lawyers – Page 22 – SafetyAtWorkBlog

New book on OHS laws challenges current understandings of workplace safety

With the change of political heart from some of Australia’s state governments over the harmonisation of occupational health and safety laws, many academic and legal publishers revised their book plans as the national market was less national. However, some continued to publish understanding that although OHS harmonisation had a political deadline of 1 January 2012, refinement of the laws would continue for several years.

Federation Press has released a new book by prominent labour lawyer, Michael Tooma, and academic, Richard Johnstone, called “Work Health & Safety Regulation in Australia – The Model Act“. The title states an immediate limitation that other publishers squibbed at. The book is based on the Model Work Health and Safety Act and not, necessarily, the versions of the Act implemented at State level. Production timelines are responsible for this but it makes it even more important to follow the writings and research of Johnstone and Tooma to understand developments.

The Social Context of Safety

The authors reiterate an important element of the WHS Act in their introduction:

“[the laws] are no longer workplace or occupationally based, nor predicated on the employment relationship; rather the laws protect persons involved in ‘work’ in a business or undertaking, and, in addition, protect ‘others’ whose health and safety is affected by work. Consequently the scope of the Model Act is limited only by the imagination of those entrusted to interpret them and to enforce them.” (page 3)

This paragraph summarises well the elements of the laws that are causing so much fear in the Australian business community. Continue reading “New book on OHS laws challenges current understandings of workplace safety”

Political argy-bargy over OHS continues in South Australia

On 10 July 2012, the InDaily online news service ran an article about Jodie Bradbrook of Bradbrook Lawyers, a boutique law firm in South Australia. The article was very critical of the currently Work Health and Safety Bill that is stalled in that State’s Parliament. Bradbrook stated that the major points of contention were, amongst others, the issue of control, union right of entry and confusion over the Persons Conducting Business or Undertaking (PCBU).

This alarmist scaremongering has similarities to matters raised by the Housing Industry Australia (HIA), an organisation that, according to South Australia’s Industrial Relations Minister, Russell Wortley has been represented by Jodie Bradbrook, a relevant fact not acknowledged in the article or by InDaily. Bradbrook’s involvement with the HIA was noted in a December 2011 SafetyAtWorkBlog article. Continue reading “Political argy-bargy over OHS continues in South Australia”

Woodchipper decision could set a worrying safety precedent

The development of Australia’s new Work Health and Safety laws relies on potential prosecutions and Court rulings to clarify various elements and definitions. Some labour lawyers have forecast this clarification to take several years however last week The Warrnambool Standard reported on a decision by the Victorian Civil and Administrative Tribunal (VCAT) that provides a worrying clarification on the contentious definition of “as far as is reasonably practicable” from outside the anticipated Court structure.

WorkSafe Victoria placed an improvement notice on a woodchipper owned by the Warrnambool City Council following an incident in September 2011 where a worker, David Johnstone, had both hands removed by the blades of the woodchipper. The improvement notice stated that additional guarding in the form of a “bump bar” be installed on woodchippers. The Council requested a review of the notices through WorkSafe’s review processes. The directions stood and the Council appealed to VCAT, as per the normal process. VCAT found that the engineering controls demanded by WorkSafe were not required as the administrative controls advocated by the Council were found to have “reduced risk “so far as is reasonably practicable”.

The VCAT decision is concerning because it seems to conflict with the application of the Hierarchy of Controls for risk in which machine guarding, an engineering control, is considered a more effective control measure that administrative controls such as those favoured by the Council Continue reading “Woodchipper decision could set a worrying safety precedent”

Why all the arguing over a workplace bullying definition?

There have been many calls in Australia for a national definition of workplace bullying. Apparently the definition below that has applied in OHS legislation for over ten years in Victoria is insufficient:

“Repeated unreasonable behaviour directed toward a worker or group of workers that creates a risk to health and safety.”

The definition above was the one used in the first draft Code of Practice on Preventing and Responding to Workplace Bullying produced by Safe Work Australia in September 2011.

