One indication that the Australian Institute of Health and Safety (AIHS) is a different beast to the Safety Institute of Australia is the willingness for its CEO, David Clarke, to speak honestly about occupational health and safety (OHS) issues. In early February 2020, Clarke spoke at a breakfast seminar about Australian Standards, “the false promise of harmonisation”, engagement and leadership.
The best public document on determining what is reasonably practicable under occupational health and safety (OHS) law remains this one from WorkSafe Victoria but, importantly, it is also unhelpful. The unhelpfulness is there in the title:
“How WorkSafe applies the law in relation to Reasonably Practicable”
What is needed more is a document about how an employer is expected to apply reasonably practicable to their workplace rather than how the law is interpreted. The focus should be on achieving a safe and healthy workplace but the discussion of Reasonably Practicable is almost always reactive and reflective with little advice on how to use this concept in Consultation to satisfy the positive (some still say “absolute”) duty of care. Below is a brief attempt at clarification.
On May 4, 2006, John Della Bosca advised the New South Wales Parliament
“The Government will clarify that the general duties and obligations under the Act apply so far as is reasonably practicable. Ensuring the health and safety of employees will mean eliminating risks to health and safety so far as is reasonably practicable. Where it is not reasonable to eliminate a risk, employers will be required to reduce the risks to the lowest level reasonably practicable. Practical risk management does not require employers to go to extraordinary, unrealistic lengths, and never has. Rather, it requires the management of risks that are likely to affect health and safety over which the duty holder has a level of control. This is what the Government has always said, and it has always been Government policy. This is what it intends to enshrine in legislation to give greater certainty to both employers and employees.”
Della Bosca paints “so far as is reasonably practicable” (ASFAIRP) as an integral part of eliminating risks to health and safety and it is an integral part of OHS laws, but it is also a limitation, a condition and a concession in achieving safe and healthy workplaces and one that is drastically in need of a thorough independent review.
HRDaily unlocked an article concerning workplace sexual harassment on March 6 2020. The article was written by lawyer Fay Calderone and SafetyAtWorkBlog sought clarification from her on a number of points.
Some of the issues raised in the original article and Calderone’s responses will be discussed in a secondary article.
A lot of focus is currently on casual workers as their jobs disappear due to the responses to the COVID19 coronavirus. Australia has around 2.6 million of them and there are many more workers who may be classified as Part Time but operate on uncertain rosters and are, in reality, as precarious as casual employees. Occupational health and safety (OHS) is struggling to address the hazards presented by modern variations of precarious work, such as gig economy workers, because it, and government economic and employment policy more generally, is structured on the assumption of Full Time Employment (FTE) with work occurring mainly from nine to five, on weekdays with weekends off.
Consideration of precarious worker OHS may seem a lesser priority at the moment as many of us are quarantined or quarantine by choice but at some point, hopefully, within the next twelve months, business will resume. However, that business model and structure is unlikely to be the same. Indeed, it should not be same as the risk profile for all businesses and the community generally has changed. So, let’s have a look at some of the recent thinking about precarious work and the OHS risks so that we can build a better, safer model.