On 2 September 2010, an interview I undertook with Radio Atticus was broadcast in Australia (9 minute mark of the podcast) Radio Atticus is a law program on public radio in Australia.
As well as my comments, the reporter, Nat Cagilaba, interviewed Neil Foster of the University of Newcastle (referred to as Ian in the podcast I believe). We discuss the intended role and the current reality of OHS laws.
Comments on the audio are welcome.
HSE podcasts are almost always worth listening to. The June 2010 podcast capitalises on the topicality of offshore oil drilling generated by the BP incident in the Gulf of Mexico.
The podcast is available for listening online
The important element of the podcast is whether such deepwater drilling incidents could occur elsewhere? This is useful not only for the UK jurisdiction but for Europe and Australia.
The interview discusses the value of a “safety case” regulatory regime and the disadvantages of a prescriptive regime.
Interestingly the UK wells are individually notified to HSE almost a month before drilling is due to commence. This allows for an assessment of the well design and structure prior to activation.
Clearly, this approach stems from the Piper Alpha explosion in 1988. The BP Gulf incident can be considered the United States’ Piper Alpha.
It raises the question of did BP, an English company that should have been well aware of the usefulness of the safety case approach to drilling, apply a different approach to its Gulf drilling contractors to that applied elsewhere, and why? Was BP really committed to “best practice” in safety, or as it called it “beyond the best“?
Ben Merens of Wisconsin Public Radio interviewed Gary Namie of the Bullying Institute on 26 May 2010 for 45 minutes on his At Issue radio program. The interview is very timely as new “Healthy Workplace” legislation is being considered in the United States.
What was useful in this interview was that the discussion centred on workplace bullying and Namie summarised how this is substantially different from schoolyard bullying – a significant difference which requires different methods of control. Namie says that although bullying in childhood is significant, the impact on an adult of similar treatment may have longer lasting effects.
The broadcast, of course, applies to the US context principally but Namie has a long and strong international reputation in workplace bullying advice and deserves an audience. Tellingly, Namie says that the comparison for workplace bullying is not schoolyard bullying but domestic violence.
In 2001, Namie provided me with a review copy the 2000 edition of The Bully At Work for the SafetyATWORK magazine. The review is available HERE.
Peter Arthur, a Partner with Australian law firm, Allens Arthur Robinson, spoke on Boardroom Radio on 1 April 2010 about new duties that national OHS laws will place on Directors.
Although there are six elements in the new general duty, Arthur says that they all can come under the category of “information flow”. Continue reading “Information flow is critical for sound Board decisions on OHS”
Today, 1,500 union health and safety representatives attended a one-day seminar in Melbourne concerning occupational health and safety. The seminars were supported by a range of information booths on issues from support on workplace death, legal advice, superannuation and individual union services.
Kevin Jones, the editor of SafetyAtWorkBlog took the opportunity to chat with a couple of people on the booths about OHS generally and what their thoughts were on workplace safety.
The latest SafetyAtWork Podcast includes discussions with the Asbestos Information and Support Services, the AMWU and TWU.
The podcast can be downloaded HERE
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.
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.
Ric Morgan, a Senior Associate at Allens Arthur Robinson, was interviewed recently by Boardroom Radio on the new OHS model legislation. Each lawyer seems to emphasise a different combination of features in the new proposed laws.
Morgan anticipates that minimal changes will be made to the draft law.
The interview is well worth listening to for a slightly different perspective on the issues.