The 7.30 Report on September 8 2009 broadcast a fairly long story on the current status of the negotiations on Australia’s new OHS laws. They interviewed the major players and took good advantage of the recent union street protests. The video and transcript are available online.
Category: business
Lawyers identify contentious OHS law elements
The Safety Conference scheduled for Sydney at the end of October 2009 has finally got an OHS issue that is contentious and is also a work in progress. The unions are starting to make noise on the OHS laws. The employer groups are manoeuvring cautiously. The safety professionals are largely silent (again) but the lawyers – the group with perhaps the most to gain from the new harmonised OHS laws – are set to analyse and debate.
A media statement from the conference promoters was distributed on September 8 2009 and, very differently from most media releases, is informative without being pushy. Below is the body of that statement:
Three issues are set to dominate discussion: the burden of proof, the personal liability of company officers, and the impact on prosecutions. Neil Foster, senior law lecturer from the University of Newcastle, believes personal liability is at the heart of the changes.
“The harmonisation process seems to have been driven by directors’ fears of personal liability and the hope that there would be some watering down of the laws,” he says. “In my view, the Model Act inappropriately waters down the personal responsibility of company officers, although I do support some of the proposed changes in this area, including the acknowledgement that the officer has obligations to exercise due diligence to protect the workers. But with the change to the current onus of proof provisions, it is quite possible that guilty people will now escape justice.”
Michael Tooma of Deacons law firm, who will moderate The Safety Conference’s harmonisation panel discussion, says that while current state laws differ in their approach to the approach to personal liability of officers, all will be reshaped by the proposed Model Act.
“Despite the range of liabilities, all have one thing in common: the officer will be personally liable only if their company commits an offence,” Mr Tooma says. “The new regime does not require this.”
“Under the approved recommendations for the new OHS laws, officers will be liable if they fail to exercise due diligence. That is, the duty has been recast as a positive obligation on officers to proactively ensure compliance with OHS laws rather than an attributed liability in the event of a breach by the company. This is a landmark shift in approach which will have a significant impact on OHS enforcement and compliance.”
The definition of “due diligence” may also be contentious.
“The Workplace Relations Ministers’ Council (WRMC) did not approve the recommendation for a definition of due diligence,” Mr Tooma says. “The Committee had recommended that due diligence be defined in line with existing case law on its meaning, drawn largely from NSW where the term has been in use for almost 30 years.”
“Instead, WRMC preferred to rely on the Courts to interpret due diligence. Practically, that means that the true harmonisation of the scope of the personal liability of officers may have some way to go as each State Court and Territory Court attempts to interpret due diligence in the context of the case before it until a case is brought to the High Court so that an authoritative determination of that term is made which is binding on all state and territory Courts.”
Michael Selinger of Holding Redlich Lawyers points out that company officers found guilty will face increased penalties, rising from the from the current maximum in NSW of two years in prison or fines of $55,000 to fines of up to $600,000 for an individual and five years in prison.
New South Wales employers, however, may enjoy some relief as the burden of proof shifts to prosecutors.
“The new Model Act will have a more significant impact on New South Wales employers than those in any other states because the Model Act is largely based on the Victorian and Queensland Acts,” says Mr Selinger.
“For New South Wales, the onus of proof will move away from the employer as a result of the inclusion of the qualifier of ‘reasonably practicable’ in the general duty to ensure safety under the Act. When it comes to proving liability, the prosecutor will now need to show the employer has not taken all reasonable steps to prevent injury.
“In 95 per cent of cases, shifting the burden of proof to the prosecutor won’t affect the outcome. This is because when an injury occurs, employers examine the workplace to see what actions need to be taken to prevent a recurrence – by doing that, they show that there were reasonable steps that could have been taken, which makes it easier for the prosecution to prove liability. To some extent, there’s always been this tension between trying to improve the safety system and protecting your legal position.”
