Category: Duty of Care

Workplace bullying can exist in the boardroom

A most curious article about workplace bullying appeared in the Australian Financial Review (AFR) on 11 September 2013. In discussing recent changes to Australia’s Fair Work Act Nick Ruskin of K&L Gates wrote about the broad definition of workplace bullying to be applied:

“…the intriguing thing is that worker is very broadly defined. Its definition, reliant on the Workplace Health & Safety Act 2011, is so wide it could even include the director of a corporation.

In other words, non-executive directors of corporations will have the same ability as a traditional worker to take a bullying grievance to the Fair Work Commission.

We could see a situation in which a company director alleges they have been bullied by another director and seeks early intervention from the Commission.” (emphasis added)

Continue reading “Workplace bullying can exist in the boardroom”

MP wants to close a dodgy loophole but vision is what’s needed

One of the most discussed posts on this blog concerned an insurance company that paid the fines awarded against a company director. The company director had been found guilty of OHS breaches that led to the death of a worker. Yesterday, South Australia’s Deputy Premier and Minister for Industrial Relations. John Rau, said that he will be taking action to close the loophole that allows for this situation. But this is unlikely to succeed and may be a distraction from the more significant issue of new penalties for deterrence.

In a media release, not yet available online, Rau states that

“Insurance should not be the preference over safe equipment and safe workplace standards….

Whilst most employers do the right thing, this dodge effectively means that the incentive for a company to provide a safe environment for its workers is diminished or eliminated.”

Rau’s current strategy for closing this loophole, which is not really a legal loophole at all, is weak. Rau, a Labor Party politician, says that he will bring the matter to the attention of the Federal Minister for Workplace Relations, Bill Shorten. However, Australia is ten days away from an election that the current (Labor) government is tipped to lose.

Continue reading “MP wants to close a dodgy loophole but vision is what’s needed”

Judicial inquiry into insulation dominated by election campaign politics

Australia’s conservative opposition leader, Tony Abbott, has announced that he intends to conduct a judicial inquiry into the government’s handling of the home insulation program (HIP) that resulted in the deaths of four workers in Queensland and New South Wales in 2009 and 2010.

Such a call would, normally, be very welcome but the timing of Abbott’s announcement brings a level of political baggage that weakens his commitment. Continue reading “Judicial inquiry into insulation dominated by election campaign politics”

How good intentions can lead to workplace deaths

The recent coronial finding into three workplace deaths related to an Australian government economic stimulus package in 2009 has muddled the safety profession over the political context and the OHS context of these deaths.  But the finding and resulting discussions could be the catalyst for a much-needed analysis of how decisions made with good intentions in Canberra can lead to the tragic personal and shopfloor decisions in the suburbs.

Nanny State

The Home Insulation Program (HIP) could have been interpreted as government “interference” in the market and been badged as “nanny state” economics.  However it may be possible to argue that Prime Minister Rudd could have been an economic hero if the Home Insulation Program had continued without any deaths. Continue reading “How good intentions can lead to workplace deaths”

Very useful workplace mental health guidelines released

The Institute for Safety, Compensation and Recovery Research (ISCRR) has released a set of guidelines for the prevention of mental health problems at work. Such guidelines have been sorely required in Australia where workplace mental health problems have become an increasing problem for workers and organisations and workplace bullying dominates the policy landscape. It recommends the development of a mental health and wellbeing strategy that includes the following elements:

  • “the development of a positive work environment that supports and encourages mental health
  • balancing job demands with job control
  • appropriately rewarding employees efforts
  • creating a fair workplace
  • provision of workplace supports
  • effective management of performance issues
  • provision of training to develop management and leadership skills
  • supportive change management processes Continue reading “Very useful workplace mental health guidelines released”

Draft bullying code and cultural measurement

cover of 2013 DRAFT-COP-Preventing-Responding-Workplace-BullyingSafe Work Australia has released its latest draft code of practice for preventing and responding to workplace bullying for public comment.  There are many useful and practical strategies in the draft code but workplace bullying is only a small element of the more sustainable strategy of developing a safe and respectful organisational culture.

The definition in the May 2013 draft code is a tidied up version of the September 2011 definition:

“…repeated and unreasonable behaviour directed towards a worker or a group of  workers that creates a risk to health and safety.”

The lack of difference in these definitions is a real positive given the complaints, primarily, from the business community since 2011.  The significance in both definitions is that there must be a direct relationship between the behaviours and health and safety risks.  This could be substantially difficult to prove, particularly if , as in  most cases, it is the recipient of the bullying who needs to prove this.

Harm Prevention

Consider, for a moment, that this code of practice is used for establishing preventative measures and not just used for disproving a court case, these definitions can help establish a benchmark for creating a safe organisational culture. Continue reading “Draft bullying code and cultural measurement”

No one is mentioning OHS prosecution in Telstra/NBN asbestos stoush

Australian politics is currently embroiled in a dispute generated by a contractor entering the telecommunications pits of the asset owner. Some, or many, of the pits contain asbestos and the contractor’s work, the laying of new fibre-optic cables, may disturb the asbestos. There are many other concerns but that is the nub.

The Australian newspaper has been running on this issue for many weeks but one article in today’s edition called “Tak​ing a dig: will Bill come up short?” (page 9 – online paywall), by David Crowe, caught my attention. Crowe reports that:

“The Aus­tralian has been told Tel­stra chief ex­ec­u­tive David Thodey wrote to Shorten in De­cem­ber 2009 to ar­gue against his pro­posal for a ‘‘proac­tive’’ pro­gram to re­move as­bestos from the com­pany’s pits. Thodey gave three rea­sons for not pro­ceed­ing: the cost; the risk of re­leas­ing as­bestos; and the fact plans for the NBN were in train but had not been locked in.”

I realise that the OHS legislative concept of “reasonably practicable” does not extend to all facets of life but if it were applied to the current asbestos exposure (and I think it could) Thodey’s three reasons given above would be crucial in any potential prosecution, particularly if the reasons in Thodey’s response to Bill Shorten were listed in order of priority. In OHS law, cost is the last element to be considered in determining a reasonably practicable hazard control measure.

Continue reading “No one is mentioning OHS prosecution in Telstra/NBN asbestos stoush”

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