Fair Work Act and OHS

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On 1 July 2009, the Australian industrial relations (IR) climate changed with the introduction of the Fair Work Act. Regardless of the politics of the new Act’s origin, this legislation changes the way that working conditions for Australians are negotiated and set.

The  Fair Work Act has no relevance to occupational health and safety, so why mention this on SafetyAtWorkBlog?

The new IR legislation should reduce the conflict that has been existent in workplace negotiations.  The new industrial climate is consultative and  forward-looking.  In fact, the government is hoping that, to some extent, this legislation reboots industrial relations (to borrow a phrase from current international diplomacy).

Fair Work Australia Commissioner Lewin
Fair Work Australia Commissioner Lewin

It is in this IR climate, and consultative structure, that OHS issues will need to be discussed and negotiated in the future.

In a webinar conducted by SmartCompany and Gadens Lawyers on 9 July 2009, the openness of the information/consultative processes was stressed by panellist, Kathryn Dent.

This positive management climate reflected that presented in an earlier seminar conducted by Douglas Workplace Lawyers.  Fair Work Australia Commissioner Lewin  and lawyer, Andrew Douglas, spoke about how the new IR system is more inclusive than the previous WorkChoices systems.  However, they also admitted that the Fair Work Act has nebulous support documentation and information.

Andrew Douglas
Andrew Douglas

The level of prescription is much less than previous.  This allows for less restrictive negotiation but it also means that clarity may rely on determinations made by the tribunal.  Commissioner Lewin concurred with Andrew Douglas’ point that the operations of the Fair Work system will require several years of “settling in” and some adjustments depending on determinations.

When raising OHS issues for the next year or so in Australia, employees and professionals need to be reminded that many of the managers and employers with whom they are dealing may well be feeling swamped by new industrial relations processes.  This distraction may be understandable but OHS obligations remain the same regardless of other management issues.

OHS may seem to be more messy during this period as the IR overlaps with the “safe systems of work”.  Unless IR is already part of the responsibilities of an OHS professional, the advice is to keep away from the details of the Fair Work Act.  However it is recommended that at least one seminar on the Fair Work Act be attended so that the “tone” of the new legislation is understood.  More important is how the Act is to be applied within the workplaces of one’s clients or employer.

Safety management systems will need to be tweaked to fit with the new consultative aims and processes.  Of course, they will need to be tweaked again once the harmonised national OHS legislation comes begins in 2010.  Don’t expect stability in Australian workplaces for the next couple of years.

Kevin Jones

Environmental tobacco smoke, workplace stress – podcast 2006

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In 2006, one of the earliest editions of the SafetyAtWork podcast featured several speakers on issues that remain topical.  The podcast is available for download

Anne Mainsbridge, currently a Solicitor with the Public Interest Advocacy Centre talks about her report on environmental tobacco smoke.

This is followed by Associate Professor Tony LaMontagne of the University of Melbourne talking about a systematic approach to managing workplace stress.  This was a report that was published by the Victorian Health Department and, as such, slipped by many OHS professionals.  The report is now available for download

The audio production is rough for such an early podcast, and I apologise, but I think you will find the content of interest.

Kevin Jones

Workplace safety insurance – podcast

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Douglas_A 2Recently I interviewed workplace lawyer, Andrew Douglas, pictured right, while researching an article concerning the application of statutory liability insurance policies to workplace safety management.

SafetyAtWorkBlog is pleased to provide our latest podcast which includes my interview with Andrew.  The interview provides simpler information on the statutory liability issue but also, and perhaps more importantly, we discuss how business perceives the role of insurance  in managing safety and risk.  We also contemplate the impact of such insurance on OHS regulators’ enforcement policies.

 

Kevin Jones

Swine Flu and business continuity – video

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On the evening of 2 June 2009, the ABC TV show “Lateline Business” ran a short item on the business continuity issues associated with Australia’s swine flu outbreak.  Not much that was said was new but it proposed an interesting scenario for those people who manage aged care facilities where a potentially virulent illness could harm residents who it may be difficult to isolate or quarantine.

Michael Tooma of Australian law firm, Deacons, spoke briefly to remind viewers that health and safety were important legislative obligations that relate to illnesses, such as swine flu.  Interestingly he provided a rule-of-thumb scenario on business continuity.  He asked whether a business could continue to operate with 20% less staff, a 20% reduction in logistics services and 20% less customers, if the swine flu realises its potential.

Most of the speakers spoke from the current position that Australia is suffering from a “mild” case of this virus.  The story would be considerably different if Australia suffered its first swine-flu fatality, as have other nations.  One death and the terminology will change.

A video of the segment is available to view online.

Kevin Jones

Legal opinion on Australia’s model OHS laws

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The comments on the Australian Government’s response to the report into Australia’s model OHS laws have been pretty muted.  There were the obligatory compliments from those in favour and the obligatory criticisms from those against but both types of response were in the immediate aftermath of the Workplace Relations Ministers’ Council meeting in mid-May 2009.

Going from the institutional and media quiet, there must be few changes that are expected to have any great impact.  Law firm Blake Dawson released their take on the government’s response.  Here is their advice to employers – pretty much “wait and see”: 

Lessons for employers

  • The decisions made by the WRMC on the proposed national model OHS Act will bring changes to virtually all areas of OHS in all Australian jurisdictions.
  • All employers and other duty holders should carefully review the model OHS Act upon its release and consider whether changes need to be made in advance of the laws being enacted.
  • Particular areas of focus are likely to be:
    • ensuring all duty holders have a clear understanding of the nature and scope oftheir duties and obligations;
    • ensuring that officers of corporations are taking proactive steps to promote health and safety;
    • in respect of some Australian jurisdictions (eg NSW) preparation for the introduction of health and safety representatives and the role that HSRs may play in an organisation;
    • thorough preparation for regulator investigations.

It is strongly recommended that their full “alert” be read for interest.

Kevin Jones