There are two core elements to the work of the occupational health and safety (OHS) professional – the management of Safety and the management of Safety Liability. In the simplest of terms, the former saves lives and the latter saves money. OHS (and politics) has always involved juggling these two extremes.
There are many examples of this tension but the most obvious, at the moment, is COVID-19 and the vaccination of workers.
[Editor: this article has been reproduced from The Conversation’s website under the Creative Commons licence.]
Joo-Cheong Tham, The University of Melbourne
Australia’s official policy on vaccines is that they be voluntary and free. But the federal government hasn’t shut the door completely on employers pursuing mandatory policies of their own.
Last week the federal government reiterated it won’t use its powers to give employers a free hand to mandate vaccines. Yet Prime Minister Scott Morrison also said:
Decisions to require COVID-19 vaccinations for employees will be a matter for individual business, taking into account their particular circumstances and their obligations under safety, anti-discrimination and privacy laws.
So far just two Australian companies — regional air carrier Alliance Airlines and canning company SPC — have declared they will make a COVID-19 vaccination mandatory for their workers.
The reason so few have declared such intentions is because the law isn’t on the employer’s side. There are only limited circumstances where workplace vaccine mandates are likely to be found lawful.
Continue reading “Can Australian employers make you get a COVID-19 vaccine? Mostly not — but here’s when they can”On August 12 2021, the Chair of Safe Work Australia, Diane Smith-Gander entered the fray over making COVID-19 vaccinations mandatory in an article in The Age. Later that day, in the absence of any clear guidance on the issue from the Federal Government, The Age reported that the Fair Work Ombudsman will be providing guidance on 4 tiers of workplaces relevant to assessing COVID-19 exposure risks.
The combinations of advice from these sources, greatly clarify what businesses can do to improve the safety of their workers and customers. The reticence to take reasonable occupational health and safety (OHS) steps by business groups will remain but the clarity they have been requesting will soon be available.
Australians are starting to understand that having something described as “gold standard” – most recently in relation to the contact tracing services of New South Wales – is as helpful as describing occupational health and safety (OHS) laws and systems as “best practice”. These phrases are optimistic bullshit and politically fraught. The fragility of these phrases has been revealed in events as far apart as the COVID-19 pandemic of 2020-21 and the Esso Longford Royal Commission of 1999. Consider this paragraph from the Esso Longford Royal Commission report and its pertinence to NSW’s contract tracing:
Now that Australia is vaccinating its people at a reasonable rate from a very slow start, the issue of mandatory vaccinations for workers has reappeared. Several months ago the issue was more hypothetical but evidence has appeared from England, the United States and Israel about vaccination rates and the resumption of business and work. Australian businesses need to reach a clear position on vaccinations and the return of employees to workplaces, and this will require an assessment of the ethics applied by employers.
The occupational health and safety (OHS) position is remarkably clear but is not really being heard or promoted.
Continue reading “Why would you NOT make COVID vaccinations mandatory?”Then submissions to the Senate Committee inquiry into the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill reveal some interesting perspectives on occupational health and safety (OHS) from Australian businesses and other organisations.
The Kingsford Legal Centre says this of the work health and safety approach to sexual harassment:
“WHS law is designed to manage work health and safety risks which are many and varied and are distinct from gendered violence and discrimination. Many cases of sexual harassment and sex discrimination are not an easy fit for the WHS framework. WHS legislation is state and territory based and relying on WHS legislation does not address the Commonwealth’s international human rights obligations under the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). In also not naming the gendered nature of the issue, WHS law risks overlooking keys to prevention and culture change which are central to the Respect@Work Report.
While WHS processes may in some cases run parallel to complaints of discrimination or sexual harassment, there are fundamental ways in which WHS law differs in the management of claims. Most obviously there is not a clear process for people who have experienced discrimination and harassment to be allowed to speak through a conciliation process about the impact of such behaviour on them and seek specific forms of redress. We know from our research in this regard that this process is important in resolving complaints impacting on human rights and reflects a complainant-centred process. WHS law does not approach injuries in such a way.”
Most of Australia’s media has cooled its reporting on the sexual harassment law reforms championed by the Sex Discrimination Commissioner, Kate Jenkins. Partly this relates to revised laws being proposed in Parliament later this year and that are currently subject to a Senate Committee Inquiry. The media coverage on the proposed laws and the senate inquiry has been thin with only the Australian Financial Review (AFR) giving it any serious attention.
However, research reports on sexual harassment in Australian workplaces continue to appear and the transcripts of the Senate Committee’s public hearings are publicly available, as are the submissions made by, primarily, business and law organisations. What is missing is the involvement of the occupational health and safety profession.
