law – Page 243 – SafetyAtWorkBlog

Business commentator is concerned over OHS and IR overlap

Respected business commentator, Robert Gottliebsen, has commented on the political and ideological challenge that Julia Gillard, Australia’s Minister for Workplace Relations, faces over the introduction of OHS model legislation.

Gottliebsen says there is a risk that the combative OHS structures in New South Wales could spread to the national context and that resisting this movement, funded and promoted by the trade unions, will be a substantial test for the Minister. In his Business Spectator article he says

“To make it tougher for Gillard, the draft [legislation] has clauses that will give unions around Australia NSW-style prosecution powers and clauses that water down training requirements. This will mix IR issues and safety and may well increase the injury rate.”

There is a persistent debate about the IR context of OHS and vice versa, which is the tail and which is the dog. Gottliebsen clearly sees the NSW experience as illustrating IR having too much influence over OHS management. (For those readers outside Australia, NSW is seen widely as a failure economically and politically)

“The sad thing is that once occupational healthy and safety becomes merely a tool of industrial relations, it is politicised and linked to wage claims and is not taken seriously. More workers go home injured or worse. So not only do we need English-style law, but we need law that isolates safety from industrial relations skirmishes.”

This is reminiscent of the days when industrial employment awards provided allowances for dangerous or unhealthy tasks, what was universally considered “danger money”.

Robert Gottliebsen is no fool and the significance of his article is the fact that the issue was covered by a finance and business commentator at all. It indicates the significance of what the Federal Government is proposing, politically, industrially and socially. the foundations of OHS legislation have remained basically the same since Lord Robens’ recommendations in England in the 1970’s. Australia has had OHS legislation since the early 1980’s. The new model OHS legislation should similarly be seen in such longevity and broad impact.

OHS may be a niche consideration for most people but how the government handles the negotiations leading to this law’s implementation will be a good indication of their political nous and their commitment to Australians.

Kevin Jones

Australian lawyer interviewed on OHS laws

Ric Morgan, a Senior Associate at Allens Arthur Robinson, was interviewed recently by Boardroom Radio on the new OHS model legislation. Each lawyer seems to emphasise a different combination of features in the new proposed laws.

Morgan anticipates that minimal changes will be made to the draft law.

The interview is well worth listening to for a slightly different perspective on the issues.

Kevin Jones

Deacons are first with harmonised OHS law comments

Michael Tooma speaking at the Safety Conference in Sydney in 2008

Michael Tooma, of the Australian law firm Deacons, is often the first labour lawyer to comment on Australia OHS Law matters and this week was no different. While many of us are continuing to digest the draft OHS Act, Tooma has identified several issues of interest. Some are discussed below.

[Tooma’s full legal update is available HERE]

An expanded duty of care that may extend beyond workplace safety and OHS

The duty of care will include

“providing and maintaining a safe and healthy work environment;

providing and maintaining safe plant and structures;

providing and maintaining safe systems of work;

ensuring safe use, handling, storage and transport of plant, structures and substances;

providing adequate facilities for the welfare of workers carrying out work for the business or undertaking;

providing any information, training, instruction or supervision that is necessary; and

ensuring the health of workers and conditions at the workplace are monitored for the purpose of preventing illness or injury of workers.”

Most of these will be familiar to Australian OHS professionals and there is little that is controversial here but Tooma says

“This expanded duty has the capacity to broaden the existing duties significantly, extending their reach to any activities that may impact health and safety. The extent of the duty as drafted in the model provisions arguably includes public safety matters….. In addition to public safety, arguably the provisions are capable of applying to product safety matters.”

Tooma expands on this slightly in an article in SmartCompany in terms of an alternative to public liability.

“Tooma says this means duty of care will now extend to issues of public safety, including visitors, passers by and even trespassers, which could open businesses up to civil litigation claims from people who aren’t even employees of a business.

Tooma says the laws allow a member of the public to sue a workplace based on a breach of statutory duty, rather than a negligence claim, which often carries a higher penalty and is more difficult to defend in court.”

The extension of workplace safety obligations to include the impact of work processes on those outside the worksite has existed for some time but the draft legislation has the capacity to highlight this “opportunity” to some. The integration of work and non-work exposures has some logic to it when one considers the growing push for integration of work health and public health management such as reducing cardio-vascular health risks through work-based initiatives. It also broadens the social integration of OHS and environmental management which larger companies are already managed through an integrated structure.

