Category: law

The social context of OHS laws is being poorly handled

Australian lawyer Michael Tooma is mentioned regularly in the SafetyAtWorkBlog, mostly because Tooma is one of the few who consider workplace safety in the broader social context.  In The Australian newspaper on 10 February 2012 Tooma wrote that new work health and safety laws being introduced in Australia present

“…a march … into the traditional heartland of the public safety, product safety and professional liability territory, and it brings with it a criminalisation of what was once an exclusively civil liability domain.  The new laws did not invent this trend, they just perfected it.”

Right-wing commentators would jump on this and declare “nanny state” but it is vitally important to note that this trend of “protectionism”, or the “compensation culture” as described in the United Kingdom, did not originate in occupational health and safety (OHS) laws.  The OHS profession, business operators and workers will need to learn to accommodate and manage this social trend that has been imposed.

Tooma writes that ”

“…we have not had a proper debate about the incursion of the laws into nontraditional areas and its impact on the resources of firms, regulators and ultimately work safety standards.”

The debate may already be over. Continue reading “The social context of OHS laws is being poorly handled”

The lobbying for “control” impedes corporate and OHS growth

“When we look at global trends it’s clear that Australia’s labour laws are not the primary cause of the contraction in manufacturing.”

Shelley Marshall, a Monash University researcher and Fair Wear Australia spokesperson made this statement at an Australian Senate inquiry on 2 February, 2012.  The statement, reported in The Australian Financial Review (not available online), was used to illustrate the complexities of outworker protections under the Fair Work Act but it is, occasionally, worth looking a broader context.  If one accepts that workplace safety is a subset of industrial relations laws (as SafetyAtWorkBlog does), Marshall’s comments help cut through some of the recent hyperbole from the industry associations and lobbyists about the significant economic and productivity costs of OHS law reform.

Marshall identified the extension of supply chains as affecting productivity.  The issue of supply chain responsibility has an established OHS context as it relates to the issue of “control”, a matter raised as an objection to the implementation of new Work Health and Safety laws.  Continue reading “The lobbying for “control” impedes corporate and OHS growth”

New research on quad bike safety remains academic in a climate of uncertain OHS reform

Dr Tony Lower of the Australian Centre for Agricultural Health & Safety (AgHealth) has released a farm safety research report of curiosity more than influence.  The report, Farm Related Injuries Reported in the Australian Print Media 2011, makes use of the media monitoring services that the centre has been using for over five years.  The accompanying media release, not yet available online, summarises some basic findings:

“According to the report released by the Centre today, the 2011 information illustrates a 60% drop in the number of on‐farm injury deaths when compared to the early 1990’s, where the average number of deaths was 146 per year. “This reduction over the past 20 years is fantastic news, however by our estimates, many more deaths can be prevented by adopting solutions which we know from the evidence work” said Dr Lower.

The study results show that quad bikes (18) were the leading cause and made up 31% of all deaths.

Meanwhile tractors (10) were responsible for 17% of incidents. Tragically, seven of the fatal cases (11%) involved children aged 15yrs and under, with quad bikes (3) and drowning (2) being most frequently involved.”

An understandable limitation of the report is the fact that the social influence of print media is much less than in previous decades and that the report misses multimedia and the new medias.  This is one of those research reports than can genuinely suggest additional research to increase the relevance of the findings.   Continue reading “New research on quad bike safety remains academic in a climate of uncertain OHS reform”

OHS harmonisation may be dead, so who will pick up the pieces?

One of the best summaries of the current status of the new Australian Work Health and Safety laws was published in The Australian newspaper on 27 January 2012 (not available without a subscription).  Lawyers from Norton Rose, Michael Tooma, Alena Titterton and Melissa Cornell, express doubts that harmonisation of national safety laws is possible.  They write:

“At this point in time, it looks unlikely that harmonisation will be achieved at any time during 2012, if it is ever achieved at all.”

The question needs to be asked whether the whole harmonisation process has been waste of time of whether some good has resulted from all the effort.  Prior to Christmas 2011, some legal commentators were satisfied that the harmonisation process had “lifted” several States’ OHS laws to a contemporary standard but the aim of harmonisation, indeed the “promise” of harmonisation was so much more.

Australian businesses that operate over multiple jurisdictions are justified in pointing the finger of blame at the ultra-conservative business groups, lobbyists and alarmists for stifling a very promising reform.  The administrative process could have been handled much better but each government had signed commitments to reform from which many are now weaseling out of.  Regardless of subsequent changes of government, these commitments should have been upheld.

Tooma, Titterton and Cornell summarise by writing:

“For legislative reform that was meant to be about providing clarity to a complex area with differing standards across multiple jurisdictions, after four years of significant effort, it appears we may have been merely gifted more confusion and simply a different set of differences. Continue reading “OHS harmonisation may be dead, so who will pick up the pieces?”

