Category: law

Government must restructure to address the evolution of OHS

The UK government’s Health & Safety Executive is continuously countering poor decisions of local government that are being “blamed” on health and safety.  Recently the Wimbledon tennis open joined the club of misrepresenting risk decisions as health and safety.

England has a unique tabloid journalism that has generated substantial confusion on the role and application of occupational health and safety laws.  Most of the decisions being referred to as health and safety are really public liability concerns and this is where the risk management discipline enters the issue.  Occupational Health and Safety has enlisted the risk management principles to provide a structure for business to assess risk, costs and benefits of working safely.  However this has only worked when there was a clear delineation of workplace.

Over many years, OHS legislation has been allowed to broaden its remit from the shopfloor and factory fence to include those entering a workplace and visitors.  It then grew to include the impacts that any work activity may be having on others.

In Australia, the new definition of a workplace is anywhere where work is undertaken.  The OHS tentacles have penetrated all physical areas of society, although he police force has been struggling with this balance for years.  There is nothing occupational about OHS anymore.  In fact Australia will be dropping “occupational” from its Work Health and Safety legislation from 1 January 2012.  There have been sound reasons for this expansion but we now have to live with the consequences. Continue reading “Government must restructure to address the evolution of OHS”

Conservative media begins to examine new OHS laws

Workplace health and safety made the front cover of the Australian Financial Review on 1 July 2011 (once the liftoff financial special cover was thrown away).  When this happens there is a serious issue to be dealt with or it is a beat-up.  Today’s article entitled “Danger: work safety laws just got stricter” (not accessible online) is a bit of both.

Reporters Fiona Carruthers and John Stensholt reference several cases that should have generated considerable debate in the OHS fraternity.  The first is the case where Clean Seas was fined $A27,000 after not preventing an alcohol-affected diver from entering the water where he blacks out and requires hospitalisation.  Curiously they also discuss, in a textbox, fines handed out to RailCorp and Esso, events that occurred in 2003 and 1998 respectively.

Perhaps not surprisingly a financial newspaper focuses on the financial penalties of OHS breaches, injuries and deaths but the timing of the article is also curious as the law changes, stemming from the OHS harmonisation process, have been scheduled for some time and do not come into effect across Australia until 1 January 2012. Continue reading “Conservative media begins to examine new OHS laws”

Australia to ratify ILO OHS Convention, says Senator

The Australian Financial Review (AFR) reported on 14 June 2011 (not freely available online) that Senator Jacinta Collins has publicly stated that an International Labour Organisation (ILO) occupational health and safety convention will be signed by the current Government in conjunction with other conventions on maritime labour, asbestos and part-time work.  The announcement that “Australia will ratify four ILO Conventions this year” was made at the recent International Labour Conference.

Most of the AFR article focussed on the labour relations impacts of the conventions but RMIT’s Professor of Law, Breen Creighton noted that

“Ratifying a convention has no effect in Australian law unless the Australian parliaments legislate to give effect to the international obligations.”

Senator Collins’ speech identifies the OHS protocol as the “Optional Protocol of 2002 to the Occupational Health and Safety Convention”.

A brief discussion on this protocol occurred on this blog in late April 2011 when the ratification was mentioned during the World Day for Safety and Health at Work.

Kevin Jones

Do Work Health and Safety regulations comply?

The draft model Work Health and Safety regulations were published for public comment in December last year, but rather than sailing through with general public support (i.e. negligible objection) they were met with incredible public objection, with over 1000 submissions.  This astonishing fact begs the question; has something gone wrong in the WHS legislation making process? Or did the Australian public suddenly have nothing better to do than write all those pages?

You may, or may not, be aware that when legislators want to create legislation there are very solid principles and clear guidelines that legislators must comply with.  These “rules-for-rule-makers” are provided to us courtesy of the Council of Australian Governments (COAG) and the Office of Best Practice Regulation (OBPR).  And for mine, they are excellent.

The reasons we in Australia have those rules are many but in a nutshell it’s because some governments have over the years proved to be pretty good at creating flawed legislation with unintended or anti-competitive consequences. And some have been pretty good at blustering their rules through to the public and papering over the deficiencies. Continue reading “Do Work Health and Safety regulations comply?”

Wrong safety messages from Australia’s resources minister

“IMPROVED SAFETY FOR URANIUM WORKERS” is the headline of a media release from Australia’s Minister for Resources and Energy, Martin Ferguson.  The 9 June 2011 statement concerns the positive initiative of new health monitoring for those workers in the uranium mining and milling industries, but it also betrays a perspective that is dominant in the thinking of national policymakers.

If we accept that a principal aim of occupational health and safety legislation is the prevention of harm*, then the initiative announced does not improve safety for uranium workers.  It collates evidence of harm in preparation for compensation.

Minister Ferguson says

“The health and safety of workers is always our first priority. [If ever there was a statement that is a red flag for suspicion, this is it] The new national register strengthens protections for employees over their working life by ensuring that data for monitoring radiation doses will follow them if they move across jobs and across jurisdictions. Wherever they go in Australia, workers will be able to access records that track complete dose histories to ensure their good health into the future. The national dose register is integral to ensuring we have a world class regulatory regime in place for uranium mining in Australia.”

This quote shows the classic leap from a pledge of no (or minimal) harm to the reality – a register of harm. Continue reading “Wrong safety messages from Australia’s resources minister”

Reasonably Practicable is more a hindrance than a help

Possible future OHS conversation between Person Conducting Business or Undertaking (PCBU) and an OHS Inspector or OHS professional looking at a piece of plant:

PCBU: “Look at this machine, it now complies with the work health and safety laws, as far as is reasonably practicable.”
OHS: “Terrific. How did you work out that the plant complies?”
PCBU: “Well we asked around and we reckon this is the best solution.”
OHS: “So did you assess whether anyone could get harmed using this machine?”
PCBU: “Yep”
OHS: “What sort of injury do you think could result from operating this plant?”
PCBU: “Not much”
OHS: “Who told you that the plant now meets all the requirements of the OHS legislation?”
PCBU: “Our workshop manager/neighbour/consultant….”
OHS: “Did they suggest ways for making the plant safe?”
PCBU: “Yep”
OHS: “So why isn’t there a guard around that pinch point?”
PCBU: “Ummmmm, I can’t afford the guard this month but the manager/neighbour/consultant said it’d be alright as long as we put this warning sign up in the meantime. But it’s reasonably practicable, I reckon.”

As the new Work Health and Safety laws become a reality in Australia from January 2012, the line of compliance will expand to create a grey band within which compliance is likely only to be determined by lawyers after an injury has occurred. Continue reading “Reasonably Practicable is more a hindrance than a help”

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