law – Page 224 – SafetyAtWorkBlog

Radio interview on harmonisation of OHS law

Last week, I had the pleasure of being interviewed byElanor McInerney of the 3CR radio program, Stick Together. The interview concerned the harmonisation law in Australia and my thoughts on the risks and impacts it would have on Australian business and workers.

The radio program is now available as a podcast (My part is around the 19 minute mark.)

Please let me know if I am totally off the beam with my applications of the OHS laws and the political issues.

I thank Elanor and the producers of Stick Together for making this available so soon after the broadcast on 17 May 2009.

Kevin Jones

Political response to new OHS laws for Australia

The Australian government got what they wanted for the harmonization of OHS laws but some persistent political shenanigans.

Troy Buswell, Western Australia’s Treasurer, is making political mileage with some bluster as the only Australian State run by the Liberal Party. Politically he could not be seen as following the lead of the Australian Labor Party but will “continue our dialogue with the council”. He does not have much option particularly as the Federal Workplace Relations Minister, Julia Gillard reminded him that he could risk his access to federal funding by risking a breach of the inter-governmental agreement. Expect Buswell to concede having saved face.

Joe Tripodi, the New South Wales Finance Minister, has expressed his disappointment. Tripodi knew what was coming as the compromise options had been flagged long ago. But from the state that has the most overtly-influenced government, he perhaps had as much face to save as Buswell in WA. The employers groups in New South must be jumping with joy this morning as one of the most contentious and divisive elements of NSW OHS legislation will go – the union’s right to prosecute. The process for instigating an OHS prosecution is formalized in the new model OHS legislation and still allows unions to begin prosecutions but with less direct control.

Tim Holding, the Victorian Finance Minister, is having trouble containing his excitement.

“This is a resounding endorsement of Victoria’s OHS laws, which will provide the building blocks for the new national scheme”.

Does anyone wonder why Victorians are so disliked by the other States? Is Holding’s over-confidence an indication that the Victorian OHS law was always going to be the dominant influence on the national law and perhaps the model OHS Law review was unnecessary for change and just a case of political processes?

In the euphoria, there are some words of caution. There has always been concern that if any States flexed their muscles and opted-out seriously then true harmonization would not exist and Australia would go back to the fuzzy days of a National OHS Framework that everyone signs up to but does not act upon. It is likely, with the tough Federal Government approach, that this won’t occur however a spokesperson for the Business Council of Australia is quoted as saying (page 3 of the Australian Financial Review 19 May 2009, not available online):

“If any states decide to opt out of the process, then we won’t have a fully harmonised system of OHS and that’s bad for business.”

The government’s response to the model OHS Law review is available online or as a page in this blog.

SafetyAtWorkBlog will be updated regularly over the next few days as interesting and relevant opinions and comments become available.

Kevin Jones

Decency at work

In 2001 the House of Lords was presented with a Dignity At Work Bill. This seemed a great idea for unifying different elements of the workplace that can contribute to psychosocial hazards. This would be a similar approach to using “impairment” to cover drugs, alcohol, fatigue and distraction. However, it never progressed.

Regular readers of SafetyAtWorkBlog would note an undercurrent of humanism in many of the articles but it is heartening to see this in other articles and blogs. Maud Purcell of Greenwich Times provides an article from early May 2009 on dignity in the workplace in a time of economic turmoil that you may find of interest and use.

Kevin Jones

More last minute lobbying but with compromise

The Business Council of Australia is the latest employer group to actively lobby Australian industrial relations ministers over harmonised OHS laws on the eve of the crucial Workplace Relations Ministers’ Council (WRMC) meeting. BCA’s CEO Kate Lahey is reported in today’s Age newspaper as saying that the rejection of OHS law reform would say to investors that the States were not interested.

The Mineral Council of Australia has stated in the same article that

“… a uniform OHS act will enable all businesses to focus on improving health and safety outcomes…”

Outcomes can be many things but much of the commentary over the last week seems to misunderstand the aims of the government’s review. As I tried to emphasise on an interview on 17 May 2009 on radio 3CR, it was a review of OHS law not OHS management. Satisfactory levels of safety have already been achievable under existing OHS law. A change of law does not equate to a change of approach or commitment.

The chance of the OHS reforms not going through was weakened on the weekend when the New South Wales Industrial Relations Minister, Joe Tripodi,

“signalled a compromise on the absolute duty of care that requires employers to prove a workplace is safe…”

New South Wales was the crucial sticking point in national negotiations and and the minister’s compromise is likely to be that the reverse onus only applies to corporations and that individuals be exempt.

If the WRMC decides to follow the National OHS Model Law Review Panel reports, OHS Law will be streamlined for lawyers, the Courts and OHS regulators. This will benefit those businesses that operate across State borders but it will make little difference to the vast majority of workplaces in Australia.

The recommendations of the Reports were not that radical. The recommendations were, as expected, a copy of the Victorian OHS Act with bits added. In fact, some lawyers question whether the OHS Model Law Review was really necessary given the bland predictable outcomes.

Many were wishing for an OHS revolution like that achieved by Lord Robens in the 1970s. The fact is that the review was given limited resources and limited time to reach a conclusion. The recommendations seem to be acceptable to the government and unsurprising.

The main game in Australian politics at the moment is industrial relations. Any OHS changes will best understood through analysis of their IR implications.

Kevin Jones

How many Australians work from home?

SafetyAtWorkBlog is mostly produced from a home office. This is principally because the type of work undertaken can be done in a domestic setting. There are thousands of small – and micro-businesses in a similar situation. Thousands of people choose to run their businesses from home.

This has often been overlooked in the teleworking movement over the last decade or so. “Working from home” has more often than not been considered an addition to working in an office. The home workplace is seen as a back-up to a principal place of work.

In early may 2009, the Australian Bureau of Statistics released statistics on working from home, both as a main and second job. The media statement emphasises those who take work home and does have one paragraph on home-based businesses.

“People who were owner managers in their main job were much more likely to use their own home for their main location of work (27% of the 1.9 million owner managers) than employees (1.4% of the 8.2 million employees*). Women who were owner managers in their main job were more likely to use their own home for their main location of work than male owner managers (45% compared with 18%)”

The media statement went on :

“Around one in every 12 employed persons (764,700 persons or 8%) worked more hours at home than any other single location in their main or second job. Of these people:

The majority (83%) were aged 35 years or older

55% were women

39% were in families that had children aged under 15 years old

The main reason for working from home was ‘wanting an office at home/no overheads/no rent’ (37%), followed by ‘operating a farm’ (21%) and ‘flexible working arrangements’ (15%)

31% worked 35 hours or more at home in all jobs”

The OHS profession has never really been able to cope with a workplace that is also a domestic residence. To help, OHS professionals advise to have a dedicated home office so that the workplace has a defined area. This allows OHS obligations to fit the concept.

Working from a kitchen table with a dog, a hungry child and three baskets of washing to hang out, is not what the legislation anticipated but it can be the reality.

Another reality is that many media and professional people can work out of their car or local cafes almost 100% of their time. How does the advice from an OHS professional match those scenarios? Legislation based on the assumption of a fixed work location or site might not meet these particular working environments.

Another thing that is always annoying is the assumption that it is office workers who work from home, so the tasks are necessarily technologically based. Any OHS advice should apply to the issue of working from home in a broad sense and not just to specific work tasks.

As many professions become portable, OHS laws and legislation need to accommodate the flexibility. If not more so, so do company policies, job descriptions, claims assessments, workplace safety assessments and others.

Kevin Jones

Big fine for go-kart death

The AAP and others are reporting a big fine over the death of Lydia Carter whilst driving a go-kart at a work function held in Port Melbourne in 2006. The significance of the $A1.4 million fine is that the company, AAA Auscarts Imports Pty Ltd, is not a large or multinational corporation.

Ms Carter was wearing a seat belt that did not fit properly and safety barriers on the track had been incorrectly installed.

Judge Duncan Allen said

“There is no doubt in my mind that (Auscarts) not only was fully aware of the risk, but was fully aware of the ways to reduce them”

“The company showed a gross disregard concerning the safety of employees and the public.”

For OHS professionals this case, which ended today (12 May 2009) in the Victorian County Court, will generate a fair degree of attention because of the fine’s size. However, from the information currently available, the case seems one of the go-kart company having a work environment that was unsafe for customers, the company being aware of this and not doing enough to fix it.

SafetyAtWorkBlog is also looking into how Ms Carter’s death has changed her employer’s organisation, what effect it had on her colleagues, what policy changes have been made, amongst other matters.

The judgement will also be made available as soon as possible.

Kevin Jones

Australia’s OHS harmonisation likely to fall

Media reports on 11 May 2009 do not provide optimism for the introduction of harmonised OHS laws in Australia. The Australian reports that the ACTU is lobbying Federal ministers over the reports into the model OHS law that are scheduled to be discussed at the Workplace Relations Ministers’ Council on 18 May.

The unions believe that following the recommendations of the review panel will provide workers with lesser standard of safety protection than they currently have.

The government has been slow is responding to the recommendations of the review panel, an odd action given the tight reform timeline they set. However, the government has shown that timelines are flexible even when the future of humanity is threatened by climate change.

The ACTU will be campaigning in the media this week against the weakening of OHS laws, particularly the extremist laws of New South Wales. Whether this is an ambit claim or not will be found out next week but whatever it is it shows regrettable shortsightedness on the part of the ACTU.

The Australian Financial Review (page 5, 11 May 2009, article not available online) seems to take some glee in the fact that the safety laws are “shaky”. The paper may be caught between watching the Government’s agenda failing again or advocating legislative change to reduce the operational costs of its readers. The AFR reports that three States are digging in against the possible OHS law reforms. New South Wales (largely seen as dominated by the trade unions), Queensland (new IR Minster Cameron Dick wants the State’s reverse onus of proof to be applied) and Western Australia have indicated a hesitance to accept.

The Federal Government needs a two-thirds majority for the national OHS legislation to occur and, with a week to go, SafetyAtWorkBlog expects the government to apply some horsetrading for the new laws to pass.

Having said that noone yet knows what the new laws are that will be proposed. The Government has received the review panel reports but has yet to respond to the recommendations.

Any law reform focused on national harmonisation is unlikely to succeed unless there is unanimous support for the reforms. The fear all along with the OHS laws is that agreement will be short-term until state governments decide that their industries or industrial relations situation have special needs and responds parochially and weakens the national strategy.

The challenge for the Federal Minister for Workplace Relations, Julia Gillard, is to achieve unanimity AND lock in State support for several years so that harmony and stability can be achieved. OHS law reform on this scale occurs rarely and all parties should be looking at the long term on this issue rather than their own state-based petty power struggles. We have to wait till early next week to see which States have the mature politicians.

Kevin Jones

Category: law

Radio interview on harmonisation of OHS law

Like this:

Political response to new OHS laws for Australia

Like this:

Decency at work

Like this:

More last minute lobbying but with compromise

Like this:

How many Australians work from home?

Like this:

Big fine for go-kart death

Like this:

Australia’s OHS harmonisation likely to fall

Like this:

Share this:

Like this:

Share this:

Like this:

Share this:

Like this:

Share this:

Like this:

Share this:

Like this:

Share this:

Like this:

Share this:

Like this: