Category: insurance

Industrial Manslaughter in WA but Federally? Unlikely

Gold warm sunlight on CBD of Perth city as seen from Kings Park. Source: istockphoto

The West Australian government presented its new Work Health and Safety (WHS) Bill to Parliament in November 2019 and debate has continued in February 2020. Joining with most other States in using the model WHS legislation is a major change for that State as it not only brings one set of occupational health and safety (OHS) laws to all businesses, including mines and petroleum, but it introduces the offence of Industrial Manslaughter. However, IM in WA has a two option penalty – “Industrial manslaughter – crime” and “Industrial manslaughter – simple offence”.

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Industrial Manslaughter campaign messages need scrutiny

Recently the State Secretary of the CFMEU Construction & General WA, Mike Buchan, wrote in Construction Weekly about the need for Industrial Manslaughter laws in Western Australia. There are several points made that deserve some assessment and clarification.

He starts by stating that current occupational health and safety (OHS) laws are inadequate. This may be the case, but as Nicole Rosie from WorkSafe NZ has, supposedly, said “you can’t regulate your way to safety”. What may be inadequate is people’s compliance with OHS laws, and there may be many reasons for this non-compliance – ignorance, illiteracy, lack of enforcement by government, complexity of laws and guidance, and/or a total disregard. According to Buchan, and the wider trade union movement, Industrial Manslaughter (IM) laws are supposed to fix this inadequacy.

Buchan writes that

“The penalties that are handed down, even when a builder is found guilty of negligence, have been a disgrace in the face of the extraordinary loss of life and the suffering of families left behind.”

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Interesting but not representative

The Australian Council of Trade Unions (ACTU) released the results of its latest occupational health and safety (OHS) survey. In past surveys respondents have been trade union members. This survey was opened to non-union members, but to what extent is unclear but this has not stopped the ACTU speaking of the respondents as workers rather than workers who are all union members.

This differentiation is important. In the 1990s when union membership was much larger, the argument that the survey results were representative of Australia’s workforce was stronger although still debatable. Representation is harder to claim now with union membership being well below 20% overall and below 10% in the private sector.

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Can this job be performed in extreme heat?

Parts of Europe are sweltering in extreme Summer temperatures similar to what Australian workers have experienced. A comparison of just temperatures is unreasonable as the European challenge is greater than Australia’s because the society, buildings and operational structures are largely designed and configured for low temperatures and snow. In many ways climate change will be more disruptive for European businesses as Australia has always been hot and dry.

The occupational health and safety (OHS) advice on how to address, or cope with, extreme heat has always been focused on the individual’s capacity to work in heat rather than reconfiguring work to avoid these unsafe and unhealthy conditions. Here is some advice from an American law firm from early this month:

“Summer temperatures can create hazards for workers, and employers can be liable for not addressing conditions that could lead to injuries and illnesses, such as heat exhaustion and heat stroke. Liability can arise whether work is being done outside in construction, landscaping, and agriculture, or inside in non-air conditioned manufacturing plants and warehouses.”

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Robbing Peter to pay Paul – the “WorkSafe Tax” is challenged

More details of the “WorkSafe Tax” and WorkSafe Victoria’s new infringement notices and specialist construction inspectors emerged with the appearance of the Minister for Workplace Safety, Jill Hennessy, at the Public Accounts and Estimates Committee hearing on June 14 2019.

Liberal Member of Parliament Richard Riordan went to town on the Minister. He opened with this question:

“….I refer to budget paper 5, page 23, which shows you are ripping $700 million out of the WorkCover Authority over the forward estimates. How does taking such a massive dividend tax to the government help workplace safety?”

page 5, Verified Transcript

But this issue has been bubbling along since at least 2011 when the now Premier, Daniel Andrews, vehemently opposed it.

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Paspaley clarifies statement on the payment of fines

In this morning’s SafetyAtWorkBlog article, a quote from Janice Murray was included and which originated from an ACTU video dated 25 February 2019. Murray said this of the fine imposed on Paspaley:

“We sat through a very strong legal team. I understand that this is something that they can get covered through insurance. The fine through WorkSafe was minimal for us – a $60,000 fine – and that too was covered by insurance.”

Paspaley has provided SafetyAtWorkBlog with this clarification:

“Paspaley does not propose to engage in further correspondence about this matter which concluded in October 2015 and which has, not infrequently, been the subject of misinformation.

Suffice to say that the fine in question was paid directly by Paspaley and was not covered by insurance.”

Kevin Jones

Boland’s WHS Report recommends a practical update of laws and practices

The Australian Government has released the final report of the Independent Review of its Work Health and Safety (WHS) laws, conducted by Marie Boland. Importantly, the Government has not issued its response yet and, given that there is a Federal Election in a couple of months’ time, is unlikely to. Why have another issue complicate the campaign particularly when that response may have to address Industrial Manslaughter laws which would focus on the accountability of business leaders? This Government has already been bruised on a similar issue through a Banking and Finance Royal Commission.

Regardless of this Government’s future treatment of the Boland Report, the report does progress occupational health and safety (OHS) and the operation of the WHS laws, reinforcing some aspects and challenging other. It is obligatory reading for those interested in OHS in Australia.

(SafetyAtWorkBlog is preparing an exclusive interview with Marie Boland for next week)

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