Category: business

Deacons are first with harmonised OHS law comments

Michael Tooma speaking at the Safety Conference in Sydney in 2008
Michael Tooma speaking at the Safety Conference in Sydney in 2008

Michael Tooma, of the Australian law firm Deacons, is often the first labour lawyer to comment on Australia OHS Law matters and this week was no different.  While many of us are continuing to digest the draft OHS Act, Tooma has identified several issues of interest.  Some are discussed below.

[Tooma’s full legal update is available  HERE]

An expanded duty of care that may extend beyond workplace safety and OHS

The duty of care will include

  • “providing and maintaining a safe and healthy work environment;
  • providing and maintaining safe plant and structures;
  • providing and maintaining safe systems of work;
  • ensuring safe use, handling, storage and transport of plant, structures and substances;
  • providing adequate facilities for the welfare of workers carrying out work for the business or undertaking;
  • providing any information, training, instruction or supervision that is necessary; and
  • ensuring the health of workers and conditions at the workplace are monitored for the purpose of preventing illness or injury of workers.”

Most of these will be familiar to Australian OHS professionals and there is little that is controversial here but Tooma says

“This expanded duty has the capacity to broaden the existing duties significantly, extending their reach to any activities that may impact health and safety.   The extent of the duty as drafted in the model provisions arguably includes public safety matters…..  In addition to public safety, arguably the provisions are capable of applying to product safety matters.”

Tooma expands on this slightly in an article in SmartCompany in terms of an alternative to public liability.

“Tooma says this means duty of care will now extend to issues of public safety, including visitors, passers by and even trespassers, which could open businesses up to civil litigation claims from people who aren’t even employees of a business.

Tooma says the laws allow a member of the public to sue a workplace based on a breach of statutory duty, rather than a negligence claim, which often carries a higher penalty and is more difficult to defend in court.”

The extension of workplace safety obligations to include the impact of work processes on those outside the worksite has existed for some time but the draft legislation has the capacity to highlight this “opportunity” to some.  The integration of work and non-work exposures has some logic to it when one considers the growing push for integration of work health and public health management such as reducing cardio-vascular health risks through work-based initiatives.  It also broadens the social integration of OHS  and environmental management which larger companies are already managed through an integrated structure.

Union Right of Entry

There have been some frightful cases of union intervention, particularly in the construction industry, over the last few years.  Depending on one’s politics the union reps or organisers are either doing the right thing by their members or disrupting the workplace for their own secret agenda.  This situation does not reflect the vast majority of workplace consultations on OHS matters.

Prior to the introduction of the Victorian OHS Act which established an authorisation process for union organisers, SafetyAtWorkBlog remembers one prominent OHS lawyer, warning that “the sky will fall” over this issue.  It never did in Victoria and there is no reason to suspect that new right-of-entry provisions will be controversial in any workplaces other than those that already have fractious relationships between unions and management, and often on matters unrelated to safety.

However, Tooma says that

“The union right of entry provisions contained within the Model OHS Laws involve a far greater expansion of the rights of unions than those which exist in current OHS legislation throughout the jurisdictions, particularly in New South Wales, South Australia, Tasmania and the Commonwealth.  The Model OHS Laws give unions not only the power to investigate incidents but also to advise workers in relation to OHS matters.”

There was always going to be some changes in some jurisdictions due to the harmonisation process following the Victorian OHS Act 2004.  SafetyAtWorkBlog has faith in the authorities implementing sufficient safeguards that union right-of-entry will not be the hotbed of anxiety that some are suggesting.

More legal commentary on the draft OHS Law documents is likely to be released over the next few weeks as the drafts get digested and the six-week public comment phase kicks in.  It is sure to be the hot talking point as Australia moves into a bunch of OHS activities, conferences and awards events in October 2009 leading to Safe Work Australia Week.

Kevin Jones

Harmonisation documents available but path is far from settled

On 25 September 2009, Australia’s Workplace Relations Ministers Council
(WRMC) agreed to release the draft legislation for public comment.

According to one media report, the New South Wales Finance Minister, Joe Tripodi,

“…moved at the [WRMC] meeting to have union prosecutions included in the new laws and was defeated by eight votes to one.”

Pages from Discussionpaper_ExposureDraft_ModelActforOHS_PDFThe documents are now available for download HERE.

According to Safe Work Australia’s media statement:

“The suite of documents available for public comment includes a model Act, administrative Regulations and consultation Regulation Impact Statement (RIS). The RIS will allow individuals and organisations to comment on the potential costs and benefits of the proposed Regulations. The RIS has been prepared by Access Economics.”

Curiously, it also says that Access Economics is

“…surveying businesses across a range of sizes, industries and regions in an effort to obtain primary data on compliance costs and safety benefits.”

It is odd that this has not been done earlier to, perhaps, substantiate the claims that the OHS law changes will reduce costs and “red tape”.

