The 7.30 Report on September 8 2009 broadcast a fairly long story on the current status of the negotiations on Australia’s new OHS laws. They interviewed the major players and took good advantage of the recent union street protests. The video and transcript are available online.
Category: law
Lawyers identify contentious OHS law elements
The Safety Conference scheduled for Sydney at the end of October 2009 has finally got an OHS issue that is contentious and is also a work in progress. The unions are starting to make noise on the OHS laws. The employer groups are manoeuvring cautiously. The safety professionals are largely silent (again) but the lawyers – the group with perhaps the most to gain from the new harmonised OHS laws – are set to analyse and debate.
A media statement from the conference promoters was distributed on September 8 2009 and, very differently from most media releases, is informative without being pushy. Below is the body of that statement:
Three issues are set to dominate discussion: the burden of proof, the personal liability of company officers, and the impact on prosecutions. Neil Foster, senior law lecturer from the University of Newcastle, believes personal liability is at the heart of the changes.
“The harmonisation process seems to have been driven by directors’ fears of personal liability and the hope that there would be some watering down of the laws,” he says. “In my view, the Model Act inappropriately waters down the personal responsibility of company officers, although I do support some of the proposed changes in this area, including the acknowledgement that the officer has obligations to exercise due diligence to protect the workers. But with the change to the current onus of proof provisions, it is quite possible that guilty people will now escape justice.”
Michael Tooma of Deacons law firm, who will moderate The Safety Conference’s harmonisation panel discussion, says that while current state laws differ in their approach to the approach to personal liability of officers, all will be reshaped by the proposed Model Act.
“Despite the range of liabilities, all have one thing in common: the officer will be personally liable only if their company commits an offence,” Mr Tooma says. “The new regime does not require this.”
“Under the approved recommendations for the new OHS laws, officers will be liable if they fail to exercise due diligence. That is, the duty has been recast as a positive obligation on officers to proactively ensure compliance with OHS laws rather than an attributed liability in the event of a breach by the company. This is a landmark shift in approach which will have a significant impact on OHS enforcement and compliance.”
The definition of “due diligence” may also be contentious.
“The Workplace Relations Ministers’ Council (WRMC) did not approve the recommendation for a definition of due diligence,” Mr Tooma says. “The Committee had recommended that due diligence be defined in line with existing case law on its meaning, drawn largely from NSW where the term has been in use for almost 30 years.”
“Instead, WRMC preferred to rely on the Courts to interpret due diligence. Practically, that means that the true harmonisation of the scope of the personal liability of officers may have some way to go as each State Court and Territory Court attempts to interpret due diligence in the context of the case before it until a case is brought to the High Court so that an authoritative determination of that term is made which is binding on all state and territory Courts.”
Michael Selinger of Holding Redlich Lawyers points out that company officers found guilty will face increased penalties, rising from the from the current maximum in NSW of two years in prison or fines of $55,000 to fines of up to $600,000 for an individual and five years in prison.
New South Wales employers, however, may enjoy some relief as the burden of proof shifts to prosecutors.
“The new Model Act will have a more significant impact on New South Wales employers than those in any other states because the Model Act is largely based on the Victorian and Queensland Acts,” says Mr Selinger.
“For New South Wales, the onus of proof will move away from the employer as a result of the inclusion of the qualifier of ‘reasonably practicable’ in the general duty to ensure safety under the Act. When it comes to proving liability, the prosecutor will now need to show the employer has not taken all reasonable steps to prevent injury.
“In 95 per cent of cases, shifting the burden of proof to the prosecutor won’t affect the outcome. This is because when an injury occurs, employers examine the workplace to see what actions need to be taken to prevent a recurrence – by doing that, they show that there were reasonable steps that could have been taken, which makes it easier for the prosecution to prove liability. To some extent, there’s always been this tension between trying to improve the safety system and protecting your legal position.”
“The legislation in NSW has historically been enforced more vigorously than in other jurisdictions but most OH&S regulators only initiate a prosecution if it is in the public interest and they have a good prospect of success. Under the new Act, there’s likely to be more of an emphasis on education and cooperation between the regulator and business. We won’t really know the answer to whether there’s likely to be fewer prosecutions until the new Act is implemented – at the end of the day, how it is enforced will be the key factor. The regulator will still have plenty of enforcement tools and there is likely to be a uniform enforcement policy applied across the country.”
On the other hand, Neil Foster believes the onus of proof belongs with employers.
“The Model Act has been legitimately described as ‘a race to the bottom’,” Mr Foster says. “The onus of proof should be placed on employers because they have the greatest control over safety: how hard people work; safety procedures; how money is spent; and safety policies. There is still a lot of carelessness in workplaces and WorkCover sensibly doesn’t launch prosecutions unless there’s a good chance the employer is guilty and hasn’t taken reasonable precautions. I think the NSW safety system has been working well.”
Scarlet Reid, special counsel for Henry Davis York says the impact of reversing the onus of proof is uncertain.
“From a practical perspective, this could make convictions more difficult to obtain in New South Wales,” she says. “In the absence of any changes that stipulate which courts hear prosecutions at first instance, it remains to be seen if this is in fact the case. It is questionable as to whether real uniformity can be achieved without examining this important issue.”
Ms Reid says employers were likely to benefit from other changes under the proposed Model Act.
“Defendants in NSW and Queensland should benefit from the proposed expanded appeal rights,” she says. “Defendants in NSW may also find comfort in the proposal to abolish the prosecutor’s right to appeal against an acquittal.”
If employers are winners under the changes, unions, who will lose the right to launch prosecutions, protest vigorously against the proposed Model Act, claiming it would be detrimental to safety. Neil Foster agrees.
“The changes to be brought in under the harmonisation process send a message from government to employers: safety’s been too tough and that we’re not so worried about it anymore. It’s very sad.”
Business drops opposition to Australia’s new OHS laws
A story on the front cover the Australian Financial Review on 8 September 2009 lists the “wins” of the union movement in its negotiations on new national OHS law. But it is the last couple 0f paragraphs on page 8 that are most surprising. The article says
“The coalition dropped its previous opposition to the SafeWork Australia bill, allowing it to pass in its original form, limiting the number of unions and employer representatives on the body to two each and giving Ms Gillard [the Workplace Relations Minister] a veto on the appointment of these representatives.”
This seems to be a considerable backtrack on the strong opposition and media statements coming from employer groups over the last 12 months. One wonders what trade-off the industry associations have managed to obtain.
The changes reported are not very radical for those familiar with the Victorian OHS laws – leave for OHS training and greater protections for union members. But the union movement has (yet) to get a reverse onus of proof or rights to prosecute.
The media release from the IR Minister crows about the Conservatives’ backdown and says little else other than marking the passing of the legislation. Ultimately the biggest benefit of this legislation is clarifying the status of Safe Work Australia.
UPDATE: ACCI media statement
The Australian Chamber of Commerce & Industry has released a conciliatory media statement making no reference to its previously strident opposition. The only semi-interesting content (other than the fact of the statement itself) is its reiteration of OHS being a shared responsibility and the need for Safe Work Australia to ensure its independence.
“The message that working safely requires everyone to take their responsibilities seriously now has a better chance of becoming a co-ordinated national message, with parallels to the mutual responsibility message that features in road safety awareness and safe driving campaigns.”
Finger injury causes hefty new safety agenda for John Holland Rail
Comcare has instigated a hefty list of enforceable undertakings (EU) against John Holland Rail (JHR) after a contractor, Jack Wilmot, needed a finger amputated after a workplace injury.
According to the report on the Comcare website
“…an apprentice boilermaker was involved in an incident which resulted in crush injuries to his left index finger at a JHR facility located at Kewdale, Western Australia.”
Comcare’s investigation report
“found that JHR failed to ensure the apprentice, had received adequate training, supervision and instructions in the task he was undertaking when injured.”
Stephen Sasse, Director of John Holland Rail, signed off on the enforceable undertaking at the end of August 2009.
Below are some of the mandatory safety improvements
- maintain the new supervisory structure implemented at the Kewdale facility shortly after the incident
- implement and adapt the safer systems of work across JHR workplaces within two months of signing the EU
- conduct a risk assessment of all major activities undertaken by JHR to determine and identify those which should be classified as ‘high risk activities’ (HRAs) within six months of signing the EU
- eliminate where reasonably practicable to do so, all HRAs and otherwise apply appropriate control measures to the balance of the HRAs, within six months of signing the EU
- provide training regarding safer systems of work to all JHR employees who undertake rail plant maintenance activities as part of their duties within eight months of signing the EU
- commence implementation of the Rail Safety Business Plan 2009 at all JHR workplaces by 31 September 2009 including commencing work on each of the 28 strategic initiatives within the stated timeframes.
Some of these tasks would be impossible to undertake from scratch. A response from John Holland Rail and/or John Holland Group is being sought.
Enforceable undertakings are a feature of financial and OHS legal processes. In Queensland and Victoria an EU is
“… a legal agreement in which a person or organisation undertakes to carry out specific activities to improve worker health and safety and deliver benefits to industry and the broader community.”
John Holland Group has been proud of its OHS record for many years and has had the benefit of Janet Holmes a Court as a safety champion within and outside the company. Holmes a Court spoke of her commitment to safety at the 2009 Safety In Action Conference which was hosted by the Safety Institute of Australia (SIA) of which John Holland is a Diamond Corporate Partner ($A25,000 minimum donation).
Only last week the SIA, proudly announced a Diamond Corporate Partnership with John Holland Group which commits the company to, amongst other commitments,
- “Act and work responsibly and competently at all times to improve health and safety in workplaces and ensure they do no harm.
- Give priority to the health, safety and welfare of employees, employers and other workplace health and safety stakeholders in accordance with accepted standards of moral and legal behaviour during the performance of their duties.
- Ensure the health, safety and welfare of employees, employers and other workplace health and safety stakeholders takes precedence over the professional member’s responsibility to sectional or private interests.
- Ensure work by people under their direction is competently performed and honestly and reliably reported.
- Ensure they do not engage in any illegal or improper practices.”
It is suggested that for next year’s Safety In Action Conference, the SIA asks a JHG representative to discuss the above enforceable undertakings as a case study of inadequate safety management and the related organisational and financial costs.
[Note: Kevin Jones was involved in the promotion of Safety In Action 2009]
Fatigue, impairment and industrial relations
Many of the employees in the health sector in Australia have recently been negotiating new employment conditions. It is rare for the workplace hazards of fatigue and impairment to be given such prominence in industrial relations negotiations.
A major cause of fatigue is the lack of adequate resources for relieving staff. This issue has been identified for doctors, ambulance officers and firefighters over the last 12 months.
Many important OHS issues are identified in a recent ABC Radio interview with Dr David Fraenkel, the Treasurer of Salaried Doctors Queensland (SDQ). Dr Fraenkel mentions the following issues, amongst others:
- Queensland Health‘s duty of care to the public
- Queensland Health’s duty of care to its employees
- “wrong site surgery” due to judgement impaired by fatigue
Dr Fraenkel also shows the institutional pressures on individual doctors to not discuss the implications of fatigue. He mentions that there is a code of conduct that impedes the discussion of issues by health care professionals.
He admits that should a young doctor leave their station to relieve their fatigue they would most likely be “called to account” for their action and their career may be jeopardised for what OHS professionals would admit is an individual taking responsibility for looking after their own safety and health.
Salaried Doctors Queensland has established a website in support of its campaign which includes some factsheets. The print media also picked up on the SDQ media statements.
An Ombudsman for the safety profession
WorkSafe Victoria is very keen for the safety advice and management discipline to become professional. It is providing considerable technical and financial support to the Safety Institute of Australia and other members of the Health and Safety Professionals Alliance (HaSPA). The current status of HaSPA in Australia has been discussed in other SafetyAtWorkBlog articles.
HaSPA likes to compare itself to other managerial professions such as accounting, medicine and the law, and is trying to establish a contemporary profession. One of the professions mentioned, law, an established profession for hundreds of years, is seriously considering the introduction of an ombudsman, a concept that should have been established already for the safety sector.
