Category: law

Confusion over bullying and sexual discrimination on display in air traffic controller media reports

The Australian media is providing considerable coverage to the legal claim by two female workers against Airservices Australia over bullying and sexual discrimination.  Airservices Australia is a government organisation that control aircraft movement over Australian airspace.

The details of the harassment mentioned in the media are quite offensive and have no place in the modern workplace.

There are a couple of OHS related issues that pertain to the legal action and the media articles.  Firstly, the media struggles to differentiate between sexual discrimination, sexual harassment and workplace bullying.  Bullying has the most direct relationship to occupational health and safety but the others generate stress in the workplace and therefore the impacts, if not the actions, fall within the OHS purview.  The Australian Financial Review (AFR) (page 7, not available online) has a headline “Flight controllers sue for sexual discrimination” yet the article reports on bullying.   Continue reading “Confusion over bullying and sexual discrimination on display in air traffic controller media reports”

Australian PM mentions OHS harmonisation in election debate

On Sunday 25 July 2010, during the first debate of Australia’s election campaign, Prime Minister Julia Gillard used OHS harmonisation as an example of an achievement that she has been able to introduce that has benefited the Australian people.

The process is in a public hiatus at the moment that began before the election was called.  Much of the public discussion on harmonisation has concluded and now the stakeholders are developing drafts regulatiosn, codes and guidances behind the scenes in Canberra.

Prime Minister Gillard’s mention of OHS harmonisation should reassure that the government leaders have not forgotten that the process is occurring.  However it is highly unlikely that this issue resonates with the general public but, on this issue, that was not the audience.  Harmonisation was one of the few policy issues that is focussed on business concerns, business costs and has the wide support of the business community.  It does not involve taxes.  It does not (directly) involve industrial relations.  It does not rely on unions for implementation.

The fact that harmonisation has been mentioned in an election campaign debate is reassuring but nothing more than that.  It is an issue that could be used and that few would argue against because if one did, one would be arguing against the safety of people, at least in the understanding of the general public.

The mention is a footnote in the debate and is unlikely to get any mention in the press on Monday morning.  Indeed it is unlikely to get another mention in the election campaign, but it was, and we need to be content with that small win.

Kevin Jones

OHS law reform should not rely on Courts for clarification

Since the early 1970’s OHS law has been “de-lawyer-fied”.  The intention of the law is to empower workers and employers to manage safety in the workplace to meet basic human rights – the right not to be injured at work, the obligation not to hurt others.  Good law allows for the basic legislative tenets to be readily understood.  Poor law is difficult to understand and leads to increased business and personal costs in order to determine compliance.

I would argue that Australia’s recent aim of the national harmonisation of OHS laws will lead to complexity and cost – the opposite of what was intended – and a disempowerment of the workforce as the legal imperative overrides the safety management obligation.  The major weakness in the law is its seeming reliance on the Courts to clarify the laws, their application and their relevance.

Legal commentators on the laws have stated publicly that the impact of the law will not be clear for several years and that many questions about the laws will only be answered when prosecutions are brought and the Courts hand down decisions.  This process is sloppy, should not be accepted unquestionably by OHS professionals and does almost nothing to help the vast majority of Australian businesses to comply. Continue reading “OHS law reform should not rely on Courts for clarification”

BHP Billiton receives minimal OHS penalty – time for a new approach

Some time ago a penalty concept circulated in Australia where OHS penalties were implemented as a percentage of as company’s revenue or profit.  The concept gained renewed topicality in mid-July 2010 as BHP Billiton was penalised $A75,000 after the death of a worker, Scott Rigg. (Video report available)

The fine seems paltry for a fatality and more so when the company’s OHS record is taken into account.  As the video report states, BHP Billiton could have been penalised $A200,000 but even this is a relatively small fine for such a company.

The Australian Government has been willing to apply a 40% tax on the mining industry’s profits but is unlikely to apply a percentage penalty in relation to OHS.   Continue reading “BHP Billiton receives minimal OHS penalty – time for a new approach”

Psychological advice on handling people that is broadly applicable

The latest edition of Lawyers Weekly includes an article ostensibly about managing bullies in the legal profession written by psychologist, Dr Chris Day.  The article provides some general tips, though, that are useful to any of us who need to make decisions refreshingly she reflects two options that I offer to my OHS clients on safety matters that do not include bullying.  Dr Day says that any problem can be solved by these actions

  1. “Leave…
  2. Change the situation…
  3. Accept the situation…
  4. Do nothing….”

Leave and change are included in the OHS Hierarchy of Control under different terminology.  Doing nothing is advice that few OHS consultants will give but is a strategy that many small businesses apply.  Their risk management strategy is to press their luck and in some cases this can work.   Continue reading “Psychological advice on handling people that is broadly applicable”

Safety Cases must become a reality in the US

Some of the media, over the weekend, was critical of BP for not applying a Safety Case to the BP/Deepwater horizon oil rig.  The Safety Case is an established method of assessing risk in high-hazard organisations and should have been applied.  Whether such a technique would have made any difference is debatable as it is hypothetical.

Safety Case regimes have proven effective and are used as a default risk setting in many corporations but the story is not only one of a specific Safety Case missed opportunity.  BP is an example of corporate hypocrisy that supports the cynicism of the community to large corporations whose actions do not reflect their commitment. Continue reading “Safety Cases must become a reality in the US”

Apprentice set on fire, bully gets $5k penalty

Most of the Australian media covered the prosecution of the latest of three young men who set fire to a work colleague during their apprenticeships.

As the case was heard in a Magistrates’ Court, the only sources of information on the case are a couple of original media reports and the statement from WorkSafe Victoria which says:

“Matthew Lever, 23, was the third apprentice to be prosecuted after a January 2008 incident where three apprentice mechanics ignited brake-cleaning fluid which they sprayed on another apprentice….

The Ringwood Magistrates’ court today [1 July 2010] convicted Matthew Lever on three charges under the Occupational Health and Safety Act and fined him $5,000. The two other apprentices were convicted on health and safety charges in December 2008, and also fined $5,000 each.” [link added]

WorkSafe says it is “currently investigating a similar incident which occurred in Dandenong in March, where two apprentice mechanics suffered burn injuries after allegedly igniting brake fluid.” Continue reading “Apprentice set on fire, bully gets $5k penalty”

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