Category: consultation

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

New ISO risk management standard

I am old enough to remember the world of management before it had a risk management standard.  In fact I was studying risk management in OHS when the Australian Standard 4360 was released.  It substantially changed the way OHS was managed in Australia (and lined the pockets of the publishers).  It increased the significance of management standards beyond Quality and helped considerably in progressing an integrated approach to managing a broad range of workplace risks.

[The process also instilled in me a distrust of the standards development process when I sat through a seminar from one of the risk management standards committee members where he spruiked a PC-based management system that “anticipated” the new standard…….. at $30,000 setup fee???  Clearly in this case, and I have been told in almost all cases, the participants always have one eye on the commercial benefits of participation]

Grant Purdy recently discussed the new international risk management standard ISO 31000:2009.  At one of his presentations he said that the new standard has a definition of risk that “shifts the emphasis from “the event” to “the effect” and, in particular, the effect on objectives.”

The previous risk management standard overlapped with auditable elements in other management standards – OHS, environment, and quality.  This new definition may cause problems across these sectors.

Purdy said that risk is now not only perceived as a negative.

“Risk has in th past been regarded solely as a negative concept….[but] it is now recognised that risk is simply a fact of life that cannot be avoided or denied.”

He speaks of the traditional way of measuring risk as sometimes creating “phantom risks” due to an overstated likelihood.  This seems particularly relevant to OHS and may be part of the reason that some OHS issues are seen as excessive or, at worst, a joke.

Purdy stated that there are 11 statements of effective risk management. [Modern management writers love numbers.  I should write a book called “The hundredth time I have had to sit through a numbered list of strategies at conferences before walking out”]  The statements are that risk management

  • creates and protects value
  • is an integrated part of all organisational processes
  • is part of decision making
  • explicitly addresses uncertainty
  • is systematic, structure and timely
  • is based on the best available information
  • is tailored
  • takes human and cultural factors into account
  • is transparent and inclusive
  • is dynamic, iterative and responsive to change
  • facilitates continual improvement of the organisation.

The implementation of this standard and other international standards is going to be confusing, initially, for Australian managers but the choice is easy.  Why follow an Australian standard that needs explaining overseas when there is already an international standard that requires no explanation?  Go global and expand your auditing and accountability options.

[Please note that ISO31000 is not an auditable standard but I suspect you will not have to wait long for one.]

Kevin Jones


Imminent release of OHS model law draft

In the film Mrs Doubtfire,  it was said that her husband’s concept of foreplay was “Effie, brace yourself.”  Australian safety professionals should follow Mr Doubtfire’s advice for, according to a media release from Safe Work Australia:

The Safe Work Australia Council met in Sydney today (18 September 2009) to consider a suite of draft documents on model occupational health and safety (OHS) legislation.

Mr Tom Phillips, Safe Work Australia Council Chair, said that this was a significant development in the harmonisation of OHS laws around Australia.

The Council agreed to recommend to the Workplace Relations Ministers’ Council (WRMC) that it approve the release of a suite of documents for a public comment period of six weeks.

“We have reached a key milestone proving Safe Work Australia is on track to deliver national OHS laws by December 2011,” said Mr Phillips.

The documents to be made available for public comment will include an exposure draft of the model OHS Act, discussion paper, key administrative Regulations and the consultation Regulation Impact Statement.

To continue the Doubtfire analogy, let’s look forward to the post-coital glow of legislative harmony, industrial peace and safe workplaces.

Kevin Jones

[Note: the original book, Madame Doubtfire by Anne Fine, is very funny too but in a less Robin-Williams sort of way. KJ]

Union opposition to Australia’s OHS laws – new radio campaign

On 14 September 2009, the Australian Council of Trade Unions (ACTU) released a series of radio advertisements that call on the government to not reduce the occupational health and safety conditions of Australian workers.

An article about the ads with interviews with the major political players is available on ABC Radio for a short time.

