law – Page 231 – SafetyAtWorkBlog

Legal summary on OHS Review report from Mallesons

Mallesons is the next Australian OHS law firm to issue a statement on the first report by the National OHS Law Review panel. The report is not much more than a summary, as commentary is kept to a minimum.

What is interesting is that they mention the alternate sentencing options of

adverse publicity orders
remedial orders
corporate probation
community service orders
injunctions
training orders, and
compensation orders.

As with the monetary and custodial sentences, if these become included in the law it does not mean that the will be applied very frequently, if at all.

Adverse publicity orders seem peculiar and outdated as they usually apply solely to the print media. With the growth of the internet and with most companies having websites of some sort, it would be useful to vary such orders to include longevity and reach, rather than a single ad in a newspaper that does not remain in the public mind for long.

Now there is an opening for a safety-monitoring weblog.

Statements on Australia’s OHS review report

According to today’s The Australian, Australian trade unions has “panned” the first report by the National OHS Law Review. Here is what the ACTU Assistant Secretary Geoff Fary said,

“We are pleased that the Panel Report has recognised that breaches of OH&S laws are criminal rather than civil matters. These recommendations are a step in the right direction, but need to go much further to protect working people by tightening up the rules on employers’ duty of care to their workforce.

“There is a real need to address the carnage that is taking place in workplaces by increasing fines and tightening up employers’ duty of care, but we are concerned that in NSW and QLD injured workers and their families will lose out because they already have laws that squarely put the onus of proof on employers when they allegedly breach the law.”

“Unions believe that the ability to fine companies a percentage of the turnover would be a better deterrent, because even a $3 million fine is a drop in the ocean for some big corporations. At the moment employers can get fined more for breaching trade practices law than for being found guilty of contributing to employees being killed or maimed in their workplace.

“The courts should also be encouraged to use the maximum penalties. At the moment they don’t.

“Unions will continue to campaign for laws that put an unqualified duty of care on employers to provide a healthy and safe workplace.”

For balance, below are the relevant statements from Mr Scott Barklamb, Director of Workplace Policy
with the Australian Chamber of Commerce & Industry:

“Whilst there is significant detail to be analysed across the report’s 75 separate recommendations, the review panel appears to have taken a sound approach on critical issues such as ensuring that the core safety obligation on employers is limited to doing that which is reasonably practicable, and that the prosecutor must bear the onus of proving any breach of OHS law beyond reasonable doubt.”

Michael Tooma, a partner with Australian law firm Deacons, was commenting on a survey that his firm undertook which indicated that the respondents would prefer a “clean sheet” approach to OHS regulations in this country rather than trying to reconcile laws from nine jurisdictions.

At this point in the review process, any change in direction is highly unlikely and may not fit with the Review Panel’s terms of reference. The risk in doubts about the process is that an unstable OHS legislative structure could be imposed on Australia that nobody will be happy with and, of course, longevity and continuing relevance is an important consideration in legislative development.

The cautious comments by Scott Barklamb are wise in that the really contentious elements of reform are due in the second report on broader OHS matters due in early 2008.

National OHS Law Review – First Report released

The first report of the National OHS Law Review panel was presented to the Australian Government yesterday. The best initial assessment of the report can be found at a safety blog operated by Deacons law firm. In that report by Michael Tooma and Alena Titterton, the following points are made:

there should be a general duty of care for health and safety
“worker” is defined more broadly as ‘person who works in a business or undertaking’
“the Report recommends that a defined ‘reasonably practicable’ be built into the offence in the model OHS Act which reflects the current approach taken in all jurisdictions except New South Wales and Queensland.”
“The prosecution will bear the onus of proof beyond reasonable doubt on all elements of an offence”
Offences could be indictable and heard in front of a Judge and jury.
Increased penalties in line with those for environmental breaches – Corporation = $3 million, Individual = $600,000 Imprisonment – up to five years
An appeals process where cases could be taken to the High Court of Australia

“Reasonably practicable” remains a concept with a floating meaning for most business owners and OHS professionals. For a type of legislation that is intended to be readily understood by a layman, this legalese is disappointing however it is likely that clarification will come from the OHS regulators as it has already in some States. The review panel supports this type of clarification.

Interestingly, the report says on “the primary duty of care” that it “should not include express reference to control” and that

‘Control’ should not be included in the definition of reasonably practicable.

The panel says that “control” will be discussed in the second report as will the definition of a “workplace”.

The Deacon’s authors remind us that reports of this type are not automatically implemented by governments and that the review process has several months to run.

The report needs to be read carefully by OHS professionals as the recommendations will set the scene fro OHS law in Australia for, perhaps, decades. Also, going beyond the list of recommendations allows readers to see which of the issues considered were contentious and which had uniform acceptance.

The trade union movement is yet to release public statements but according to one media report, Geoff Fary of the Australian Council of Trade Unions is

“disappointed that a qualified duty of care would continue to rest with the employer”.

That same report is headed “Prison time for unsafe bosses” raising the spectre of industrial manslaughter. That does not seem to be case and may say more about the readership of The Australian or the politics of the sub-editors. However, it will be interesting to see the responses of the employer associations over the coming days.

“Suitably qualified” OHS professionals – who benefits?

For many years OHS regulators have been concerned about the quality of advice that OHS experts have been providing to businesses in Australia. Some States have a regulated profession, others do not. Certainly there is no regime in Australia that compares to the “closed-shop” of Singapore.

I have seen no evidence of bad OHS advice to business. Looking through legal databases doesn’t help, as cases are too difficult to find and the regulators say they have evidence but they usually don’t share.

For over thirty years, OHS legislation has stated that OHS management in a workplace is, principally, the responsibility of the employer. This also means that an employer is responsible for any OHS decisions made based on their own assessments, which may involve advice from an external adviser.

As an OHS consultant I provide the best advice I can. If the client needs advice in an area that I am not knowledgeable in, I contract a suitably knowledgeable colleague as part of servicing my client. Any advice I provide is clearly specified as coming from the information provided by the client and my observations on the day. What decision the client makes is up to them. This point is made in the WorkSafe Victoria paper mentioned below. The paper says

“It is important to note that employing or engaging a suitably qualified person to provide OHS advice does not discharge the employer from their legal responsibilities to ensure health and safety as required under Part 3 of the OHS Act. This duty cannot be delegated”

This week WorkSafe Victoria released a position paper to clarify a section of the OHS Act. According to the website

“This document sets out WorkSafe’s position on the meaning of section 22(2)(b) in the context of duty holders meeting their obligations under Part 3 of the Occupational Health and Safety Act 2004 (OHS Act).

Part 3 (sections 21 to 23) of the OHS Act places duties on employers to ensure health and safety.

Section 22(2)(b) provides that employers must, so far as is reasonably practicable, employ or engage persons who are suitably qualified in relation to occupational health and safety to provide advice to the employer concerning the health and safety of employees of the employer.”

My belief is that OHS consultants should be called in, primarily, for a second opinion. This opinion is provided after the employer and worker representatives have “had a go” at identifying hazards. In my experience, businesses have a fair idea of the workplace hazards present but are not sure how to prioritise the controls of those hazards, and may be unaware of new control measures. This is where the OHS consultant comes in.

Few OHS professional associations in Australia provide their members with information on how to do your job, or how to apply your knowledge in a commercial context. Until recently few tertiary institutions provided this service and I would like to hear of those OHS courses that now do teach business practices to graduates.

(I remember attending a Ergonomics Society conference in Sydney almost ten years ago. It was the first time anyone had spoken on the issue of professional ethics to the ergonomists. I would be surprised if other Australian professional associations have progressed this far)

According to the position paper, these are the elements that they consider “may” make a suitable qualified person:

Knowledge

Industry experience

Professional activity

Reputation

Professional association

Communication skills

Technical expertise

OHS legislative understanding:

Risk management strategies

From that basis, below is my plain English checklist for businesses to assess their OHS advisers. Comments are in brackets:

Knowledge: Does the professional have an educational qualification that is relevant for your needs? (I have never been asked to show my education qualifications by a client. Also, having an educational qualification does not equate to competence, in itself, no matter what the education evangelists say)
Industry experience: Do they know what they are talking about? (This is impossible to verify unless they have worked in an industry for a long time in a prominent role. One could ask for references but the references are always friendly to the adviser)
Professional activity: Can the person demonstrate recent professional activity in the relevant OHS field? (Activity does not mean that the quality of that activity was any good. A snake-oil salesman could have been in business for a decade but they still sell snake oil. This is also relevant to the educational evangelists – academic papers in peer-reviewed journals do not indicate competence in advising companies on the best hazard control measures)
Reputation: Have they been any good in the past? (This can be indicated by googling their full name. I recently found an OHS adviser with a criminal record and jail time for “failing to act honestly as a director of various companies”. However, an internet campaign can be used to unfairly discredit someone. The best way of checking their reputation is the talk with the adviser’s professional association, should they be in one and should that association know what it’s on about.)
Professional association: Do they belong to a relevant professional association? (This is a good move but many associations allow advisers to buy membership without any verification of their competence? The flaw in this criterion is the validity of the association, its disciplinary procedures and its criteria for membership. Do not over-emphasise this criterion)
Communication skills: Can they read and write?
Technical expertise: Do they know how to use their tools properly?
OHS legislative understanding: Do they know there is an OHS law? Have they read it? Do they understand it?
Risk management strategies: Does their advice control the hazard or simply reduce its impact?

But then, this could all be tosh. Seek a second opinion.

Australian Greens Senator speaks on OHS legislation

Senator Rachel Siewert spoke on Australia’s review of OHS law on 13 October 2008.The Senator summarised the statistical reason for OHS legislation (included here as statistics is a popular issue at SafetyAtWorkBlog), as well as the societal context.

Australian Greens Senator for Western Australia Rachel Siewert

“The importance of occupational health and safety is obvious from looking at even just a few key statistics. In 2004 Access Economics estimated that there were 4,900 work related deaths each year in Australia. The ABS calculated that 690,000 employees suffered from a work related injury or illness in 2006. The Productivity Commission found that, in 2004, workplace deaths, injuries and illnesses cost the economy over $30 billion a year. These figures go to the economic and, importantly, the personal and social costs of workplace injuries and deaths. Behind each of those numbers is a person with a family, workmates, friends and a community.”

Senator Siewert reiterates the timetable for the initial report of the National Review into Model Occupational Health and Safety Laws is due by the end of this month but also identified a plethora of inquiries, agreements and discussions that will also inform the Australian government’s ultimate decision on OHS law. She supports the concept of tripartism:

“We believe that building on best practice in OH&S in this country and around the world is to implement genuine tripartism and independence. On these criteria, this legislation is too skewed in favour of governments and to the detriment of other key stakeholders in OH&S regulation-that is, employees and employers. [The Robens report in the 1970s]. It went on to recommend that statutory recognition of joint consultative practices-including government, employees and employers-need to underpin the new approach.”

But also makes the pitch for broader representation:

“If you agree with this approach-and all of Australia’s OH&S laws are based on this concept-then you also have to acknowledge the importance of genuine participation of employers and employees through a representative structure. The NOHS Commission did recognise this and was established as a statutory corporation with a membership structure incorporating employee and employer representatives. Its functions included formulating policies and strategies relating to OH&S matters, reviewing and making recommendations for the making of laws relating to OH&S matters, researching OH&S matters and conducting inquiries into OH&S matters.”

My recollection of NOHSC was that representation remained the domain of employer associations, trade unions and the government. Independent OHS specialist were few and far between. Given the dreadfully poor rate of union membership in Australia, it would have been more progressive for the Senator to nominate independent OHS specialists and to propose a 25% ratio of represntation for each of the representative groups so that (hopefully) apolitical opinion could be provided on a subject that should be apolitical. (And I still think an OHS Ombudsman is a practical and useful concept.)

In 2004, in its report into national workers compensation and occupational health and safety frameworks, the Productivity Commission made a number of recommendations relevant to the National Occupational Health and Safety Commission, including having a specific objective of achieving national uniform OH&S regulation and joint funding from the states. We note that this bill does implement these recommendations. The Howard government, however, instead of implementing those recommendations, once it got its chance by taking control of the Senate, abolished the commission. Prior to being able to abolish the commission, the previous government had already reduced its funding significantly. Between 1996 and 2005 the then government slashed the budget by over $4 million. We believe OH&S was never much of a priority for the Howard government.

The Senator places the proposed Safe Work Australia authority in a particularly awkward position:

“Safe Work Australia fits somewhere in the middle of the NOHSC and the ASCC. It continues the practice of being tripartite-although inexplicably downgrading the representation of employee and employer representatives-and, while more independent of government than the ASCC, is significantly less independent than the NOHSC.”

Other Greens’ concerns are:

reduced representation
vague definitions on ‘authorising body” or those associations who become represnetatives
excessive and unnecessary ministerial control, including veto
two-thirds majority decisions
insufficient funding for research

It would be interesting to hear the thoughts of other minor parties although the position of Family First may change in line with varying economic situations.

When psychosocial hazards originate from poor management

There are still some OHS professionals who are uncomfortable with approaching workplace hazards that do not involve nip-points and energy-transfer. In fact there are some who can’t cope with the industrial relations interplay with occupational health and safety. A major industrial relations problem ran for some time at Tristar Steering and Suspension. The absurdity of this…

OHS uniformity is looking unlikely

Michael Tooma, a lawyer with Australian law firm Deacons, has stated

“Despite the enthusiastic manner in which the harmonisation agenda has been pursued, and the appearance of progress in that regard, it is likely that the quest for uniformity in OHS laws across Australia will remain elusive.”

His reasons for this statement in a recent edition of Safety Solutions magazine (August/September 2008) are

The National OHS Review was set up to develop model legislation for implementation in each State jurisdiction;
Duty of Care is absolute in two States, Queensland and New South Wales;
“Reasonable practicable” is not applied in each State to the same extent;
The New South Wales right for unions to undertake prosecutions for OHS breaches;
Not each State has a legal forum dedicated to handling OHS prosecutions;
The level of enforcement of OHS law is inconsistent between States; and
The level of maximum penalty available.

Tooma is worth listening to for lots of reasons but principally he seems to be less wrapped up in political baggage compared with other OHS legal commentators.

Tooma seems to favour an industrial or OHS court because of the substantial jurisprudence that has been achieved through the New South Wales Industrial Commission. I support the expansion of this type of court as NSW decisions, regardless of legislative differences, can be particularly useful is clarifying the most suitable OHS interventiosn for particular hazards.

He also says that enforcement must be consistent. This is true or else, if given the chance, an employer could undertake certain hazardous tasks in the jurisdiction where enforcement or prosecution is less effective and active.

This relates, in a way, to Tooma’s last point on penalties. An OHS offence in Victoria could lead to jail but in Tasmania, not. A monetary fine of over $1 million could apply in some States with only $180,000 in another.

It seems that the fantasy of one OHS law for Australia will remain a fantasy. The trick will be whether, after months of government review and hundreds of submissions, there will be sufficient consistency across the States. The likelihood is that we will be slightly better off but still with State variations. We have a little less red tape but red tape nonetheless.

My question will be, was it worth it?

Category: law

Legal summary on OHS Review report from Mallesons

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Statements on Australia’s OHS review report

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National OHS Law Review – First Report released

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“Suitably qualified” OHS professionals – who benefits?

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Australian Greens Senator speaks on OHS legislation

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When psychosocial hazards originate from poor management

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OHS uniformity is looking unlikely

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