Category: consultation

OHS impact of the Fair Work Australia Bill

Over the next few weeks, many Australian law firms are running information seminars on the government’s Fair Work Bill.  This legislation will change the way that workplaces are managed, particularly in the area of personnel management.

The overlap with OHS will come through the increasingly contentious issue of “union right of entry”.  Frequently unions request access to a site in order to investigate an OHS matter.  This is a legitimate part of the tripartite consultative structure that underpins workplace safety.

Given that the National Review into Model OHS Law has already flagged Victoria’s OHS Act as a useful template, it is worth noting that Victoria went through the same right-of-entry concerns in the development of its 2004 OHS Act as the Fair Work Bill is generating now.

Victoria established a system of licensed union OHS delegates through the Court system in 2005.  Earlier this year the CEO of WorkSafe Victoria, John Merritt said 

the ARREO system had been working well since it was introduced in mid 2005.

Mr Merritt said only eight matters involving ARREOs have been reported to WorkSafe since this section of the Act (Part 8 – Sections 79 to 94) took effect in mid-2005.

In seminars prior to the 2004 Act, workplace lawyers, some who have gained considerable prominence since, warned that “the sky was going to cave in” once unions gained this level of access.  It didn’t, but the law firms gained some new clients.  This type of scaremongering is being repeated currently in the Australian press at the moment.

Yes, under the Fair Work Bill, unions can access a broader range of company data than ever before, including salary information of senior executives, as asserted in The Australian Financial Review, but there are considerable safeguards and limitations in place within the legislation.  These safeguards have worked in relation to Victoria’s OHS laws and they will in industrial relations.

In terms of safety management, the establishment of a cooperative relationship with employees is the best way to minimise union involvement.  It is also the best way to minimise the visits of the OHS regulators.  

Remember that those who complain loudest are those with the most to fear.

Kevin Jones

 

OHS Right of Entry Guide
OHS Right of Entry Guide

WorkHealth – end is nigh after less than one year

Early in 2008, the Victorian Government sprung a surprise on the OHS and health promotion industries by announcing a world-first initiative – WorkHealth.  This program was to be funded by interest generated from the WorkCover scheme to the tune of hundreds of millions of dollars over the next five years.

WorkHealth loses stakeholder support

Two weeks ago, a well-respected OHS professional advised that key stakeholders in WorkHealth were very cool on the program.  This confirmed previous questions raised in SafetyAtWorkBlog about the promotion, transparency and organisational support for WorkHealth.  The professional stated that others were questioning the placement of WorkHealth in the OHS field rather than in health promotion.

Rumour has existed for some months that WorkHealth is a scheme that has been pushed by a narrow range of OHS and workers compensation advocates.

What made WorkHealth so interesting was that the concept originated from within the workers compensation field with workers compensation money.  At the time, the wisdom of committing such a large amount of money to the initiative was questioned by many in the trade union and business areas.  Why head in this direction when there were established mechanisms to reduce OHS and workers compensation costs?

The global economic problems, it is suspected, would have flowed to the investments of the WorkCover scheme and it would be interesting to know what the revenue allocation to WorkHealth now is calculated at.

OHS/Industrial Relations conflict

In The Age newspaper on 26 October 2008, WorkHealth gained some attention as business groups have now seen the criteria for the health assessments of workers.  David Gregory of the Victorian Employers’ Chamber of Commerce and Industry described the criteria as a potential “industrial weapon”.  According to the article,

“WorkSafe told The Age the idea of an initial ‘tick test’ screening process had been abandoned, and the proposed $130 million worth of prevention programs are not in the pilot at all.”

As is evident from the quote, it is the pilot scheme that is being rolled out, however it is clear from the comments of David Gregory and the state secretary of the Australian Manufacturing Workers’ Union, Steve Dargavel that industrial relations sensitivities have not been considered.

Gregory makes excellent points that good OHS professionals are already aware of – workplace safety can only succeed when industrial relations implications and conditions are considered before any intervention process.

OHS has broadened to include the hazards of fatigue, stress, anxiety, depression, workloads, bullying and other matters that have encroached on health promotion and human resources over the last decade or so.  A worker health program would have been more likely to be accepted through this osmosis rather than a surprise announcement.

Is this the end?

WorkHealth could work if it had been generated as a workplace application of public health programs.  The challenge would have been to legitimise the expenditure in an already cluttered health promotion sector.  How would WorkHealth have achieved this testing regime when business is already assessing its workers for psychological disorders, cholesterol, prostate health, hearing, asthma, and a whole range of modern health issues?  It is unlikely that it could so.

It came down to health assessments in a different context – a context where there had been insufficient groundwork to establish the value of the program to its fundamental stakeholders, the unions and employer groups.  To a much lesser extent, the program was not sufficiently integrated into the WorkSafe authority’s program before the announcement.

Also, the timing has been proven to be wrong.  The global economic problems are beginning to squeeze business’ bottom line.  The calls for workers’ compensation premium relief will increase in the same way that businesses have begun questioning the viability of an emissions trading scheme.  WorkHealth is likely to be one of those program cut, so the government will claim, due to the changing economic climate.  The lessons to be learnt are more wide-ranging than just economics.

Unions question the targeting and success of graphic WorkSafe ads

One of the most popular recent postings at SafetyAtWorkBlog has concerned the graphic ads aimed at young workers by WorkSafe Victoria. Last week a safety group meeting was told that WorkSafe focus groups of teenagers had said that to get the attention of young people on workplace safety, advertisements needed to be graphic and confrontational.

However, other young workers tell a different story.  According to the Victorian Trades Hall,

“Feedback from young workers taken recently indicates the message they are taking from the ads is that if you get injured at work it is your fault. They paint a very negative stereotype of young workers.”

Trades Hall also reveals that WorkSafe’s own research does not necessarily fit with some of the current WorkSafe language:

“Research conducted for WorkSafe by Sweeneys in April this year does not demonstrate that young workers are ‘apathetic’. Rather it advises that young workers:

  • lack knowledge of their rights at work, what to do if they got injured, and of IR and OH&S issues;
  • mimic the behaviour and attitudes they observe around them from older workers and supervisors;
  • had a general reluctance to speak up or ask question because they are intimidated and worried about losing their job or think their boss will think they’re stupid;
  • are perceived as apathetic or arrogant by employers, which the research noted was due to young workers being too intimidated and worried about looking stupid to speak up.”
UPDATE: ads are now available through Youtube – nailgun, bakery,    kitchen  
It seems that the WorkSafe Victoria ads are not available on Youtube but the Canadian WSIB ads are.  It is worth reading some of the comments posted under the videos to see what a small section of Youtube viewers, presumably the “Youtube generation” the ads are aimed at, think of the ads.
Given that next week is Safe Work Australia Week and WorkSafe Victoria is likely to promote the young worker ads as a cornerstone of its safety promotions campaign, it is worth trying to listen behind, or between, the good news to determine if the campaign will, in reality, achieve the aims of reducing young worker deaths and injuries.
Recent satirical television shows, such as The Hollowmen, have shown a possible manipulation of focus groups in a similar way that the production of departmental reviews were shown to be politically influenced in Yes Prime Minister.  Focus groups and market research may be the best techniques we have but that doesn’t mean that the findings should be uncritically accepted.

Australian Greens Senator speaks on OHS legislation

Senator Rachel Siewert spoke on Australia’s review of OHS law on 13 October 2008.The Senator summarised the statistical reason for OHS legislation (included here as statistics is a popular issue at SafetyAtWorkBlog), as well as the societal context.

Australian Greens Senator for Western Australia Rachel Siewert
Australian Greens Senator for Western Australia Rachel Siewert

“The importance of occupational health and safety is obvious from looking at even just a few key statistics. In 2004 Access Economics estimated that there were 4,900 work related deaths each year in Australia. The ABS calculated that 690,000 employees suffered from a work related injury or illness in 2006. The Productivity Commission found that, in 2004, workplace deaths, injuries and illnesses cost the economy over $30 billion a year. These figures go to the economic and, importantly, the personal and social costs of workplace injuries and deaths. Behind each of those numbers is a person with a family, workmates, friends and a community.”

