Category: industrial relations

Parliamentary inquiry discusses OHS but no one noticed

Australia’s politicians, trade unionists, businesses and media are gearing up for a tumultuous year in industrial relations with the controversial establishment of a Royal Commission into trade union corruption.  This royal commission is broad-ranging but targets the construction unions, particularly the Construction Forestry Mining and Energy Union (CFMEU) and thus the construction unions’ conduct with regard to allegedly using occupational health and safe as a cover or excuse for industrial action. This royal commission has a strong element of party politics and ideologies and has overshadowed other action in the Australian Parliament where OHS is being discussed.

On 6 February 2014 the Education and Employment References Committee of the Australian Senate continued its inquiry into the Government’s approach to re-establishing the Australian Building and Construction Commission (ABCC) through the Building and Construction Industry (Improving Productivity) Bill 2013.  One of the terms of reference for this inquiry is

“whether the provisions of the bills relating to occupational health and safety in the building and construction industry are adequate to protect the health and safety of employees and contractors in the industry”.

On February 6 the inquiry had some heated discussion on OHS and the construction industry that deserves a closer look.

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Construction association sees red tape instead of safety

Further to yesterday’s article about the Model Health and Safety Management Plan (MHSMP) being required by the Construction Compliance Code Unit (CCCU) in the Victorian Government, SafetyAtWorkBlog was provided with a copy of the submission of the Victorian Construction Safety Alliance* (VCSA).  Tony Marino, the Chair of the VCSA, has granted permission for the covering letter to be quoted.

The covering letter to the submission made four major points:

  • “Overall the requirements of the Model Health and Safety Management Plan (MHSMP) and Implementation Guidelines are excessive and require significant amount of reporting duplication, i.e. red­ tape. VCSA was of the opinion government agencies wanted to reduce red-tape.
  • VCSA Suggest the CCCU has a MOU with other relevant agencies to receive safety data produced and sought by the Implementation Guidelines.
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Brothels continue to misunderstand the employee/contractor difference

For many years the brothel industry in Victoria has struggled with its occupational health and safety obligations, not because it does not understand them but that it denies OHS laws are relevant as many in the industry continue to believe that sex workers are not employees.  Some use a Tax Office ruling on employee status to support their argument against OHS.

A recent investigation by the Fair Work Ombudsman (FWO) seems to further illustrate the industry’s misunderstanding of employees.  According to an FWO media release nineteen brothels, over 70% of brothels investigated, underpaid clerical staff around $A65,000 but of more relevance to OHS is that

“Some businesses were found to have misclassified employees as independent contractors.”

This was a position put by many brothel owners and industry lobbyists when I was consulting and writing about the industry almost a decade ago.  For a long time OHS laws have extended beyond the employee/employer relationship to include those affected by the work being undertaken on the premises. The more modern Work Health and Safety laws go further by focussing on the work activity rather than the place of work.

As the OHS/WHS focus increases on psychosocial hazards – impairment, fatigue, stress etc – the adult entertainment industry has particular challenges; challenges that could be seen as threats or opportunities but certainly challenges that will not go away.  It is very positive that the industry groups have agreed to support a specific website for the sex industry but now they need to start working seriously on complying with their OHS/WHS obligations through collaboration, consultation and innovation, instead of denial.

Kevin Jones

More on this industry and this topic can be found in an earlier SafetyAtWorkBlog article.

Opaque response on construction industry safety code

Model-Health-and-Safety-Management-Plan (2)Victoria’s Construction Compliance Code Unit in the Department of Treasury and Finance has just completed its public comments stage for its model Health and Safety Management Plan (HSMP).  The comments period was extended by a month after initially ending after only one month‘s public consultation on 6 January 2014.  New South Wales and Queensland have mirrored the Victorian construction compliance code so the significance of this OHS submission stage should not be underestimated however the submission process and unusual secrecy is not building the faith and trust in the HSMP that the process needs for it to succeed.

The regular process for submissions to government inquires is for those submissions to be made publicly available, with the permission of the writer.  The CCCU seems to have no plans to follow this protocol which is an enormous shame as the submissions would have provided a window into both the understanding of OHS in the Victorian construction sector, an understanding of the OHS role of the CCCU and an insight into how the CCCU is generally perceived by the Victorian community.

SafetyAtWorkBlog put the following (we think reasonable) questions to the CCCU last week in preparation for the end of the commentary phase:

  • Could you please estimate the number of submissions the CCU has received on the model Health and Safety Management Plan (HSMP) to date?
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New book provides fresh context to OHS

SafetyAtWorkBlog regularly receives excellent review books from the New York publishing company, BaywoodPublishing.  The latest is entitled Safety or Profit? – International Studies in Governance, Change and the Work Environment.   I have yet to get beyond the introduction to the chapters by Australian academics on precarious workers (Quinlan) and the decriminalisation of OHS (Johnstone) but the introduction is fascinating.

The most fascinating is its discussion of Lord Robens’ Report of the Inquiry into Health and Safety at Work from 1973. The editors, Theo Nichols and David Walters, question the “major advance” many claimed for the Robens report by comparing it reviews 40 years earlier.  Nichols and Walters quote the conservatism that led to Robens seeing criminal law as being “largely irrelevant”, and legal sanctions being “counter to our philosophy”.  However, they do admit that Robens was prophetic on the growth of self-regulation and the duties of care.

Nichols and Walters also remind us that the Robens-inspired Health and Safety At Work Act of 1974 did not recommend the creation of Occupational Health and Safety (OHS) representatives.

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Media coverage on workplace bullying needs more depth and analysis

The Australian media has given workplace bullying the front page, probably because it is a slow news period and there have been no major disasters this Christmas period. However the coverage is of the new rules and opportunities for assistance offered by changes to the Fair Work Act that commence on 1 January 2014, rather than about prevention.

Most of the comments from the business groups in the article by The Age newspaper will be familiar from the last few months. Generally they object to what they see as red tape and increased regulation. Some also believe that workplace bullying should be handled through human resources rather than as an occupational health and safety (OHS) matter.

Red tape and unnecessary bureaucracy is a legitimate concern but one that, in large part, the business sector has allowed to happen. As discussed previously, much of the red tape originates from the risk management strategy of business where, when an issue or hazard cannot be eliminated or it is too difficult to try, insurance or liability protection is obtained. As others have said, too often the risk management of safety is corrupted to become risk management of legal issues. Continue reading “Media coverage on workplace bullying needs more depth and analysis”

Canberra gets its first Industrial Magistrate for OHS matters

The Australian Capital Territory (ACT) has named Chief Magistrate Lorraine Walker as its first industrial magistrate. The establishment of an industrial court in the ACT stems from the government accepting the recommendations of the Getting Home Safely report which in turn was a response to a spike in workplace fatalities in 2012.

Walker is unknown outside of the ACT but the best introduction to her is probably through a long interview she gave in February 2012 to ABC radio in Canberra.  Occupational health and safety specifically was not on Walker’s radar at the time of the interview but it may be useful to note her comments on sentencing and how this should reflect, or consider, community expectations.  Walker also discusses the importance of the preventive and educative role that penalties can have. How this perspective applies under the recent Work Health and Safety laws will be worth watching.

Kevin Jones

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