Category: law

Independent okay for New Zealand’s sex industry

In 2000, sexworkers advocates in Australia published “A guide to best practice – Occupational health and safety in the Australian sex industry”. They tried for some time to have OHS authorities accept it as an industry-based code applicable to that particular State. As far as I know, they were unsuccessful but many of the elements of the guide have been picked up in various laws and licensing conditions since then. An updated soft version of the guide is available online, along with guidelines from other jurisdictions. (My edition of Safety At Work concerning the sex industry is still available as a free download)

I was reminded of this today when I saw a report from New Zealand about sexworker safety. It was reported that two Women’s Institute members from England have undertaken a world tour of brothel districts to determine the impact of local laws on prostitution. They were very impressed by New Zealand’s sex industry.

I am very impressed that an institution like the Women’s Institute undertook this activity. The realist approach to an activity that will never go away speaks volumes for how an organisation unfairly stereotyped is establishing a contemporary relevance.

Disclaimer: I treasure the WI Cookbook I purchased in the Lake District on my honeymoon over 20 years ago. It’s much better than some of the modern books that rely on manufactured ingredients.

The need for broad and open consultation on OHS law

Bill Calcutt makes some excellent points about the consultative strategy used by the Australian government in its recent 2020 summit.  The summit showed that this government had differentiated itself from the previous conservative one through “transparent evidence-based decision making” and a wide consultative base, even though the guests were selected. Sadly, I am not sure…

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The Crucial OHS Review Role of John Della Bosca

The New South Wales Industrial Relations Minister, John Della Bosca is a linchpin in the move for harmonisation of OHS law in Australia.

All attention is on New South Wales as it is said to have OHS laws that are the most onerous on employers.  Employer groups are calling for a greater preventative focus and more cooperation on improving workplace safety, specifically those areas of conflict that employer groups have in New South Wales.

Della Bosca supports the New South Wales OHS regime, at least lately he does, in reaction to the employer groups wanting, according to the Minister, a “version of harmonisation…aimed at reducing safety standards and eliminating the strong NSW laws.”

The NSW Minerals Council, reported in the Australian Financial Review on 13 June 2008 (page 19 sorry, there is no online reference), has concerns over the New South Wales operation of duty of care, double jeopardy, and appeal rights. 

The wobbly element in the NSW argy-bargy is the political future of John Della Bosca.  He has been stood down from his portfolio due to events relating to an alleged altercation in a restaurant that involves his wife, Belinda Neal, who is a member of the Federal Parliament. (Any internet search on “Della Bosca” is sure to turn up articles on this as the story has been running for almost two weeks).  Della Bosca is one of the strongest performers in New South Wales politics and has held the IR portfolio for a long time.  Political analysts are saying he will weather the storm but that his wife has little parliamentary future. 

In the mean time, Della Bosca’s strong position on OHS is absent in the political discussion and this will have ramifications in the harmonisation process.  The Treasurer, Michael Costa, the only other strong NSW performer, could take on the role but the longer Della Bosca’s absent, the more ground the government and its strong trade union support loses to the employers.

In a roundabout fashion, this also puts pressure on the recently-appointed Secretary of the Australian Council of Trade Unions, Jeff Lawrence.  Some unions are less than impressed with his political performance.  In Della Bosca’s absence, Lawrence needs to step up his lobbying and maybe continue it even when the Minister returns.

Two avoidable electrical fatalities

In February 2000, McDonald’s Australia Limited was fined $120,000 in the Industrial Relations Commission in Sydney and the lessor of the Wollongong restaurant, McDonald’s Properties (Australia) Pty. Ltd, was fined $150,000. Lyndhurst Trading Co Pty. Ltd, leased the restaurant and owned and operated the clamshell grills which electrocuted 19-year old, and was fined $40,000. 

According to a report by Jennie Mansfield, senior associate with Blake Dawson Waldron in October 2000

Michael Johnston was a 19 year old employee of Lyndhurst Pty Limited (the employer), a franchisee operating a McDonald’s restaurant in Wollongong on the South Coast of New South Wales. Johnston … was fatally electrocuted while cleaning behind a clamshell grill – standard equipment in McDonald’s restaurants.

Since installation, the grill had been pulled away from the wall every night for cleaning, and over time the cable attaching it to the power outlet contractors and fast food had become abraded. There was no accessible isolation switch in place and Johnston was electrocuted when he touched the exposed inner core of the cable while the power was still connected.

I was reminded of Michael Johnston’s death when I was told of a successful prosecution in New South Wales on 2 June 2008.

A Salamander Bay resort hotel has been fined $150,000 and its three directors $12,000 each following the electrocution of a 13-year-old boy at the hotel’s pool in December 2002.

The local boy and a friend were playing in the Salamander Shores Hotel pool without the permission of the staff when a tennis ball was thrown outside the pool fence.

The 13-year-old received an electric shock when climbing back over the pool fence to retrieve the ball, and died later of his injuries.

A WorkCover investigation concluded that the boy had stood on a corroded section of pipe carrying electrical wiring, which collapsed and cut through the insulation. 

Both situations involve a lack of adequate maintenance and equipment checking. Two deaths because of the invisible, but foreseeable, hazard of electricity and inadequate management.

Michael Johnstone had been a McDonald’s employee for 2 weeks. The 13-year-old was simply playing with a mate.

Roadside drug testing of commercial drivers

On 1 June 2008, the South Australian Minister for Road Safety, Carmel Zollo, announced an increased enforcement campaign against drug-affected drivers. 

In her media statement, Ms Zollo says

“When people take drugs and drive, they are taking a deadly risk – and the worst possible outcome of such irresponsible behaviour is a tragic crash. Drug testing is relatively new and we need to do all we can to change attitudes – we need people to know they will pay a price, one way or the other – and we need to convince them the best thing to do is to stay off the roads.”

Given the large number of commercial vehicles and drivers on the road, I asked the Minister’s office how this enforcement process and increased fines would apply to drivers who are found to be drug-affected in a work vehicle or undertaking work tasks.  I haven’t had a response from the Minister but I put the same scenario to the SafeWork SA.

A spokesman for SafeWork SA told me that “the situation regarding the new drug driving laws in SA doesn’t change a whole lot as far as [SafeWork SA is] concerned. Such offences would fall under the Road Traffic Act in the first instance, and would be handled by SA Police.”

He emphasises that this issue 

“…is another compelling reason for employers who do have staff on the road to ensure a policy is in place regarding alcohol and other drugs in the workplace. This will ensure that all workers are clear about what expectations exist in relation to drugs and alcohol on the job, and what the consequences will be for any breaches.  Such a policy would assist employers in managing their legal obligation to identify hazards, assess risks and implement appropriate control measures for those risks.”

I agree and appreciate the fact that he did not say, as many employees and managers assert, that having a policy makes the workplace safer. Having a policy does not even imply compliance, only action and enforcement can achieve that.

What his comments do indicate though is that a workplace hazard that OHS professionals are expected to manage goes through several processes before it reaches, if at all, the relevant OHS authority and regulator.  Is it any reason that the drug driving of workplace vehicles gets little attention when a major motivator of change, legal OHS action from a government regulator or at least the threat of action, is not occurring in the OHS context.

The driver penalty structure only applies within the general driving conditions controlled by the Road Act even though a driver could be severely impaired in a mobile workplace. The workplace context applies in other safety legislation such as rail safety and mining safety, why is not the work context of a positive roadside drug test being applied?  On the issue of impairment, there is little difference between a white delivery van driver and 18-wheeler.  Both can kill others and themselves.

Perhaps the Australian National OHS Review can consider occupational issues in other traditionally public areas of safety – security staff in nightclubs? level crossings?

Law Review or Safety Review

The issues paper of National Review into Model OHS Laws is a peculiar beast for several reasons. Firstly, it is a review of legislation and restricts itself to the OHS Act. However it wants submissions on other safety legislation that has“interdependence” such as road safety, rail safety and others. That is a very big ask…

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