law – Page 257 – SafetyAtWorkBlog

Gillard’s plans for new OHS agency – response

It was predictable for the Opposition party to accuse Julia Gillard of arrogance for bypassing the Parliamentary process. Senator Eric Abetz wrote to the letters page of AFR on 21 January 2009, the text of the letter is below (although there were slight changes in the published version)

“It is highly arrogant and misleading for Workplace Relations Minister Julia Gillard to blame the so-called “intransigent” Senate and the Opposition for the delay in implementing harmonised OH&S laws (‘Gillard defies Senate on work safety”, 20th January 2009).

As the Shadow Minister who dealt with the issue in the Senate, I know that the facts of the matter are that what you might regard as an unlikely alliance of the Coalition, Family First, the Greens, Senator Xenophon, the ACCI and the ACTU (yes, even the ACTU) all agreed that the amendments proposed and passed by the Senate were necessary.

Unfortunately, our offer to meet with Ms Gillard to negotiate a way forward on this matter was rejected by a Minister who apparently thinks “it’s my way or the highway”. It is indicative of the disregard that the Rudd Government shows for the Parliament and the Senate is that it is now seeking to circumvent it on this important matter.”

The risk from the Gillard strategy is that once the process is completed the regulatory agency will forever be accused of being illegitimate, or a political ideological construct, having not undergone due process through Parliament. The Labor government needs to look beyond political expediency to construct a national OHS regulatory body of which noone can object.

Comment continues to be sought from the labour movement and opposition political parties.

Kevin Jones

Gillard’s plans for new OHS agency

In an interview with the Australian Financial Review of 20 January 2009, the Deputy Prime Minister and Minister for Workplace Relations, Julia Gillard, has indicated a preference for the Workplace Relations Ministerial Council to “create an executive agency that did not need the approval of parliament”.

The article goes on to report Gillard’s OHS plan

“the states would use executive powers to create another regulator to control the new laws to avoid the need for approval from the federal parliament…”

The process she proposes has broader ramifications for the Rudd government’s reform agenda, as can be indicated by the placement of the article on the cover of the conservative newspaper, the Australian Financial Review

Gillard’s proposal is not ideal and as the AFR editorial points out, it is the inflexibility of the Coalition and Greens that has put this option on the Minister’s agenda. It is an important move and one that is likely to receive support from the OHS professional organisations who have lobbied for a central OHS regulatory agency.

The next step is to see what the review panel into model OHS law recommends in its report due to be handed to the government at the end of January 2009.

[The articles are not available on line as AFR.com is a subscription-only service]

Kevin Jones

Eliminating hazards

In the aims of most of the Australian OHS legislation is

“to eliminate, at the source, risks to the health, safety and welfare of employees and other persons at work…”

I have written elsewhere on how this conflicts with the push for “reasonably practicable” but the need to remember this important aim was emphasised by a study undertaken by the Graduate School of Public Health and the School of Medicine at the University of Pittsburgh and published in the January 2009 issue of “Neuropsychology”, which is published by the American Psychological Association.

The researchers followed up on the 1982 Lead Occupational Study, which assessed the cognitive abilities of 288 lead-exposed and 181 non-exposed male workers in eastern Pennsylvania. It measured “five primary cognitive domains: psychomotor speed, spatial function, executive function, general intelligence, and learning and memory.”

According to the media statement, in the 2004 follow up study,

“Among the lead-exposed workers, men with higher cumulative lead had significantly lower cognitive scores. The clearest inverse relationships – when one went up, the other went down – emerged between cumulative lead and spatial ability, learning and memory, and overall cognitive score.

This linkage was more significant in the older lead-exposed men, of at least age 55. Their cognitive scores were significantly different from those of younger lead-exposed men even when the researchers controlled for current blood levels of lead. In other words, even when men no longer worked at the battery plants, their earlier prolonged exposure was enough to matter…”

“The men who built lead batteries were exposed to it in the air and through their skin. Other occupations, including semiconductor fabrication, ceramics, welding and soldering, and some construction work, also may expose workers. The authors wrote that, “Increased prevention measures in work environments will be necessary to reduce [lead exposure] to zero and decrease risk of cognitive decline.””

