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OHS law debate and Law Society position

Boardroom Radio has hosted a very interesting podcast between two labour lawyers, Andrew Douglas and Michael Tooma, with the participation of Barry Silburn, the National President of the Safety Institute of Australia.

Andrew Douglas speaking at one of his firm's regular breakfast seminars

The SIA National President’s contributions were quite narrow, dominated by the issue of “suitably qualified” in the new model OHS laws (but he did struggle to get a word in edge ways).

It will be disappointing if the SIA’s submission to the Federal Government on the new laws focusses on this single and, to most, secondary issue, when the institute could achieve better results through other mechanisms and more creative thinking.

The only expansive comment from Silburn was the fact that harmonised plant regulations that were introduced over 10 years ago still resulted in different legislation in each State even though they reflected a common core. The high likelihood of this happening to the general OHS legislation was supported by the over panel members.

It is possible that the argy-bargy occurring now and at least for the next 6 weeks of public comment, will not achieve harmonisation as it was initially intended, and tried in a half-hearted way in the early 1990’s. The Federal Government could still end the debate by applying its powers under the Corporations Act, as it has in industrial relations. Some lawyers believe that this is the ace up the sleeve of the Federal Government.

The Law Council of Australia issued an interesting media statement on 30 September 2009. Below are the comments from that statement by John Corcoran, the Council’s President:

“The model laws strike the correct balance and adhere to fundamental criminal law principles. Governments must set aside jurisdictional differences and enact a uniform model OH&S law.”

“Despite the substantial differences in OH&S legislation across Australia, there is little evidence to suggest that the imposition of harsher penalties and evidentiary burdens in some jurisdictions has improved workplace safety performance. Nor has it been improved by the extension of prosecution powers to unions or other organisations.”

“There are undeniable benefits, both to workers and employers, in a uniform national OH&S system, but there is no evidence that workers in any jurisdiction will be worse off if a model law is adopted uniformly.”

These quotes give one of the clearest indications that the OHS harmonisation process about law and not safety management.

It could also be asked that if there is “little evidence to suggest that the imposition of harsher penalties and evidentiary burdens in some jurisdictions has improved workplace safety performance” what alternative strategies and penalties would the Council suggest for consideration? We will need to wait for their submission to the government for that.

Richard Johnstone, a leading academic and researcher into OHS law and enforcement polices argued in his 2003 book, “Occupational Heath and Safety, Courts and Crime”

“…that the court is an institution which, while appearing to dispense justice, is actually part of a broader process which decontextualises social issues. Courts, inspectors, prosecutors and defence counsel are involved in filtering or reshaping OHS issues during the prosecution process, both pre-trial and in court.”

Johnstone says that the process leads to a focus on the “event” rather than the broader context which includes the workplace management systems.

Johnstone succinctly lists the five key principles of effective OHS management, based on his work and that of his colleagues:

“demonstrated senior management commitment to OHS;

the integration of OHS management into core management and work activities;

the adoption of a systems approach to OHS management, involving risk assessment processes and an audit system to identify all risks and to determine which require urgent attention;

the ability of the OHS management system to accommodate to change, particularly changes to work methods, systems and processes, changes to substances, plant and equipment, and changes to the workforce; and

valuing worker input to the OHS management system.”

This is the context in which the new draft Model OHS laws should be considered. If the law does not support these principles than the law is being written for the lawyers and not for the improvement of safety for workers in Australia.

Much of the podcast discussion was about how one deals with what went wrong rather than providing guidance of how to manage to avoid the risk in the first place – the perpetual dichotomy between lawyers and safety professionals.

Kevin Jones

Business commentator is concerned over OHS and IR overlap

Respected business commentator, Robert Gottliebsen, has commented on the political and ideological challenge that Julia Gillard, Australia’s Minister for Workplace Relations, faces over the introduction of OHS model legislation.

Gottliebsen says there is a risk that the combative OHS structures in New South Wales could spread to the national context and that resisting this movement, funded and promoted by the trade unions, will be a substantial test for the Minister. In his Business Spectator article he says

“To make it tougher for Gillard, the draft [legislation] has clauses that will give unions around Australia NSW-style prosecution powers and clauses that water down training requirements. This will mix IR issues and safety and may well increase the injury rate.”

