Category: lawyers

Flogging a dead horse when it is still alive, though looking poorly

In The Australian newspaper on 24 November 2012, columnist Judith Sloan discussed how the harmonisation of Australia’s occupational health and safety laws are

“a present glaring example of a despot stripped bare…”

Earlier this year, in April, Sloan said harmonisation was dead so one could say she is flogging a dead horse. Some parts of her November article (only available online via subscription) do not seem to be supported by evidence and her terminology occasionally indicates a lack of understanding of occupational health and safety matters.

Sloan rehashes some of the April 2012 article including the image of crying public servants but gives prominence to the inconvenience to some companies under the Comcare scheme. Several years ago some national companies opted out of State-based OHS and workers’ compensation schemes in order to join the only national safety scheme that was available at the time. Part of the reason for this move was that it provided national coverage for national businesses. Some complained because Comcare was seen as having a much smaller enforcement team and that the OHS laws were, somehow, less than in many of the States. This option was provided under a Conservative Government to assist business. The same government instigated the OHS harmonisation process.

Continue reading “Flogging a dead horse when it is still alive, though looking poorly”

John Darley speaks to SafetyAtWorkBlog

Independent Member of the South Australian Parliament, John Darley, provided SafetyAtWorkBlog with some background to the package of amendments he has for that State’s Work Health and Safety laws currently before Parliament.

Darley acknowledged that he delayed the Work Health and Safety Bill since December 2011 and admitted that the Bill looked like common sense but his approach is to jump ahead an consider how the Bill would look as an Act and determine its social impact.  The opposition parties in South Australia believed the Bill was so bad that it should have been defeated before it proceeded to the committee stage but Darley knew that could imply that he was not interested in workplace safety.  Darley believes that the reassessment of the WHS Bill over such a long time indicates his commitment to the safety of workers.

Darley said that union right-of-entry was not an issue of concern in December 2011 but he came to see the significance of the  issue after delegations and meetings with people affected by workplace deaths but who were also very dissatisfied with the operations of the OHS regulator, SafeWorkSA.  The union OHS representatives offered an alternate but Darley felt that union access needed Continue reading “John Darley speaks to SafetyAtWorkBlog”

New workplace safety laws set to pass in South Australia in October

South Australian Independent Member of Parliament, John Darley, has been negotiating on that State’s Work Health and Safety laws for many months.  On 17 October 2012, according to a media release from SA’s Premier Jay Weatherill and Workplace Relations Minister Russell Wortley, Darley agreed to support the passing of the laws after achieving some amendments.  Those amendments involve changes to

  • height limits,
  • duty of care,
  • the right to silence, and
  • the right of entry.

Tammy Franks, a Greens MLC, was able to achieve an expansion of the number of days available for OHS representative training.

A spokesperson for John Darley told SafetyAtWorkBlog that another change was for any WHS codes of practice to undergo a small business impact assessment in consultation with the Small Business Commissioner.  Darley’s spokesperson said that the MP had met with Business SA after it changed its position on the WHS laws.  The amendment above is likely to address the small business concerns that BusinessSA raised in its letter to its members earlier this month.  The flip-flopping of BusinessSA on workplace health and safety laws was always curious and it is likely to put the organisation at a negotiating disadvantage once the laws passed.  It may try to claim a mini-victory through the small business change but the change appears to have occurred due to Darley’s efforts and not through any relationship with the South Australian Government. Continue reading “New workplace safety laws set to pass in South Australia in October”

Victorian Minister claims “safest state in Australia”

Victoria’s Minister for WorkCover, Assistant Treasurer Gordon Rich-Phillips, obviously felt obliged to get in early for the 2012 WorkSafe Week by stating, in a media release, that:

“Victoria is the safest state in Australia in which to work”

Rich-Phillips quotes a range of statistics based on a recent report by Safe Work Australia (SWA) – the Fourteenth Edition of the Comparative Performance Monitoring.  His claims may be correct, but he is selective.  He mentions his State’s workers’ compensation claims performance:

“Victoria had nine serious injury and disease claims for every 1,000 employees, far fewer than the national average of 12.2 claims. It was also well ahead of the Northern Territory (11.2 claims), Western Australia (12), South Australia (12.3), Australian Capital Territory (13), New South Wales (13.7), Queensland (14.7) and Tasmania (15.6).”

