Category: law

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”

Will Brodie’s Law deter workplace bullying?

On 1 June 2011 the Australian television program 7PM Project ran an article about “Brodie’s Law” – an increase in the penalties for bullying and stalking.  I was approached to be interviewed for the program due to my comments on this blog.  I turned down the opportunity for a number of reasons, my time had already been committed to my family and filming did not fit that commitment but, more importantly, I am dubious about whether Brodie’s Law will have the deterrent effect that many hope for.

The 7PM Project approached an outspoken lawyer on the issue who refused to participate because he felt that his comments would not have fitted the approach favoured by the producer who contacted us.  I had similar reservations.  When I expressed my opinion about the lack of deterence, one producer acknowledged that this was a position expressed by almost all the people they had approached to participate.

The video of the 7PM Project segment is available online and begins around the 2 minute mark.  Significantly occupational health and safety laws were not mentioned in the article.  There was no mention of any of the OHS guidances on workplace bullying or of any of the regulator’s programs.

A workplace bullying expert of OHS professional would more likely have recited this definition or at least stressed the importance of repetition.

The speaker they chose for expert opinion on workplace bullying was Grant Brecht.  Brecht was asked whether a definition of bullying exists.  He answered that the definition relates to where psychological harm is possible.  This is true but a crucial element of the definition of workplace bullying  was missed in the discussion.  According to WorkSafe Victoria:

“Bullying is repeated unreasonable behaviour directed towards a worker or group of workers that creates a risk to health and safety.” [emphasis added]

Brecht also mentioned the need for individuals to assert themselves in the face of bullying but a detailed look at Brodie Panlock’s case shows that she did assert herself and that she did approach other workers at the cafe for assistance and she did talk to friends about the situation. That none of these actions helped Brodie is a core element of her tragedy.  Bullying, as with many workplace hazards, is best dealt with by not allowing it to take root in any workplace from the very beginning of a business’ operation.  Too many try to retrofit safety into an already toxic and dysfunctional workplace.

The 7PM Project also ran some dubious re-enactments of workplace bullying and, incongruously, some footage of a construction site?! Continue reading “Will Brodie’s Law deter workplace bullying?”

SafeWorkSA responds to Gottliebsen OHS article

On 23 May 2011, prominent Australian business writer, Robert Gottliebsen published an article in BusinessSpectator entitled “Saying no to Canberra’s IR dopes“.  The article was uncharacteristically contained major errors on the application of new harmonised OHS laws.

The article generated considerable discussion on some Australian OHS discussion forums but the article’s website has attracted only one comment.  SafetyAtWorkBlog is in possession of a copy of the full reply sent to BusinessSpectator by SafeWorkSA, the OHS regulator in South Australia, a state that featured in Gottliebsen’s article.  SafeworkSA’s reply is reproduced below as it is yet to appear on the BusinessSpectator website, a week after it was sent.

“From:  Bryan Russell, Director of Strategic Interventions, SafeWork SA & SA Representative on the Strategic Issues Group – OHS with Safe Work Australia.

Robert Gottliebsen’s commentary of 23 May on South Australia’s actions regarding the Model Work Health and Safety Bill contains several serious errors that need to be addressed.

For the record, let me emphasise the following.

The Work Health and Safety Bill 2011 was reintroduced to the South Australian Parliament on 19 May 2011.

The Bill was tabled in the same form before the Legislative Assembly (Lower House), where the current Minister for Industrial Relations, Patrick Conlon, sits.

The SA Government is on the record as stating that the Bill was withdrawn from the Legislative Council (Upper House) on 3 May 2011 due to the recent change of Ministers.

Contrary to Mr. Gottliebsen’s assertions, we have observed no “community outrage” generated by radio talkback hosts. Continue reading “SafeWorkSA responds to Gottliebsen OHS article”

New South Wales gets a win-win on OHS laws

The Australian Government must be either issuing a sigh of relief or clapping their hands together following the passing of the model OHS laws by the New South Wales (NSW) government last week.

NSW was a belligerent signatory to the agreement for nationally harmonised OHS laws but the laws passed with sufficient tweaking to make the laws compatible with the national model laws.  Several days later, on 30 May 2011, everyone is claiming a win.  Unions retain some authority to prosecute over OHS breaches, although only “for the third and least serious category of offence”, according to the Australian Financial Review.

Unions NSW secretary Mark Lennon is reported as saying that the NSW upper house of Parliament has protected an important safeguard for workers.

On 27 May 2011 Lennon was bemoaning “that the Industrial Court has lost most of its occupational health and safety jurisdiction” and yet the Industrial Relations Commission will now retain an active OHS role even though it is dealing with lesser OHS offences, similar to the unions’ role above.

Overall the amendments in the NSW Parliament seem to be a face-saving exercise for the left-wing politicians and trade union movement.  They were provided with little wins but have given way on the major objections.  It is reasonable to describe this as a pragmatic solution given that the March 2011 NSW election effectively removed the union movement’s power base in that State. Continue reading “New South Wales gets a win-win on OHS laws”

New OHS info on Working Alone and Occupational Violence

One of the most difficult safety management challenges is the control of hazards associated with working alone.  The most effective control is to not work alone, but the difficulty comes because this option requires expenditure.

WorkSafe Victoria recently released an information sheet on this hazard and listed the following hazard control options:

  • Buddy system
  • Environmental design
  • Communication or location systems
  • Alarms
  • Movement records
  • Training
  • Knowledge sharing

WorkSafe wisely says that most workplaces will require a combination of these options to control the hazard of working alone.

Trying to reduce the hazards of working alone is a terrific indication of the economic health of a business, the level of safety commitment of a business owner or manager, and the state of safety knowledge in the company. Continue reading “New OHS info on Working Alone and Occupational Violence”

TV report into SafeWorkSA’s performance

On 20 May 2010, the Australian Broadcasting Corporation televised a story on the South Australian 7.30 program about the supposedly poor investigative performance of SafeWorkSA.  The article was framed by a mother’s grief, the grief of Andrea Madeley over the loss of her son, Daniel.

The story was some weeks coming as the story’s production began around the time the ABC were filming at the Workers’ Memorial service in Adelaide a month ago.  The story promised to be a hard-hitting criticism of the State’s OHS regulator but the latest Industrial Relations Minister, Patrick Conlon, handled himself well and what could have provided a provocative national context to the story, the harmonisation of OHS laws, dampened the impact.

Both Yossi Berger and I have written about the findings of Coroner Mark Johns on this blog.  Yossi agrees that OHS regulators are almost all too slow to implement control measures to prevent recurrences of injuries and death,  I thought the Coroner was poorly informed.

The lasting image of the 7.30 storywas the young boy talking at Adelaide’s memorial about his loss of a relative – the way he kept talking while he sobbed and cried.

All OHS regulators must improve their game in empowering employers and workers to prevent injury and death.  Coronial criticisms are unlikely to affect changes in safety management by themselves.  Crying boys are also unlikely to affect lasting change, but it is almost a certainty that the harmonisation of OHS laws will change very little.

Kevin Jones

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