According to a media report in The Australian on 4 September 2009:
A taskforce of federal and state officials is working on a plan to create a national legal ombudsman with unprecedented power over the nation’s lawyers.
If the plan goes ahead, the ombudsman would be able to set standards for all lawyers, oversee the handling of all complaints from consumers and intervene with the profession’s state-based regulators.
One option being considered would establish the office of the legal ombudsman as a new national institution drawing authority from a network of uniform state laws.
This would unify the regulation of lawyers and give state governments a role in confirming prospective candidates for the new national office.
Lawyers, rather than taxpayers, could be asked to pay for the cost of establishing their new regulator.
The taskforce, which has been appointed by federal Attorney-General Robert McClelland, is examining the possibility of establishing the new office as the centrepiece for the promised regulatory overhaul of the legal profession.
OHS law in Australia is undergoing its most major national review in decades. Shouldn’t the safety profession also develop the “Office of the Safety Ombudsman”? The legal profession is doing all the work on a model.
Australia has a tradition of effective industry-based ombudsmen. A list is available online but the most publicly well-known would be the Telecommunications Industry Ombudsman.
[In the last couple of years the safety profession has heard from the Victorian Health Services Commissioner, Beth Wilson, on the purpose and role of the commission and how the safety profession can learn from her support, adjudication and advocacy. The commissioner is not an ombudsman but there may be a role for a safety commissioner to address WorkSafe’s concerns over the quality of safety advice being provided by safety professioanls to business. A video of Beth Wilson briefly discussing the role is available on YouTube.]
The application of an Ombudsman model in the safety profession should be discussed but similar objections will be raised to those of the legal profession in the article quoted above. Underpinning the objections is that an established profession is resistant to change and suspicious of relinquishing the power it has established over its lifetime.
If the safety advocates are truly committed to establishing a contemporary profession, the concept of a safety ombudsman must be discussed or else the system of self-regulation will continue and so will the lack of independence, the lack of accountability, the limited communication and the lack of faith by the general community that safety professionals can be trusted to do a good job.
Thoughts on tasers and the hierarchy of controls
The Braidwood inquiry report into the use of energy weapons (tasers) is readily available on the internet. Regular readers of SafetyAtWorkBlog would know that I consider tasers to be a item of personal protective equipment (PPE) for enforcement officers.
Determining whether PPE is the most appropriate hazard control measure usually involves the application of the Hierarchy of Controls. The hierarchy is not applicable for all workplace hazards, particularly in the control of psychosocial hazards, but it’s a good place to start.
While reading the executive summary of Canada’s Braidwood report, one part in particular reminded me of the hierarchy – page 17.
Although the definitions for “assaultive behaviour” in both use-of-force continuums can be traced back to the Criminal Code’s language for common assault, they also justify use of the weapon when there has been only an attempted common assault, and even when no criminal offence has been committed. I concluded that the subject behaviour threshold should be met when the subject is causing bodily harm or the officer is satisfied, on reasonable grounds, that the subject’s behaviour will imminently cause bodily harm. Even then, an officer should not deploy the weapon unless satisfied, on reasonable grounds, that no lesser force option would be effective, and de-escalation and/or crisis intervention techniques would not be effective.
Let’s see if the hierarchy can apply.
Can the subject behaviour be eliminated? – No
Substitution doesn’t seem relevant.
Can we engineer out the threatening behaviour? – Barriers, shields… perhaps but the presence of these items may also inflame the behaviour, increasing the hazard.
Can administrative controls be applied to the hazard? Unlikely, unless the subject was cooperative or able to accept instruction or read signs, in which case, the hazard may not exist.
That leaves PPE, in this case a Taser.
The report places a considerable number of criteria that the enforcement officer must apply prior to using the taser and these should be considered administrative controls but as these apply to the enforcement officer and not the subject, they would not come under the hierarchy of controls.
I welcome readers comments on this rumination on Tasers as PPE, and/or the application of the Hierarchy of Controls to a police situation.