law – Page 240 – SafetyAtWorkBlog

OHS – time to grow up or get locked in the attic

In OHS law in Australia, the employer/employee relationship is dead or, at least, coughing up blood. OHS law is to be based on “people conducting a business or undertaking” (PCBUs have been discussed briefly elsewhere) and not a worker working in a workplace, even though the recently changed industrial law, the Fair Work Act, maintains this relationship.

This morning in a staff seminar at a large multinational business in Australia a regional CEO revealed a considerable level of financial detail to his employees, much more so than any of the staff had seen before. His reason for this was that he was talking with “adults”. He employs adults and expects his workers to act like adults. He also said that he cannot understand why, for so long, employees have been treated as children or act like children.

Past occupational health and safety law seems to reflect this relationship. Employees have expected someone else to fix a problem because the employer has the principal responsibility for everyone’s safety. The employee has had a legislative responsibility to look after their own safety and that of others for decades but it was rarely emphasised and only occasionally did it appear as a reason for a prosecution.

To be simplistic for a moment, parents set the house rules for when children are in the house. As children grow, the rules are amended and new rules are created as the child becomes more mobile, curious and intelligent. In many circumstances, the children are given a fair degree of flexibility in meeting the house rules but every so often the rules need to be enforced and children reminded of them. A penalty of some sort is applied.

At a WorkSafe seminar on 26 October 2009 in relation to the proposed Safe Work Bill, there was a tone to the panelists’ comments that seemed to be calling for a new “maturity” in OHS management. It was as if the last thirty years has been the learning phase where the house rules have been clearly established and the children have reached a point where the house rules are to be self-policed. It could also be put that the children are expected to extend these rules to any guests to the house. But the analogy of a house as a workplace and business should stop there before it becomes silly.

What the new/proposed OHS laws are looking for is a responsible approach to staying safe. The emphasis on “reasonably practicable” in the legislation is a plea and an expectation for people in a workplace to behave reasonably. The impression is that if the test in law is to be of a “reasonable person” then the OHS law should be encouraging people in a workplace, whatever their status, to act reasonably.

In short, the Australian Government is asking businesses and workers to “grow up”. The test will be who chooses to be sitting at the family meal table and who becomes the mad uncle locked in the attic that everyone feels embarrassed by.

Kevin Jones

Australian Standards and OHS harmonisation

This morning in Melbourne, WorkSafe Victoria conducted a three-hour seminar on the harmonisation of Australia’s OHS laws. The speakers and panelists were John Merritt of WorkSafe, Tracey Browne of the Australian Industry Group and Cathy Butcher of the Victorian Trades Hall. Tripartism at its best.

The large auditorium was filled with hundreds of attendees, very few were the familiar faces of the OHS professionals who can often dominate such events.

A question was asked to the panel about the application of the Australian Standard for Plant. The question was, basically, will the Australian Standards be referred to within the upcoming OHS regulations? The panel unanimously said no.

This was the clearest indication yet that the rumour about Australian Standards not being given legislative legitimacy through legislation is correct. Tracey Browne however provided the rationale. She said

“The important thing is that as soon as we incorporate an Australian Standard in a regulation, we create a whole different legislative status of something that was never designed to be a safety regulation….

This doesn’t change the fact, though, that it is the “state of knowledge” and when you look at what you are doing in relation to what is reasonably practicable, you need to take into account all the things you know or ought to know. So if you are [for instance] bringing plant into Australia, and that is your business, then you need to know what the Australian Standards are and make sure that’s part of your consideration.”

Standards Australia is undergoing a considerable rethink due to a big loss of funds and in response to the changing regulatory structure in all sorts of industry and financial sectors. The challenge is acknowledged by the CEO of Standards Australia, John Tucker ,when he discusses a “new way of operating“.

Kevin Jones

Employer concerns on OHS law review

In support of the Safety Show mentioned in a previous article, the organisers have issued a media release which provides illuminating quotes on the issue of the Australian Government’s program for review of OHS laws:

One of those keen to comment is exhibitor at The Safety Show and chief executive of the Australian Federation of Employers and Industries, Garry Brack [significantly NOT a speaker at the Safety Conference ED.].

“We are concerned about the content of the model laws,” Mr Brack says. “New South Wales’ OHS Act is the most difficult piece of legislation in the developed world and we believe this is a lost opportunity to wind up with more balance.”

