law – Page 176 – SafetyAtWorkBlog

Parliamentary inquiry discusses OHS but no one noticed

Australia’s politicians, trade unionists, businesses and media are gearing up for a tumultuous year in industrial relations with the controversial establishment of a Royal Commission into trade union corruption. This royal commission is broad-ranging but targets the construction unions, particularly the Construction Forestry Mining and Energy Union (CFMEU) and thus the construction unions’ conduct with regard to allegedly using occupational health and safe as a cover or excuse for industrial action. This royal commission has a strong element of party politics and ideologies and has overshadowed other action in the Australian Parliament where OHS is being discussed.

On 6 February 2014 the Education and Employment References Committee of the Australian Senate continued its inquiry into the Government’s approach to re-establishing the Australian Building and Construction Commission (ABCC) through the Building and Construction Industry (Improving Productivity) Bill 2013. One of the terms of reference for this inquiry is

“whether the provisions of the bills relating to occupational health and safety in the building and construction industry are adequate to protect the health and safety of employees and contractors in the industry”.

On February 6 the inquiry had some heated discussion on OHS and the construction industry that deserves a closer look.

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Construction association sees red tape instead of safety

Further to yesterday’s article about the Model Health and Safety Management Plan (MHSMP) being required by the Construction Compliance Code Unit (CCCU) in the Victorian Government, SafetyAtWorkBlog was provided with a copy of the submission of the Victorian Construction Safety Alliance* (VCSA). Tony Marino, the Chair of the VCSA, has granted permission for the covering letter to be quoted.

The covering letter to the submission made four major points:

“Overall the requirements of the Model Health and Safety Management Plan (MHSMP) and Implementation Guidelines are excessive and require significant amount of reporting duplication, i.e. red tape. VCSA was of the opinion government agencies wanted to reduce red-tape.

VCSA Suggest the CCCU has a MOU with other relevant agencies to receive safety data produced and sought by the Implementation Guidelines.

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Brothels continue to misunderstand the employee/contractor difference

For many years the brothel industry in Victoria has struggled with its occupational health and safety obligations, not because it does not understand them but that it denies OHS laws are relevant as many in the industry continue to believe that sex workers are not employees. Some use a Tax Office ruling on employee status to support their argument against OHS.

A recent investigation by the Fair Work Ombudsman (FWO) seems to further illustrate the industry’s misunderstanding of employees. According to an FWO media release nineteen brothels, over 70% of brothels investigated, underpaid clerical staff around $A65,000 but of more relevance to OHS is that

“Some businesses were found to have misclassified employees as independent contractors.”

This was a position put by many brothel owners and industry lobbyists when I was consulting and writing about the industry almost a decade ago. For a long time OHS laws have extended beyond the employee/employer relationship to include those affected by the work being undertaken on the premises. The more modern Work Health and Safety laws go further by focussing on the work activity rather than the place of work.

As the OHS/WHS focus increases on psychosocial hazards – impairment, fatigue, stress etc – the adult entertainment industry has particular challenges; challenges that could be seen as threats or opportunities but certainly challenges that will not go away. It is very positive that the industry groups have agreed to support a specific website for the sex industry but now they need to start working seriously on complying with their OHS/WHS obligations through collaboration, consultation and innovation, instead of denial.

Kevin Jones

More on this industry and this topic can be found in an earlier SafetyAtWorkBlog article.

Opaque response on construction industry safety code

Model-Health-and-Safety-Management-Plan (2) Victoria’s Construction Compliance Code Unit in the Department of Treasury and Finance has just completed its public comments stage for its model Health and Safety Management Plan (HSMP). The comments period was extended by a month after initially ending after only one month‘s public consultation on 6 January 2014. New South Wales and Queensland have mirrored the Victorian construction compliance code so the significance of this OHS submission stage should not be underestimated however the submission process and unusual secrecy is not building the faith and trust in the HSMP that the process needs for it to succeed.

The regular process for submissions to government inquires is for those submissions to be made publicly available, with the permission of the writer. The CCCU seems to have no plans to follow this protocol which is an enormous shame as the submissions would have provided a window into both the understanding of OHS in the Victorian construction sector, an understanding of the OHS role of the CCCU and an insight into how the CCCU is generally perceived by the Victorian community.

SafetyAtWorkBlog put the following (we think reasonable) questions to the CCCU last week in preparation for the end of the commentary phase:

Could you please estimate the number of submissions the CCU has received on the model Health and Safety Management Plan (HSMP) to date?

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Interesting new appointment at South Australia’s Master Builders

Modern workers rarely stay in jobs longer than six or seven years because they choose to move on or are working on projects that have a short lifespan. Sometimes opportunities arise that can steer people in unpredictable directions, sometimes to positions of influence. One example of this type of journey could be Ian Markos.

One newspaper recently wrote:

“The recently appointed director of policy for the SA branch of the MBA, Ian Markos, said a “nanny state” approach was stifling job creation. “There’s a raft of laws and regulations. You’ve got employment laws, you’ve got taxation laws, you’ve got environmental laws, you’ve got work health and safety laws, local council regulations. We’re saying enough is enough,” he said.”

Criticism of occupational health and safety (OHS) laws is not surprising from the Master Builders Association but Ian Markos was with South Australia’s OHS regulator, SafeWorkSA, for many years (with a once-only appearance on Gardening Australia) as the Chief Officer, Compliance, Advisory, Legal and Investigations. Continue reading “Interesting new appointment at South Australia’s Master Builders”

Serious questions raised about the effectiveness of OHS enforcement strategies

Richard Johnstone is always worth reading as he writes perceptively about occupational health and safety (OHS) and its enforcement. The new book from Baywood Publishing “Safety or Profit” provides a chapter by Johnstone that argues:

“…that despite the rhetoric of stronger enforcement and more robust prosecution, the dominant ideology of work health and safety enforcement – ambivalence about whether work health and safety offenses are “really criminal” and viewing prosecution as a “last resort” in the enforcement armory – still dominates the approach of Australian work health and safety regulators.” (page 113)

The importance of Johnstone’s chapter is that he reminds us that much of the current OHS debate is circular and limited and fails to question the soft enforcement strategy that has existed since the

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Incident investigation findings should be shared

Accident report Many people, and OHS professionals, complain about the lack of research in Australia into occupational health and safety issues. Research is occurring but often this is inaccessible to companies, professionals and decision-makers due to unjustifiable costs for the articles and journals. Yet there is OHS research, of a type, that can be done by any company should they choose to do so – incident investigation.

Individual investigation reports may only address one set of circumstances, those that led to an incident or, rarely but importantly, a near miss or a systems breach, but together these reports may identify a systemic problem or illustrate broader safer deficiencies in an industry sector.

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Category: law

Parliamentary inquiry discusses OHS but no one noticed

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Construction association sees red tape instead of safety

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Brothels continue to misunderstand the employee/contractor difference

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Opaque response on construction industry safety code

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Interesting new appointment at South Australia’s Master Builders

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Serious questions raised about the effectiveness of OHS enforcement strategies

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Incident investigation findings should be shared

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