Lead has been identified as a major occupational hazard for a very long time and is a good example of how “reasonably practicable” is not always a reasonable solution. Lead paint products have been banned in many countries. Asbestos similarly so. The attitude that there are “safe” levels of exposure to some industrial products is not worth pursuing in most circumstances.

Safety is similar to medicine in that both aim to “do no harm”. If Hippocrates, or Galen, were alive today they would not say

“do no harm, as far as is reasonable practicable”.

That is not a belief that will establish a centuries-old profession and it should not be blindly accepted by the safety profession in the 21st century.

Kevin Jones

Workplace health initiatives in unstable economic times

All through the Presidency of George W Bush, safety professionals have been critical of the lack of action on workplace safety. As with many issues related to a new Democrat President in Barack Obama, organisations are beginning to publish their wishlists. The latest is the American College of Occupational and Environmental Medicine (ACOEM).

On 9 January 2009, ACOEM released a media statement which began

“American College of Occupational and Environmental Medicine (ACOEM) calls on the Health and Human Services Secretary-designee Tom Daschle to address the critical link between the health, safety, and productivity of America’s workers and the long-term stability of its health care system and economy as he begins work on the Obama administration’s health care agenda.”

The requested changes could be interpreted as a criticism of what the situation has been under George W Bush. ACOEM says the next government

“must put a greater emphasis on ensuring the health of the workforce in order to meet the twin challenges of an aging population and the rise of chronic disease…”

ACOEM President Robert R. Orford, MD goes into specifics

“…calling on Daschle to focus on preventive health measures aimed at workers that could range from screening and early detection programs to health education, nutritional support, and immunizations.”

The ACOEM reform program is based on the following

“investing in preventive health programs for workers;
creating new linkages between the workplace, homes and communities to reinforce good health;
providing financial incentives to promote preventive health behaviors among workers; and
taking steps to ensure that more health professionals are trained in preventive health strategies that can be applied in the workplace.”

Accepting that one Australian State, Victoria, is considerably smaller than the US (Victoria has a population of around 5,200,000, the US had 301,621,157 in 2007), it is interesting to remember what the Victorian Government proposed (or promised) just on 12 months ago concerning its WorkHealth initiative.

“Over time the program is expected to free up $60 million per year in health costs, as well as:

Cut the proportion of workers at risk of developing chronic disease by 10 per cent;

Cut workplace injuries and disease by 5 per cent, putting downward pressure on premiums;

Cut absenteeism by 10 per cent; and

Boost productivity by $44 million a year.”

[It would be of little real benefit to simply multiple the Victorian commitments by the differential with the US population to compare monetary commitments, as there are too many variable but if the WorkHealth productivity was imposed on the US, there could be a $2.6 billion, not a lot considering the size of President Bush’s bailouts and Barack Obama’s mooted bailout package. However, in the current economic climate, in order to gain serious attention, any proposal should have costs estimated up front and, ideally, show how the initiative will have minimal impact on government tax revenues – an approach that would require.]

In each circumstance there is the logic that unhealthy people are less productive than healthy people. This sounds right but it depends very much on the type of work tasks being undertaken. It is an accepted fact [red flag for contrary comments. ED] that modern workloads are considerably more supported by technology than in previous labour-intensive decades. Perhaps there are better productivity gains through (further) increased automation than trying to reverse entrenched cultural activity.

In late 2008 an OHS expert said to a group of Australian safety professionals in late-2008 that WorkHealth

“is not well-supported by the stakeholders. The trade unions feel it is a diversion away from regulated compliance and that it is going to refocus the agenda on the health of the worker and the fitness of the worker as the primary agenda, which is not what the [OHS] Act is setup to focus on. The employers are basically unkeen to get involved on issues they think are outside their control.”