“The legislation in NSW has historically been enforced more vigorously than in other jurisdictions but most OH&S regulators only initiate a prosecution if it is in the public interest and they have a good prospect of success. Under the new Act, there’s likely to be more of an emphasis on education and cooperation between the regulator and business. We won’t really know the answer to whether there’s likely to be fewer prosecutions until the new Act is implemented – at the end of the day, how it is enforced will be the key factor. The regulator will still have plenty of enforcement tools and there is likely to be a uniform enforcement policy applied across the country.”
On the other hand, Neil Foster believes the onus of proof belongs with employers.
“The Model Act has been legitimately described as ‘a race to the bottom’,” Mr Foster says. “The onus of proof should be placed on employers because they have the greatest control over safety: how hard people work; safety procedures; how money is spent; and safety policies. There is still a lot of carelessness in workplaces and WorkCover sensibly doesn’t launch prosecutions unless there’s a good chance the employer is guilty and hasn’t taken reasonable precautions. I think the NSW safety system has been working well.”
Scarlet Reid, special counsel for Henry Davis York says the impact of reversing the onus of proof is uncertain.
“From a practical perspective, this could make convictions more difficult to obtain in New South Wales,” she says. “In the absence of any changes that stipulate which courts hear prosecutions at first instance, it remains to be seen if this is in fact the case. It is questionable as to whether real uniformity can be achieved without examining this important issue.”
Ms Reid says employers were likely to benefit from other changes under the proposed Model Act.
“Defendants in NSW and Queensland should benefit from the proposed expanded appeal rights,” she says. “Defendants in NSW may also find comfort in the proposal to abolish the prosecutor’s right to appeal against an acquittal.”
If employers are winners under the changes, unions, who will lose the right to launch prosecutions, protest vigorously against the proposed Model Act, claiming it would be detrimental to safety. Neil Foster agrees.
“The changes to be brought in under the harmonisation process send a message from government to employers: safety’s been too tough and that we’re not so worried about it anymore. It’s very sad.”
Business drops opposition to Australia’s new OHS laws
A story on the front cover the Australian Financial Review on 8 September 2009 lists the “wins” of the union movement in its negotiations on new national OHS law. But it is the last couple 0f paragraphs on page 8 that are most surprising. The article says
“The coalition dropped its previous opposition to the SafeWork Australia bill, allowing it to pass in its original form, limiting the number of unions and employer representatives on the body to two each and giving Ms Gillard [the Workplace Relations Minister] a veto on the appointment of these representatives.”
This seems to be a considerable backtrack on the strong opposition and media statements coming from employer groups over the last 12 months. One wonders what trade-off the industry associations have managed to obtain.
The changes reported are not very radical for those familiar with the Victorian OHS laws – leave for OHS training and greater protections for union members. But the union movement has (yet) to get a reverse onus of proof or rights to prosecute.
The media release from the IR Minister crows about the Conservatives’ backdown and says little else other than marking the passing of the legislation. Ultimately the biggest benefit of this legislation is clarifying the status of Safe Work Australia.
UPDATE: ACCI media statement
The Australian Chamber of Commerce & Industry has released a conciliatory media statement making no reference to its previously strident opposition. The only semi-interesting content (other than the fact of the statement itself) is its reiteration of OHS being a shared responsibility and the need for Safe Work Australia to ensure its independence.
“The message that working safely requires everyone to take their responsibilities seriously now has a better chance of becoming a co-ordinated national message, with parallels to the mutual responsibility message that features in road safety awareness and safe driving campaigns.”
Finger injury causes hefty new safety agenda for John Holland Rail
Comcare has instigated a hefty list of enforceable undertakings (EU) against John Holland Rail (JHR) after a contractor, Jack Wilmot, needed a finger amputated after a workplace injury.
According to the report on the Comcare website
“…an apprentice boilermaker was involved in an incident which resulted in crush injuries to his left index finger at a JHR facility located at Kewdale, Western Australia.”