At the Comcare Conference in Canberra in late September 2009, Geoff Fary, illustrated very effectively the small sector of business that would be affected by the national laws.  Fary estimates that only around 1% of Australian businesses are likely to be liable to the “red tape” argument.  Many of these companies could be expected to already have some form of national OHS management systems, perhaps through Australian management standards.

Whether the percentage of affected 1% or 5% it is hoped that the Access Economics survey does not focus only on this sector.  Previous surveys have indicated a large ignorance or apathy about national harmonisation.  This is likely because the vast majority of Australian businesses operate within a single jurisdiction so the harmonisation is considered irrelevant.  The sad reality is that the OHS legislative structures in Australia for the next 10 to 20 years will be determined by the corporate sector, the regulators themselves, and the labour law firms and not necessarily by the small to medium-sized businesses for whom OHS can be the most burdensome.

SafetyAtWorkBlog had the chance to ask Geoff Fary, the assistant secretary of the ACTU, of his thoughts on the continuing opposition to harmonisation expressed by Troy Buswell, the Western Australia Treasurer.  Fary said that harmonisation

“…could occur without Western Australia being involved.  It couldn’t occur, I believe, without Victoria or New South Wales or Queensland being involved but because of the nature of the place and the geography of the place it could occur without Western Australia, and I think there is probably a strong possibility….that harmonisation will proceed in the absence of Western Australia.”

If this evenuates the harmonisation process becomes an academic exercise yet again.

Kevin Jones

Buswell sniffs union conspiracies

Troy Buswell, the Western Australia minister responsible for OHS, has dug in his heels in over opposition to the Federal Government’s move for harmonised OHS legislation.

Ahead of the Workplace Relations Minister’s meeting on 25 September 2009, Buswell has reiterated his government’s opposition to changes to OHS law.  He argues that the OHS changes are not necessary for Western Australia as the existing laws ar fair and balanced.

This may be the case but it is significant that the opposition has only come as a result of a change of government to the conservatives.  The proposed OHS laws haven’t changed over that time.  Buswell goes on to accuse the unions of having the opportunity to have backroom deals with the Australian (Labor) government which allow unacceptable union access.  There is no doubt that unions have more access to the current Federal government than under the previous conservative but, as has been reported in SafetyAtWorkBlog and elsewhere, the unions are as frustrated over access as other lobbyists.

Rather than letting the 25 September meeting slide by with a “communique” coming out next week, Buswell has given the meeting some prominence.  He has also put himself in a difficult position from where compromise may be uncomfortable.

Many observers have been focusing on the opposition to the OHS laws from the New South Wales union sector but that State has a Labor government.  The passionate opposition is obviously on the other side of the country, an areas that those in the East Coast States often ignore.  But not at the moment.

Kevin Jones

Leadership, MBAs and Community

The G20 summit in Pittsburgh, United States, this week will include a lot of analysis of the global financial crisis and various stimulus packages.  Some, such as Professor Henry Mintzberg,  have pointed the finger at business courses, such as the Master of Business Administration, that have encouraged personal greed.  Some in the executive industry describe (rationalise?) this as creating “shareholder value”.  Regardless of which ideological side one takes, MBA’s are getting a makeover.

In a recent article Professor Rakesh Khurana of Harvard University has argued that

“…the shareholder model is too blunt and does not capture the reality of business”.

But before one categorises Khurana as an advocate of the left, Khurana operates within a bigger context.  Khurana argues that

“…a professional ideology of “service to the greater good” is not at odds with the principal of shareholder value creation.  It actually grounds shareholder value morally and integrates it in a richer multidisciplinary context.”

The multidisciplinary approach to management is familiar to anyone who has studied risk management but it seems to be radical in the financial sector.  Professor John Toohey of RMIT University’s Graduate School of business  has said in the same article as referenced above

“We fail as a business school if we don’t excite and frighten our students, and get them to think about the bigger issues, what sort of moral footprint they will be leaving… We do this by emphasising ‘work-integrated learning’, by trying to give our students experience of how complex issues are considered and managed in reality.”

Earlier this year Professor Toohey chaired an event that discussed the role of science and business.

But that integrated approach to business management requires a receptive audience.  Henry Mintzberg, mentioned above, wrote an article on leadership for the  Harvard Business Review for July/August 2009  that seems to talk about workplace culture without using that term.  Mintzberg talks about reestablishing a sense of “community” in corporations.  By community he means:

“…caring about our work, our colleagues, and our place in the world, geographic and otherwise, and in turn being inspired by this caring.”

Some would see this as “engagement”, others could compare this approach to establishing a social consciousness for the workplace.  Many OHS professionals will see elements of community in many of their activities around a workplace safety culture.

The full/longer article is well worth obtaining (it was reprinted in the September edition of the AFR Boss magazine in Australia) as it lists the following lessons, amongst others:

Community building in an organisations may best begin with small groups of committed managers.

The sense of community takes root as the managers in these groups reflect on the experiences they have shared in the organisation.

The insights generated by these reflections naturally trigger small initiatives that can grow into big strategies.

