due diligence – SafetyAtWorkBlog

“as far as politically practicable”

Last week WorkSafe Victoria announced that it was prosecuting the Department of Health over breaches of its occupational health and safety (OHS) duties with the management of Victoria’s Hotel Quarantine program. There is very little information available beyond what is included in the WorkSafe media release until the filing hearing at the Magistrates’ Court on October 22 2021.

Most of the current commentary adds little and usually builds on the existing campaigns to charge (Labor) Premier Dan Andrews with Industrial Manslaughter. Still, it is worth looking at WorkSafe’s media release and the thoughts of some others.

Off-centre perspectives can offer great potential

The Australian government has failed to follow through on its early promises to provide a framework for employers to prevent and reduce sexual harassment in their workplaces. This failure is being interpreted as revealing something about employers’ attitudes to occupational health and safety (OHS) and their own legislative duties.

Employers (and other groups on non-OHS issues) who look to the government for guidance on issues that already have legislative requirements are looking to avoid the social and legal obligations that have usually existed for years. Sexual harassment is an excellent example of a workplace matter getting some serious attention regardless of the government’s inaction. A recent podcast by Maddocks lawyers Catherine Dunlop and Tamsin Webster is part of that attention.

To boldly go where no Australian company has gone before

The response to SPC’s decision to mandate COVID-19 vaccinations for its workers, contractors and visitors illustrates a common misunderstanding of occupational health and safety (OHS) management, poor OHS literacy and some industrial and media rent-seeking.

On ABC Radio’s PM program in early August 2021, the main objection of Andrew Dettmer of the Australian Manufacturing Workers Union was insufficient consultation prior to SPC’s decision. (Really?! What about the validity of the company’s OHS decision?) Dettmer said:

The restricted state of knowledge – NDAs and OHS

A core element of the management of occupational health and safety (OHS) is creating and maintaining a “state of knowledge” on hazards and risks. There is an enormous amount of information already available in various OHS encyclopaedias, wikis and bodies of knowledge, but some of the most important information continues to be locked up in non-disclosure agreements and confidentiality clauses. On the issue of workplace sexual harassment, a recently established inquiry in Victoria, Australia, is set to look at the mechanisms that are principally used to protect the reputation of companies and executives but that could also have broader OHS benefits.

Liberty Sanger and Bronwyn Halfpenny are heading a task force designed by the Victorian Government to

“…develop reforms that will prevent and better respond to sexual harassment in workplaces.”

“reasonably practicable” reduces workers to a cash value

Legal interpretations dominate occupational health and safety (OHS). Understandably, if OHS is only determined by laws, but if the safety of workers is a moral imperative to you, the law is less significant. This latter perspective is rarely voiced, and one of the most important elements of OHS law is compliance “as far as is reasonably practicable” (ASFAIRP). ASFAIRP makes business sense but not necessarily safety sense, especially when one is dealing with the recent phenomenon of work-related mental health.

Some of the most powerful discussions on ASFAIRP and its place in providing safe and healthy workplaces occurred over a decade ago. However, the issue still resonates, and its perspective deserves continuous consideration.

New workplace mental health info but no new strategy

On May 20, 2021, Australia’s Work Health and Safety (WHS) Ministers to discuss a range of occupational health and safety (OHS) matters. One matter will be the inclusion of a specific requirement on employers that, according to the Australian Council of Trade Unions (ACTU):

“…. would finally require employers to identify and address risks to mental health, in the same way, they are required to with risks to physical health.”

What the ACTU fails to make clear is why this regulatory change is required when the duty to provide a physically and psychologically safe and healthy workplace already exists in the current OHS/WHS laws in Australia.

The ACTU does, however, with the help of the Australia Institute and Centre for Future Work, provide more data on work-related mental health. The union movement is one of the few voices that acknowledge the structural elements of OHS but fails to consider any options other than regulation and, with a federal conservative government in power, it is unlikely to receive an attentive audience.

OHS needs to get a seat at the ESG table

There has always been an overlap between environmental safety and occupational health and safety (OHS). This has happened not because of any particular similarity between the two disciplines but rather because of company executives’ duties, responsibilities, and accountabilities.

A recent report produced through the Centre for Policy Development (CPD) says this about climate change responses:

“Care needs to be taken to ensure that climate-related targets and analysis are rigorous, underpinned by appropriate governance, strategy and action, reflected in financial statements as required.”

Replace “climate” with “OHS”, and the overlap is clear. This is particularly important at this time when Australia is preparing its next national OHS strategy.

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