Comcare’s investigation report
“found that JHR failed to ensure the apprentice, had received adequate training, supervision and instructions in the task he was undertaking when injured.”
Stephen Sasse, Director of John Holland Rail, signed off on the enforceable undertaking at the end of August 2009.
Below are some of the mandatory safety improvements
- maintain the new supervisory structure implemented at the Kewdale facility shortly after the incident
- implement and adapt the safer systems of work across JHR workplaces within two months of signing the EU
- conduct a risk assessment of all major activities undertaken by JHR to determine and identify those which should be classified as ‘high risk activities’ (HRAs) within six months of signing the EU
- eliminate where reasonably practicable to do so, all HRAs and otherwise apply appropriate control measures to the balance of the HRAs, within six months of signing the EU
- provide training regarding safer systems of work to all JHR employees who undertake rail plant maintenance activities as part of their duties within eight months of signing the EU
- commence implementation of the Rail Safety Business Plan 2009 at all JHR workplaces by 31 September 2009 including commencing work on each of the 28 strategic initiatives within the stated timeframes.
Some of these tasks would be impossible to undertake from scratch. A response from John Holland Rail and/or John Holland Group is being sought.
Enforceable undertakings are a feature of financial and OHS legal processes. In Queensland and Victoria an EU is
“… a legal agreement in which a person or organisation undertakes to carry out specific activities to improve worker health and safety and deliver benefits to industry and the broader community.”
John Holland Group has been proud of its OHS record for many years and has had the benefit of Janet Holmes a Court as a safety champion within and outside the company. Holmes a Court spoke of her commitment to safety at the 2009 Safety In Action Conference which was hosted by the Safety Institute of Australia (SIA) of which John Holland is a Diamond Corporate Partner ($A25,000 minimum donation).
Only last week the SIA, proudly announced a Diamond Corporate Partnership with John Holland Group which commits the company to, amongst other commitments,
- “Act and work responsibly and competently at all times to improve health and safety in workplaces and ensure they do no harm.
- Give priority to the health, safety and welfare of employees, employers and other workplace health and safety stakeholders in accordance with accepted standards of moral and legal behaviour during the performance of their duties.
- Ensure the health, safety and welfare of employees, employers and other workplace health and safety stakeholders takes precedence over the professional member’s responsibility to sectional or private interests.
- Ensure work by people under their direction is competently performed and honestly and reliably reported.
- Ensure they do not engage in any illegal or improper practices.”
It is suggested that for next year’s Safety In Action Conference, the SIA asks a JHG representative to discuss the above enforceable undertakings as a case study of inadequate safety management and the related organisational and financial costs.
[Note: Kevin Jones was involved in the promotion of Safety In Action 2009]
Fatigue, impairment and industrial relations
Many of the employees in the health sector in Australia have recently been negotiating new employment conditions. It is rare for the workplace hazards of fatigue and impairment to be given such prominence in industrial relations negotiations.
A major cause of fatigue is the lack of adequate resources for relieving staff. This issue has been identified for doctors, ambulance officers and firefighters over the last 12 months.
Many important OHS issues are identified in a recent ABC Radio interview with Dr David Fraenkel, the Treasurer of Salaried Doctors Queensland (SDQ). Dr Fraenkel mentions the following issues, amongst others:
- Queensland Health‘s duty of care to the public
- Queensland Health’s duty of care to its employees
- “wrong site surgery” due to judgement impaired by fatigue
Dr Fraenkel also shows the institutional pressures on individual doctors to not discuss the implications of fatigue. He mentions that there is a code of conduct that impedes the discussion of issues by health care professionals.
He admits that should a young doctor leave their station to relieve their fatigue they would most likely be “called to account” for their action and their career may be jeopardised for what OHS professionals would admit is an individual taking responsibility for looking after their own safety and health.
Salaried Doctors Queensland has established a website in support of its campaign which includes some factsheets. The print media also picked up on the SDQ media statements.