UK’s approach to OHS reform is flawed by short-term political strategy

England’s Prime Minister, David Cameron, has described OHS as a “monster” in a speech to small business owners on 5 January 2012. It is important to note the PM’s comments prior to his monster reference that have not been repeated in the mainstream press. He refers to

“… a great big machine of health and safety that has built up over years.”

Cameron feels that he needs to address an OHS regulatory system and enforcement strategies that have become too complex for, particularly, small business to comply with. Part of his solution is to exempt the self-employed, in some specific sectors, from OHS laws. This is a questionable decision as it effectively establishes a two-tier safety management regime and sets a precedent for other similar sectors to lobby for an exemption from other, perceived, onerous laws.

It may be that OHS laws in the UK have become overly complicated over time but the role of the media must be considered in that it has focussed on many absurd managerial decisions that have resulted from a skewed understanding of OHS and risk. Frequently the media reports have no relation to OHS laws and all to do with an increasing litigious society and the pursuit of money through, potentially spurious, public liability insurance claims.

In the 5 January 2012 speech Cameron states that

“…the key about health and safety is not just the rules and the laws and the regulations – it is also the culture of fear many businesses have about health and safety.” (emphasis added)

Cameron explains his answer for reducing this fear of health and safety, the capping of fees that lawyers can earn from legal action against businesses on behalf of their clients, usually, employees. There is no fear of health and safety, it is a fear of litigation. Cameron is not on about OHS law reform, his concern is about “unnecessary” litigation costs. This is unlikely to be reduced by cutting the budget of the Health & Safety Executive (HSE) which must reduce services as the HSE resources have been contracting for some time. Continue reading “UK’s approach to OHS reform is flawed by short-term political strategy”

Disagreement on workplace bullying strategy increases in Australia

According to The Australian newspaper on 5 January 2012 the Australian Council of Trade Unions (ACTU) is extremely critical of Safe Work Australia’s draft Code of Practice on Workplace Bullying. The ACTU has said that the draft code has a “fundamental flaw”

“… the failure to address workplace bullying in the same framework as any other workplace hazard/risk.”

This is a significant challenge but without access to the ACTU submission on the draft code it is difficult to determine the exact context of this fundamental flaw.

Of more concern is the apparent move by the ACTU, according to The Australian, to have single instances of inappropriate behavior covered by the workplace bullying code. This is contrary to the bullying concept that only repeated instances of abuse should be considered bullying.

Regardless of this challenge to established definitions, it is very hard to see how such a situation could be enforced by either OHS representatives or OHS regulators. The regulators have struggled for years with the existing definition and could have no effective role in workplaces if the unions’ wishes were successful. Continue reading “Disagreement on workplace bullying strategy increases in Australia”

Lawyer says OHS harmonisation has become a shambles

The 28 December 2011 edition of the Australian Financial Review (AFR) (not available online) quotes Australian labour lawyer, Michael Tooma, talking about the harmonisation of workplace safety laws:

“It’s descended into a farce, a shambles – only four jurisdictions are ready for the laws.”

This seems supported by the words of the recently-appointed Workplace Relations Minister, Bill Shorten, who says that the new Occupational Health and Safety (OHS) laws will cover 58% of the workforce. This also equates to 42% NOT being covered – hardly a success for harmony.

Victoria’s WorkCover Minister, Gordon Rich-Phillips, continues to miss the point of national harmonisation by continuing to argue against harmonisation with parochialism. He says that the new laws are very likely to increase the regulatory and cost burden without acknowledging that Victoria has many prominent businesses who operate nationally and will incur increased compliance costs due to his delay in the implementation of the harmonised laws.

The AFR article implies that a major reason for objection is that senior executives, the ridiculously named “C-suite”, will face increased accountability for decisions that affect worker safety. Perhaps, but this increase has been coming for some time and should have been anticipated by the C-suite.

The article also implies that hesitation over these laws comes from the increased accountability of senior public servants and departmental heads. Tooma acknowledges this change:

“To date, heads of departments in the public service have never been able to be held criminally liable under federal laws.”

The public service is going to be a fierce battleground considering that psychosocial issues are so prevalent in this sector. It will be fascinating (and sad) to watch senior executives in government departments being prosecuted under OHS laws for workplace bullying, excessive workloads and the generation of stress. (The size of the challenge may be seen by recent bullying issues in the Australian emergency services, WorkSafe Victoria and WorkCover NSW)

The AFR has been one of the very few newspapers reporting on OHS harmonisation but, not surprising given its specialized readership, it has focused on the business costs of implementation. Rarely has it discussed the positive benefits to safety management or the potential increase in worker safety. Perhaps there are none.

There is little safety innovation in the new laws. If OHS is about preventing harm, these laws are no improvement on the previous.

But then safety has rarely come from laws but from how people react to, or apply, the laws. The debate on harmonisation has been missing the voice of the safety profession in Australia but perhaps that’s because there is nothing new to say. Perhaps the management of safety will not have any fundamental change. It may be that the only change is that the CEOs begin to listen to their OHS advisers. Let’s hope that is enough.

Kevin Jones

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