law – Page 253 – SafetyAtWorkBlog

More last minute lobbying but with compromise

The Business Council of Australia is the latest employer group to actively lobby Australian industrial relations ministers over harmonised OHS laws on the eve of the crucial Workplace Relations Ministers’ Council (WRMC) meeting. BCA’s CEO Kate Lahey is reported in today’s Age newspaper as saying that the rejection of OHS law reform would say to investors that the States were not interested.

The Mineral Council of Australia has stated in the same article that

“… a uniform OHS act will enable all businesses to focus on improving health and safety outcomes…”

Outcomes can be many things but much of the commentary over the last week seems to misunderstand the aims of the government’s review. As I tried to emphasise on an interview on 17 May 2009 on radio 3CR, it was a review of OHS law not OHS management. Satisfactory levels of safety have already been achievable under existing OHS law. A change of law does not equate to a change of approach or commitment.

The chance of the OHS reforms not going through was weakened on the weekend when the New South Wales Industrial Relations Minister, Joe Tripodi,

“signalled a compromise on the absolute duty of care that requires employers to prove a workplace is safe…”

New South Wales was the crucial sticking point in national negotiations and and the minister’s compromise is likely to be that the reverse onus only applies to corporations and that individuals be exempt.

If the WRMC decides to follow the National OHS Model Law Review Panel reports, OHS Law will be streamlined for lawyers, the Courts and OHS regulators. This will benefit those businesses that operate across State borders but it will make little difference to the vast majority of workplaces in Australia.

The recommendations of the Reports were not that radical. The recommendations were, as expected, a copy of the Victorian OHS Act with bits added. In fact, some lawyers question whether the OHS Model Law Review was really necessary given the bland predictable outcomes.

Many were wishing for an OHS revolution like that achieved by Lord Robens in the 1970s. The fact is that the review was given limited resources and limited time to reach a conclusion. The recommendations seem to be acceptable to the government and unsurprising.

The main game in Australian politics at the moment is industrial relations. Any OHS changes will best understood through analysis of their IR implications.

Kevin Jones

How many Australians work from home?

SafetyAtWorkBlog is mostly produced from a home office. This is principally because the type of work undertaken can be done in a domestic setting. There are thousands of small – and micro-businesses in a similar situation. Thousands of people choose to run their businesses from home.

This has often been overlooked in the teleworking movement over the last decade or so. “Working from home” has more often than not been considered an addition to working in an office. The home workplace is seen as a back-up to a principal place of work.

In early may 2009, the Australian Bureau of Statistics released statistics on working from home, both as a main and second job. The media statement emphasises those who take work home and does have one paragraph on home-based businesses.

“People who were owner managers in their main job were much more likely to use their own home for their main location of work (27% of the 1.9 million owner managers) than employees (1.4% of the 8.2 million employees*). Women who were owner managers in their main job were more likely to use their own home for their main location of work than male owner managers (45% compared with 18%)”

The media statement went on :

“Around one in every 12 employed persons (764,700 persons or 8%) worked more hours at home than any other single location in their main or second job. Of these people:

The majority (83%) were aged 35 years or older

55% were women

39% were in families that had children aged under 15 years old

The main reason for working from home was ‘wanting an office at home/no overheads/no rent’ (37%), followed by ‘operating a farm’ (21%) and ‘flexible working arrangements’ (15%)

31% worked 35 hours or more at home in all jobs”

The OHS profession has never really been able to cope with a workplace that is also a domestic residence. To help, OHS professionals advise to have a dedicated home office so that the workplace has a defined area. This allows OHS obligations to fit the concept.

Working from a kitchen table with a dog, a hungry child and three baskets of washing to hang out, is not what the legislation anticipated but it can be the reality.

Another reality is that many media and professional people can work out of their car or local cafes almost 100% of their time. How does the advice from an OHS professional match those scenarios? Legislation based on the assumption of a fixed work location or site might not meet these particular working environments.

Another thing that is always annoying is the assumption that it is office workers who work from home, so the tasks are necessarily technologically based. Any OHS advice should apply to the issue of working from home in a broad sense and not just to specific work tasks.

As many professions become portable, OHS laws and legislation need to accommodate the flexibility. If not more so, so do company policies, job descriptions, claims assessments, workplace safety assessments and others.