Union Right of Entry

There have been some frightful cases of union intervention, particularly in the construction industry, over the last few years. Depending on one’s politics the union reps or organisers are either doing the right thing by their members or disrupting the workplace for their own secret agenda. This situation does not reflect the vast majority of workplace consultations on OHS matters.

Prior to the introduction of the Victorian OHS Act which established an authorisation process for union organisers, SafetyAtWorkBlog remembers one prominent OHS lawyer, warning that “the sky will fall” over this issue. It never did in Victoria and there is no reason to suspect that new right-of-entry provisions will be controversial in any workplaces other than those that already have fractious relationships between unions and management, and often on matters unrelated to safety.

However, Tooma says that

“The union right of entry provisions contained within the Model OHS Laws involve a far greater expansion of the rights of unions than those which exist in current OHS legislation throughout the jurisdictions, particularly in New South Wales, South Australia, Tasmania and the Commonwealth. The Model OHS Laws give unions not only the power to investigate incidents but also to advise workers in relation to OHS matters.”

There was always going to be some changes in some jurisdictions due to the harmonisation process following the Victorian OHS Act 2004. SafetyAtWorkBlog has faith in the authorities implementing sufficient safeguards that union right-of-entry will not be the hotbed of anxiety that some are suggesting.

More legal commentary on the draft OHS Law documents is likely to be released over the next few weeks as the drafts get digested and the six-week public comment phase kicks in. It is sure to be the hot talking point as Australia moves into a bunch of OHS activities, conferences and awards events in October 2009 leading to Safe Work Australia Week.

Kevin Jones

Harmonisation documents available but path is far from settled

On 25 September 2009, Australia’s Workplace Relations Ministers Council
(WRMC) agreed to release the draft legislation for public comment.

According to one media report, the New South Wales Finance Minister, Joe Tripodi,

“…moved at the [WRMC] meeting to have union prosecutions included in the new laws and was defeated by eight votes to one.”

The documents are now available for download HERE.

According to Safe Work Australia’s media statement:

“The suite of documents available for public comment includes a model Act, administrative Regulations and consultation Regulation Impact Statement (RIS). The RIS will allow individuals and organisations to comment on the potential costs and benefits of the proposed Regulations. The RIS has been prepared by Access Economics.”

Curiously, it also says that Access Economics is

“…surveying businesses across a range of sizes, industries and regions in an effort to obtain primary data on compliance costs and safety benefits.”

It is odd that this has not been done earlier to, perhaps, substantiate the claims that the OHS law changes will reduce costs and “red tape”.

At the Comcare Conference in Canberra in late September 2009, Geoff Fary, illustrated very effectively the small sector of business that would be affected by the national laws. Fary estimates that only around 1% of Australian businesses are likely to be liable to the “red tape” argument. Many of these companies could be expected to already have some form of national OHS management systems, perhaps through Australian management standards.

Whether the percentage of affected 1% or 5% it is hoped that the Access Economics survey does not focus only on this sector. Previous surveys have indicated a large ignorance or apathy about national harmonisation. This is likely because the vast majority of Australian businesses operate within a single jurisdiction so the harmonisation is considered irrelevant. The sad reality is that the OHS legislative structures in Australia for the next 10 to 20 years will be determined by the corporate sector, the regulators themselves, and the labour law firms and not necessarily by the small to medium-sized businesses for whom OHS can be the most burdensome.

SafetyAtWorkBlog had the chance to ask Geoff Fary, the assistant secretary of the ACTU, of his thoughts on the continuing opposition to harmonisation expressed by Troy Buswell, the Western Australia Treasurer. Fary said that harmonisation

“…could occur without Western Australia being involved. It couldn’t occur, I believe, without Victoria or New South Wales or Queensland being involved but because of the nature of the place and the geography of the place it could occur without Western Australia, and I think there is probably a strong possibility….that harmonisation will proceed in the absence of Western Australia.”

If this evenuates the harmonisation process becomes an academic exercise yet again.

Kevin Jones

Buswell sniffs union conspiracies

Troy Buswell, the Western Australia minister responsible for OHS, has dug in his heels in over opposition to the Federal Government’s move for harmonised OHS legislation.

Ahead of the Workplace Relations Minister’s meeting on 25 September 2009, Buswell has reiterated his government’s opposition to changes to OHS law. He argues that the OHS changes are not necessary for Western Australia as the existing laws ar fair and balanced.