The expert supported the position of some in the trade union movement that WorkHealth was always a political enthusiasm, some may say folly.

This is going to be of great importance in Australia with the possibility of new OHS legislation to apply nationally but also muddies the strategic planning of any new government that needs to show that it is an active and effective agent of change, as Obama is starting to do. In the US, the public health system is not a paragon and the workplace safety regulatory system is variable, to be polite. Fixing the public health system would seem to have the greater social benefit in the long term, and a general productivity benefit.

(It has to be admitted that the packaging of health care in employment contracts in the US is attractive employment benefit and one that seems to be vital to those who have it. Australia does not have that workplace entitlement but those employers struggling to become employers-of-choice should serious consider it, particularly as a work/family benefit.)

Each country is trying to reduce the social security cost burden on government and it would seem that public health initiatives would have the broader application as it covers the whole population and not just employees, or just those employees who are unfit.

Work health proposals in both jurisdictions need to re-examine their focuses and to pitch to their strengths. Business has enough to worry about trying to claw its way out of recession (even if the US government is throwing buckets of money to reduce the incline from the pit). OHS professionals have enough work trying to cope with the traditional hazards and recent, more-challenging, psychosocial hazards. Workplace health advocates are muddying the funding pool, confusing government strategic policy aims, and blending competing or complementary approaches to individual health and safety in the public’s mind.

Kevin Jones

Update 16 January 2009

More information on this issue is available HERE

Analysis of First Report of the National Model OHS Law Review

As more Australian OHS professional return to work after their Summer break, it will take several days to get through emails. Some of those emails are likely to include a mention of Australia’s review panel reports of model OHS law. The First Report has been out for over a month and the final report is due at the end of this month.

Other than a couple of statements by labour lawyers, the analysis has been relatively quiet, which makes the analysis by Professor Richard Johnstone a good way to remind us of the issues raised and the timetables for the review process.

In December 2008 The National Research Centre for OHS Regulation of the Australian National University released a Working Paper by Professor Johnstone entitled “Harmonising Occupational Health and Safety Regulation in Australia: the First Report of the National OHS Review”. Johnstone identified several important changes suggested by the review panel

“…..These two recommendations are operationalised by arguably the most important proposals in the First Report. These are the recommendations that the model Act impose a “primary” general duty upon a “person conducting a business or an undertaking” and owed to “workers” broadly defined and “others”; and that beneath this primary duty sits a series of specific classes of duty holders with more detailed duties which “flesh out” the primary duty of care, without excluding or limiting the primary duty. ” (page 17)

This concept has originated from Queensland and New South Wales but expanded by the panel and sets up a structure that underpins other elements, such as the duties of “corporate officers”.

In discussing the duties of officers, Professor Johnstone writes

“I urge the Panel to ensure that the definition of “corporate officers” is broad enough to include “shadow directors”, so that responsibility for contraventions by corporations of the general duties in the model Act can be sheeted home to entities such as holding companies and franchisors.” (page 32)

It has to be remembered that the review panel is focusing on law and not necessarily the practical safety management that operates from the legal obligations and is structured on compliance.

In terms of prosecutions Professor Johnstone identifies the following as one of the most important elements of the panel’s First Report

“There should be three categories of offences for each type of duty of care

a)      Category 1 for the most serious breaches, where there was a high level of risk of serious harm and the duty holder was reckless or grossly negligent;

b)      Category 2 for circumstances where there was a high level of risk of serious harm but without recklessness or gross negligence; and

c)       Category 3 for a breach of the duty without the aggravating factors present in the first two categories with maximum penalties that:

d)      relate to the seriousness of the breach in terms of risk and the offender’s culpability;

e)      strengthen the deterrent effect of the offences; and

f)       allow the courts to impose more meaningful penalties, where that is appropriate.”

