Category: ethics

Minerals Council and Industrial Manslaughter laws

On 1 February 2019 the Minerals Council of Australia issued a media release about occupational health and safety (OHS) in the mining industry and, in particular, Industrial Manslaughter laws. SafetyAtWorkBlog approached the MCA’s CEO, Tania Constable, for clarification.

The release stated:

“The MCA cautions that the introduction of Victorian Government’s industrial manslaughter laws will give rise to unintended consequences which impair, rather than enhance, health and safety outcomes at Australian workplaces. These laws will not contribute to general or specific deterrence or improvements in health and safety outcomes. This must be the priority, not imposing oppressive and unnecessary criminal liability on selected individuals”

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Would Reckless Endangerment improve safety and health more than would Industrial Manslaughter laws?

The reckless endangerment provision of Victoria’s Occupational Health and Safety Act 2004 is likely to be crucial to this year’s discussions on Industrial Manslaughter laws and the management of workplace health and safety more generally, particularly as Victoria’s Minister for Workplace Safety, Jill Hennessy, has announced an implementation taskforce that includes a Workplace Fatalities and Serious Incidents Reference Group.

Section 32 says:

“A person who, without lawful excuse, recklessly engages in conduct that places or may place another person who is at a workplace in danger of serious injury is guilty of an indictable offence and liable to—
(a) in the case of a natural person, a term of imprisonment not exceeding 5 years, or a fine not exceeding 1800 penalty units, or
both; and
(b) in the case of a body corporate, a fine not exceeding 20, 000 penalty units.”

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Banking Royal Commission and corporate culture

Occupational health and safety (OHS) has come late to seeing its operations as part of the organisational culture of Australian businesses. Its realisation started with an assertion of a “safety culture” that operated in parallel with regular business imperatives but often resulted in conflict and usually on the losing side. OHS has matured and become less timid by stating that OHS is an integral part of the operational and policy decision-making.

Some of that business leadership that was admired by OHS and many other professions existed in the banking and finance sector which has received a hammering over the last two years in a Royal Commission. That investigation’s final report was released publicly on 4 February 2019. The report reveals misconduct, disdain, poor regulatory enforcement and a toxic culture, amongst other problems. The OHS profession can learn much from an examination of the report and some of the analysis of that industry sector over the last few years.

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What can we practically do to improve the OHS culture of Australia’s business sector?

This afternoon the Australian Government releases the findings of the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry. This has little to do with occupational health and safety (OHS) directly but it has a lot to do with:

  • organisational culture,
  • business ethics,
  • the social licence to operate,
  • the morality of capitalism, and
  • Trust

OHS needs to operate within all these elements of business operations and all Australian businesses will be watching how the Government and other political parties react to these findings.

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Is workplace health and safety still relevant?

A quiet revolution is happening in workplace health and safety in Australia.  I don’t mean the laws – that boat sailed with the failure of the attempt to harmonise laws and tweak them for the new Century.  The change is coming from a realisation that what is still mostly called Occupational Health and Safety (OHS) has been misunderstood and misapplied, especially in the context of work-related psychological hazards.

OHS emerged in its most contemporary form in the 1970s in the UK and manifested in new laws in Australian States in the 1980s.  These laws stipulated that the primary duty of care for the health and safety of workers AND those affected by the work processes suits with the employers (ignore the absurd modern variation of employer in the Work Health and Safety laws – the PCBU – Persons Conducting Business or Undertaking as only lawyers really use the term.  Some prominent lawyers pronounced the acronym as “Peek-A-Boo” (you know who you are) as if OHS was a barely-held-together nightie! It was juvenile and didn’t help).  Workers have a duty to not harm themselves or others and to support the employer’s OHS processes.

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Jordan Barab provides important OHS insights

I learnt more about the politics of the United States from Doonesbury than I did from television news and analysis.  I learn more about the politics of occupational health and safety (OHS)  in the United States from Jordan Barab‘s Confined Space newsletter/blog than I do any other media source.  Although the US’s OHS legal structures are different from Australia and other Commonwealth countries, the political ideologies and maneuverings, and fads and statistics are noted by political parties outside the United States.

Recently Barab posted a Year in Review article which is obligatory reading.  His key issues included:

  • A New and Improved Congress (or at least the House)
  • A Headless Agency
  • Inspectors down, enforcement units down, penalties down
  • Return of Black Lung
  • Brett Kavanaugh
  • Regulatory Rollback
  • The Fate of the Labor Movement

Anything sound familiar in your own jurisdiction?

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Addressing the invisible causes of visible harm

The trade union movement was instrumental in showing that workplace bullying was a pervasive problem in Australian workplaces.  Many Codes of Practice and guidances for workplace bullying and occupational violence were written shortly after the action by the Australian Council of Trade Unions almost two decades ago.  But, for some reason, although sexual harassment was mentioned in those early documents, it never received the attention in occupational health and safety (OHS) circles that, in hindsight, it should have.

Perhaps a more sustainable and effective strategy would be to focus on the “harassment” rather than the “sexual”, or in

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