Meditation is a proven stress reduction method for workplaces
Meditation is not on the regular agenda at SafetyAtWorkBlog. If there was time to meditate, the time would probably be spent losing weight in the gym but there is fascinating research that provides some evidence of meditation’s benefit in reducing work-related stress.
At the Safety Conference in Sydney at the end of October 2009, Dr Ramesh Manocha of Sydney’s Royal Hospital for Women will release research that
“found that after eight weeks of mental silence meditation training called sahaja yoga, occupational stress scores improved [decreased?] 26 per cent. A non-mental silence relaxation program reaped a 13 per cent gain, while a waiting list control group lifted just 1 per cent.”
The language sounds slightly “new-age” but what makes the difference in this circumstance is that the initial research was undertaken with three groups mentioned above and, importantly, with a control group.
Below is a TV interview with Dr Manocha on the first stage of research.
When looking at workplace stress, people reduce stressors but Dr Manocha says this often requires impossible organisation restructuring due to internal political pressures. These techniques can be applied on a personal level that employees can take with them through their various life-stages.
Dr Manocha then applied the meditation training in real corporate situations. According to a media release provided in the lead-up to the conference:
“In a later field trial of mental silence meditation by 520 doctors and lawyers, more than half of the participants whose psychological state (K10) scores indicated they were “at risk” were reclassified as “low risk” after two weeks of meditation.”
It’s the application of this meditation in the workplace context that gained the attention of SafetyAtWorkBlog and what will be presented at the conference. The gentle skepticism evident in the TV interview above is understandable but in a time when safety professionals demand evidence, we must look seriously at evidence when it is presented.
More information on The Safety Conference is available HERE.
In Australia OHS management is red tape
The Australian newspaper of 1 September 2009 epitomised the ideological problems with OHS in a business management context. Page 5 has two articles next to each other:
“Renewed pledge to cut business regulation” and
“Building chief ‘spat on an abused‘”.
The first article reports on a speech by the Competition Minister, Craig Emerson, where it is reported that the Minister
“has pledged his commitment to removing unnecessary regulation that hampered business”.
The Minister was speaking to a business audience and has been described as less friendly to regulation than his predecessor. OHS compliance is often bundled as an element of unnecessary business paperwork by employer and industry groups however, in this speech, the Minister spoke more of open markets.
The second article focuses on an attack on the head of the much-hated Australian Building & Construction Commission, John Lloyd, but also reports on the national union protest scheduled for 1 September 2009, concerning the weakening of OHS laws through the harmonisation process.
The article reports on a union survey:
“Unions commissioned a poll that showed 78 per cent of those surveyed agreed employers should do more to protect the health and safety of their workers, even if it led to increased costs or red tape.”
That unions would even accept that OHS compliance could be considered red tape is a great concern, and the phrase is taken directly from the ACTU media release.
Union Survey figures
SafetyAtWorkBlog is endeavouring to obtain the original survey results (over 1000 respondents (workers) taken in the last week of August 2009) but for the moment it is worth quoting ACTU Secretary Jeff Lawrence’s interpretation of the statistics.
“… this poll shows the Australian public don’t want workplace safety rights undermined.”
“The poll shows there is significant support in the Australian community for stronger rights and protections for workers and an ongoing role for unions in checking workplaces where employees are worried they are in danger.
“The poll finds 81 per cent of those surveyed agreed workers should have the right to call in help from a union to check on health and safety issues regardless of their employer’s approval.
“Seven out of ten Australians (69%) believe that injured workers should be able to take their employer to court under workplace health and safety laws.”
Business and government in Australia are harmonising OHS laws to reduce the red tape business compliance costs. Unions believe that OHS red tape and increased business cost is acceptable.
What does this leave the safety professional who says that they can minimise the red tape associated with OHS compliance AND that safety is not a cost but an investment? Out in the cold with the Victorian WorkCover Minister, it is suggested.