Law firms have been producing newsletters and case summaries for a long time. Ostensibly these are for marketing purposes but occupational health and safety (OHS) professionals have benefited from these potted histories and examinations, even though the perspectives are often limited to the legal precedents. Over the last few years though, law firms have been producing longer documents such as annual or mid-year reviews that go well beyond workplace safety. The latest of these has been produced by Corrs Chambers Westgarth.
By looking broadly at social, regulatory and economic pressures on Australia Corrs’ Mid-Year Review provides a useful context to OHS that safety regulators rarely do. Nor do government agencies, such as the Productivity Commission, although they try. Corrs has applied five themes to its current report:
- Future Organisations: Digital Disruption & The Future of Work
- Australia’s 21st Century Infrastructure Needs
- The Public Sector Workforce
- Social Enterprises, Social Impact Bonds & the Not-For-Profit Sector
- Business Culture & Risk
It is important for companies to be up with the trends but there is also the risk that what is identified as a trend is really a fad. There is also a tendency to only assess the current circumstances in a narrow historical context. “Disruption” is a fashionable phrase at the moment, particularly in discussing technology’s effects on the ways of working. Corrs writes
“A report by the Committee for Economic Development of Australia (CEDA) suggests that technology will radically reshape Australia’s workforce in the next 10-15 years, with the jobs of up to 40% of the workforce being replaced by computers…” (page 12)
But it is important to emphasise the distinction between technology and computers. Computers, as we currently understand them, are a recent phenomenon but technology has existed for centuries. Technology has always involved change and change has always been disruptive to individuals and society. OHS professionals have accommodated change in their advocacy of continuous improvement and by introducing management of change (MOC) processes. The safety regulators have also spoken of the importance of one’s state of knowledge of hazards, risk and safety. Some professionals prefer a static state of knowledge, others continue to progress it.
One of the core elements of the report is “the fissured workplace” described by US law professor David Weil. This fissuring is described as
“…splitting off functions that were once managed internally, to small business units that compete fiercely with each other.” (page 4)
Some have suggested that this creates new challenges for OHS but there seems to be more than a passing similarity to the longstanding safety issues associated with contractor management, going back to my earlier point about short or narrow memories of recent history. It may seem that this fissuring is more prominent at the moment but it can be argued that the increasing white-collar job structures was always going to lead to fissuring or even fracturing through the mechanisms of flexible working conditions, teleworking, and even work/life balance. People were looking for new ways to work that allowed them to not be anchored to the workplace as the core reason for existence.
Corrs writes about the contractor management issue as if it is a new activity but it is familiar to those OHS professionals who were operating in the 1980s and 1990s:
“Businesses sometimes establish workforces that are principally comprised of independent contractors
and labour hire workers on the basis that there is no requirement to take reasonably practicable steps to ensure their health and safety. That flawed assumption exposes the company to significant financial penalties for breach, and places its directors and officers at personal risk of custodial sentences and significant fines.
The same flawed assumption also means that workers who are not employees are less likely to work in accordance with credible safety systems. As a consequence, their own and their co-workers’ safety is likely to be put at risk. In those circumstances, the business may be in breach of its statutory duty to take reasonably practicable steps not to put the health and safety of ‘other persons’ (i.e. persons who do not have any workplace relationship with the business) at risk.” (page 17)
Many western countries have experienced very recent examples of harsh and extreme worker exploitation which, in many instances, have led to governmental inquiries – labour hire in Australia, (potential) courier driver rates in the UK. Several of these are examples of a readjustment in labour relations with the fissured workplace but should not be seen as a result of the fissuring as exploitation of workers is a centuries-old practice. The new economy provides a new opportunity for the exploitation that workers have often faced.
The OHS context of labour hire exploitation has been discussed repeatedly in the SafetyAtWorkBlog. Wages have been the major industrial relations focus in these inquiries and debates, primarily, because these are recognised as basic labour rights but the right to a safe and healthy workplace is just as basic.
Interestingly Corrs brings Class into the discussion, a perspective that is sadly neglected:
“Aside from the health and safety risks associated with automation itself, there will likely be significant risks associated with other consequential changes. These ‘change’ challenges will pose huge psychological risk for many in the middle class who have traditionally felt that their skills and expertise could never be automated.” (page 16)
This comment is a further illustration of the failure of the concept of safety-in-design in anything other than construction, and even that remains debatable. The point about the middle classes is intriguing both for its mention but also for the implication that it takes the middle classes to be effected for concern or outrage to occur.
The Corrs report includes some comments about the management of safety in Australian infrastructure projects (page 27) that is refreshing and honest compared to much of the nonsense and marketing spin in Lessons Learnt reports. Corrs emphasises the need for clear safety responsibilities and accountabilities, particularly when there are multiple players on the project.
Many readers may jump to the report’s chapter on Business Culture & Risk which is advised against. The Business Culture & Risk chapter focusses on three issues:
- changing expectations about leadership and culture
- workplace mental health; and
- managing security threats.
On the first element, Corrs makes reference to the tension over the organisational cultures of the banking sector but says this about safety culture:
“Interestingly, our thinking about safety culture is far more developed than in relation to broader organisational culture. Academic works abound about safety culture, the safety regulators all issue guidance about how to develop positive safety cultures, and numerous safety culture ‘diagnostic tools’ are available. Safety culture focuses on the importance of an organisational culture that values workplace safety. Safety cultures are not optional: there is always a safety culture and it is either positive or negative. Indeed it is argued that in risk assessment terms, safety culture is either a hazard or a safety enabler and should therefore be given close consideration.” (page 43)
The first sentence is contentious but those safety advocates will jump on this as an endorsement.
The report also includes a written criticism of some of the current approaches to workplace mental health.
“Unfortunately, solutions for the workplace are readily touted by the probably well-intentioned but often
uninformed ‘safety industry’. This industry is currently ‘selling’ a range of sometimes disconnected solutions to protecting workplace psychological health. These include resilience training, vague concepts of ‘wellness’ and the now infamous ‘colouringin rooms’. While these responses might be part of fulfilling the legal duty of ‘taking all steps reasonably practicable’ to ensure workers’ psychological health and safety, they are not sufficient and may even be harmful if implemented outside a systematic and integrated response. Systematic responses require risk assessments, the implementation of appropriate ‘risk controls’ and the consideration of workplace culture and mental health literacy.” (page 46)
These words may sound familiar to those who have listened to a recent Cabbage Salad and Safety podcast (in which the author participates).
It is interesting that law firms in Australia are producing the types of thought pieces that used to be released by large business advisory firms like PricewaterhouseCoopers and others. Corrs’ report is an example more of a business advice report than a legal discussion paper but the timing for this type of report from someone outside of the large accounting/auditing firms may not be a coincide. The current Mid Year Review is the third annual report from Corrs but its breadth is of note. It may be that the influence of the accounting/auditing firms is on the wane, particularly, since the Global Financial Crisis. Some journalists in Australia are paying these companies close attention. One of them, Michael West, recently published an article in which he asks the question – “who audits the auditors?”
These sorts of publications are very useful for OHS professionals as it takes us out of our comfort zones and reminds us of the bigger picture for the companies in which we work and for which we advise. It also places the legal basis of many of our arguments and positions in the real world of businesses.