In the realm of occupational health and safety (OHS), Enforceable Undertakings (EUs) have emerged as a significant alternative to prosecution for companies that breach safety legislation. Recently, I had the opportunity to catch up with Naomi Kemp to explore the concept of EUs, their implications for workplace safety, exceeding compliance, and the restoration of relationships following incidents.
Recently, sentencing in a court case in Melbourne has generated much online chatter about excessive working hours and the exploitation of workers in a small law practice. One report of the $A50,000 fine against Erudite Legal says that the company:
“…forced a junior lawyer to work up to 24-hour days and watch an ice hockey movie at 1am so she could understand her boss’ philosophical position”.
Other media reports provide more details of the successful prosecution, but the occupational health and safety (OHS) context is mostly absent.
The latest edition of Creighton & Stewart’s Labour Law book (7th edition) has been released. I say “book”, but it is almost a brick, weighing in on my scales at 1.8 kilograms (see photo below). The book is excellent and probably authoritative, with the primary negative being its size and format. This article focuses on the 79-page occupational health and safety (OHS) chapter written by Richard Johnstone.
Last week, the Victorian Coroner, Leveasque Peterson, released her findings into the deaths of Charlie Howkins and Jack Brownlee from a trench collapse on a residential construction site in Delacombe in March 2018. The employer, Pipecon, pleaded guilty to occupational health and safety (OHS) law breaches and was successfully prosecuted by WorkSafe Victoria. But the guilty plea meant there was only a cursory investigation of the OHS elements of the incident.
This month’s coronial findings have come without the opportunities offered by a formal inquest. So, where are the answers? What management decisions caused the trench to collapse and lead to the deaths of Jack and Charlie? The available answers seem insufficient. What lessons can be drawn from these legal processes to stop similar incidents occurring elsewhere?
Occupational health and safety has traditionally been considered under the category of industrial, or industrial relations, but largely this is due to the major advocates of OHS being the trade union movement. So OHS seems to fit with workers’ rights under the issues of wages and conditions, but really OHS is a social law.
According to one definition social law is:
“…any law, rule or regulation (including international treaty obligations) applicable in any jurisdiction concerning
– labour,
– social security,
– the regulation of industrial relations (between government, employers and employees),
– the protection of occupational, as well as public, health and safety,
– the regulation of public participation,
– the protection and regulation of ownership of land rights (both formal and traditional), immovable goods and intellectual and cultural property rights,
– the protection and empowerment of indigenous peoples or ethnic groups,
– the protection, restoration and promotion of cultural heritage, and
– all other laws, rules and regulations providing for the protection of employees and citizens.”
OHS meets several elements of this definition.
Last week, Maddocks law firm conducted an end-of-year summary of its workplace relations issues and a forecast for 2025. Occupational health and safety (OHS) are almost inseparable from industrial relations (IR), so the overlaps between the four or five topics discussed were enlightening and provided a good contrast to the information from other law sources.
One of the most important sources of information about occupational health and safety (OHS) is seminars organised by law firms. A great example was a webinar hosted by Herbert Smith Freehills on October 30, 2024, as part of its Safety Leadership Series. It was a general discussion on Australia’s most prominent OHS issues but outlined increasingly significant consequences.
