Legal summary on OHS Review report from Mallesons

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Mallesons is the next Australian OHS law firm to issue a statement on the first report by the National OHS Law Review panel.  The report is not much more than a summary, as commentary is kept to a minimum.

What is interesting is that they mention the alternate sentencing options of 

  • adverse publicity orders
  • remedial orders
  • corporate probation
  • community service orders
  • injunctions
  • training orders, and 
  • compensation orders.

As with the monetary and custodial sentences, if these become included in the law it does not mean that the will be applied very frequently, if at all.

Adverse publicity orders seem peculiar and outdated as they usually apply solely to the print media.  With the growth of the internet and with most companies having websites of some sort, it would be useful to vary such orders to include longevity and reach, rather than a single ad in a newspaper that does not remain in the public mind for long.

Now there is an opening for a safety-monitoring weblog.

Statements on Australia’s OHS review report

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According to today’s The Australian, Australian trade unions has “panned” the first report by the National OHS Law Review.  Here is what the ACTU Assistant Secretary Geoff Fary said,

Geoff Fary
Geoff Fary

 

“We are pleased that the Panel Report has recognised that breaches of OH&S laws are criminal rather than civil matters. These recommendations are a step in the right direction, but need to go much further to protect working people by tightening up the rules on employers’ duty of care to their workforce.

“There is a real need to address the carnage that is taking place in workplaces by increasing fines and tightening up employers’ duty of care, but we are concerned that in NSW and QLD injured workers and their families will lose out because they already have laws that squarely put the onus of proof on employers when they allegedly breach the law.”

“Unions believe that the ability to fine companies a percentage of the turnover would be a better deterrent, because even a $3 million fine is a drop in the ocean for some big corporations. At the moment employers can get fined more for breaching trade practices law than for being found guilty of contributing to employees being killed or maimed in their workplace.

“The courts should also be encouraged to use the maximum penalties. At the moment they don’t.

“Unions will continue to campaign for laws that put an unqualified duty of care on employers to provide a healthy and safe workplace.”

For balance, below are the relevant statements from Mr Scott Barklamb, Director of Workplace Policy
with the Australian Chamber of Commerce & Industry:

“Whilst there is significant detail to be analysed across the report’s 75 separate recommendations, the review panel appears to have taken a sound approach on critical issues such as ensuring that the core safety obligation on employers is limited to doing that which is reasonably practicable, and that the prosecutor must bear the onus of proving any breach of OHS law beyond reasonable doubt.”

Michael Tooma, a partner with Australian law firm Deacons, was commenting on a survey that his firm undertook which indicated that the respondents would prefer a “clean sheet” approach to OHS regulations in this country rather than trying to reconcile laws from nine jurisdictions.  

At this point in the review process, any change in direction is highly unlikely and may not fit with the Review Panel’s terms of reference.  The risk in doubts about the process is that an unstable OHS legislative structure could be imposed on Australia that nobody will be happy with and, of course, longevity and continuing relevance is an important consideration in legislative development.

The cautious comments by Scott Barklamb are wise in that the really contentious elements of reform are due in the second report on broader OHS matters due in early 2008.

Advertising safety

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SafetyAtWorkBlog has received some terrific comments on the various marketing strategies for addressing the safety of young people at work and in their private (public) lives.

A colleague of mine in Western Australia remains sceptical of the type of imagery employed but below are two other comments:

”   thanks for your posting on the alcohol campaign, you are quite correct – these are the kinds of advertisements that connect with the younger set – they have grown up in a world of gore (video games, movies, TV shows that show more and more). Older people don’t understand this – just a generation gap thing.”

“I think it is an excellent way to reach our youth. If it only saves one teenager from a life of over-drinking or saves one innocent life on a highway, it has met the purpose.”

As with many safety campaigns, the measurements of success are often difficult to find.  OHS regulators point to declining fatality and injury figures but these, sometimes, don’t stand up to scrutiny.  With awareness campaigns of this type, performance indicators are crucial, and should be reported publicly.

Branding strategies are okay but their aims are limited and raising one’s awareness of something does not, in itself, change behaviour.  Awareness needs an extra spur for action to occur.  That is why I look forward to the next stages of these campaigns.   Let’s hope they build on their good work rather than tweaking a failing strategy.

Safety professionals should be the “child in the crowd”

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One of Hans Christian Anderson’s most popular tales is The Emperor’s New Clothes.  For those unfamiliar with the story an English translation is available.

But in summary, an emperor hires two swindlers to make him the finest clothes.  The swindlers pretend to create a gown from the best material and tell their client that it happens to be invisible to fools.  The emperor parades through the town in his new outfit an a young child yells out that the emperor is, in fact, naked.  The townsfolk see through the swindle.

It is the job of OHS professionals and advisors to be the ones to point out the obvious to business or to burst the preconceptions that are hampering safety improvements.  Interestingly, there are no repercussions for the child in the tale and, once shown the fallacy of his beliefs, the emperor continues with the parade.

It is also worth bearing the many lessons of the Emperor’s New Clothes in relation to the purchase of personal protective equipment, project briefs, verification of qualifications and the sycophancy of colleagues.

It is helpful to think that once back at the palace, he revoked the contract with the swindling tailors but that is outside the original tale.

National OHS Law Review – First Report released

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The first report of the National OHS Law Review panel was presented to the Australian Government yesterday. The best initial assessment of the report can be found at a safety blog operated by Deacons law firm.  In that report by Michael Tooma and Alena Titterton, the following points are made:

  • there should be a general duty of care for health and safety
  • “worker” is defined more broadly as ‘person who works in a business or undertaking’
  • “the Report recommends that a defined ‘reasonably practicable’ be built into the offence in the model OHS Act which reflects the current approach taken in all jurisdictions except New South Wales and Queensland.”
  • The prosecution will bear the onus of proof beyond reasonable doubt on all elements of an offence”
  • Offences could be indictable and heard in front of a Judge and jury. 
  • Increased penalties in line with those for environmental breaches – Corporation = $3 million,  Individual = $600,000 Imprisonment – up to five years  
  • An appeals process where cases could be taken to the High Court of Australia

“Reasonably practicable” remains a concept with a floating meaning for most business owners and OHS professionals.  For a type of legislation that is intended to be readily understood by a layman, this legalese is disappointing however it is likely that clarification will come from the OHS regulators as it has already in some States.  The review panel supports this type of clarification.

Interestingly, the report says on “the primary duty of care” that it “should not include express reference to control” and that 

‘Control’ should not be included in the definition of reasonably practicable.

The panel says that “control” will be discussed in the second report as will the definition of a “workplace”.

The Deacon’s authors remind us that reports of this type are not automatically implemented by governments and that the review process has several months to run.

The report needs to be read carefully by OHS professionals as the recommendations will set the scene fro OHS law in Australia for, perhaps, decades.  Also, going beyond the list of recommendations allows readers to see which of the issues considered were contentious and which had uniform acceptance.

The trade union movement is yet to release public statements but according to one media report, Geoff Fary of the Australian Council of Trade Unions is

“disappointed that a qualified duty of care would continue to rest with the employer”.

That same report is headed “Prison time for unsafe bosses” raising the spectre of industrial manslaughter.  That does not seem to be case and may say more about the readership of The Australian or the politics of the sub-editors.  However, it will be interesting to see the responses of the employer associations over the coming days.

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