The New South Wales (Labor) government has amended its work health and safety and industrial relations laws. These changes have been described as “substantial” in one legal opinion, but the changes reflect the management of company liability more than preventing harm.
In November 2022, then-Sex Discrimination Commissioner Kate Jenkins explained why sexual harassment in Australian workplaces continues to happen. Basically, she said this was because the sex discrimination laws were reactive to a worker complaint and placed no duty on employers to prevent these types of incidents. But there is more to it than that, and the recent imposition of a positive duty under sex discrimination laws is still not preventing work-related harm.
A Magistrate has said there is insufficient evidence to find Rosemary Gamble guilty of a criminal offence over an incident involving an inflatable jumping castle that resulted in the deaths of six children at Hillcrest in Tasmania. The prosecution may have ended, but a Coronial inquiry remains scheduled, and a civil class action against the state of Tasmania and Ms Gamble was launched in 2024. This article looks at the occupational health and safety aspects of the incident.
Recently, sentencing in a court case in Melbourne has generated much online chatter about excessive working hours and the exploitation of workers in a small law practice. One report of the $A50,000 fine against Erudite Legal says that the company:
“…forced a junior lawyer to work up to 24-hour days and watch an ice hockey movie at 1am so she could understand her boss’ philosophical position”.
Other media reports provide more details of the successful prosecution, but the occupational health and safety (OHS) context is mostly absent.
The Victorian Sentencing Advisory Council‘s report on OHS sentencing received minimal media coverage. Perhaps more will come when the government responds to the recommendations. However, the coverage focused on the recommendation for a substantial increase in financial penalties for those who breach occupational health and safety (OHS) laws. The report contained much more than financial penalties, but the political climate will likely stifle any significant reforms.
Occupational health and safety has traditionally been considered under the category of industrial, or industrial relations, but largely this is due to the major advocates of OHS being the trade union movement. So OHS seems to fit with workers’ rights under the issues of wages and conditions, but really OHS is a social law.
According to one definition social law is:
“…any law, rule or regulation (including international treaty obligations) applicable in any jurisdiction concerning
– labour,
– social security,
– the regulation of industrial relations (between government, employers and employees),
– the protection of occupational, as well as public, health and safety,
– the regulation of public participation,
– the protection and regulation of ownership of land rights (both formal and traditional), immovable goods and intellectual and cultural property rights,
– the protection and empowerment of indigenous peoples or ethnic groups,
– the protection, restoration and promotion of cultural heritage, and
– all other laws, rules and regulations providing for the protection of employees and citizens.”
OHS meets several elements of this definition.
Many of the prominent Australian mining companies are in the process of changing their cultures to minimise the risk of sexual assaults and harassment after several recent damning inquiries into worker health and safety. Everyone seems to agree that cultural change can take a long time. I am not convinced. Change will take time if one operates within the existing organisational and operational parameters and structures. But sometimes, the harm to workers is so great that a long time exacerbates unfairness and injustice.
