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Fair Work and OHS

Last week the Deputy Prime Minister and Minister for Workplace Relations, Julia Gillard, delivered on some of the government’s promises by presenting the Fair Work Australia Bill into the Australian Parliament. This does not present a revolution but is a solid rollback of some of the excesses of the previous (conservative) government. The responses from employer groups and trade unions were in the tones and on the topics that were expected.

The National Review into Model OHS Laws rolls on towards its January 2009 deadline. The OHS law review was not something urgent for the government, even though it was an election pledge, and it does not indicate a commitment by the government to improving the level of safety in Australia. The aim is to provide an easier way of managing safety across state borders in Australia with the hope that this will flow to benefit the safety of workers.

It is important to remember that this review came after years of concern about the perception(?) that OHS was part of the red tape of managing businesses, and therefore an unacceptable cost burden. The danger in this review is that the recommendations will reduce the business costs with no discernible improvement in safety.

There are many OHS professionals and organisations who are hoping for some grand review of workplace safety. It is a review of law and business bureaucracy, not safety. Those who will most benefit will be large companies that operate in multiple States. It will provide no change to small business. It will not increase safety in the vast majority of workplaces. It may improve the bottom line company results in 2009 when profit growth is declining but that just means that managerial bonuses are less than normal. It does not mean that the cost savings will be used to improve safety.

The Fair Work Australia Bill and the National OHS Law Review may change some of the ways in which corporates approach OHS but they will have little, if any, benefit to individual workers.

It is important to remember that any legal changes always benefit legal practitioners, as well. And OHS lawyers are almost always there after the incident in order to minimise company damage. Policies and procedures are largely determined without legal involvement. Machine guarding is not installed by lawyers. Abusive supervisors are not tempered by legal threats. Safety is the manager’s job in partnership with the employees, and it will always be so.

It is harder to prevent than compensate, but more important

Tonight in Adelaide the President of the Australian Human Rights Commission, Catherine Branson QC, will be delivering the 2008 Don Dunstan Foundation Oration.

Ms Branson has said

“I want to live in a society where everyone can take advantage of his or her abilities and where everyone has a real say about the world they live in, be they an Indigenous person, a person of Muslim faith, a parent wanting leave from work to care for a child, or a person in a same-sex relationship.

“We all want a society where we can all feel safe and protected from violence and harassment no matter who we are or where our children can access appropriate educational opportunities no matter where they live.

“These are hardly controversial ideas.”

Indeed they are not. But in many of the past discussions on human rights, rights at work are missed, yet they are just as important. The omission may be because it seems there is a plethora of avenues of appeal in the workplace – discrimination, unfair dismissal, sexual harassment tribunals etc. Yet none of these focus on the prevention of harm in the way that legislative OHS obligations do.

Until the human rights advocates’ speeches become inclusive of workplace matters, there will be societal anchor dragging on progress of basic human rights.

Sexual harassment and politicians

Bernard Keane, political columnist with Crikey.com, wrote on 20 November 2008 about the unacceptable conduct of Australian politicians. He wrote:

We’re not talking here about ordinary poor behaviour. There are boors and fools and thugs in workplaces across the country. It’s the sense of entitlement that seems to motivate many MPs to treat other people — whether they are staff, or waiters, or anyone who happens to cross them — with contempt. It’s a sense of entitlement encouraged by the job — one with a large salary, expenses, vehicles, travel and public profile. Most MPs manage to prevent it from going to their heads. But a lot don’t, and they make other people’s lives hell. Particularly because MPs aren’t under the same workplace laws as everyone else.

SafetyAtWorkBlog believes that, as the sexual harassment is occurring in workplaces, predominantly, that MP’s ARE “under the same workplace laws as everyone else”.

Keane refers to one case where a Minister who was sexually harassing a staff member was relocated to another ministry. The case recalls the Catholic Church’s risk control measure with paedophile priests.

Workplace safety regulators have been trying to emphasise for years that unacceptable behaviour in workplaces is more serious than a “bad day” or a “bad mood” and that this can be symptomatic of a sick workplace culture.

It is hoped that Crikey readers get to realise that inappropriate conduct at work can be criminal, a breach of OHS legislation or, even, a contravention of our Human Rights obligations. That the Australian political parties tolerate such behaviour is shameful

Important victory for aircraft maintenance workers

The Department of Veterans’ Affairs may have to pay compensation to the maintenance crews of F-111 fighter planes. In the 1970s employees worked within the fuel tanks of the fighters with little, if any, PPE. In 2004 these workers were excluded from a healthcare and compensation scheme even though, according to one media report, evidence was presented that the workers had

a 50% increased risk of cancer
a two-fold increase in obstructive lung disease;
a two-and-a-half fold increase in sexual dysfunction; and
a two-fold increase in anxiety and depression.

One of the reasons the maintenance crews were denied compensation was that the Royal Australian Air Force (RAAF) had destroyed the maintenance records from before 1992.

An inquiry into the affair has received a submission from the commonwealth Ombudsman, John McMillan, and Labor MP, Arch Bevis, that strongly criticised the destruction and inadequacy of records.

In safety management, record-keeping is often seen, and dismissed, as “red tape”. The reduction of red tape is not the elimination of red tape and the reality of Australia’s increasing litigious legal system is that more records need to be kept, and for longer, than ever before.

Perhaps, the government, in its pledge to reduce red tape and business costs, should look at the lawyers’ insistence to business that the first port-of-call after an industrial incident is to call them so that everything becomes covered by legal-client privilege.