“If an employee does the wrong thing, the employer is found guilty. We’re not arguing that employees should be prosecuted but reject the notion that employers should be liable when employees fail to meet safety requirements.”

Clearly Brack has not compared the NSW OHS Act to the Federal Taxation legislation.

Brack reflects many of the perspectives of those who deal with OHS in the State of New South Wales. The pent-up frustration is clear and the employers do not believe the reassurances from the Federal Government.

Brack also illustrates the desire for prescription in OHS law. If people, in this case employers, know how to comply with a law, they are more likely to do so.

“Smaller employers don’t have the financial resources and in-house expertise to interpret what is ‘reasonably practicable’. They say ‘Tell us what we have to do’. They don’t wanted to return to the lunacy of years ago where every nut and bolt was defined but they do need a more prescriptive approach and help from regulators.”

He highlights a concern about the OHS laws shared by SafetyAtWorkBlog, small business has always struggled to provide an appropriately safe workplace. “Reasonably practicable” does not help. However, Brack’s desire for prescription is nostalgic at best, some would say fantasy. This government has no intention of taking a seemingly regressive step to prescription and Brack has been aware of this for years. At some point one has to accept reality and work with what is being offered.

Variations

Another exhibitor discussed the expectation that States will still add their own variations to the model OHS laws. This option has never been hidden by the government or the various review panels. In fact, this flexibility has been a major point in the government’s choice on harmonisation rather than uniformity.

“National legislation is highly desirable to avoid the massive duplication of work for national organisations,” Mr [Bill] Henman [of the College of Warehouse Training] says. “Unfortunately, the legislation will be enforced by various state jurisdictions and this will result in variation between states in interpretations, penalties and the finer points of the legislation. The devil is in the detail. [ED. please kick the next person who uses this cliche] Different penalties in different states currently affect the priorities of safety managers and standardised penalties would provide better outcomes.”

Henman needs to read the legislation and supportive documents to see that standardised penalties are proposed. Though Henman is considering one of the most important issues that does not seem to be in consideration in much of the commentary on the legislation to date – improved safety.

“It’s very hard to say whether these new laws will make workplaces safer. The culture of those less safety conscious workplaces where the employer bends the rules has to change. One would hope the new laws will help engender better safety cultures.”

The Master Builders Association of NSW‘s OHS risk management officer, Tim Stootman, echoes the perspective of Garry Brack, looking at the legislation through the experience of a New South Wales employer:

“Master Builders supports the review of OHS laws and believes that this is an opportunity for better, rather than greater, OHS regulation,” Mr Stootman says. “Better, rather than greater, regulation will assist to improve OHS performance in the construction sector.

Master Builders supports the rejection of what could be called a ‘highest common denominator’ approach to OHS duties. Essentially, this approach would have seen an absolute duty of care on employers to ensure the health and safety of their employees and provides unions with the right to bring a prosecution for a breach of the OHS law, the latter a provision adopted in recent changes to the law in the ACT.

The Draft National Model OHS Act is a positive step towards harmonisation of OHS laws in this country.”

Submissions to the government on the draft Safe Work Bill are being regularly posted at the Safe Work Australia website. SafetyAtWorkBlog is watching the submissions and will draw attention to some of the more useful comments in the submissions.

Kevin Jones

Getting the OHS message out there

Next week in Australia is Safe Work Australia Week in which each State jurisdiction undertakes information and promotional activities in support of occupational health and safety.

In Sydney, the Safety Institute of Australia (SIA) is hosting a Safety Conference. A major theme, understandably, is Australia’s OHS law harmonisation and there are excellent speakers at the conference on the topic.

There has always been an operational tension between the conferences and the trade shows that accompany most of the Safety Institute conferences even though there is a contract between the SIA and Australian Exhibitions & Conferences, the trade show owners. The tension is over which event gets priority in promotions. Effectively this differs depending on promotional target but for years it has been possible to attend a trade show without having any idea that a conference may be in the room next door.

This year the trade show, technically “The Safety Show“, is offering free workshops on the harmonisation laws to show attendees with speakers from a law firm, amongst others, who is also hosting a panel discussion in the conference . Why would one run a free event that competes with a partner’s conference for which the daily attendance fee is $A500???!!!