Senator Siewert reiterates the timetable for the initial report of the National Review into Model Occupational Health and Safety Laws is due by the end of this month but also identified a plethora of inquiries, agreements and discussions that will also inform the Australian government’s ultimate decision on OHS law. She supports the concept of tripartism:

“We believe that building on best practice in OH&S in this country and around the world is to implement genuine tripartism and independence. On these criteria, this legislation is too skewed in favour of governments and to the detriment of other key stakeholders in OH&S regulation-that is, employees and employers. [The Robens report in the 1970s]. It went on to recommend that statutory recognition of joint consultative practices-including government, employees and employers-need to underpin the new approach.”

But also makes the pitch for broader representation:

“If you agree with this approach-and all of Australia’s OH&S laws are based on this concept-then you also have to acknowledge the importance of genuine participation of employers and employees through a representative structure. The NOHS Commission did recognise this and was established as a statutory corporation with a membership structure incorporating employee and employer representatives. Its functions included formulating policies and strategies relating to OH&S matters, reviewing and making recommendations for the making of laws relating to OH&S matters, researching OH&S matters and conducting inquiries into OH&S matters.”

My recollection of NOHSC was that representation remained the domain of employer associations, trade unions and the government. Independent OHS specialist were few and far between. Given the dreadfully poor rate of union membership in Australia, it would have been more progressive for the Senator to nominate independent OHS specialists and to propose a 25% ratio of represntation for each of the representative groups so that (hopefully) apolitical opinion could be provided on a subject that should be apolitical. (And I still think an OHS Ombudsman is a practical and useful concept.)

In 2004, in its report into national workers compensation and occupational health and safety frameworks, the Productivity Commission made a number of recommendations relevant to the National Occupational Health and Safety Commission, including having a specific objective of achieving national uniform OH&S regulation and joint funding from the states. We note that this bill does implement these recommendations. The Howard government, however, instead of implementing those recommendations, once it got its chance by taking control of the Senate, abolished the commission. Prior to being able to abolish the commission, the previous government had already reduced its funding significantly. Between 1996 and 2005 the then government slashed the budget by over $4 million. We believe OH&S was never much of a priority for the Howard government.

The Senator places the proposed Safe Work Australia authority in a particularly awkward position:

“Safe Work Australia fits somewhere in the middle of the NOHSC and the ASCC. It continues the practice of being tripartite-although inexplicably downgrading the representation of employee and employer representatives-and, while more independent of government than the ASCC, is significantly less independent than the NOHSC.”

Other Greens’ concerns are:

  • reduced representation
  • vague definitions on ‘authorising body” or those associations who become represnetatives
  • excessive and unnecessary ministerial control, including veto
  • two-thirds majority decisions
  • insufficient funding for research

It would be interesting to hear the thoughts of other minor parties although the position of Family First may change in line with varying economic situations.

Is consultation really a “two-way exchange”?

Talking about safety in the workplace is, by far, the best way to introduce and foster a healthy OHS environment.  OHS regulators in Australia have been pushing this for sometime.

A colleague of mine has pointed out an apparent anomaly in relation to consultation posted by WorkSafe Victoria on their website earlier this week.  In relation to Provisional Improvement Notices, WorkSafe says

“Consultation can still be said to have occurred even if:

* the duty holder does not respond to the HSR [Health and Safety Representative] in a reasonable time or at all.  In this case, the HSR can take the failure to respond into account before deciding to issue the PIN.  There does not have to be a two-way exchange – only the opportunity for this to occur;”

This sounds odd to me and I hope that one of the SafetyAtWorkBlog readers may be able to explain.

My colleague posed this question on the issue of consultation:

“If the duty holder generated an OHS issue and the HSR did not respond, would there still only need to be an ‘opportunity for this to occur’?”

It seems a far question when workplace consultation is supposed to be a “two-way exchange”.

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