Perhaps it is the pressure to create paperwork than the paperwork itself that is the problem. In the case of the F-111 maintenance crews, regardless of the lack of paperwork, justice seems to be happening. It is just sad that so much pain and suffering had to be endured before getting close to a resolution.

Click HERE for a personal reflection on the health issues of the workers from one of Australian Rugby League’s champions, Tommy Raudonikis.

Dangerous Forklift Behaviour

At the risk of increasing a young person’s infamy, SafetyAtWorkBlog draws your attention to a (former) YouTube video of a young forklift driver misusing a forklift.

According to a WorkSafe media release:

Dangerous forklift driving has cost a young worker his job, his forklift licence and earned him 50 hours of community work and an order to do a 5-day health and safety course.

WorkSafe today prosecuted 20-year-old Seymour man, Matthew Garry Ward, after posting on YouTube a video of him doing stunts on a forklift.

The video, which has now been removed, showed him deliberately crashing into concrete pipes, doing burnouts and overloading the machine so he could do wheelies.

Seymour Magistrate Caitlin English convicted Mr Ward, ordered him to do 50 hours of unpaid community work complete a five-day Occupational Health and Safety course and pay WorkSafe’s court costs of $1200.

Mr Ward was also sacked for misconduct.

Forklifts are possibly the most dangerous piece of equipment on worksites. Statistics show a high frequency of death and injury associated with their use.

Before phone cameras and YouTube this type of workplace behaviour would never have received the attention that this case has. The worker may have been sacked for being “bloody stupid” but there would not be the notoriety that can come from this type of act. The Ward case has appeared on several television broadcasts, is in the papers and is mentioned in blogs like this.

The worker’s actions only came to light when his employer at Australasian Pipeline and Pre-Cast Pty Ltd, which produces reinforced concrete pipes at nearby Kilmore, viewed the video. If Ward did not have a vigilant internet-savvy boss, it is likely the video would still exist on YouTube and the worker would not have come to the attention of the OHS regulator.

The Ward prosecution came at an opportune time for WorkSafe to re-emphasise their young worker safety campaign in the context of their long-active forklift safety program.

The Ward case indicates the choices young people make between potential internet fame and personal trouble. There are many examples of this risk management decision in a range of areas related to the internet. Matthew Ward made the wrong decision, or he just took things that little bit too far. At least he is facing the consequences of his decision.

Mining fatalities and accountability

The 11 November 2008 edition of The Australian includes a page 2 story where the previous manager of the Beaconsfield Mine has been called on to be held responsible for the management failures that led to the death of Larry Knight in 2006. The call was made by counsel for Larry Knight’s family and the Australian Workers’ Union in a submission to the Tasmanian inquest into the fatality.

According to the media report, the wrong decision was made in trying to stabilise the working area of the mine and that the risk assessment process was inadequate. The latter comment should be of considerable interest to OHS regulators and safety professionals.

The importance of the Tasmanian Coroner’s findings are illustrated by comments in the submission by the counsel for the mine. The media report says that

“…Dr Neal tells the Coroner the mine had done all it reasonably could to guard against the risk of rockfall and to manage the mine’s notorious seismicity.” [emphasis added]

This is particularly important when considering the introduction of “reasonably practicable” into the OHS legislation throughout the Australian States being considered by the National OHS Law Review.

It is regrettable that the to-ing and fro-ing in the inquest is not getting as much media attention in the non-mining states, as there have been many risk management and accountability issues raised. The media is likely to wait until the findings of the Coroner, Rod Chandler, and focus on the result rather than the journey.

There was a similar experience in New South Wales with the inquiry that followed the drowning of four mine workers at the Gretley mine in November 1996. The information did not resonate to the rest of Australia except through the mining sector, yet there were important lessons from the inquiry. Most OHS professionals, if at all, would recollect the prosecution of Gretley mine managers on matters of culpability, rather than the death of the four workers.

When the Tasmanian Coroner hands down his findings in the near future, it will be very useful to consider them in the light of the earlier reports, assessments and papers, among many others, listed below.

SafetyAtWorkBlog is a strong advocate of learning new OHS management practices by looking beyond one’s field of expertise. OHS professionals, safety managers and risk managers need to watch the action in Tasmania and other jurisdictions for themselves and not rely on a small group of OHS lawyers to bring matters to their attention and advise them how to avoid their responsibilities. Accountability is a moral and legal responsibility.

Holding Corporate Leaders Responsible by Andrew Hopkins

The Impact of the Gretley Prosecutions by Andrew Hopkins

Mine Safety – Law, Regulation, Policy by Neil Gunningham

A submission by the Tasmanian Minerals Council on CRIMINAL LIABILITY OF ORGANISATIONS – ISSUES PAPER NO 9, JUNE 2005 to the Tasmanian Law Reform Institute

N Gunningham, ‘Prosecution for OHS offences: deterrent or disincentive?’ (2007) Sydney Law Review, 29 (3), pp 359-390.

R Guthrie and E Waldeck, ‘The liability of corporations, company directors and officers for OSH breaches: a review of the Australian landscape’ (2008) Policy and Practice in Health and Safety 6(1),
pp 31-54.

N Foster, ‘Mining, maps and mindfulness: the Gretley appeal to the Full Bench of the Industrial Court of NSW’ (2008) Journal of Occupational Health and Safety – Australia and New Zealand 24(2),
pp 113-129.

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.

Category: law

Fair Work and OHS

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It is harder to prevent than compensate, but more important

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Sexual harassment and politicians

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Important victory for aircraft maintenance workers

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Dangerous Forklift Behaviour

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Mining fatalities and accountability

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Legal summary on OHS Review report from Mallesons

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