There is a persistent debate about the IR context of OHS and vice versa, which is the tail and which is the dog. Gottliebsen clearly sees the NSW experience as illustrating IR having too much influence over OHS management. (For those readers outside Australia, NSW is seen widely as a failure economically and politically)

“The sad thing is that once occupational healthy and safety becomes merely a tool of industrial relations, it is politicised and linked to wage claims and is not taken seriously. More workers go home injured or worse. So not only do we need English-style law, but we need law that isolates safety from industrial relations skirmishes.”

This is reminiscent of the days when industrial employment awards provided allowances for dangerous or unhealthy tasks, what was universally considered “danger money”.

Robert Gottliebsen is no fool and the significance of his article is the fact that the issue was covered by a finance and business commentator at all. It indicates the significance of what the Federal Government is proposing, politically, industrially and socially. the foundations of OHS legislation have remained basically the same since Lord Robens’ recommendations in England in the 1970’s. Australia has had OHS legislation since the early 1980’s. The new model OHS legislation should similarly be seen in such longevity and broad impact.

OHS may be a niche consideration for most people but how the government handles the negotiations leading to this law’s implementation will be a good indication of their political nous and their commitment to Australians.

Kevin Jones

Singapore’s Prime Minister speaks about business leadership

At last week’s Comcare conference there was considerable discussion about leadership and social capital. Coincidentally, Singapore’s Ministry of Manpower is running a Human Capital Summit this week.

The summit program indicates how these two concepts are dominating human resources and, through osmosis, other management streams such as OHS.

Mr Lee Hsien Loong, Singapore’s Prime Minister provided the opening address on 29 September 2009. In the speech he state four principles:

“we believe that human capital and talent can be nurtured….
we take a broad view of human capital and talent. We recognise that domain expertise is important, and organisations need specialists in fields relevant to their business. But organisations will also benefit from talent who come from unrelated fields, with diverse experiences, who can inject fresh perspectives…
we believe that the way to bring out the best in people is by creating a conducive environment. Talented people cannot be motivated by pressure, nor even by financial incentives alone…
talented individuals must feel a sense of responsibility to the community. Within their own fields, they have to help nurture the next generation of outstanding achievers.”

One could dismiss as “conference rhetoric” but similar commitments are being made by government officials and politicians throughout the world and the weight of numbers is turning into a movement.

If OHS professionals want to gain the ear of important decision makers, it will be necessary to “talk the talk”, even if that talk is jargon from an unfamiliar discipline, such as human resources. The challenge is to bring commitment and knowledge to underpin the “talk” because “hollow vessels make the most noise”.

Kevin Jones

Comcare’s RTW performance has some worrying trends

RTWMatters, an Australian return-to-work website, has analysed some of the data that has been released through the annual data – Aust & NZ RTW Monitor. The statistics show that the Australian Government’s workers’ compensation insurer, Comcare, has performed well on some performance indicators but others are raising concerns, particularly

“The cost of claims has risen from $15 000 in 2005-06 to almost $20 000 in 2008-09. This is substantially higher than the national average.

Around 1/3 of Comcare workers can identify a person who made it harder to RTW, which is higher than the national rate. Over the last three years there has been a significant increase in Comcare employees reporting their employer has hindered return to work.

Over the last two years, Comcare workers have found it increasingly difficult to find the information they need to make a claim.

Comcare workers rated their insurer customer service lower than the national average, with communication, advice about the claim and understanding the situation rated lowest.”

Paul O’Connor, at last week’s Comcare Conference in Canberra was very upbeat but was well aware of the challenges ahead particularly for the next five years during a period when the Australian government will attempt to harmonise the OHS laws in each jurisdiction. It should be noted that Paul has been Comcare’s CEO since 1 September 2009. He was formerly with the Transport Accident Commission in Victoria.

O’Connor quoted the Australian Finance Minister, Lindsay Tanner, during his conference presentation. (The Tanner quotes are from August 2009)

“It is unlikely that we will see any major reform in this area in the near future, as Australia’s various governments are grappling with the challenging task of building uniform national industrial relations and occupational health and safety systems.

