Lessons from a draft medical code of conduct

The safety industry in Australia may be seeking to become a recognised profession but, as with most business processes, continuous improvement is an important element of remaining current.

The Australian Medical Council has released a revised draft code of conduct with which several members of the Australian Medical Association (AMA) disagree.

According to an AMA media release,  Professor Paul Komesaroff, Director of Monash University’s Centre for Ethics in Medicine and Society, and Associate Professor Ian Kerridge, Director of Sydney University’s Centre for Values, Ethics and the Law in medicine, believe the draft Code

“was likely to be counterproductive for four main reasons:

  • it was very unclear how standards could be enforced; 
  • the Code was based on a single concept of ethics, lacking a sufficient appreciation of our multicultural diversity; 
  • it contributed to an insidious, creeping authoritarianism; and, lastly, 
  • the code would suggest that good practice involved following the same rules in all circumstances rather than responding to individual circumstances and needs.”

The professors said

“Codes of conduct can either expand the ability of individuals to make their own decisions and maximise their opportunities for ethical action, or they can claim authority beyond their capacity and encourage the belief that good practice simply involves following a formula and applying the rules.”

The medical code of conduct is only a draft so there should be robust debate.To do so publicly may appear unseemly to some but ultimately, when issues are resolved, the public (the clients) can bear witness to the exhaustive and open process organisations have used to establish professional standards.  

The lesson for embryonic professions like safety is to follow the advice I provdie consultants of any profession – look outside your comfort zone to better understand what you do.

The quote above suggests that a registered profession does not need to be regimented and controlling.  To be described as professional is a compliment, but the risk is that “professional” can come to mean blinkered and, ultimately, fearful.  A profession risks becoming infected by “an insidious, creeping authoritarianism”.

Many in the safety profession are promoting “leadership”, “innovation”, “resilience”.  Perhaps we should be promoting an inclusive terminology that has an established and, usually, reputable history, like medicine.  Safety “profession” can include all of the modern business jingo in a proven framework rather than confusing ourselves, our clients and our regulators, with “Newspeak“.

Now that would be doubleplusgood.

Kevin Jones

Response to National OHS Law Review

In the Australian Financial Review on 17 February 2009 (page 8 but not accessible online) Steven Scott reports that the Western Australian Treasurer Troy Buswell is in a stoush with the Federal government over OHS laws.  They are not.  Buswell is quoted as saying

“My view is that it’s much more appropriate to make sure you get it right…  We will not be supporting the establishment of Safe Work Australia until we are in a position to commit ourselves to the full harmonisation process.”

Buswell wants more time and more information.  He is also concerned about the (related) industrial relations changes.  Only last week, Buswell was at a Senate Committee supporting West Australian businesses.  The Treasurer’s stance is at least consistent and prepared for flexibility.

Michael Tooma, a labour lawyer with Deacons in Sydney, is reported as saying  that 

“These right of entry provisions could be used for ulterior purposes, either for a recruitment drive or as a way of causing industrial agitation….. It gives unions the right to use OHS as a Trojan Horse for the purpose of entry onto sites.”

In his initial analysis of the final report Tooma wrote

“The Panel took the view that union right of entry contributes in a positive manner to OHS compliance at a workplace level.  It recommended that the model Act provide right of entry for OHS purposes to union officials and/or union employees formally authorised for that purpose under the model Act.”

and that 

“These recommendations have the potential to industrialise the safety agenda.”

The review panel is acting on the fact that workplace safety is already industrialised and that those who continue to split to two areas are denying reality.  OHS cannot be managed successfully without also working with the human capital and industrial relations context.

The right-of-entry provisions in any legislation is a hotly contested ideological battle and there is plenty of evidence through the many submissions to many OHS and IR reviews of this.

Right-of-entry is not a threat of punishment and is readily avoided through workplaces having active and functional methods of consultation and safety management.

Similarly, concerns are being raised over the introduction of Provisional Improvement Notices (PINs) in some jurisdiction.  PINs are an acknowlegement of a breakdown in communication and a dysfunctional safety management system in the workplace.  In some workplaces PINs are never applied because everyone talks about safety in an open and accountable fashion.

Many of the concerns being raised over this final review panel report can be addressed by safety professionals and advocates publishing examples of how alarming legislative provisions have proven to be non-starters.  The power may be on the legal register but are infrequently applied.

When the new right-of-entry provisions were being introduced in Victoria, many lawyers and employer representatives said the world would collapse.  It hasn’t and the sensible control and oversight of the process is now recommended across Australia.

It is perhaps time for WorkSafe Victoria to re-emphasise the success of the right-of-entry management process it has operated under for several years.  John Merritt, CEO of WorkSafe Victoria has spoken very positively of the process.  An information sheet on the issues for employers is also available.

Kevin Jones

National OHS Review – initial comments

Several OHS colleagues on an international discussion forum have expressed some opinions on the final report of the Australia’s National Model OHS Law review.

Safety Alerts

One asked that better and more frequent safety alerts be published by the regulators and that those reports be based on fatalities, injuries and near misses.  

There is an inconsistency of  incident reporting in Australia.  For instance, emergency service departments have different ways of notifying the media of incidents.  Most rely on regular (multiple times each day) visits to their websites.  This option doesn’t work unless one has tracking software or are doing nothing else.  Several distribute email bulletins on a daily basis.  Most of the bulletins deal with traffic incidents, floods or bushfires, but several also report on emergency incidents to individuals and, although not explicit, many occur in workplaces.

Incident alerts from emergency services are good because it is a service that OHS regulators and enforcers also receive and act upon.

For many years, various Australia safety organisations have published OHS solutions databases or, initially, folders.  The maintenance of these have fluctuated over the years in relation to technological change and political interest.  It is pointless trying to establish a fixed-point or hard-copy library when the Internet is now the primary resource tool.

It should be added that considerable information can be garnered from court reports of OHS prosecutions however, the Magistrates’ Courts do not provide publicly accessible court reports so any matters heard at that level are rarely reported, except by someone who is sitting in the court.  To gain a proper understanding of the OHS legislative process, coverage of all levels of legal action should be encouraged.

Risk Management

Another colleague expressed concern about the use of “risk” throughout the report.  Below is a section of the report that explains the review panel’s approach:

“In Chapter 30, we discuss the role of the risk management  process in the model Act.  As we noted in our first report, risk  management is essential to achieving a safe and healthy work  environment. We found that risk management is implicit in the  definition of reasonably practicable, and as such, need not be  expressly required to be applied as part of the qualifier of
 the duties of care.  Further, as we discuss in this report, risks  can be successfully managed without mandating hazard  identification and risk assessment in all cases, particularly  where the hazards are well known and have universally  accepted controls.

 Therefore we recommend that the model Act should not  include a specific process of hazard identification and risk  assessment, or mandate a hierarchy of controls, but that the  regulation-making power in the model Act should allow for the  process to be established via regulation, with further guidance  provided in a code of practice, as is contemporary practice.
 The application of risk management process should however be  encouraged…” (page xviii)

Throughout the review process the Victorian OHS Act was the most influential piece of legislation and that Act removed the previous requirement to assess workplace risks to determine the most appropriate control measure.  WorkSafe Victoria had, for years, advocated in its publications and guidelines to “Find-Assess-Fix”.  The “Assess” was dropped in many instances as the suitable control measure had been well-established just not widely applied.  

The WorkSafe position was in response to those business operators who may say “I don’t care how hazardous the bloody thing is just fix it!”  It was hoped that this would save time and “unnecessary” paperwork, and that other State jurisdictions would take the same approach.  None did, and the removal of “Assess” confused businesses and safety professionals as it is a major inconsistency with the Australian Standard on Risk Management.

WorkSafe tried to calm the confusion by saying that they still though assessing risks was a good idea for many new and developing hazards, just that assessment could be done away with as a legislative requirements in most instances.

It seems like the National Review Panel supports the Victorian approach to risk assessment.  Not so long ago, the New South Wales government subsidised a lot of training for farmers and others in the agricultural sector on risk assessment.  Now it will have to re-explain.

The other concern with the panel’s approach to risk assessment is that it sees risk management as fitting within “reasonably practicable”, a concept that SafetyAtWorkBlog is not convinced helps in managing safety.  “Reasonably practicable” is a concept that is defined and refined through prosecutions and court processes, therefore, it can change and it is best interpreted by lawyers.  OHS legislation was designed to be readily understood by the layman for where the responsibility for safety sits with the employer and, to a lesser extent, the employee.  As soon as law firms are brought into the process, information is locked away under lawyer-client privilege, the cost of safety skyrockets and any safety management lessons are delayed until the court case is heard (or not heard) years later.

It should be remembered that the National OHS Model Law was about the law relating to workplace safety not the implementation of safety management.  It is this differentiation that needs to be constantly pushed to the government to avoid workplace safety becoming a management task that cannot be undertaken without a lawyer watching intently over one’s shoulder all the time.

Kevin Jones

Australia’s final report of OHS Model Law Review released

The final report of the review into Model OHS Law in Australia has been released.  As usual Deacons law firm is the first to provide an analysis of the major recommendations of the report.

Over the next week there will be a flurry of activity from, particularly, the labour law firms but the rush is unnecessary.  The timetable for when change becomes a reality is well over 12 months away and the global financial crisis has thrown political timetables to the winds. 

The timetable for Australia’s emissions trading scheme are becoming vague, state elections are perhaps being brought forward, where they can, and, most importantly, the business sector will be protesting long and hard on any regulation that may increase their costs.  If ever there was a time for safety professionals and associations to be campaigning on the truth that safety decreases operating costs in the long term, that time is now.

Judge leaders by how they react in a crisis not in the easy times.

Australia’s OHS Law Review

Last week, the release of the final report of Australia’s review into National Model OHS Law was touted by many as immediately after the meeting of the Workplace Relations Ministers Council (WRMC).  This occurred with the first report in 2008.  WRMC met in a teleconference yesterday.  When the report is released officially (rumours are that the report is already doing the rounds of the unions and the employer associations), SafetyAtWorkBlog will provide a link to the report and some initial commentary.

However, as reported yesterday, the Australian Financial Review obtained a copy of the report and highlighted several issues of interest.  The AFR report held no great surprise for safety professionals but the union movement is going to be ideologically tested.

Early in the review process, the New South Wales union movement was very vocal about the risk of losing their right to initiate prosecutions over OHS breaches.  The right was rarely applied and could be a very costly exercise.  Since that time there has been silence from that quarter, perhaps because they realised that its contentious right was out-of-step with the rest of the country and the review process is all about legislative harmonisation.

According to media reports this week, the Review Panel’s final report recommends the omission of the right to prosecute but allows an option to instigate prosecutions through the OHS regulators.  In effect it keeps the power where it is most cost-effective and through which a similar outcome could be achieved.  It gives the unions a seat at the table, just not the same seat but still with a comfy cushion.

Prior to the WRMC meeting,  Sharan Burrows issued a media statement on several matters, the source of the ACTU quotes in today’s AFR article, in which she said

Media reports also suggest that the Ministers will tonight discuss the final report of the National Review of OHS Laws.

“It is vital that the national, harmonised health and safety laws are based on the highest possible standards.  This should include providing workers with the right, through their unions, to initiate prosecutions against employers when there are serious health and safety breaches.

“In the past, union prosecutions have been few in number but have secured important improvements for employees who work in potentially dangerous situations.  We also need a truly tripartite, well resourced national workplace health and safety watchdog that is able to set, monitor and upgrade health and safety standards,” said Ms Burrow.

It seems that Ms Burrows may, pragmatically, welcome the cushion.

Also, the union movement would be well aware of the potential boost to the revenues of OHS training providers, a status many unions and union bodies enjoy.  A national five-day training course for Health & Safety Representatives could be financially useful.  Also the courses have always been a very good recruiting opportunity.

Kevin Jones

 

Sharan Burrows speaking at the 2008 Workers' Memorial in Melbourne
Sharan Burrows speaking at the 2008 Workers' Memorial in Melbourne

National OHS report leaked to Australian newspaper

The Australian Financial Review has obtained a copy of the 470-page report of the Review Panel into OHS Model Law prior to its release by the Australian government. 

The most significant recommendation reported by the paper is that unions will not be allowed to prosecute for OHS offences.  This entitlement by unions in New South Wales has been a constant source of industrial tension in that State.  However the panel did suggest that anyone can request OHS regulators to undertake a prosecution or they can appeal a regulator’s decision not to prosecute.

Employers across Australia will be obliged to provide paid leave for employees to attend health and safety representative training courses – probably five days.

The proposed legislation also allows for common law rights to stop work if it is deemed unsafe.

The full AFR article is not available online but can be found on page 3 of the hard copy.

Kevin Jones

Union influence on OHS – interview with Professor Michael Quinlan

Professor Michael Quinlan of the University of New South Wales believes that the influence of Australian trade unions in improving OHS conditions should not be underestimated or past achievements, forgotten.  

In talking with Kevin Jones in a recent podcast, Quinlan said that the persistent accusation of unions using OHS as an industrial relations tool is “largely an ideological beat-up”.  Although he does believe that Australian trade unions have not pursued workplace hazards to the extent they should have, even with the impeding launch of a campaign on cancers. 

Professor Quinlan mentioned that

“most health and safety management systems are, in fact, largely management safety systems.  They not deal a lot with health….. Their KPIs [Key Performance Indicators] are always expressed in terms of zero-injuries or zero-harm.”

 He also emphasised that that more Australian workers are killed as a result of occupational disease than injury.

He also addresses the growing demand for occupational health and safety regulation to move from industrial relations to the area of health.  Quinlan believes this will never happen because matters to do with employment, organisational restructuring and others have an OHS impact.  He says that running OHS as “an entirely separate agenda…is intellectually and factually flawed.”

Quinlan acknowledges the argument that Robens-style legislation was relevant for the time and where union-presence persists but he said

“where you don’t have effective or worker input, you will have serious problems with health and safety”.

He reminded us that Roben’s also advocated self-regulation, a concept of which there is now great suspicion in a range of business areas.

Quinlan spoke highly of some of the initiatives of OHS regulation, for instance, the adaptation of the inspectorate to duty-of-care matters and a broader operational brief. He also said that the current OHS legislation in Australia “is the best we’ve ever had” and believes some of the recent criticism needs to be supported by evidence.  Also none of the critics have proposed a viable alternative.

Professor Quinlan is a keynote speaker on Day 3 of the Safety In Action conference.

Kevin Jones

Note: the author assists the Safety Institute in the promotion of the Safety in Action conferences.
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