Shortcomings of the legal perspective on work health and safety

The most common question occupational health and safety (OHS) consultants receive from clients is, “Do I comply with the law?” This request is telling because the client starts from a legal rather than a safety base. This is not surprising, as OHS commentary is dominated by lawyers whose focus is on minimizing their clients’ exposure to prosecution.

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The most recent guidance on office safety, including psych safety and working from home

In December 2024, WorkSafe Victoria released “Office Health and Safety – A Guide for Employers“. Sadly, it seems to have (half) dumped the Officewise brand. If WorkSafe had kept it, the guide would have been part of an illustrious history stretching to the last century when the first edition was published in 1995. The new guide has some interesting advice on occupational health and safety (OHS) issues related to working from home, but workplace mental health seems more prominent than in earlier editions.

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Seeing OHS law as a social law could change how OHS is seen and its future

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.

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Latest OHS News from Herbert Smith Freehills

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.

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How bad must it have been?

The corporate cultures of Australia’s mining industry have been under substantial scrutiny for over a decade. Sexual harassment, bullying, work-related suicides and more psychosocial hazards have been identified with strategies introduced to address the cultures that contribute to these occupational harms.

On 20 November 2024, Rio Tinto released a progress survey on its cultural change initiatives, which the Australian Financial Review (AFR) described as showing a “backlash” to these reforms. This survey is a significant document for those on similar journeys and for occupational health and safety (OHS) advocates.

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What are the most substantial impediments to improving the health and safety of workers?

This is the second in a possible series of articles based on an artificial intelligence analysis of decades of audio interviews and recordings with occupational health and safety professionals, academics, lawyers and more used for this blog and my other writings. This time, I asked:

What are the most substantial impediments to improving the health and safety of workers?

Several substantial impediments to improving worker health and safety emerge from the conversations:

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Publicity about the right to disconnect was “overblown”

Recently, the “right to disconnect” gained some prominence in Australia. This right, now legislated, allows employees and workers to choose not to respond to employer communications outside of contracted working hours. This was part of recognising that time away from work allows one to focus on non-work matters like family, socialising, mental relaxation, and more.

According to much mainstream media and the statements and lobbying of various business associations, the sky would fall (a phrase that appears with any proposed change that business groups do not like). A significant change has not happened, and the sky has not fallen. At a recent labour law conference, Fair Work Commission President Adam Hatcher described the publicity as overblown.

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