Admittedly, the conference is likely to include more detailed examinations of the laws as there is more time and many of the speakers are lawyers or academics specialising in the area but if one’s charter is to promote health and safety awareness and to advance the science and practice of safety, as the SIA states, is this appropriately met by speaking to a group of maybe 400 conference attendees or a potential 10,000 trade show visitors?

Kevin Jones

Prosecution results from fall through roof

On 22 October 2007, a commercial premise in Southbank, Victoria, was to undergo renovations which included replacing the asbestos roof with an iron roof. Two men were employed as project managers and during the roof replacement, according to WorkSafe Victoria.

“…the dogman fell [through an unguarded shaft] a total distance of 8 metres and as a result he broke 3 bones of his right wrist and a fractured scapula as well as sustaining bruising to the body and serious lacerations to the head.”

On 16 October 2009, the Magistrates’ Court fined the specialist roofing company contracted for the task $A15,000. The prosecution summary says that as the company specialised in roofing, the hazards of working on an asbestos roof, and unprotected edges, would have been well-known.

The two project managers were fined $A7,500 each as they were not sufficiently experienced for their project management roles. The lack of fall protection for those working on the roof was of particular note according to the Prosecution Summary from WorkSafe Victoria.

More details on the prosecution are available from the WorkSafe hyperlinks in this article.

It would be interesting to run this prosecution summary as a hypothetical under the proposed National OHS Model law to provide a contrast between the old and new laws particularly on the following matters, although many more could be considered if further details were available:

who controls the workplace
competence
suitably qualified
role and enforcement of JSA’s
contractor management

Kevin Jones

Peek-a-boo safety – Oh Dear!

The Australian Model OHS laws do not have duties and responsibilities that focus on the employer. The focus is now on a “person conducting a business or undertaking” or a PCBU. In a legal seminar in Melbourne on 20 October 2009, this acronym was spoken as a “peek-a-boo”. Throughout the next 60 minutes, prominent Australian OHS lawyers repeatedly mentioned the OHS responsibilities of the “peek-a-boos”.

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If OHS law has not been taken seriously by some sectors now, there is no hope if this absurd terminology continues.

How will regulators and safety professionals “sell” safety in a small business person is described as a peek-a-boo? If we’re lucky, the employer will think of a game played with young children. If we are not lucky, they may think of diaphanous female lingerie tenuously constructed with ribbons. If the employer is a goth, one may get away with a cool reference to a Siouxsie & The Banshees song.

One could speak PCBU phonetically as “pissy-be-u” but even that is dubious. Please delete this term from one’s vocabulary and recommend to the Australian Government that its bill-drafters look for another acronym.

Kevin Jones

Independent Aussie politician forecasts “near riots” on OHS

Rob Oakenshott is an independent politician in the New South Wales parliament, He was formerly a representative of the National Party. Oakenshott is one of the first Australian politicians who are not directly involved in the program of OHS law harmonisation to raise any concerns.

What spurred him to speak was a recent case in the High Court of Australia centring around NSW’s absolute OHS duty of care. Comments from the Allens Arthur Robinson newsletter say:

“The matter will present an opportunity for the court to determine whether the interpretation of the duties under the OHS Act is so restrictive that it makes it impossible for an employer to comply with them and practically removes the benefit of the statutory defences. The issue of the difficulty of complying with the legislation is something that the defendants have submitted runs counter to the rule of law and the Constitution.”

Oakenshott stated in a media release (not yet available on his website):

“I am also concerned that aspects of NSW state legislation such as the absolute liability elements are being considered by the Federal Government,” he said. “Having been involved in state politics for fifteen years, I can assure the government they will have near riots on the streets from the small business community of Australia if they mirror NSW legislation in the quest for harmonious national laws.”

This would be the first time that OHS would ever have raised the passion of Australian small businesses to this extent. A survey produced for the ACTU (considered to be representative of the general population by the research company) quoted the following statistics:

67% believe that workplace safety is important, but only 40% see it as “very important”.

Kevin Jones

Category: law

OHS – time to grow up or get locked in the attic

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Australian Standards and OHS harmonisation

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Employer concerns on OHS law review

Variations

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Getting the OHS message out there

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Prosecution results from fall through roof

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Peek-a-boo safety – Oh Dear!

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Independent Aussie politician forecasts “near riots” on OHS

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Variations

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