However, it is well-known that workers’ compensation statistics indicate the performance of the workers’ compensation scheme and claims,  and not the real workplace injury rate.  The SWA report provides information on both safety performance and workers’ compensation claims.  The Minister extrapolates the performance of one element and applies it to the other.

The Comparative Performance Monitoring report also measures each State’s regulatory safety performance against the agreed National OHS Strategy.  Against the Injury and Musculoskeletal measure, again based on claims data, only South Australia exceeded the “36% improvement required to meet the long-term target of a 40% improvement by 30 June 2012.”

Victoria came third, after New South Wales, with a 31% improvement rate.

Safe Work Australia stated that

” It is unlikely that Australia will meet the target.” (page 2)

The targets of the OHS National Strategy established in 2012 have been aspirational for some time and without any fear of sanction or reward for attainment, the worth of any National OHS Strategy is dubious.

SWA’s report also includes very positive national statistics on fatalities but still insists that:

“The volatility in this measure means that this improvement should be interpreted with caution and consistent improvement is still required to ensure the target is actually achieved.” (page 3)

This caution is missing from the statements of Gordon Rich-Phillips. Continue reading “Victorian Minister claims “safest state in Australia””

BusinessSA’s backflip on OHS laws carries short-term gain but long-term risk

Australian business associations have different perspectives on the need to harmonise occupational health and safety laws across Australia but BusinessSA has performed an enormous backflip in only a month on new Work Health and Safety Laws.  In a letter (now a media release) to the industry association’s members, BusinessSA has called on the South Australian Government to defer the laws until a scheduled national review in 2014.  The major points of the letter are discussed below.

Objections to the letter on some of the LinkedIn discussion forums have been voiced by some safety and legal professionals, the principle concern being that all state governments agreed to the initiative of the Council of Australian Governments (COAG) in 2008 to harmonise the OHS laws.  Employer groups, unions and OHS regulators have been closely involved in the harmonisation process.  Other parties, including BusinessSA made submissions.  According to the 2008 submission, these were the six key issues:

  • “Self-regulation: The appropriateness of the duty of care, consultative mechanisms, performance-based (as opposed to prescriptive) regulation, and education/training in facilitating an effective (self-regulating) OHS system.
  • Causality and uncertainty: Can, and should, governments attempt to regulate with respect to potential future hazards, given the enormous pace of technological change and uncertainty relating to that change and where causes of Continue reading “BusinessSA’s backflip on OHS laws carries short-term gain but long-term risk”

Insurance may diminish a director’s commitment to their positive OHS duty

Neil Foster of the University of Newcastle is known to SafetyAtWorkBlog for his work looking at the legal liabilities of company directors and officers.  Recently Foster released a paper called “You can’t do that! Directors insuring against criminal WHS penalties” which provides an additional legal context to an earlier blog article.

Foster acknowledges that

“…provisions of the criminal law imposing personal liability for company breach of workplace health and safety provisions provide one of the strongest ‘drivers’ for company officers to use due diligence to see to the implementation of company safety policies.”

and asks

“… what if the officer knows all along that, should they be subject to such a penalty, the company, or an insurance policy, will come to the rescue?”

This is a concern that relates to insurance policies or indemnities that are being offered in some industrial sectors.  Insurance could dilute the diligence of officers and directors on a range of matters including workplace safety. Continue reading “Insurance may diminish a director’s commitment to their positive OHS duty”

Momentum increases for tangible action on workplace bullying

According to the Canberra Times, a company board has been served with an improvement notice over inadequate attention to workplace bullying claims in a retirement home.  The ABC television program, 7.30, has followed up workplace bullying claims aired earlier this month with a further case on 25 September 2012 with savage criticism of WorkSafe Victoria’s actions in the case.

The Australian Government has completed the public hearings of its Parliamentary Inquiry into workplace bullying.  Bullying is everywhere but little seems to be happening to address the various elements and deficiencies of the regulatory system.

On 21 September 2012 the WorkSafe ACT Commissioner warned about inaction on workplace bullying:

“If bullying has not occurred, then a properly conducted investigation should find that… If, on the other hand, an independent investigation substantiates the allegations, then the employer will be in a position to act to protect their workers from any ongoing threat to their health and safety.” Continue reading “Momentum increases for tangible action on workplace bullying”

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