business – Page 212 – SafetyAtWorkBlog

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

Harmonised OHS laws – winners and losers

Andrew Douglas, an Australian OHS and employment relations lawyer, has followed up some his points made in a podcast on 2 October 2009 in an article available on his firm’s website.

Part of the article says

So what is different about the Model Act and how will it be interpreted? When interpreting an Act you always turn to the objects of the Act. Courts look at the provisions in dispute through the lens of the objects. For example, the Victorian OHS Act merely looks towards providing a safe place of work for workers and the public and makes it clear that interpretation should be directed by the principles of OH&S. It includes an object to work together without specific mention of the unions. Contrast this with the Model Act (MA). The objects include:

The primacy of a safety management system

Consultation including unions

Rather than being compliance focussed the objects are expansively drafted to include:

“The principle that workers…should be given the highest level of protection.”

As a result – all interpretations of the MA should be considered “aspirationally” rather than “compliance focused”.

The third dot point will be manna for those “best practice” advocates but clearly it will be very difficult to “comply” with this legislation. That raises the question of whether one of the major political aims of the harmonisation processes – to cut red tape and thereby reduce compliance costs – can really be achieved. Or is the compliance cost being made easier for the corporate few at the cost of the small business “many”?

A small but significant omission in the MA aims is “to eliminate hazards, at the source…” This aim in the Victorian Act was extremely useful in advising companies to keep analysing risks in order to get to the core contributory factors on incident and hazards. This motivation disappears in the MA with its focus on “reasonably practicable”.

“Reasonably practicable” allows business operators to consult on whether the control measure reaches what stakeholders feel is adequate and then stop. “Close enough is good enough and, if not, WorkSafe will tell us. If it is way off, WorkSafe may prosecute.” This is lazy safety management.

Looking for the source of the hazard to eliminate it keeps business improving its state of knowledge on safety, looking for new solutions for difficult hazards.

Douglas identifies the winners and losers with this new proposed legislation:

Winners

“Business that crosses borders will have one regime to comply with. That is simpler, cheaper knowledge and easier to train operational staff/increased flexibility.

Unions – expanded rights of entry, locked into consultative mechanisms and cheaper to train in OH&S – across Australia flexibility.

Regulators – shared knowledge, resources, and training.

Losers

Small to middle size businesses who cannot afford the new documentation boom that follows duty compliance and whose officers will lack the knowledge and time to positively comply.”

It will be interesting to see the submissions from the small business sector, if available, over the next few weeks. Similarly, the employer and industry associations will need to show how they represent the range of business interest of all their members and not just the multi-state companies.

The recent stats quoted by SafetyAtWorkBlog that showed a high degree of ignorance on harmonisation changes by most businesses are understandable because if you operate in only one State, why would harmonisation bother you? Now the MA is out, the state impacts of the national program are becoming clearer and more worrisome.

Kevin Jones

[Please note that in this article WorkSafe is used as a generic term representing OHS regulators across Australia]

Queensland take on Model OHS laws

Cooper Grace Ward is another Australian law firm who has issued a brief alert on the proposed OHS model laws in Australia. As a Queensland-based firm it has a slightly different take on the draft Safe Work Act

Duty of Care

Cooper Grace Ward see the introduction of “reasonably practicable” as a new duty of care for employers, although the concept is well-established in other States. It describes “reasonable practicable” below

“What is reasonably practicable will be determined by taking into account and giving appropriate weight to:

the likelihood of the hazard or risk occurring;

the degree of the harm that might result from the hazard or risk;

what the person concerned knows, or ought reasonably to know about the hazard and the risk and ways of eliminating or minimising the hazard or the risk;

the availability and sustainability of ways to eliminate or minimise the hazard or risk; and

the cost of eliminating or minimising the risk.”

The firm says this may be “a more sensible approach than the current Queensland standard.”

Lawyers tend to like “reasonably practicable” because it is a difficult concept to define in practice and often OHS lawyers are asked for opinion. Employer associations like it because it can provide some larger business operators with the flexibility to minimise safety costs by tweaking the OHS management so that after an incident “what we thought was reasonably practicable, obviously isn’t, and we sincerely apologise” – not a lot of comfort to the grieving widow or widower.

The concept is also contrary to the dominant (if flawed) attitude of the small- to medium-sized business owner who wants simply to know if they comply. Most businesses in this sector just want to avoid the unnecessary complication and cost that a workplace injury would cause or a visit from an OHS inspector could cause. “Reasonably practicable” removes certainty from the business operator and leaves a large grey area of OHS compliance. This can lead to increased OHS costs by needing to go outside to a lawyer or OHS professional where, before, there was enough skill in-house to achieve a safe level of compliance (if such a think ever existed).

Cost to employers

Cooper Grace Ward should be congratulated for thinking ahead to how the new rules will affect businesses rather than just legal opportunities.