The panel, or the government, will need to be careful in proposing this categorisation as there are already in Australia OHS professionals advocating a three-stage categorisation of personal damage. As George Robotham has listed the classes, developed by Geoff MacDonald :

“CLASS 1-Damage that permanently alters a persons life e.g. death, paraplegia, amputation of a leg, severe psychological damage.

CLASS 2- Damage that temporarily alters a person’s life e.g. fractured leg that repairs with no lasting impediment, deep laceration that has no underlying tissue damage and repairs without significant scarring

CLASS 3 – Inconveniences a person’s life.”

These are categorisations in very different contexts but may unnecessarily confuse the management of safety depending on which way the review panel goes and how the government responds to these concepts.

Johnstone’s paper is the best analysis currently available and should whet the appetites of safety professionals who should probably gird themselves for the more expansive Second Report due shortly.

Kevin Jones

OHS Podcast with Andrew Douglas

One of the services that Workplace Safety Services (the company behind SafetyAtWorkBlog) provides to its clients are podcasts.

The Safety Institute of Australia had a podcast produced principally to promote its Safety In Action Conference, which is in Melbourne Australia on 31 March to 2 April 2009, that includes an interview with Andrew Douglas. Andrew is speaking at the SIA09 conference and is a director of Douglas Workplace and Litigation Lawyers.

In the podcast he discusses making OHS a core business function, the OHS role in small business and the not-for-profit sector, and how important it was for him personally and professionally to be involved with the Safety In Action conference.

The podcast is a short promotional one but you may find Andrew’s comments of interest and use.

George W Bush and workplace safety

In 2001, one of the first legislative actions of George W Bush was to repeal the United States ergonomics standard. At the end of his presidency there are indications that he is thinking about the regulatory impost of OHS on businesses again.

Crikey.com and others have reminded us of the Bush Administration’s plans concerning the exposure of workers to chemicals

“David Michaels, an epidemiologist and workplace safety professor at George Washington University‘s School of Public Health, said the rule would add another barrier to creating safety standards, in the name of improving them.

“This is a guarantee to keep any more worker safety regulation from ever coming out of OSHA,” Michaels said. “This is being done in secrecy, to be sprung before President Bush leaves office, to cripple the next administration.””

Propublica has reported that new rules that seem to run counter to current fatigue management guidelines elsewhere have been finalised.

“The Department of Transportation has finalized an interim rule for the number of hours a truck driver may spend on the road per day and per week. The rule, which has essentially been in effect since 2004, allows truckers to drive for 11 hours and work no more than 14 consecutive hours each day. They must rest 10 hours between shifts, and may not work more than 60 hours a week.”

An audio report from 2007 on the issue of working hours is available at NPR

It is hard to see the justification for these safety rule changes but these are just two of many changes in place or being finalised in a rush. Perhaps there is a grander strategy that the bigger perspective will show.

The actions are disappointing but not without precedent. It should be remembered that Democrat President, Bill Clinton, took full advantage of the opportunity.

In Australia and elsewhere, the movement to “cut red tape” gathers strength, it just seems that no one yet is applying the US solution of eliminating the regulatory need.

It is sad to see that throughout Bush’s tenure safety advocates and lobbyists were not able to gain concessions. It will be doubly difficulty to gain anything that may involve a cost to business in the current economic problems.

The challenge will be even greater in Australia where the Safe Work Bill has been withdrawn from Parliament and the Government is willing to weaken election commitments, such as on climate change, due to the economic context.

In just over a month’s time, we will see how new President Barack Obama acts on safety; Australia has much longer to wait.

Category: law

Gillard’s plans for new OHS agency – response

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Gillard’s plans for new OHS agency

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Eliminating hazards

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Workplace health initiatives in unstable economic times

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Analysis of First Report of the National Model OHS Law Review

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OHS Podcast with Andrew Douglas

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George W Bush and workplace safety

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