relations had this to say about the importance and breadth of the draft Bill:

“This legislation will increase the maximum caps, for the first time in six years, on general damages available under the Civil Liability Act 2003 for personal injuries,” Mr Dick said…. “These amendments will afford injured persons the monetary compensation they need to help them get on with their lives. The amendments also ensure a de facto partner of an injured person is now able to claim for loss of earnings.”

Dick goes on to discuss the good news concerning dust-related diseases as the amendments will also abolish the statutory limitation period for dust-related disease claims including asbestosis, mesothelioma and silicosis. It is unclear whether workers’ compensation insurance has similar limitations.

“The removal of the statutory limitation period for dust-relates (sic) diseases will deliver significant benefits to sufferers, by improving their access to justice and reducing the costs and stress associated with pursuing a claim,” Mr Dick said. “This amendment will have retrospective effect to ensure it captures current cases of dust-related disease originating from exposure during the 1950s, 1960s and 1970s.”

Dick said the amendments also ensure that the caps will be annually indexed to average weekly earnings.

These changes raise the possibility that a workplace may have an event that directly injures workers and also affects people outside the worksite. This could generate two processes for compensation – the workers and members of the public. The business operator would be involved in both processes, of course.

But Australian OHS legislation is moving towards one OHS “Act” that would involve the management of a hazard and its potential off-site effects. Why then split the compensation mechanisms? Would it not be easier for the business owner to manage the environmental, public and worker impacts of the one event in an integrated fashion?

The model OHS legislation deals with multiple parties affected by work processes surely the government should be looking at a single compensation process that also addresses multiple parties?

The workers’ compensation harmonisation review is still a couple of years away but potential changes should be anticipated. The table below perhaps should be compared to the Table of Maims used in workers’ compensation in the spirit of harmonisation to determine a broader social justice.

Perhaps in this period of public comment on draft OHS model legislation, the government and stakeholders should anticipate the social consequences of the OHS management obligations it is currently considering. If environmental legislation and management imposes a “cradle-to-grave” context, why should safety management legislation not?

Kevin Jones

Injury	Injury Scale Value	Currently worth	Maximum from 1 July 2010 will be worth
Serious Facial Injury	14 to 25	$16,600 to $35,000	$19,550 to $41,220
Loss of one eye	26 to 30	$37,000 to $45,000	$43,560 to $53,000
Loss of one testicle	2 to 10	$2000 to $11,000	$2360 to $12,950
Loss of both kidneys	56 to 75	$110,360 to $166,400	$130,000 to $196,000
Loss of one arm from the shoulder	50 to 65	$93,800 to $136,100	$110,500 to $160,300
Loss of one hand	35-60	$56,000 to $121,400	$65,950 to $143,000
Loss of a finger	5 to 20	$5000 to $26,000	$5900 to $30,600
Loss of one leg above the knee	35 to 50	$56,000 to $93,800	$65,950 to $110,500
Loss of one foot	20 to 35	$26,000 to $56,000	$30,600 to $65,950
Total loss of hair on head	11 to 15	$12,400 to $18,000	$14,600 to $21,200

NSW contractor representative talks bluntly about the politics of OHS laws

Ken Phillips, executive director of Independent Contractors of Australia, wrote an opinion piece in The Australian on 6 October 2009 that demands attention.

Phillips supports the Federal Government’s program of harmonisation of OHS laws in that it will remove what he sees as the injustices of the OHS legislation in New South Wales.

“The situation is different in NSW, which has OHS laws unlike any other in Australia. OHS prosecutions elsewhere are criminal matters, but in NSW prosecutions are conducted in industrial relations courts, not criminal courts, with no right to a jury or to appeals……

This has led to the layering of gross injustices on top of workplace tragedies in NSW. Take one example. A NSW plumber has a criminal conviction against him after a hot water valve he installed in an aged nursing home failed. An elderly woman was scalded and tragically died. The court found the plumber had properly installed and maintained the valve. The valve failed because of a microscopic fracture in an internal sealed component. Yet NSW OHS law required that the plumber be declared guilty.”

Phillips sees the union movement’s response to harmonisation as short-sighted. He describes the union advocacy of the NSW laws in terms of class, a concept rarely voiced in Australia outside academic sociological circles or the basements of Trades & Labour Councils.

“It’s a law and process based on old-fashioned political notions that employers always put profits above worker safety and that employers must be threatened with harsh legal retribution to make them heed safety regulations. This is class obsessed, hate-filled labour at its worst, embedding its hatred in law. It selectively destroys the application of criminal justice to achieve its tribal ends.”

The language is inflammatory but reflects the level of concern felt by many business operators in New South Wales who are fearful of OHS rather than engaged in positive safety management. The absolute level of safety demanded by the OHS law is indicative of what can happen when an aspirational concept is realised.

It is not so long ago that one employer association director in New South Wales stated on national television that OHS laws are not needed because employers do the right thing.

The harmonisation process, as SafetyAtWorkBlog has said previously, is intended to be a process of negotiation towards a common goal of safer workplaces. The union movement is undoubtedly in the ascendant having helped the Australian Labor Party (ALP) break the conservative governments of the 1990s, and believes that the ALP owes it.

Trevor Cook, writing in The Australian, estimates that the union campaign in the 2007 election generated a 2% swing to the Labor Party. He succinctly describes the achievement after years of the Left’s political parties placating the business sector:

“They treated unions as just another interest group. Against that background, the 2007 election in Australia was a rare and remarkable event. It had been decades since a social democratic party anywhere in the world had fought and won an election where industrial relations was a leading issue.”

From the union perspective, the Minister for Workplace Relations, Julia Gillard, needs to “pay the piper” after the unions rid the country of the conservative rats. The substantial challenge for Gillard is to avoid the second phase of the Hamelin story, before the entire union movement rescinds its support and takes her “children” – the future industrial relations structure.

Kevin Jones

Executive resigns over work-related suicides

According to various media reports, a senior executive of France Telecome has resigned due to the mismanagement of the organisational restructure of the company which has been happening for almost two years and that, some say, has led to suicides.

One report says:

“France Telecom’s deputy chief executive Louis-Piere Wenes had faced calls to resign from employees who say management policies are responsible for the firm’s so called “spiral of death”.”

A UK newspaper includes a quote from M. Wenes:

“Despite the hard edge of the technological and economic fight, especially in our business, nothing can justify men and women putting an end to their lives. Today, like before, I cannot accept it.”

France Telecome’s media statement reads:

“Louis-Pierre Wenes, the current Deputy CEO in charge of Operations in France, has asked Didier Lombard, Chairman and CEO of France Telecom, to relieve him of his responsibilities. Didier Lombard has accepted this request and thanks Louis-Pierre for all that he has accomplished since December 2002 and for the significant contribution that he has made to the turnaround and the performance of the Group.

As of today, Stephane Richard is appointed Deputy CEO in charge of Operations in France.”

UPDATE: 7 October 2009

Additional information and links available HERE

Author: Kevin Jones

Contractor management in Australia’s new OHS laws

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GHS is coming to the United States

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The retention of leave indicates a broken business

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France Telecome becoming a case study

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Civil liability and work-related diseases

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NSW contractor representative talks bluntly about the politics of OHS laws

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Executive resigns over work-related suicides

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