The discussion about “communityship” seems to have strong echoes in other business management strategies.  At the core are the same concepts being discussed in different terms.  The trick is to ignore the competitive claims of ownership or intellectual property to get to the useful truths that lie within.

Kevin Jones

Early worker health statistics from WorkHealth

WorkHealth has released some data on the results of its first wave of free health checks (not yet available online)

“Recent results from tests of 3500 workers conducted as part of the ….WorkHealth program found more than half were overweight and/or had high blood pressure while a quarter had high levels of blood cholesterol.”

These figures are not as “surprising” as WorkHealth makes out as the health check program is free to all workers in the State of Victoria and is likely to be the first time that many of the workers would have undergone such checks.  Indeed, WorkHealth acknowledges this fact for its blue-collar male workers.

The data is summarised by WorkHealth below:

  • Male workers were more likely to have high blood pressure;
  • Female workers were more likely to have higher levels of cholesterol in their blood;
  • The majority tested eat less than the recommended five serves of vegetables each day; and
  • The majority of people tested eat at least two pieces of fruit each day.

A health profile of the general Australian population from 2008 found the following statistics, amongst others:

Coronary heart disease is the largest single contributor to the burden of disease
in Australia, followed by anxiety and depression.

Coronary heart disease is the largest single contributor to the burden of disease in Australia, followed by anxiety and depression.

Cardiovascular diseases, cancers and respiratory diseases remain the leading causes of death overall.  However, injury is by far the most common cause of death in the first half of life.

Many Australians live with long-term health conditions. Most of these conditions are not major causes of death, but they are common causes of disability and reduced quality of life.

WorkHealth may be a turning point in the health management for some of the participants, and even if this is a tiny minority, the WorkHealth program could be claimed as a success.

Now if we could only do more about the smoking, dust, fumes, forklifts, sedentary work, fatigues, shiftwork, depression, stress, alcoholism and anxiety…..

Kevin Jones

Safety Leadership push in Queensland

Expect quite a few OHS statements coming from Australian politicians as the country approaches Safe Work Australia Week in late October 2009.

On 16 September 2009, the Queensland Attorney-General and Minister for Industrial Relations, Cameron Dick, sought support for a

“…groundbreaking new program to reduce workplace deaths and injuries.”

Groundbreaking? Not sure. Perhaps for Queensland.

According to his media statement the “Zero Harm at Work ” program “aims to reduce the shocking number of deaths and injuries in Queensland workplaces.”  Dick goes on to say

“Ensuring safety in the workplace is one of the most important challenges facing industry in Queensland… Every year around 100 Queenslanders are killed at work and 30,000 people suffer serious injuries or work related diseases.  The cost to our State of these tragic deaths and injuries is more than $5 billion a year.  And worst of all, mums, dads, husbands, wives and children are left mourning the family member that never came home from work.”

Dick hits the right targets in the media statement but does safety leadership, particularly these types of programs, stop incidents from occurring in the workplaces?

Or is the effect of these programs to have senior executives feel that they are reducing injuries because they are talking about safety?

SafetyAtWorkBlog has long believed that safety awareness does not necessarily equal the reduction of workplace injury and illness.  “Zero Harm” cannot be achieved without financial cost and it is unclear whether industry is willing to invest the amount of money required to genuinely achieve this aim.

But then if “zero harm” is only a goal, an aspiration, then it doesn’t matter if it is not achieved “at least we tried”.  (Or the total cynic would say “at least the voters saw that we tried”)

There are sure to be more such statements and launches in the next six weeks.  SafetyAtWorkBlog will be looking for evidence not aspirations.

Kevin Jones

Principal Contractor duties clarified in the High Court of Australia

Managing contract labour is almost always a pain.  The extension of OHS obligations through the “supply chain” has not helped although it was intended to.

Companies have been expected to treat contractors as employees for the sake of OHS obligations.  This was intended to generate a cultural change where a certain safety standard was extended through the links of project management.  To some extent safety awareness in the small suppliers of services to large companies and projects has improved.  But whether that safety awareness has changed to an active safety management or simply a belief that OHS is an unavoidable evil is debatable.

Regardless of the reality, the High Court of Australia recently provided some clarification on the duty of care of a principal contractor.  According to a summary of the High Court decision, Australian law firm Allens Arthur Robinson report that

“The High Court’s decision means that a ‘principal contractor’ does not have a common law duty to train or supervise the employees of specialist subcontractors in the specifics of their work.”

The High Court acknowledged that this may not relate to the New South Wales legislative situation but it is an important decision for the harmonised future of Australian OHS Law.

What it also indicates is the length of time it can take for a legal concept to be clarified and, hopefully, defined.  What does a company do in the meantime?  This is important for businesses to consider as the OHS law moves into a new national regime where individual State jurisdictions are expected to provide clarity on the legislative vagaries of “reasonably practicable”.  The government seems to be comfortable that the legal processes (cost and time) are worth the flexibility offered in OHS law.  Some see flexibility, others may see confusion, complexity and the need to reeducate.

Kevin Jones

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