The definition was questioned by Moira Rayner, as a representative of the Law Institute of Victoria, at recent public hearings into workplace bullying. Researchers said that a lack of a national definition is a major reason that research in workplace bullying has been so thin.

A quick survey of workplace bullying definitions in Australia is listed below:

“Unreasonable and inappropriate workplace behaviour includes bullying, which comprises behaviour which Continue reading “Why all the arguing over a workplace bullying definition?”

“Loose” workplace bullying statistics published

Workplace bullying policy matters are at their peak in Australia this week as public hearings occur at the House Standing Committee on Education and Employment inquiry into workplace bullying. Several experts on the prevention of workplace bullying will be appearing at these hearings but the topicality also allows others to release or promote data on workplace bullying.

Safety Consultants Australia (SCA) released a “blueprint” on Safety Hazard: Workplace Bullying in March 2012 that has been recirculated this week. The blueprint is a useful example of the care that needs to be taken when summarising data on workplace bullying.

SCA states, IN VERY BIG LETTERS, that the Productivity Commission estimated that

“Workplace Bullying costs Australian employers between $6 – $36 billion every year.”

SCA has released a flyer with the same information in EVEN BIGGER LETTERS however the Productivity Commission’s report Performance Benchmarking of Australian Business Regulation: Occupational Health & Safety (2010) states on page 279:

“Estimates of the prevalence and cost of psychosocial hazards vary considerably. For example, using international studies as a guide, estimates of the annual cost of workplace bullying to employers and the economy in Australia ranged from $6 billion to $36 billion (in 2000).” Continue reading ““Loose” workplace bullying statistics published”

Favourable progress could be achieved on OHS if the current reality is accepted

The issue of “control” in Australian OHS law continues to be discussed as industry associations bristle against the introduction of Work Health and Safety laws, frequently on flawed or dubious costings.

Australian safety laws have been moving from the prescriptive tradition for decades. This has been due to various reasons including new workplace hazards that cannot be controlled in defined ways, diminished enforcement resources and confused roles in OHS regulators, the change in labour force dominance from blue- to white-collar occupations but, most of all, repeated demands from business associations for increased flexibility and autonomy on managing workplace safety.

Certainly the degree of control has varied from State to State with New South Wales being considered as having the most business-unfriendly OHS laws but most States are now running under a different set of OHS rules and criticizing the current laws by referring to now-repealed OHS laws in the most extreme State of New South Wales, as Ken Phillips does in today’s The Australian newspaper, is almost sophistry. Continue reading “Favourable progress could be achieved on OHS if the current reality is accepted”

OHS is Dead. Long Live WHS.

Media reports on the 13 April 2012 Council of Australian Governments (COAG) meeting say that harmonisation of occupational health and safety laws in Australia has died. Some say this is the fault of the Victorian Government with its economic justification for inaction but the process was struggling as soon as the West Australian Government flagged its major concerns, principally, with increased union powers, as reiterated in the Australian Financial Review on 14 April 2012 (not available on-line).

WA Premier Colin Barnett is quoted as saying that:

“There are three or four sections we don’t agree with and the principle one of those relates to right of entry [for trade unions]… We see that as an industrial issue. Right of entry, it is was applied to OH&S, in all probability would be used by the unions to shut down the Pilbara iron ore operations…”

This is further evidence of the political dominance of the mining sector in Western Australia, if it was ever needed.

Victoria does not have the same excuse as the right of entry has existed for many years and almost totally without any industrial relations problems. Continue reading “OHS is Dead. Long Live WHS.”

Category: lawyers

New book on OHS laws challenges current understandings of workplace safety

Like this:

Political argy-bargy over OHS continues in South Australia

Like this:

Woodchipper decision could set a worrying safety precedent

Like this:

Why all the arguing over a workplace bullying definition?

Like this:

“Loose” workplace bullying statistics published

Like this:

Favourable progress could be achieved on OHS if the current reality is accepted

Like this:

OHS is Dead. Long Live WHS.

Like this:

Share this:

Like this:

Share this:

Like this:

Share this:

Like this:

Share this:

Like this:

Share this:

Like this:

Share this:

Like this:

Share this:

Like this: