Category: law

In Australia OHS management is red tape

The Australian newspaper of 1 September 2009 epitomised the ideological problems with OHS in a business management context.  Page 5 has two articles next to each other:

“Renewed pledge to cut business regulation” and

“Building chief ‘spat on an abused‘”.

The first article reports on a speech by the Competition Minister, Craig Emerson, where it is reported that the Minister

“has pledged his commitment to removing unnecessary regulation that hampered business”.

The Minister was speaking to a business audience and has been described as less friendly to regulation than his predecessor.  OHS compliance is often bundled as an element of unnecessary business paperwork by employer and industry groups however, in this speech, the Minister spoke more of open markets.

The second article focuses on an attack on the head of the much-hated Australian Building & Construction Commission, John Lloyd, but also reports on the national union protest scheduled for 1 September 2009, concerning the weakening of OHS laws through the harmonisation process.

The article reports on a union survey:

“Unions commissioned a poll that showed 78 per cent of those surveyed agreed employers should do more to protect the health and safety of their workers, even if it led to increased costs or red tape.”

That unions would even accept that OHS compliance could be considered red tape is a great concern, and the phrase is taken directly from the ACTU media release.

Union Survey figures

SafetyAtWorkBlog is endeavouring to obtain the original survey results (over 1000 respondents (workers) taken in the last week of August 2009) but for the moment it is worth quoting ACTU Secretary Jeff Lawrence’s interpretation of the statistics.

“… this poll shows the Australian public don’t want workplace safety rights undermined.”

“The poll shows there is significant support in the Australian community for stronger rights and protections for workers and an ongoing role for unions in checking workplaces where employees are worried they are in danger.

“The poll finds 81 per cent of those surveyed agreed workers should have the right to call in help from a union to check on health and safety issues regardless of their employer’s approval.

“Seven out of ten Australians (69%) believe that injured workers should be able to take their employer to court under workplace health and safety laws.”

Business and government in Australia are harmonising OHS laws to reduce the red tape business compliance costs.  Unions believe that OHS red tape and increased business cost is acceptable.

What does this leave the safety professional who says that they can minimise the red tape associated with OHS compliance AND that safety is not a cost but an investment?  Out in the cold with the Victorian WorkCover Minister, it is suggested.

Kevin Jones

Productivity is also the Government’s aim with OHS law reform

A few posts back the productivity priorities of Australian employer groups toward OHS harmonisation were noted, particularly that of the Australian Chamber of Commerce & Industry.

On 25 August 2009, Australia’s Workplace Relations Minister, Julia Gillard, addressed the 15th World Congress International Industrial Relations Association.  The Minister mentioned OHS and said:

“So, our new workplace relations system is now up and running. We are close to reaching agreement with State Governments to end the fragmentation of the past and have the entire private sector by the one national workplace relations system.

Additionally, for the first time ever, after a 25-year wait, Australian businesses and workers are close to having a uniform national occupational health and safety laws. A massive step forward in achieving a seamless national economy that Australia needs to release lasting and much-needed productivity improvements.

But the legal changes are the beginning, not the end, of the reform process.

Australians should now move beyond a focus on law changes to a new focus on cultural change in the workplace. We need to build partnerships between management and workers and their unions that operate for the benefit of all.

Change of this sort is slower to take root than rapid structural reform.

It is more dependent on intangibles, including the goodwill and motivation of those who take part. But in the long run it will have an important impact on our economic prospects.

So over the coming months and years we will be looking at ways of embedding change through workplace relations, innovation and leadership practices in workplaces.” [my emphasis]

Minister Gillard talks of OHS law reform in the same productivity terms as the employer groups.  This may be down to the audience at the conference and the congress’ theme as well as industrial relations being the main focus of the government’s reform agenda but it is an inclusion that, for fairness, it was worth highlighting.

Rather than taking the OHS paragraph by itself, it is telling to see the section in the speech that includes the only direct mention of OHS law reform.  Minister Gillard continues to emphasise the process of establishing harmony across industrial relations as much as in OHS law.

She also is clearly up on the latest business lingo, even though some of the phrases have a cloudy definition –

  • “cultural change”
  • “intangibles”
  • “innovation”
  • “leadership”
  • “collaboration”

The Minister rightly states that law reform is at the end of one process but often at the start of a far more difficult reform process.  There is no guarantee that the new OHS will have a smooth entry and, as with any law, the best test for its suitability is in the Courts, sadly.

Kevin Jones

Standards are often developed without the aim of enforcement

[Expansion on recent SafetyAtWorkBlog article regarding Standards]

It’s always going to present complications when a tech standard is magically converted into law by incorporating it into a regulation. And that happens whether it’s an AS/NZ tech standard or one produced in Europe.

The fundamental problem is that tech standards are often not produced with enforcement in mind.

The core questions that drafters for each type of document have to ask are fundamentally different. The law drafter has to constantly ask: “What am I demanding and why? Does what I’m demanding fit sensibly and reasonably within the scope of the powers I have? How does a person comply with what I’m demanding? How do I prove that person is not complying?” Very few elements of those questions need to be addressed when developing a technical guidance document.

This is what leads me to think that it’s wrong to defer to incorporating technical standards in regulations. That’s not to say that it is always wrong. When a tech standard, or even a section of it that’s incorporated, includes the best thinking on achieving a good outcome, and that outcome is pretty well universally accepted as the right one and no issues of achieving or proving compliance crop up, then incorporate away I say.

But I think there are just too many good reasons to make the default option recommending tech standards or the type of standard setting body in a code of practice. The absence of mandatory requirements in a code stops the punter (or a regulator) being confused by trying to understand a technical guidance document in the context of mandatory requirements.

The code of practice route for applying tech standards also has that excellent element of letting the best thinking apply to a given problem; given that codes allow people to choose alternatives that are comparable to a tech standard recommended in a code. This is critical. When people know what type of standard or standard setting body an enforcement agency has confidence in, then the global state of knowledge can be brought to bear on a safety problem. That has got to be always a good thing.

I don’t see any reason for Standards Australia to give the game away because they are increasingly not having their productions transformed into law. All strength to their arm in fact. There’s no reason Standards Australia shouldn’t aim to be produce world’s best practice and thinking on safety solutions. Everyone gains from that.

Col Finnie
col@finiohs.com
www.finiohs.com

Restorative Justice and workplace fatalities – Part 1

The city in which SafetyAtWorkBlog is edited, Melbourne, is struggling to manage a spate of street violence – some racially-based, a lot influenced by alcohol and drugs.  The Age newspaper carried a feature article on 25 August 2009 discussing the concept of “restorative justice”, a concept that is barely known outside of some legal or civil liberties areas, in relation to handling offenders and victims of street violence.

Pages from RJ_and_Work-Related_Death_Consultation_ReportOnly last week, there was an important launch of a research report into the application of restorative justice for those affected by workplace fatalities.  It is a fascinating new area of application for restorative justice in Australia and one that seems a more natural fit than for the more common acts of violence.

The research project builds on a lot of the work already undertaken into workplace fatalities by the Creative Ministries Network. Their research, mentioned in the project report, has shown

“…that families and company directors, managers and workers grieving a traumatic death suffer more prolonged and complicated grief due to delays in legal proceedings, public disclosure of personal information, lack of information, and increased stress from involvement in the prosecution process and coronial and other litigated processes.”

Over the next few days SafetyAtWorkBlog will run a series of articles on the concept and its application as well as being able to make available copies of the research reports and transcripts of interviews with research participants.

As SafetyAtWorkBlog has no legal expertise restorative justice needed some investigation.  Below are some useful definitions and descriptions:

“Restorative justice is a theory of justice that relies on reconciliation rather than punishment. The theory relies on the idea that a well-functioning society operates with a balance of rights and responsibilities. When an incident occurs which upsets that balance, methods must be found to restore the balance, so that members of the community, the victim, and offender, can come to terms with the incident and carry on with their lives.”

“Restorative justice brings victims, offenders and communities together to decide on a response to a particular crime. It’s about putting victims’ needs at the centre of the criminal justice system and finding positive solutions to crime by encouraging offenders to face up to their actions.”

“The term “restorative justice” is often used to describe many different practices that occur at various stages of the criminal justice system including:

  • Diversion from court prosecution (i.e. to a separate process for determining justice);
  • Actions taken in parallel with court decisions (e.g. referral to health, education and employment assessment, etc.); and
  • Meetings between victims and offenders at any stage of the criminal process (e.g. arrest, pres-sentence and prison release.”

[Of course, one can also read the Wikipedia entry)

The intention of restorative justice has more often been to reduce the likelihood of a re-offence.  The application of restorative justice for workplace fatalities seems to be slightly different.  In America, it would be difficult to avoid using the word “closure” (a phrase SafetyAtWorkBlog refuses to use as there is never a close to grief, only a way of living with it) as one of the aims of the workplace fatality application.

There are many effects of a workplace fatality on executives and companies.  It is hard to imagine a company that, after one fatality, would not do all it could to avoid another.  Restorative justice has the potential to heal the surviving victims – family and company.  It can also reduce the animosity that often results from the traditional adversarial justice system, particularly for those participants who may not have been exposed to such processes before.

Kevin Jones

Public Comments – Fishing and Legionnaire’s

WorkSafe Western Australia has two documents currently open for public comment.   One concerns a draft code of practice  for the prevention of falls from commercial fishing vessels.  The other may have a wider appeal as it is a draft code of practice for the prevention and control of Legionnaires’ disease.

man_overboard coverThe man overboard code is an example of established hazard management and risk control options for a niche hazard in a niche working environment, however, it is often in these areas where procedural and technical processes are most easily recognised.  The draft code is in a format, and has a degree of clarity, that encourages discussion and examination.

Readers may find some useful information for those workers who work alone or in isolation, for those who need to undertake tasks at nighttime and in intense darkness, and for those workplaces that require a strict induction for new workers.

LEGIONNAIRES__Public_comment coverSimilarly, the Legionnaire’s code of practice builds on established risk management concepts and shows that businesses still need to prevent legionnaire’s infections even if there is a regulatory/licensing system in place for cooling towers.

On a formatting note, both these draft codes could have benefited from the regulators embracing more of the Web 2.0 concepts.  The PDF files do have some hyperlinks for some more information or emails but there could be a lot more effort put in to making the drafts a hub for the documents’ references.  For instance, mentions of legislation could lead to online versions so that those commenting online can flick back and forth from reference to topic.

[Just imagine how much more helpful a code of practice with such functionality could be to a small business – wiki + blog+ safety = better compliance]

In the Legionnaire’s draft there are tags on page 36 that could lead to the online text of the Acts referred to.  The tags are a good idea but could use increased functionality.

Lastly, the Legionnaire’s code references eight Australian Standards and publications.  It is a reasonable expectation that, for this hazard, industry submissions will be the majority and those parties already have the Standards.  However, if a broad consultation is required, many interested parties may find purchasing these Standards a substantial cost burden,  which SafetyAtWorkBlog calculated to be at least $A390 for the PDF versions.

Kevin Jones

Uncovered holes

Recently SafetyAtWorkBlog reported on a new WorkSafe Victoria guidance on guarding cellar doors.  Comcare has started legal action against a company a similar hazard but one located in public.

Comcare has instigated proceedings against Australia’s leading telecommunications company, Telstra, for an unguarded pit in a public area.  According to the media release dated 19 August 2009,

“The proceedings arise from an incident on 31 January 2008 when two Telstra sub-contractors opened an access pit while conducting work.  The pit is located on a pathway between a train station in Brisbane and the office of an organisation that provides services to persons with impaired vision.  While the access pit was allegedly left open and unguarded, a member of the public, with a vision impairment, fell into the pit and sustained a serious personal injury.

The maximum pecuniary penalty for a breach of s17 of the Act by a body corporate is $242,000.”

This is not a new hazard and open telecommunications pits have been guarded for decades, often with canvas to provide weather protection for workers.   We’ll report on the judgement when it is handed down.

Kevin Jones

The future for Standards Australia will be hard

SafetyAtWorkBlog has written elsewhere of how the global financial crisis has caused OHS related programs to be revised.  The latest bulletin from Standards Australia indicates the impact of the financial pressures on its plans and the reduction in the value of their investments has come at a time of other worrisome changes.

(In this article there is a focus on the safety-related Australian Standards.)

Bulletin_1_Standards_Australia_170809_Page_1According to the 17 August 2009 bulletin, Standards Australia has lost $A70 million from its investment portfolio since November 2007.  This has caused it to introduce a “New Business Model”  which reduces Standards Australia’s operating costs and also increases the costs to many of the voluntary participants on committees that develop Australian Standards through the new consultative strategies.

Hopefully during the period of reflection caused by the financial threats, Standards Australia should have considered whether it is worth continuing, at all.

Following are some ruminations about safety-related Standards and their applicability.  These may be relevant to quality, risk and environmental Standards, also.

  • Australia is a very small market for Standards compared to Europe and the United States, in particular.
  • The management professions are becoming more globalised.
  • Manufacturing is becoming more globalised.
  • Europe can draw upon a broader range of expertise in the development of management standards, than can Australia.
  • Several International Standards could be applied in Australia allowing for an international “compliance”.  Some Standards are already in place and promoted by companies as somehow more legitimate that the Australian Standards.
  • Safe Work Australia has informed SafetyAtWorkBlog that:

“The application and use of Australian Standards in model OHS regulations has not yet been decided and will be considered by the Safe Work Australia Council’s Strategic Issues Group”

  • SafetyAtWorkBlog has heard from a South Australian colleague that SafeWorkSA is considering replacing OHS Standards referenced in legislation with codes of practice. (SafetyAtWorkBlog has sought confirmation of this from SafeWorkSA)
  • Australian Standards can be expensive for small businesses, who may have the greatest need for OHS management standards, whereas government publications, such as Codes of Practice are generally free.

Australian Standards are important for many industries, particularly, those that are required to be audited and/or accredited.  Needless to say there is a considerable secondary industry of auditors for these sectors.

All Australian Standards are only guidelines but many have been granted legislative clout by being referenced in law.  As mentioned above a considerable industry has developed in support, providing some legitimacy to the guidelines through weight of numbers.

Safe Work Australia recognised the important role of Australian Standards, but with several qualifications:

“The COAG [Council of Australian Governments] Guidelines recognise that the use of prescriptive requirements, such as those in Australian Standards, while not preferable, may be unavoidable in order to ensure safety.”

Standards Australia must have realised by now that the days of automatic legitimacy through referencing in legislation may be numbered for many of their Standards .  Their previous operating model has had to be thoroughly revised, government and business are fierce on reducing red tape, international standards have been developed that can be applied in Australia, and contributing organisations are reviewing their own costs of participation.

In fact so keen is the government on the reduction of red tape that it established an Office of Best Practice Regulation in the Department of Finance.  On Finance’s website is a clear statement of aim:

“The Government has committed to reducing the regulatory burden on Australian businesses, non-profit organisations and consumers.  This is consistent with larger commitments to address impediments to Australia’s long-term productivity growth.”

Employer groups have identified industrial relations and OHS requirements as “impediments”.

There is no doubt that in many circumstances technical standards are essential reference documents for improving safety, in particular, and for showing that workplace safety is being managed in a systematic and verifiable manner.  The big question is whether those technical standards should be those produced by Standards Australia.

Kevin Jones

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