OHS subtext in Industrial Manslaughter discussions

Senator Deborah O’Neill continued her attack on Australia’s Liberal/National party government in Senate Estimates hearing last week.

With the Work Health and Safety (WHS) ministers split on the introduction of an Industrial Manslaughter (IM) offence in the Model WHS laws, Senator Michaelia Cash, Attorney-General, Minister for Industrial Relations and chair of that WHS meeting, could have voted in favour of these IM changes but declined. O’Neill saw this as a political weakness and challenged Senator Cash to justify her decision. The justifications, with a hint of arse-covering, were morally weak but legally sufficient. At one point, Senator Cash said:

“… a fundamental principle of work health and safety regulation in Australia, as you would be aware, is that liability should focus on risk, not outcome, because the evidence shows that when you focus on risk, as opposed to outcome—and the outcome that you are referring to here is a terrible outcome: a death in a workplace—it’s been proven to actually improve health and safety in workplaces.”

Hansard, June 2, 2021, page 8
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New workplace mental health info but no new strategy

On May 20, 2021, Australia’s Work Health and Safety (WHS) Ministers to discuss a range of occupational health and safety (OHS) matters. One matter will be the inclusion of a specific requirement on employers that, according to the Australian Council of Trade Unions (ACTU):

“…. would finally require employers to identify and address risks to mental health, in the same way, they are required to with risks to physical health.”

What the ACTU fails to make clear is why this regulatory change is required when the duty to provide a physically and psychologically safe and healthy workplace already exists in the current OHS/WHS laws in Australia.

The ACTU does, however, with the help of the Australia Institute and Centre for Future Work, provide more data on work-related mental health. The union movement is one of the few voices that acknowledge the structural elements of OHS but fails to consider any options other than regulation and, with a federal conservative government in power, it is unlikely to receive an attentive audience.

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Should we feel safe or be safe?

A major impediment to establishing safe and healthy workplaces is that there is a widespread expectation for everyone to feel safe at work. Yet, the legislative occupational health and safety (OHS) obligation on employers and workers is for them to be safe. It is a significant difference, for the former addresses perception, and the latter requires action.

Recently the Australian Government responded to a major inquiry into sexual harassment at work. Attorney-General Michaelia Cash, launching the official response with Prime Minister Scott Morrison, said:

“In terms of sexual harassment in the workplace, I think we’d all agree – in fact, it needs to be just a basic fundamental – everybody has the right to feel safe in the workplace.”

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A closer look at the positive duty to prevent sexual harassment

The big occupational health and safety (OHS) news in Australia has been the release of the federal government’s response to the Respect@Work report on sexual harassment in Australian workplaces. And the biggest issue in that response seems to be the government’s lack of enthusiasm for a major recommendation of Sex Discrimination Commissioner Kate Jenkins, the inclusion of a positive duty in the sexual discrimination legislation. Many lawyers have been asked for their opinions on the government’s response, but very few OHS professionals.

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OHS is “… more what you’d call ‘guidelines’ than actual rules.”

Occupational health and safety (OHS) may not be a common subject in the mainstream media but there is plenty of political discussion on the topic in Australia’s Parliament.

The current (conservative) federal government seems very slow to accept and respond to recommendations from official inquiries that it sees as a secondary political priority, such as sexual harassment and workplace health and safety. The hearings of the Senate’s Education and Employment Legislation Committee on March 24 2021, were, as usual, enlightening.

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“a COVID safe workplace” – Mark 2

Less than 12 hours after not mentioning Safe Work Australia’s COVID19 occupational health and safety (OHS) guidance, the Minister for Employment, Skills, Small and Family Business, Michaelia Cash, issues a media release, in conjunction with the Minister for Industrial Relations, Christian Porter, saying that

“The Safe Work Australia (SWA) website has been transformed into a centralised information hub, which can be easily searched using a handy content filter to find work health and safety guidance relevant to 23 specific industries.”

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“a COVID safe workplace”

The closest photo I could find related to “teaching your Grandmother to suck eggs

On May 1 2020, Australia’s Employment Minister, Michaelia Cash, spoke on breakfast television to discuss what the government considers to be a “COVID safe workplace”. Her advice to Australian employers was nothing more than understand your business, assess your risks and apply the controls, as if employers did not already know!?

To David Koch on Channel 7’s Sunrise program, Minister Cash said:

“… businesses need to examine what industry am I in; what are the restrictions that are still going to be in place in my particular workplace; and, do I have that action plan, that set of best practice principles ready to go so when I’m given the green light I can open my doors and Australians can come back to me with confidence knowing I have a COVID safe workplace.”

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