justice – Page 11 – SafetyAtWorkBlog

Cry of frustration in Industrial Manslaughter Bill

Over the last few months some in Australia’s trade union movement have renewed calls for the introduction of industrial manslaughter laws in various jurisdictions. The issue has appeared both on television and online.

Curiously the Australian Council of Trade Unions (ACTU) seems to have dropped the “industrial manslaughter” terminology it has used in the past. In a 28 April 2015 media release, the ACTU stated:

““Strengthening OHS laws to make negligent companies and individual directors liable sends a clear message to employers that they must ensure people are safe at work.”

and

“Current laws need to be strengthened so that companies and company directors are liable for our safety at work.”

It seems that the charge has been left to the South Australian Greens Parliamentarian,

Productivity Commission looks at workplace bullying – not really

The Australian Government has announced an inquiry into workplace relations through the Productivity Commission (PC). The most obvious occupational health and safety (OHS) element of this inquiry relates to workplace bullying which is discussed in the fourth of five issues papers released in January 2015. However the purposeful separation of workplace bullying actions through the Fair Work Commission (FWC) from actions in other sectors, such as OHS regulators, limits the potential impact of the inquiry on this issue.

The PC issues paper acknowledges the lack of the anticipated avalanche of anti-bullying applications and accepts that the structure of the FWC process may be partially responsible. This lack of applications, an issue discussed

New book challenges current OHS trends

Professor Michael Quinlan has a new book that focuses on lessons from recent mining disasters but, as with the best of occupational health and safety (OHS) books, it challenges orthodoxies. Some OHS consultants and experts have built careers on these orthodoxies, trends and fads, and will feel uncomfortable with the evidence put forward by Quinlan in “Ten Pathways to Death and Disaster – Learning from Fatal Incidents in Mines and Other High Hazard Workplaces“. The honesty and humanity in this book makes it an essential part of any OHS professional’s library.

Quinlan establishes an important tenet from the very start:

“… knowledge is not created in a social vacuum.” (page xi)

This simple dictum is vital to an understanding of the true causal factors on OHS decision-making. People die from OHS failures. Politicians create laws and situations that can encourage failures, increase risk and can provide a veneer of respect for heartlessness and exploitation. Business owners may feel pressured to place production before safety. Some OHS writers and advocates stop, often unconsciously, at the point where their theory or market research would fail scrutiny. Some apply critical thought only “as far as is reasonably practicable” to continue a business activity that is short-term or to sell their consultancy package to gullible or naive corporate executives.

Quinlan writes of the “political economy of safety”:

“The political economy perspective argues that safety, including workplace disasters, can only be understood in the context of the distribution of wealth and power within societies, and dominant social policy paradigms that privilege markets and profit, production or economic growth over safety.” (page 24, emphasis added)

To many readers this may sound like socialism in its mention of wealth distribution and power but such a perspective is valid even though it may be unfashionable. Such a broad perspective allows for a critical assessment of other OHS research approaches such as, for instance, the culture advocates.

HIP Royal Commission – Gross Negligence and Accountability

Little of the recent commentary on the findings of the Royal Commission into the Home Insulation Program (HIP) have mentioned the opinion of the Royal Commissioner Ian Hanger that the Australian Government acted in a “grossly negligent” manner. Such a comment deserves considerable analysis by a specialist lawyer but it remains a remarkable criticism in terms of obligations under OHS/WHS laws.

Commissioner Hanger wrote:

“To encourage inexperienced young people to work in an environment where there was a risk of defective electrical wiring, and allow them to install conductive material was, in my opinion, grossly negligent. It is no answer for the Australian Government to say that it was the responsibility of those young people’s employers to protect them.” (para 5.2.20, emphasis added)

Gross negligence has been equated to the term “reckless endangerment” included in Australia’s Work Health and Safety laws. One legal website site says that:

“Reckless endangerment is the offense of engaging in activity that has a disregard for risks with foreseeably dangerous consequences.”

Commissioner Hanger’s comments certainly seem to fit reckless endangerment as the risks, not only of electrocution but simply from working in domestic roof spaces, were well known.

“Put the human being first”

One of the most contentious issues in safety management is the treatment of workers compensation claimants. On 18 August 2014, a small qualitative research report into this area was launched in Melbourne. The report, “Filling the Dark Spot: fifteen injured workers shine a light on the workers compensation system to improve it for others”* identified four themes in the workers’ stories:

a sense of injustice
a lack of control and agency
loss of trust, and
loss of identity.

These themes, or at least some of them, are increasingly appearing on the occupational health and safety (OHS) literature. To establish a successful sustainable workplace culture, one needs to establish and maintain trust. Workers also seem to need some degree of control, or at least influence, over their working conditions and environment. Also workers, and managers, need to receive a fair hearing, what most would describe as “natural justice”.

Ministerial responsibility in finance but not in workplace safety

Ministerial responsibility seems to be advantageous in financial policies but irrelevant to workplace safety going by actions by Australia’s political leaders. This week former senior (Labor) parliamentarians, Mark Arbib, Peter Garrett, Greg Combet and Kevin Rudd, will be fronting the Royal Commission into Home Insulation to explain their lack of due diligence on workplace safety matters. This is only a week after the Federal (Liberal) Government released a Commission of Audit report that promoted ministerial responsibility.

The popular perspective is that these ministerial decision-makers will be held to account for the deaths of four young workers but this is unlikely to occur because State occupational health and safety (OHS) laws establish a direct OHS relationship between employers and employees and the senior politicians did not employ anyone who was installing home insulation. The argument at the Royal Commission mirrors the chain of responsibility concept except that in work health and safety (WHS) legislation, government ministers are not covered by the definition of ‘officer’ and therefore have less OHS/WHS responsibility that anyone heading up a company or organisation.

Labour lawyer

Lessons from Royal Commission into Home Insulation Program

Australia’s Royal Commission into the Home Insulation Program (HIP) demands the attention of all occupational health and safety (OHS) professionals, primarily, because a job creation and economic stimulus program was so poorly planned at the highest level of government, that it seems to have established a culture that led to workplace deaths. However the Royal Commission is already revealing information that shows how OHS is misunderstood by decision-makers, a situation that still persists in many jurisdictions and will only change by watching the Royal Commission carefully and analysing this information through the perspective of workplace safety.

State of Knowledge

The Royal Commission has been investigating when the workplace deaths in New Zealand from using metal staples with foil insulation were known by the Australian Government. In OHS-speak, it is trying to determine the state of knowledge on this workplace hazard in the decision-making process. The deaths of four young Australian workers prove that the state of knowledge was inadequate however it is well established that Australia and New Zealand operate independently and that, although there are legislative similarities, it is rare for a death in one country to generate regulatory change in another. (One could look to the quad bike safety issues for an additional example.) The recent legislative changes in New Zealand may indicate that they listen to Australia more than vice versa.

Category: justice

Cry of frustration in Industrial Manslaughter Bill

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Productivity Commission looks at workplace bullying – not really

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New book challenges current OHS trends

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HIP Royal Commission – Gross Negligence and Accountability

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“Put the human being first”

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Ministerial responsibility in finance but not in workplace safety

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Lessons from Royal Commission into Home Insulation Program

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