Category: government

Civil liability and work-related diseases

On 4 October 2009, Queensland’s Attorney-General Cameron Dick released details of his intentions to increase the compensation available for individuals and their relatives through his  Civil Liability and Other Legislation Amendment Bill.  Below is a table which shows the level of the  increase.

It needs to be pointed out that this is not workers’ compensation but OHS legislation is blurring the demarcation between workers compensation and civil liability in the context of safety management.  New Australian legislation is placing OHS obligations on workers and employers for the off-site effects of workplace activities.

The Attorney-General, who is also the Minister for Workplace Relations had this to say about the importance and breadth of the draft Bill:

“This legislation will increase the maximum caps, for the first time in six years, on general damages available under the Civil Liability Act 2003 for personal injuries,” Mr Dick said…. “These amendments will afford injured persons the monetary compensation they need to help them get on with their lives.  The amendments also ensure a de facto partner of an injured person is now able to claim for loss of earnings.”

Dick goes on to discuss the good news concerning dust-related diseases as the amendments will also abolish the statutory limitation period for dust-related disease claims including asbestosis, mesothelioma and silicosis.  It is unclear whether workers’ compensation insurance has similar limitations.

“The removal of the statutory limitation period for dust-relates (sic) diseases will deliver significant benefits to sufferers, by improving their access to justice and reducing the costs and stress associated with pursuing a claim,” Mr Dick said.  “This amendment will have retrospective effect to ensure it captures current cases of dust-related disease originating from exposure during the 1950s, 1960s and 1970s.”

Dick said the amendments also ensure that the caps will be annually indexed to average weekly earnings.

These changes raise the possibility that a workplace may have an event that directly injures workers and also affects people outside the worksite. This could generate two processes for compensation – the workers and members of the public.  The business operator would be involved in both processes, of course.

But Australian OHS legislation is moving towards one OHS “Act” that would involve the management of a hazard and its potential off-site effects.  Why then split the compensation  mechanisms?  Would it not be easier for the business owner to manage the environmental, public and worker impacts of the one event in an integrated fashion?

The model OHS legislation deals with multiple parties affected by work processes surely the government should be looking at a single compensation process that also addresses multiple parties?

The workers’ compensation harmonisation review is still a couple of years away but potential changes should be anticipated.  The table below perhaps should be compared to the Table of Maims used in workers’ compensation in the spirit of harmonisation to determine a broader social justice.

Perhaps in this period of public comment on draft OHS model legislation, the government and stakeholders should anticipate the social consequences of the OHS management obligations it is currently considering.  If environmental legislation and management imposes a “cradle-to-grave” context, why should safety management legislation not?

Kevin Jones

Injury Injury Scale Value Currently worth Maximum from 1 July 2010 will be worth
Serious Facial Injury 14 to 25 $16,600 to $35,000 $19,550 to $41,220
Loss of one eye 26 to 30 $37,000 to $45,000 $43,560 to $53,000
Loss of one testicle 2 to 10 $2000 to $11,000 $2360 to $12,950
Loss of both kidneys 56 to 75 $110,360 to $166,400 $130,000 to $196,000
Loss of one arm from the shoulder 50 to 65 $93,800 to $136,100 $110,500 to $160,300
Loss of one hand 35-60 $56,000 to $121,400 $65,950 to $143,000
Loss of a finger 5 to 20 $5000 to $26,000 $5900 to $30,600
Loss of one leg above the knee 35 to 50 $56,000 to $93,800 $65,950 to $110,500
Loss of one foot 20 to 35 $26,000 to $56,000 $30,600 to $65,950
Total loss of hair on head 11 to 15 $12,400 to $18,000 $14,600 to $21,200

NSW contractor representative talks bluntly about the politics of OHS laws

Ken Phillips, executive director of Independent Contractors of Australia, wrote an opinion piece in The Australian on 6 October 2009 that demands attention.

Phillips supports the Federal Government’s program of harmonisation of OHS laws in that it will remove what he sees as the injustices of the OHS legislation in New South Wales.

“The situation is different in NSW, which has OHS laws unlike any other in Australia.  OHS prosecutions elsewhere are criminal matters, but in NSW prosecutions are conducted in industrial relations courts, not criminal courts, with no right to a jury or to appeals……

This has led to the layering of gross injustices on top of workplace tragedies in NSW. Take one example.  A NSW plumber has a criminal conviction against him after a hot water valve he installed in an aged nursing home failed. An elderly woman was scalded and tragically died.  The court found the plumber had properly installed and maintained the valve.  The valve failed because of a microscopic fracture in an internal sealed component. Yet NSW OHS law required that the plumber be declared guilty.”

Phillips sees the union movement’s response to harmonisation as short-sighted.  He describes the union advocacy of the  NSW laws in terms of class, a concept rarely voiced in Australia outside academic sociological circles or the basements of  Trades & Labour Councils.