Kevin Jones

Big fine for go-kart death

The AAP and others are reporting a big fine over the death of Lydia Carter whilst driving a go-kart at a work function held in Port Melbourne in 2006. The significance of the $A1.4 million fine is that the company, AAA Auscarts Imports Pty Ltd, is not a large or multinational corporation.

Ms Carter was wearing a seat belt that did not fit properly and safety barriers on the track had been incorrectly installed.

Judge Duncan Allen said

“There is no doubt in my mind that (Auscarts) not only was fully aware of the risk, but was fully aware of the ways to reduce them”

“The company showed a gross disregard concerning the safety of employees and the public.”

For OHS professionals this case, which ended today (12 May 2009) in the Victorian County Court, will generate a fair degree of attention because of the fine’s size. However, from the information currently available, the case seems one of the go-kart company having a work environment that was unsafe for customers, the company being aware of this and not doing enough to fix it.

SafetyAtWorkBlog is also looking into how Ms Carter’s death has changed her employer’s organisation, what effect it had on her colleagues, what policy changes have been made, amongst other matters.

The judgement will also be made available as soon as possible.

Kevin Jones

Australia’s OHS harmonisation likely to fall

Media reports on 11 May 2009 do not provide optimism for the introduction of harmonised OHS laws in Australia. The Australian reports that the ACTU is lobbying Federal ministers over the reports into the model OHS law that are scheduled to be discussed at the Workplace Relations Ministers’ Council on 18 May.

The unions believe that following the recommendations of the review panel will provide workers with lesser standard of safety protection than they currently have.

The government has been slow is responding to the recommendations of the review panel, an odd action given the tight reform timeline they set. However, the government has shown that timelines are flexible even when the future of humanity is threatened by climate change.

The ACTU will be campaigning in the media this week against the weakening of OHS laws, particularly the extremist laws of New South Wales. Whether this is an ambit claim or not will be found out next week but whatever it is it shows regrettable shortsightedness on the part of the ACTU.

The Australian Financial Review (page 5, 11 May 2009, article not available online) seems to take some glee in the fact that the safety laws are “shaky”. The paper may be caught between watching the Government’s agenda failing again or advocating legislative change to reduce the operational costs of its readers. The AFR reports that three States are digging in against the possible OHS law reforms. New South Wales (largely seen as dominated by the trade unions), Queensland (new IR Minster Cameron Dick wants the State’s reverse onus of proof to be applied) and Western Australia have indicated a hesitance to accept.

The Federal Government needs a two-thirds majority for the national OHS legislation to occur and, with a week to go, SafetyAtWorkBlog expects the government to apply some horsetrading for the new laws to pass.

Having said that noone yet knows what the new laws are that will be proposed. The Government has received the review panel reports but has yet to respond to the recommendations.

Any law reform focused on national harmonisation is unlikely to succeed unless there is unanimous support for the reforms. The fear all along with the OHS laws is that agreement will be short-term until state governments decide that their industries or industrial relations situation have special needs and responds parochially and weakens the national strategy.

The challenge for the Federal Minister for Workplace Relations, Julia Gillard, is to achieve unanimity AND lock in State support for several years so that harmony and stability can be achieved. OHS law reform on this scale occurs rarely and all parties should be looking at the long term on this issue rather than their own state-based petty power struggles. We have to wait till early next week to see which States have the mature politicians.

Kevin Jones

Statutory liability insurance and OHS penalties

nsca-article-0409-001 Recently I wrote an article for National Safety magazine entitled “Trials and Tribulations”. It came about because I heard about an OHS consultancy that was offering safety management services that included a component of insurance. The insurance was explained to me as covering any OHS fines or penalties that may eventuate for the consultancy’s clients.

This combination of services is very attractive and addresses fundamental OHS questions asked by employers of different sizes – “do I comply?” and “how do I know that I have a safe workplace?”. They’re slightly different questions but ones I come across regularly.

OHS regulators are getting better at helping small business establish a compliance benchmark through the use of compliance codes for some elements of workplace safety management – a semi-return to prescription. However, many small business owner do as much as they can to provide a safe workplace and still get prosecuted by the OHS regulator. This is frustrating and demoralising and in this context an insurance policy is attractive. The insurance would cover any penalties that the business receives even if the incident that generated the prosecution was “unforeseeable”.

The National Safety article includes legal opinions and insurance company opinions that don’t quite fit.

Some of the interviews I conducted with insurance brokers did little to assuage my unease at insurance policies. It seems to me that some insurance policies are taken out unnecessarily while other policies often exempt coverage for the very risks one thought the policy covered. I agree with many insurers who recommend that business insurance is best handled by an experienced risk manager. Sadly many OHS professionals do not have those skills.

In the context of the OHS consultancy, clients may be reassured by such an insurance policy but it should be an unnecessary expense. The consultancy provides a monthly assessment service that steers the company through specific workplace hazards. The consultancy provides some initial OHS advice and resources but no independent audits of the OHS system and the monthly monitors are not trained in OHS.

The consultancy says that following this system will provide compliance, and maybe it does. But even compliant workplaces can have incidents that could generate a prosecution. It is here where the insurance policy should apply.

The monthly assessment system needs to be diligently followed and payments kept current because non-compliance with the obligations of the system could leave an “out” for the insurer.

Statutory liability insurance, particularly for small business, needs to be examined by the OHS regulators. Most regulators approached would not comment on the record about such policies, others were dismissive. The article examines the legal issues further and, sadly, the article is not available online.

If the regulators are truly supportive of small business and OHS compliance for this sector, there should be some guidance on statutory liability issued. But like OHS professionals, regulators are not comfortable with policies that compensate (other than workers compensation). They focus on prevention and prosecution. It’s time to establish a broader source of OHS policy development, one which includes insurance companies, brokers and risk managers.

Kevin Jones nsca-cover-0409

Lawyer speaks on nanotechnology risks

A leading Australian OHS lawyer, Michael Tooma, spoke to ABC Radio on 16 April 2009.

Tooma spoke about the potential risks employers face by dealing with a substance whose hazard rating is unclear. HE says

“Employers at the moment may be unaware of the extent of the potential liability sometime down the track. …We could be facing another epidemic in our industrial history of people, large groups of people, displaying latent symptoms from current exposures that are taking place at the moment. “

The unions have repeatedly made the comparison with asbestos hazards but as Dr Craig Cormick of the Australian Office of Nanotechnology says, in the same interview, that in the early usage of asbestos evidence of potential harm was available but not shared.

An April 2007 legal update from Tooma on the issue is available

Farmers creating dis-harmony in OHS legislation

Australia is undergoing a process of national harmonisation on workplace safety legislation. The government has played down the chances of State jurisdictions creating exemptions to, or variations of, OHS law. The message was that we are all “singing from the same song sheet”.

Even before model OHS legislation has been approved, the New South Wales Farmer’s Federation has wangled an exemption from the driver fatigue legislation in that state.

According to the President of the NSW Farmer’s Federation, Jock Laurie, the fatigue law was not about reducing or removing fatigue from the transport industry, it was about

“bureaucrats finding other ways to make life difficult for people”.

He is willing to even go on the record with the statement – Jock Laurie

As farmer and outspoken conservative Senator Bill Heffernan, said in Parliament on 22 September 2008, the legislation

“is designed to make driving safer and the work conditions better for drivers in Australia, and to harmonise the laws across the states.”

Yet he goes on to support the call for an exemption which results in weakening the harmonisation process.

It seems that farmers who drive trucks long-distances over many hours, particularly during harvest-time, do not have any relationship to the transport industry. The situation will now be that a petrol tanker driver on a country highway can operate under one set of national OHS and transport rules and a farmer delivering grain to a port operates with an exemption – all because maintainign a log book is unnecessary red tape!

This threat to the harmonisation process should have been jumped on by the Federal government.

However, it has to be said, that inadequate transport infrastructure investment has lead to the closure of country rail lines and increased the need for farmers to transport produce by road, thereby increasing the road risk to rural communities. Perhaps the farmers’ lobby groups realise they can’t change the big picture so are aiming for little targets.

Kevin Jones

Category: law

More last minute lobbying but with compromise

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How many Australians work from home?

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Big fine for go-kart death

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