Conflict

There are several issues raised by the ads and the interviews.  Jeff Lawrence of the ACTU says that the new harmonised OHS laws will reduce conditions across Australia.  For “across Australia” read “New South Wales”.  The proposed OHS laws will create the most change for unions in New South Wales.  This state had the most extreme duty of care in any State and always had the most to give up.  This was always going to be the point of conflict.

Consultation

The ads can also be seen as an admission that the in-house tripartite negotiations are not going the way the union movement wanted.  The Australian Government has persisted with the tripartite consultative structure for OHS.  Each party – government, unions and employers – are supposed to have an equal(ish) say in changes to the OHS law.  The new radio ads, and the recent street protests, could indicate that the unions are not being listened to to the extent they wanted.

It could be that the union movement want to add colour and movement to the negotiations but it is an expensive method and one that does not have the same traction as their Your Rights At Work campaign that contributed to the fall of the conservative governemtn of John Howard, regardless of what the advertising sellers say.

The government of Prime Minister Rudd was always seen as sympathetic to big business.  This is a legacy of the consensus politics of the Hawke/Keating period.  The traditional voter base for the Labor Party has been eroding for years and the only way it has been able to retain or regain government over the last 25 years has been to broaden its appeal to the middle classes.

A great example of this was the fall of the government of Jeff Kennett in Victoria.  The Labor Party began wooing the rural conservatives, a sector that Kennett had almost dismissed (except for the occasional search for the best vanilla slice).  This action undercut the Liberal Party and National Party heartlands.

The ACTU is also trying to talk with the heartlands of workers but it needs to assuage concerns about the industrial relations changes.  The community is fearful that the unions are asking for too much.  The Government is aware of this and that is why the mantra of the Prime Minister and Industrial Relations Minister, Julia Gillard, is all about “restoring the balance”.

Reporting

The radio report this morning also indicates a deficiency in the Australian media.  There are no reporters in the mainstream media who specialise in OHS.  That’s understandable as OHS is often a niche area, a subset of industrial relations.  But this also means that OHS is always considered in terms of industrial relations because this is the information base from which reporters and journalists draw.

This is noone’s fault, in particular, but as you listen to the radio podcast, the IR “tone” is always there, both in the journalists and the subjects interviewed.

Perhaps the media sees no value in OHS without the IR perspective.  Perhaps it is because today’s report was always going to be about industrial relations with an OHS twist.  If this is the case, where are the OHS advocates who can comment without industrial relations baggage?  Where are the humanists, the realists, where is the OHS voice?

Kevin Jones

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.”

Cover John_Holland_enforceable_undertaking_legal_documentComcare’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.

Kevin Jones

[Note: Kevin Jones was involved in the promotion of Safety In Action 2009]

NZ proposes new exposure levels on formaldehyde

The New Zealand of Department of Labour is continuing its negotiations on new exposure levels for formaldehyde.

The latest proposed exposure levels for formaldehyde are 0.3 ppm (8 hour TWA) and 0.6 ppm (STEL).  Currently the levels in New Zealand are 1ppm (ceiling).

According to US OSHA, it’s exposure standard is

1910.1048(c)(1)

TWA: The employer shall assure that no employee is exposed to an airborne concentration of formaldehyde which exceeds 0.75 parts formaldehyde per million parts of air (0.75 ppm) as an 8-hour TWA.

1910.1048(c)(2)

Short Term Exposure Limit (STEL): The employer shall assure that no employee is exposed to an airborne concentration of formaldehyde which exceeds two parts formaldehyde per million parts of air (2 ppm) as a 15-minute STEL.

WorkSafe BC says

BC‘s current 8-hour TWA of 0.3 ppm is well below levels capable of causing adverse health effects and protects the worker from the pungent, unpleasant odour of formaldehyde.

NZ DoL is also discussing dropping there exposure levels for soft wood dust from 5mg/m3 to 1mg/m3.

The cancer risks of formaldehyde have been investigated over some time and the weight of evidence shows that this chemical is a probable human carcinogen.

Kevin Jones

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