Category: lawyers

Australia to ratify ILO OHS Convention, says Senator

The Australian Financial Review (AFR) reported on 14 June 2011 (not freely available online) that Senator Jacinta Collins has publicly stated that an International Labour Organisation (ILO) occupational health and safety convention will be signed by the current Government in conjunction with other conventions on maritime labour, asbestos and part-time work.  The announcement that “Australia will ratify four ILO Conventions this year” was made at the recent International Labour Conference.

Most of the AFR article focussed on the labour relations impacts of the conventions but RMIT’s Professor of Law, Breen Creighton noted that

“Ratifying a convention has no effect in Australian law unless the Australian parliaments legislate to give effect to the international obligations.”

Senator Collins’ speech identifies the OHS protocol as the “Optional Protocol of 2002 to the Occupational Health and Safety Convention”.

A brief discussion on this protocol occurred on this blog in late April 2011 when the ratification was mentioned during the World Day for Safety and Health at Work.

Kevin Jones

Australian Governments’ flawed strategy on new OHS laws

Lawyer Andrew Douglas’ latest article for SmartCompany illustrates the conflicting approach to the enforcement of alcohol and drug policies in workplaces.  Douglas illustrates the constant struggle for business operators between employment law and safety law, workplace relations and human resources.  Case law has progressed the management of human capital more quickly than has safety management over the same workplace issue of alcohol and drug use leading to a difficulty in determining the best managerial approach to the hazard.

Douglas’ discussion of the role of case law in changing managerial approaches also has relevance in the OHS harmonisation process currently occurring in Australia.  In the early days of this process, the legal fraternity believed, and often publicly stated, that the operation of the law will be “ironed out” only after several years of prosecutions and case law.  These statements seem to forget that behind almost all OHS prosecutions are one or more injured workers and the reality is often forgotten when part of a lawyer’s motivation is also to seek a precedent or a clarification of the law. Continue reading “Australian Governments’ flawed strategy on new OHS laws”

Brodie’s Law on bullying needs more consideration for workplace application

Recent attention on the presentation of the Crimes Amendment (Bullying) Bill 2011 to the Victorian Parliament has, understandably, focussed on the changes to the criminal code. However some of that attention should also have been given to the existing rules and control measures under workplace law, particularly considering that the proposed amendments, commonly referred to as Brodie’s law, are being described in the context of workplace bullying.

WorkSafe Victoria’s 2005 guidance on workplace violence and bullying specifies what elements of the Crimes Act 1958 could be relevant to workplace bullying:

  • Intentionally or Recklessly Causing Serious Injury
  • Intentionally or Recklessly Causing Injury
  • Threats to Kill
  • Threats to Inflict Serious Injury
  • Stalking

The inclusion of the last item may surprise some who have been reading only the newspaper coverage of Brodie’s Law as there was a clear implication that the application of stalking to workplace bullying was new.

Law firm Clayton Utz reminds us that workplace bullying remains undefined in the Crimes Act and that the Bill

“… extends the definition of the pre-existing offence of stalking by expanding the definition of that offence to pick up the type of behaviours that are typical of workplace bullying.”

If the Bill passes the Victorian Parliament, the OHS regulator will need to amend its advice on workplace bullying to reflect the expanded definition of stalking. But as can be seen by the bullet points above, changes to guidance may be minor as stalking is already seen as a potential element of workplace bullying. Continue reading “Brodie’s Law on bullying needs more consideration for workplace application”

Trade unions enter debate on profits vs safety

The Australian Council of Trade Unions (ACTU) has issued a media release aimed at addressing or countering some of the concerns over new OHS laws expressed by the business community and some politicians recently.

Ged Kearney

ACTU President Ged Kearney has said

“Attempts by employer groups to weaken the new regulations are yet another example of business putting profits before safety….. Employer groups called for a national set of health and safety laws, and we would have thought that business would welcome a tough approach to OHS regulations.”

Sympathy for business is unlikely from the union movement but some sympathy is warranted.   Australian business was promised that new work health and safety laws would reduce the business costs of complying with laws that differed from across a number of jurisdictions.  As companies begin to assess the impacts of new laws on their own business operations, as all companies surely must do, they are noticing additional costs for compliance. Continue reading “Trade unions enter debate on profits vs safety”

Australian lawyers comment on Brodie’s Law

Clayton Utz lawyers have looked at Victoria’s new bullying-related law changes for their relevance to workplace safety management and have found the following.

“Is this an issue for employers?

Yes and no.

Theoretically, even before these proposed amendments, certain types of workplace bullying already fell within the definition of stalking.  In one sense, therefore, this doesn’t change the situation much – employers already had the potential problem of, for example, dealing with keeping apart at work a victim and stalker subject to an intervention order.

In another sense, this is clearly an important change.  More types of workplace bullying are now criminalised, and public awareness of bullying issues will certainly have been increased by the publicity surrounding this Bill.  We can therefore expect a rise in complaints and the number of victims coming forward, and not just in Victoria, as other States and Territories have stalking laws that could cover at least some types of workplace bullying.”

Clearly the awareness of bullying in the workplace is already high but these laws are likely to make the management of this issue more complex and and challenging. Continue reading “Australian lawyers comment on Brodie’s Law”

South Australia is the first to table a new WHS bill

The South Australian Parliament will be the first in Australia to be presented with a Work Health and Safety Bill based on the model National OHS laws. The Work Health and Safety Bill 2011 will be tabled in parliament on 7 April 2011, according to a media release from the South Australian Minister for Industrial Relations, Bernard Finnigan.

Finnigan sees great advantages in the bill:

“Harmonised work health and safety laws will slash red tape for business operators while maintaining a high level of protection for employees,” he said. “It will also provide for greater labour mobility, with training and licences recognised across states and territories.

Organisations will have to comply with just one set of laws regardless of the number of states or territories in which they operate, thereby reducing their compliance costs. Ultimately it means greater certainty for employers and enhanced safety protection for workers.”

There remains some dispute about the optimism that Finnigan shares with many other harmonisation advocates but the validity of the optimism will only be assessed through hindsight.

Kevin Jones

Update 8 April 2011

The Work Health and Safety Bill 2011 is now available online with an FAQ site by SafeWorkSA.

Conference videos provide optimism and nerves

Several years ago I assisted the Safety Institute of Australia in providing introductory video profiles for many of their conference speakers.  The intention was to provide a teaser for the content of conference presentations and to introduce more obscure speakers.  The strategy is continuing with several pre-conference videos being made available on-line.

Conference teasers in 2011 include Professor Niki Ellis and Australian lawyer, Andrew Douglas.

Andrew Douglas

Andrew Douglas says that safety professionals need to be careful of jargon as it can create an impenetrable elitism that may run counter to the aim of the profession.  Part of the risk of professional jargon is that it may support an inaccuracy that creates considerable damage.

Douglas identifies “zero harm” as an example of a phrase or concept that con become popular, perhaps dominant, even though it may  be unsupported by OHS laws.  Because the laws and the reality of workplace safety is that there will always be people who are hurt or injured at work, “zero harm” is unattainable and those who utter the “mantra of zero harm”, as Andrew Douglas describes it, lose any OHS credibility. Continue reading “Conference videos provide optimism and nerves”

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