“Nevertheless, the current campaign for a national catastrophic injury compensations scheme should trigger a wider debate about injury compensation in our society generally. The present system is fragmented, inequitable, inefficient and arbitrary. Reform could be some time coming but it’s certainly long overdue.”

RTWMatters has identified that more groundwork is going to be needed in the lead-up to the reform process if any measurable improvements are to be achieved. In their media statement, they say

“Real collaboration requires that all stakeholders be able to access information to assess the impact of legislative and systems changes on workers compensation and return to work outcomes.”

The road to reform that Geoff Fary described as very difficult will be an important one to watch.

Kevin Jones

[Kevin Jones is a feature writer with RTWMatters]

Deacons are first with harmonised OHS law comments

Michael Tooma speaking at the Safety Conference in Sydney in 2008

Michael Tooma, of the Australian law firm Deacons, is often the first labour lawyer to comment on Australia OHS Law matters and this week was no different. While many of us are continuing to digest the draft OHS Act, Tooma has identified several issues of interest. Some are discussed below.

[Tooma’s full legal update is available HERE]

An expanded duty of care that may extend beyond workplace safety and OHS

The duty of care will include

“providing and maintaining a safe and healthy work environment;

providing and maintaining safe plant and structures;

providing and maintaining safe systems of work;

ensuring safe use, handling, storage and transport of plant, structures and substances;

providing adequate facilities for the welfare of workers carrying out work for the business or undertaking;

providing any information, training, instruction or supervision that is necessary; and

ensuring the health of workers and conditions at the workplace are monitored for the purpose of preventing illness or injury of workers.”

Most of these will be familiar to Australian OHS professionals and there is little that is controversial here but Tooma says

“This expanded duty has the capacity to broaden the existing duties significantly, extending their reach to any activities that may impact health and safety. The extent of the duty as drafted in the model provisions arguably includes public safety matters….. In addition to public safety, arguably the provisions are capable of applying to product safety matters.”

Tooma expands on this slightly in an article in SmartCompany in terms of an alternative to public liability.

“Tooma says this means duty of care will now extend to issues of public safety, including visitors, passers by and even trespassers, which could open businesses up to civil litigation claims from people who aren’t even employees of a business.

Tooma says the laws allow a member of the public to sue a workplace based on a breach of statutory duty, rather than a negligence claim, which often carries a higher penalty and is more difficult to defend in court.”

The extension of workplace safety obligations to include the impact of work processes on those outside the worksite has existed for some time but the draft legislation has the capacity to highlight this “opportunity” to some. The integration of work and non-work exposures has some logic to it when one considers the growing push for integration of work health and public health management such as reducing cardio-vascular health risks through work-based initiatives. It also broadens the social integration of OHS and environmental management which larger companies are already managed through an integrated structure.

Union Right of Entry

There have been some frightful cases of union intervention, particularly in the construction industry, over the last few years. Depending on one’s politics the union reps or organisers are either doing the right thing by their members or disrupting the workplace for their own secret agenda. This situation does not reflect the vast majority of workplace consultations on OHS matters.

Prior to the introduction of the Victorian OHS Act which established an authorisation process for union organisers, SafetyAtWorkBlog remembers one prominent OHS lawyer, warning that “the sky will fall” over this issue. It never did in Victoria and there is no reason to suspect that new right-of-entry provisions will be controversial in any workplaces other than those that already have fractious relationships between unions and management, and often on matters unrelated to safety.

However, Tooma says that

“The union right of entry provisions contained within the Model OHS Laws involve a far greater expansion of the rights of unions than those which exist in current OHS legislation throughout the jurisdictions, particularly in New South Wales, South Australia, Tasmania and the Commonwealth. The Model OHS Laws give unions not only the power to investigate incidents but also to advise workers in relation to OHS matters.”

There was always going to be some changes in some jurisdictions due to the harmonisation process following the Victorian OHS Act 2004. SafetyAtWorkBlog has faith in the authorities implementing sufficient safeguards that union right-of-entry will not be the hotbed of anxiety that some are suggesting.