Employer’s will have new OHS obligations “for example, imposing a positive obligation on all employers to engage employees in a consultation process when implementing and monitoring any risks within the workplace.”

“Contrary to the Government’s claims this process may result in a decrease in business efficiencies as more time is spent negotiating methods of improving safety than actually doing so, and by reducing employee efficiency as more work time is spent assisting and negotiating the manner in which workplace health and safety systems will be improved instead of conducting their usual duties.

Costs will also be incurred to business as employers will be expected to provide those employee representatives who are acting in safety roles with adequate facilities and external training to adequately perform their role. Whilst employee representatives currently exist in Queensland, the proposed scope of their powers will be increased by the proposed Act.”

Cooper Grace Ward’s article also discusses union right of entry.

The public comment phase is only one week old, with another five to go. The legal fraternity has various approaches to the proposed OHS law that most often reflect their client base. The first law firms discussing the draft laws were those with a National coverage, understandably. Many Victoria-based law firms have come out sounding a little smug as it is largely the Victorian OHS Act which has been used as the skeleton for the National legislations.

Cooper Grace Ward is an example of a smaller, more localised firm that, in some ways, is closer to its clients or, at least, clients in the smaller business sector which, OHS regulators agree, is the sector where OHS incidents can cause greater proportional damage and where the greater business risks are taken.

Kevin Jones

OHS law debate and Law Society position

Boardroom Radio has hosted a very interesting podcast between two labour lawyers, Andrew Douglas and Michael Tooma, with the participation of Barry Silburn, the National President of the Safety Institute of Australia.

Andrew Douglas speaking at one of his firm's regular breakfast seminars

The SIA National President’s contributions were quite narrow, dominated by the issue of “suitably qualified” in the new model OHS laws (but he did struggle to get a word in edge ways).

It will be disappointing if the SIA’s submission to the Federal Government on the new laws focusses on this single and, to most, secondary issue, when the institute could achieve better results through other mechanisms and more creative thinking.

The only expansive comment from Silburn was the fact that harmonised plant regulations that were introduced over 10 years ago still resulted in different legislation in each State even though they reflected a common core. The high likelihood of this happening to the general OHS legislation was supported by the over panel members.

It is possible that the argy-bargy occurring now and at least for the next 6 weeks of public comment, will not achieve harmonisation as it was initially intended, and tried in a half-hearted way in the early 1990’s. The Federal Government could still end the debate by applying its powers under the Corporations Act, as it has in industrial relations. Some lawyers believe that this is the ace up the sleeve of the Federal Government.

The Law Council of Australia issued an interesting media statement on 30 September 2009. Below are the comments from that statement by John Corcoran, the Council’s President:

“The model laws strike the correct balance and adhere to fundamental criminal law principles. Governments must set aside jurisdictional differences and enact a uniform model OH&S law.”

“Despite the substantial differences in OH&S legislation across Australia, there is little evidence to suggest that the imposition of harsher penalties and evidentiary burdens in some jurisdictions has improved workplace safety performance. Nor has it been improved by the extension of prosecution powers to unions or other organisations.”

“There are undeniable benefits, both to workers and employers, in a uniform national OH&S system, but there is no evidence that workers in any jurisdiction will be worse off if a model law is adopted uniformly.”

These quotes give one of the clearest indications that the OHS harmonisation process about law and not safety management.

It could also be asked that if there is “little evidence to suggest that the imposition of harsher penalties and evidentiary burdens in some jurisdictions has improved workplace safety performance” what alternative strategies and penalties would the Council suggest for consideration? We will need to wait for their submission to the government for that.

Richard Johnstone, a leading academic and researcher into OHS law and enforcement polices argued in his 2003 book, “Occupational Heath and Safety, Courts and Crime”

“…that the court is an institution which, while appearing to dispense justice, is actually part of a broader process which decontextualises social issues. Courts, inspectors, prosecutors and defence counsel are involved in filtering or reshaping OHS issues during the prosecution process, both pre-trial and in court.”

Johnstone says that the process leads to a focus on the “event” rather than the broader context which includes the workplace management systems.

Johnstone succinctly lists the five key principles of effective OHS management, based on his work and that of his colleagues:

“demonstrated senior management commitment to OHS;

the integration of OHS management into core management and work activities;

the adoption of a systems approach to OHS management, involving risk assessment processes and an audit system to identify all risks and to determine which require urgent attention;

the ability of the OHS management system to accommodate to change, particularly changes to work methods, systems and processes, changes to substances, plant and equipment, and changes to the workforce; and

valuing worker input to the OHS management system.”

This is the context in which the new draft Model OHS laws should be considered. If the law does not support these principles than the law is being written for the lawyers and not for the improvement of safety for workers in Australia.

Much of the podcast discussion was about how one deals with what went wrong rather than providing guidance of how to manage to avoid the risk in the first place – the perpetual dichotomy between lawyers and safety professionals.

Kevin Jones

Business commentator is concerned over OHS and IR overlap

Respected business commentator, Robert Gottliebsen, has commented on the political and ideological challenge that Julia Gillard, Australia’s Minister for Workplace Relations, faces over the introduction of OHS model legislation.

Gottliebsen says there is a risk that the combative OHS structures in New South Wales could spread to the national context and that resisting this movement, funded and promoted by the trade unions, will be a substantial test for the Minister. In his Business Spectator article he says

“To make it tougher for Gillard, the draft [legislation] has clauses that will give unions around Australia NSW-style prosecution powers and clauses that water down training requirements. This will mix IR issues and safety and may well increase the injury rate.”

There is a persistent debate about the IR context of OHS and vice versa, which is the tail and which is the dog. Gottliebsen clearly sees the NSW experience as illustrating IR having too much influence over OHS management. (For those readers outside Australia, NSW is seen widely as a failure economically and politically)

“The sad thing is that once occupational healthy and safety becomes merely a tool of industrial relations, it is politicised and linked to wage claims and is not taken seriously. More workers go home injured or worse. So not only do we need English-style law, but we need law that isolates safety from industrial relations skirmishes.”

This is reminiscent of the days when industrial employment awards provided allowances for dangerous or unhealthy tasks, what was universally considered “danger money”.

Robert Gottliebsen is no fool and the significance of his article is the fact that the issue was covered by a finance and business commentator at all. It indicates the significance of what the Federal Government is proposing, politically, industrially and socially. the foundations of OHS legislation have remained basically the same since Lord Robens’ recommendations in England in the 1970’s. Australia has had OHS legislation since the early 1980’s. The new model OHS legislation should similarly be seen in such longevity and broad impact.

OHS may be a niche consideration for most people but how the government handles the negotiations leading to this law’s implementation will be a good indication of their political nous and their commitment to Australians.

Kevin Jones

What Trevor Keltz gets right

Madonna has just released another greatest hits CD. Trevor Kletz has done similar in releasing the fifth edition of “What Went Wrong?” He admits that almost all of the content has appeared elsewhere. It’s been almost 20 years since I had to read Kletz’s books and articles as part of working in a Major Hazards Branch of an OHS regulator in Australia. Not being an engineer, the books informed me but were a chore. This is not the case with the last edition.

Kletz has two parts to the book. The first is a collection of short case notes recording as he says

“…the immediate technical causes of the accidents and the changes in design and methods of working needed to prevent them from happening again”.

The second discusses the weaknesses of management systems. In short, the book reflects the expanding nature of safety management over the last forty years. Kletz may be from the Olde School of safety engineers (he is 87 years old) but often one needs a fresh perspective on a profession and coming from a person with such extensive experience, Kletz is worth listening to. Thankfully, he does not sound like a grumpy old man.

Kletz notes that process industry lessons seem to fade after a few years. In my opinion this may be an effect of the transience of modern careers where corporate memory is often fragmented. It may also be due to the shipping of manufacturing and process industries off-shore and the establishment of large complexes in countries with different (lax) safety requirements. It may also be due to a corporate performance regime where maintenance is not valued or understood as that supports long term thinking rather than quite returns on investment.

Regardless of the cause, the short-term memory makes the need for such books as this as more important than never.

In anticipation of his look at management systems he notes in his preface, that management systems need maintaining and, more importantly, reading. In some circumstances, too much faith is placed in the system (I would refer to the Esso Longford explosion as an example). Kletz says all systems have limitations.

“All they can do is make the most of people’s knowledge and experience by applying them in a systematic way. If people lack knowledge and experience, the systems are empty shells.”

What Kletz does not write about is human error because, as he says, “all accidents are due to human error”. He avoids making the weak logic jump that the behaviouralists make where, “if all accidents are due to human error then fix the human and you fix the hazard”. Kletz devotes a whole chapter to his classification of human errors as

Mistakes;
Violations or noncompliance;
Mismatches;
Slips and lapses of attention.

This edition of “What Went Wrong?” provides a baseline for the safety concepts we have come to accept but also a critical eye on safety and manufacturing management shortcomings. The style is very easy to read although occasionally repetitive. Thankfully the process technicalities are avoided unless they relate to the technical point Kletz is making. I found part B hugely useful but it is recommended for all safety professionals.

Kevin Jones

Category: business

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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Harmonised OHS laws – winners and losers

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Queensland take on Model OHS laws

Duty of Care

Cost to employers

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OHS law debate and Law Society position

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Business commentator is concerned over OHS and IR overlap

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What Trevor Keltz gets right

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Duty of Care

Cost to employers

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