“It’s a law and process based on old-fashioned political notions that employers always put profits above worker safety and that employers must be threatened with harsh legal retribution to make them heed safety regulations.  This is class obsessed, hate-filled labour at its worst, embedding its hatred in law.  It selectively destroys the application of criminal justice to achieve its tribal ends.”

The language is inflammatory but reflects the level of concern felt by many business operators in New South Wales who are fearful of OHS rather than engaged in positive safety management.  The absolute level of safety demanded by the OHS law is indicative of what can happen when an aspirational concept is realised.

It is not so long ago that one employer association director in New South Wales stated on national television that OHS laws are not needed because employers do the right thing.

The harmonisation process, as SafetyAtWorkBlog has said previously, is intended to be a process of negotiation towards a common goal of safer workplaces.  The union movement is undoubtedly in the ascendant having helped the Australian Labor Party (ALP) break the conservative governments of the 1990s, and believes that the ALP owes it.

Trevor Cook, writing in The Australian, estimates that the union campaign in the 2007 election generated a 2% swing to the Labor Party.  He succinctly describes the achievement after years of the Left’s political parties placating the business sector:

“They treated unions as just another interest group.  Against that background, the 2007 election in Australia was a rare and remarkable event.  It had been decades since a social democratic party anywhere in the world had fought and won an election where industrial relations was a leading issue.”

From the union perspective, the Minister for Workplace Relations, Julia Gillard, needs to “pay the piper” after the unions rid the country of the conservative rats.  The substantial challenge for Gillard is to avoid the second phase of the Hamelin story, before the entire union movement rescinds its support and takes her “children” – the future industrial relations structure.

Kevin Jones

Harmonised OHS laws – winners and losers

Andrew Douglas, an Australian OHS and employment relations lawyer, has followed up some his points made in a podcast on 2 October 2009 in an article available on his firm’s website.

Part of the article says

So what is different about the Model Act and how will it be interpreted? When interpreting an Act you always turn to the objects of the Act. Courts look at the provisions in dispute through the lens of the objects. For example, the Victorian OHS Act merely looks towards providing a safe place of work for workers and the public and makes it clear that interpretation should be directed by the principles of OH&S. It includes an object to work together without specific mention of the unions. Contrast this with the Model Act (MA). The objects include:

  • The primacy of a safety management system
  • Consultation including unions
  • Rather than being compliance focussed the objects are expansively drafted to include:

“The principle that workers…should be given the highest level of protection.”

As a result – all interpretations of the MA should be considered “aspirationally” rather than “compliance focused”.

The third dot point will be manna for those “best practice” advocates but clearly it will be very difficult to “comply” with this legislation.  That raises the question of whether one of the major political aims of the harmonisation processes – to cut red tape and thereby reduce compliance costs – can really be achieved.  Or is the compliance cost being made easier for the corporate few at the cost of the small business “many”?

A small but significant omission in the MA aims is “to eliminate hazards, at the source…”  This aim in the Victorian Act was extremely useful in advising companies to keep analysing risks in order to get to the core contributory factors on incident and hazards.  This motivation disappears in the MA with its focus on “reasonably practicable”.

“Reasonably practicable” allows business operators to consult on whether the control measure reaches what stakeholders feel is adequate and then stop.  “Close enough is good enough and, if not, WorkSafe will tell us.  If it is way off, WorkSafe may prosecute.”  This is lazy safety management.

Looking for the source of the hazard to eliminate it keeps business improving its state of knowledge on safety, looking for new solutions for difficult hazards.

Douglas identifies the winners and losers with this new proposed legislation:

Winners

  • “Business that crosses borders will have one regime to comply with. That is simpler, cheaper knowledge and easier to train operational staff/increased flexibility.
  • Unions – expanded rights of entry, locked into consultative mechanisms and cheaper to train in OH&S – across Australia flexibility.
  • Regulators – shared knowledge, resources, and training.

Losers

  • Small to middle size businesses who cannot afford the new documentation boom that follows duty compliance and whose officers will lack the knowledge and time to positively comply.”

It will be interesting to see the submissions from the small business sector, if available, over the next few weeks.  Similarly, the employer and industry associations will need to show how they represent the range of business interest of all their members and not just the multi-state companies.

The recent stats quoted by SafetyAtWorkBlog that showed a high degree of ignorance on harmonisation changes by most businesses are understandable because if you operate in only one State, why would harmonisation bother you?  Now the MA is out, the state impacts of the national program are becoming clearer and more worrisome.

Kevin Jones

[Please note that in this article WorkSafe is used as a generic term representing OHS regulators across Australia]

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
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.

Johnstone book 001Richard 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]

© Workplace Safety Services P/L (ABN: 68091088621) and SafetyAtWorkBlog, 2008-2024. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Kevin Jones and SafetyAtWorkBlog with appropriate and specific direction to the original content.

Concatenate Web Development
© Designed and developed by Concatenate Aust Pty Ltd