More legal commentary on the draft OHS Law documents is likely to be released over the next few weeks as the drafts get digested and the six-week public comment phase kicks in. It is sure to be the hot talking point as Australia moves into a bunch of OHS activities, conferences and awards events in October 2009 leading to Safe Work Australia Week.

Kevin Jones

Harmonisation documents available but path is far from settled

On 25 September 2009, Australia’s Workplace Relations Ministers Council
(WRMC) agreed to release the draft legislation for public comment.

According to one media report, the New South Wales Finance Minister, Joe Tripodi,

“…moved at the [WRMC] meeting to have union prosecutions included in the new laws and was defeated by eight votes to one.”

The documents are now available for download HERE.

According to Safe Work Australia’s media statement:

“The suite of documents available for public comment includes a model Act, administrative Regulations and consultation Regulation Impact Statement (RIS). The RIS will allow individuals and organisations to comment on the potential costs and benefits of the proposed Regulations. The RIS has been prepared by Access Economics.”

Curiously, it also says that Access Economics is

“…surveying businesses across a range of sizes, industries and regions in an effort to obtain primary data on compliance costs and safety benefits.”

It is odd that this has not been done earlier to, perhaps, substantiate the claims that the OHS law changes will reduce costs and “red tape”.

At the Comcare Conference in Canberra in late September 2009, Geoff Fary, illustrated very effectively the small sector of business that would be affected by the national laws. Fary estimates that only around 1% of Australian businesses are likely to be liable to the “red tape” argument. Many of these companies could be expected to already have some form of national OHS management systems, perhaps through Australian management standards.

Whether the percentage of affected 1% or 5% it is hoped that the Access Economics survey does not focus only on this sector. Previous surveys have indicated a large ignorance or apathy about national harmonisation. This is likely because the vast majority of Australian businesses operate within a single jurisdiction so the harmonisation is considered irrelevant. The sad reality is that the OHS legislative structures in Australia for the next 10 to 20 years will be determined by the corporate sector, the regulators themselves, and the labour law firms and not necessarily by the small to medium-sized businesses for whom OHS can be the most burdensome.

SafetyAtWorkBlog had the chance to ask Geoff Fary, the assistant secretary of the ACTU, of his thoughts on the continuing opposition to harmonisation expressed by Troy Buswell, the Western Australia Treasurer. Fary said that harmonisation

“…could occur without Western Australia being involved. It couldn’t occur, I believe, without Victoria or New South Wales or Queensland being involved but because of the nature of the place and the geography of the place it could occur without Western Australia, and I think there is probably a strong possibility….that harmonisation will proceed in the absence of Western Australia.”

If this evenuates the harmonisation process becomes an academic exercise yet again.

Kevin Jones

Buswell sniffs union conspiracies

Troy Buswell, the Western Australia minister responsible for OHS, has dug in his heels in over opposition to the Federal Government’s move for harmonised OHS legislation.

Ahead of the Workplace Relations Minister’s meeting on 25 September 2009, Buswell has reiterated his government’s opposition to changes to OHS law. He argues that the OHS changes are not necessary for Western Australia as the existing laws ar fair and balanced.

This may be the case but it is significant that the opposition has only come as a result of a change of government to the conservatives. The proposed OHS laws haven’t changed over that time. Buswell goes on to accuse the unions of having the opportunity to have backroom deals with the Australian (Labor) government which allow unacceptable union access. There is no doubt that unions have more access to the current Federal government than under the previous conservative but, as has been reported in SafetyAtWorkBlog and elsewhere, the unions are as frustrated over access as other lobbyists.

Rather than letting the 25 September meeting slide by with a “communique” coming out next week, Buswell has given the meeting some prominence. He has also put himself in a difficult position from where compromise may be uncomfortable.

Many observers have been focusing on the opposition to the OHS laws from the New South Wales union sector but that State has a Labor government. The passionate opposition is obviously on the other side of the country, an areas that those in the East Coast States often ignore. But not at the moment.

Kevin Jones

Category: government

OHS law debate and Law Society position

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An expanded duty of care that may extend beyond workplace safety and OHS

Union Right of Entry

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