This may be the case but it is significant that the opposition has only come as a result of a change of government to the conservatives. The proposed OHS laws haven’t changed over that time. Buswell goes on to accuse the unions of having the opportunity to have backroom deals with the Australian (Labor) government which allow unacceptable union access. There is no doubt that unions have more access to the current Federal government than under the previous conservative but, as has been reported in SafetyAtWorkBlog and elsewhere, the unions are as frustrated over access as other lobbyists.

Rather than letting the 25 September meeting slide by with a “communique” coming out next week, Buswell has given the meeting some prominence. He has also put himself in a difficult position from where compromise may be uncomfortable.

Many observers have been focusing on the opposition to the OHS laws from the New South Wales union sector but that State has a Labor government. The passionate opposition is obviously on the other side of the country, an areas that those in the East Coast States often ignore. But not at the moment.

Kevin Jones

Imminent release of OHS model law draft

In the film Mrs Doubtfire, it was said that her husband’s concept of foreplay was “Effie, brace yourself.” Australian safety professionals should follow Mr Doubtfire’s advice for, according to a media release from Safe Work Australia:

The Safe Work Australia Council met in Sydney today (18 September 2009) to consider a suite of draft documents on model occupational health and safety (OHS) legislation.

Mr Tom Phillips, Safe Work Australia Council Chair, said that this was a significant development in the harmonisation of OHS laws around Australia.

The Council agreed to recommend to the Workplace Relations Ministers’ Council (WRMC) that it approve the release of a suite of documents for a public comment period of six weeks.

“We have reached a key milestone proving Safe Work Australia is on track to deliver national OHS laws by December 2011,” said Mr Phillips.

The documents to be made available for public comment will include an exposure draft of the model OHS Act, discussion paper, key administrative Regulations and the consultation Regulation Impact Statement.

To continue the Doubtfire analogy, let’s look forward to the post-coital glow of legislative harmony, industrial peace and safe workplaces.

Kevin Jones

[Note: the original book, Madame Doubtfire by Anne Fine, is very funny too but in a less Robin-Williams sort of way. KJ]

The harmonisation challenge in Australia gets more difficult

There are few motivations that are more effective for improving workplace safety than facing a grieving relative.

On 17 September 2009, the impact of the OHS law harmonisation on workers and their families came to the fore in an article in the Sydney Morning Herald (SMH) entitled “Deaths at work put sharper focus on liability”. The workplace support advocates make a clear case for holding those who control the workplace accountable for injuries, illnesses and fatalities that occur in their businesses.

A letter sent to the Federal Minister for Workplace Relations, Julia Gillard, by the Workplace Tragedy Family Support Group reportedly says

”Dealing with a serious injury or the death of a family member is difficult, particularly if there is no sense of justice. Employees must be able to seek justice against employers who do the wrong thing,” said the conveners’ letter.

Families wanted to know the responsible organisation had been held to account, the letter said.

Justice, but not revenge. The avoidance of this justice and accountability through companies choosing to go out of business has been highlighted in New South Wales many times, so it is understandable that the reduction of the avenue to pursue justice that may occur in the OHS harmonisation process can generate such letters to politicians.

A significant element in the SMH article is the inclusion of the union perspective. Trade unions often provide grieving relatives the only support, particularly in the period shortly after a workplace fatality. And there is the shared grief of losing a loved one and losing an often long-serving union member.

This article and the letter to the Minister add an important emotional and social element to the development of the new national model OHS laws. Whether the government will incorporate mechanisms to achieve justice in the legislative framework or in secondary processes could give a good indication to the broader political picture of workplace safety over the next decade.

Kevin Jones

Category: law

Business commentator is concerned over OHS and IR overlap

Like this:

Australian lawyer interviewed on OHS laws

Like this:

Deacons are first with harmonised OHS law comments

An expanded duty of care that may extend beyond workplace safety and OHS

Union Right of Entry

Like this:

Harmonisation documents available but path is far from settled

Like this:

Buswell sniffs union conspiracies

Like this:

Imminent release of OHS model law draft

Like this:

The harmonisation challenge in Australia gets more difficult

Like this:

Share this:

Like this:

Share this:

Like this:

An expanded duty of care that may extend beyond workplace safety and OHS

Union Right of Entry

Share this:

Like this:

Share this:

Like this:

Share this:

Like this:

Share this:

Like this:

Share this:

Like this: