Category: Duty of Care

New Tooma OHS book augurs well for the rest of the series on due diligence

Tooma is a leading figure in Australia’s analysis and application of occupational health and safety (OHS) laws.  He has also been a regular author for publisher CCH.  His latest book on workplace health and safety is entitled “Due Diligence: Duty of Officers”. 

The process for harmonisation of OHS laws in Australia continues to be a rocky one but there are some elements emerging that, even if the laws are not applied in each State, will change the way that OHS is perceived in workplaces.  The increased involvement and accountability of senior managers has been a prominent concern through the review process and is a valid starting point for this new series of books.

Tooma writes in the Preface that the series is designed for the “busy executive” (Is there any other kind?) as an explanation for the tone and structure of the book.  The book is what has been traditionally described as an “easy read”.  I take this as meaning a clean, well-spaced font, minimal footnoting and cross-references.  There is a good use of graphics and tables but sometimes the short case studies or examples break up the page too much in such a small formatted book. Continue reading “New Tooma OHS book augurs well for the rest of the series on due diligence”

Accuracy on OHS laws, services and products is essential

The following article illustrates how important it is for companies to maintain accuracy when writing a media release about safety laws.  The internet allows for inaccuracies to become widely distributed and for these to gain some legitimacy through the re-publication on various OHS, magazine and news websites.

Asbestos Audits International issued a media release in early April 2012 stating the following:

“On January 1st, 2012, new Australian Model Health and Safety legislation came into effect dictating workplace buildings constructed before 2004 must have an asbestos audit. The legislation outlines building owners, building managers and property managers are responsible for these audits. Continue reading “Accuracy on OHS laws, services and products is essential”

What makes a good job? What makes a safe job?

Dame Carol Black

The High Risk OHS Summit 2012 (why it’s high risk, no one seems to know) started with a bang with a detailed presentation from Dame Carol Black, a major instigator of work health reforms in the United Kingdom.  Dame Black was able to provide several case studies and some data that provided a fresh perspective on what work and health and safety means to the British workers.  For instance, she stated that of those employed in the UK, 26% are working with a health condition or disability. Black also said that 2.4% are off sick at any one time

Black also adds the personal to her presentations and admitted that she had not been aware of what makes “a good job” until beginning her review over five years ago. It is a terrific question to ask one’s self and colleagues.  What makes a good job?

David Gregory of the Australian Chamber of Commerce and Industry also spoke at the conference and, as usually, was very cautious in what he said and how he said it. Continue reading “What makes a good job? What makes a safe job?”

The social context of OHS laws is being poorly handled

Australian lawyer Michael Tooma is mentioned regularly in the SafetyAtWorkBlog, mostly because Tooma is one of the few who consider workplace safety in the broader social context.  In The Australian newspaper on 10 February 2012 Tooma wrote that new work health and safety laws being introduced in Australia present

“…a march … into the traditional heartland of the public safety, product safety and professional liability territory, and it brings with it a criminalisation of what was once an exclusively civil liability domain.  The new laws did not invent this trend, they just perfected it.”

Right-wing commentators would jump on this and declare “nanny state” but it is vitally important to note that this trend of “protectionism”, or the “compensation culture” as described in the United Kingdom, did not originate in occupational health and safety (OHS) laws.  The OHS profession, business operators and workers will need to learn to accommodate and manage this social trend that has been imposed.

Tooma writes that ”

“…we have not had a proper debate about the incursion of the laws into nontraditional areas and its impact on the resources of firms, regulators and ultimately work safety standards.”

The debate may already be over. Continue reading “The social context of OHS laws is being poorly handled”

OHS harmonisation may be dead, so who will pick up the pieces?

One of the best summaries of the current status of the new Australian Work Health and Safety laws was published in The Australian newspaper on 27 January 2012 (not available without a subscription).  Lawyers from Norton Rose, Michael Tooma, Alena Titterton and Melissa Cornell, express doubts that harmonisation of national safety laws is possible.  They write:

“At this point in time, it looks unlikely that harmonisation will be achieved at any time during 2012, if it is ever achieved at all.”

The question needs to be asked whether the whole harmonisation process has been waste of time of whether some good has resulted from all the effort.  Prior to Christmas 2011, some legal commentators were satisfied that the harmonisation process had “lifted” several States’ OHS laws to a contemporary standard but the aim of harmonisation, indeed the “promise” of harmonisation was so much more.

Australian businesses that operate over multiple jurisdictions are justified in pointing the finger of blame at the ultra-conservative business groups, lobbyists and alarmists for stifling a very promising reform.  The administrative process could have been handled much better but each government had signed commitments to reform from which many are now weaseling out of.  Regardless of subsequent changes of government, these commitments should have been upheld.

Tooma, Titterton and Cornell summarise by writing:

“For legislative reform that was meant to be about providing clarity to a complex area with differing standards across multiple jurisdictions, after four years of significant effort, it appears we may have been merely gifted more confusion and simply a different set of differences. Continue reading “OHS harmonisation may be dead, so who will pick up the pieces?”

The “head scratcher” in due diligence

I’ve been having a “hmmm(?!)” moments with a wee bit of the due diligence stuff in clause 27 of the Work Health Safety Bill (WHS). I’m interested to hear what you people reckon about it.

Here’s the rub: I don’t think it’s possible to get a clear idea of what it means to comply with the due diligence obligation as set out in clause 27(5)(a); in turn, this means the obligation is, for all practical purposes, unenforceable.

Below is a slab of the preliminary words and the provision, with a bit after it for context:

“(5) In this section, due diligence includes taking reasonable step

 (a)  to acquire and keep up-to-date knowledge of work health and safety matters; and

 (b) to gain an understanding of the nature of the operations of the business or undertaking…”. [emphasis added]

In the process of going through the WHS stuff to see what changes I need to look at for a client’s SMS (well in advance of the Victorian move over to the national laws) I decided to look at the due diligence stuff first.

A quick read of sub-clause (5) shows there is a whole bunch of stuff on the sort of things you’d expect a “mindful” organisation to be doing to keep senior managers up-to-speed.  There isn’t an issue with paragraphs (b) through to (e); they deal with good mindfulness stuff for their business and undertaking. It’s para (a) that has quizzical compliance issues.

It’s pretty obvious that a safety management system ain’t gunna work properly if senior managers don’t have “an understanding of the nature of the operations”, don’t have the resources and processes to manage safety, etc.  Continue reading “The “head scratcher” in due diligence”

Business leader embarrasses himself over PPE

On 7 December 2011, the Adelaide Advertiser newspaper included an article entitled “Hotel chief attacks our nanny state” in which the President of the Australian Hotels Association in South Australia (AHA/SA), Peter Hurley, seems to have been inspired by the same lunacy and misunderstandings as Jeremy Clarkson on matters of occupational health and safety.

The article reports that

“HOTELS Association chief Peter Hurley addressed Premier Jay Weatherill wearing a high-visibility vest yesterday in a provocative protest against a culture of over-regulation.

“It’s the decade of the rise and rise of the fluoro high-vis jacket,” he said, targeting State Government SafeWork SA. “An audit visit from Work Safe SA (sic) is the only thing that makes you wish you were at the dentist having root canal work.”

He said he had been told drive-in bottle shop staff had to wear high-visibility vests.

“Then the guy delivering bread started arriving in high vis. What took the cake recently was the bloke who tops up the condom vending machine arrives, gets out with his case of rubbery delights, resplendent in a high-vis vest. Maybe the topless waitress is next?””

As the opportunity for the comments was the AHA/SA Christmas function and the association developed its influence through alcohol, one could excuse Hurley’s comments as inspired by the event but he produced a fluorescent vest as a prop so his comments appear premeditated. Continue reading “Business leader embarrasses himself over PPE”

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