Flogging a dead horse when it is still alive, though looking poorly

In The Australian newspaper on 24 November 2012, columnist Judith Sloan discussed how the harmonisation of Australia’s occupational health and safety laws are

“a present glaring example of a despot stripped bare…”

Earlier this year, in April, Sloan said harmonisation was dead so one could say she is flogging a dead horse. Some parts of her November article (only available online via subscription) do not seem to be supported by evidence and her terminology occasionally indicates a lack of understanding of occupational health and safety matters.

Sloan rehashes some of the April 2012 article including the image of crying public servants but gives prominence to the inconvenience to some companies under the Comcare scheme. Several years ago some national companies opted out of State-based OHS and workers’ compensation schemes in order to join the only national safety scheme that was available at the time. Part of the reason for this move was that it provided national coverage for national businesses. Some complained because Comcare was seen as having a much smaller enforcement team and that the OHS laws were, somehow, less than in many of the States. This option was provided under a Conservative Government to assist business. The same government instigated the OHS harmonisation process.

Continue reading “Flogging a dead horse when it is still alive, though looking poorly”

John Darley speaks to SafetyAtWorkBlog

Independent Member of the South Australian Parliament, John Darley, provided SafetyAtWorkBlog with some background to the package of amendments he has for that State’s Work Health and Safety laws currently before Parliament.

Darley acknowledged that he delayed the Work Health and Safety Bill since December 2011 and admitted that the Bill looked like common sense but his approach is to jump ahead an consider how the Bill would look as an Act and determine its social impact.  The opposition parties in South Australia believed the Bill was so bad that it should have been defeated before it proceeded to the committee stage but Darley knew that could imply that he was not interested in workplace safety.  Darley believes that the reassessment of the WHS Bill over such a long time indicates his commitment to the safety of workers.

Darley said that union right-of-entry was not an issue of concern in December 2011 but he came to see the significance of the  issue after delegations and meetings with people affected by workplace deaths but who were also very dissatisfied with the operations of the OHS regulator, SafeWorkSA.  The union OHS representatives offered an alternate but Darley felt that union access needed Continue reading “John Darley speaks to SafetyAtWorkBlog”

New workplace safety laws set to pass in South Australia in October

South Australian Independent Member of Parliament, John Darley, has been negotiating on that State’s Work Health and Safety laws for many months.  On 17 October 2012, according to a media release from SA’s Premier Jay Weatherill and Workplace Relations Minister Russell Wortley, Darley agreed to support the passing of the laws after achieving some amendments.  Those amendments involve changes to

  • height limits,
  • duty of care,
  • the right to silence, and
  • the right of entry.

Tammy Franks, a Greens MLC, was able to achieve an expansion of the number of days available for OHS representative training.

A spokesperson for John Darley told SafetyAtWorkBlog that another change was for any WHS codes of practice to undergo a small business impact assessment in consultation with the Small Business Commissioner.  Darley’s spokesperson said that the MP had met with Business SA after it changed its position on the WHS laws.  The amendment above is likely to address the small business concerns that BusinessSA raised in its letter to its members earlier this month.  The flip-flopping of BusinessSA on workplace health and safety laws was always curious and it is likely to put the organisation at a negotiating disadvantage once the laws passed.  It may try to claim a mini-victory through the small business change but the change appears to have occurred due to Darley’s efforts and not through any relationship with the South Australian Government. Continue reading “New workplace safety laws set to pass in South Australia in October”

BusinessSA’s backflip on OHS laws carries short-term gain but long-term risk

Australian business associations have different perspectives on the need to harmonise occupational health and safety laws across Australia but BusinessSA has performed an enormous backflip in only a month on new Work Health and Safety Laws.  In a letter (now a media release) to the industry association’s members, BusinessSA has called on the South Australian Government to defer the laws until a scheduled national review in 2014.  The major points of the letter are discussed below.

Objections to the letter on some of the LinkedIn discussion forums have been voiced by some safety and legal professionals, the principle concern being that all state governments agreed to the initiative of the Council of Australian Governments (COAG) in 2008 to harmonise the OHS laws.  Employer groups, unions and OHS regulators have been closely involved in the harmonisation process.  Other parties, including BusinessSA made submissions.  According to the 2008 submission, these were the six key issues:

  • “Self-regulation: The appropriateness of the duty of care, consultative mechanisms, performance-based (as opposed to prescriptive) regulation, and education/training in facilitating an effective (self-regulating) OHS system.
  • Causality and uncertainty: Can, and should, governments attempt to regulate with respect to potential future hazards, given the enormous pace of technological change and uncertainty relating to that change and where causes of Continue reading “BusinessSA’s backflip on OHS laws carries short-term gain but long-term risk”

South Australian WHS laws get closer

Australian OHS discussion forums have been buzzing with the passing of the model Work Health and Safety (WHS) bill through the South Australian Parliament. SafetyAtWorkBlog has been advised that the WHS Bill has yet to go to Committee stage which then requires a third reading.  Some engaged in South Australian politics still believe the WHS Bill will fail to become law.

However the focus should not only be on the WHS Bill as there were other OHS matters discussed in Parliament on 6 September, such as workplace bullying.

Second Reading

The Second Reading Speech (page 2069) by Russell Wortley on 6 September 2012 includes some comments of note. Below are a couple of extracts:

“There has been a lot of fearmongering about the effects of these laws. I want to assure honourable members that these fears are misguided and, sadly, often based on misinformation from lobby groups with a particular self-interest in seeing this legislation defeated.”

“…if we do not modernise our laws now, the scope of legal workplace safety protections will continue to be limited by the employer/employee relationship and existing ambiguities will remain. Honourable members need to understand that if the bill is not passed, a South Australia worker will have lower standards of safety than other workers in other states and territories across Australia.”

Of particular note is that Wortley tables (pages 2077-2079) the Housing Industry Association‘s table of increased costs from the new WHS laws. Continue reading “South Australian WHS laws get closer”

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”

John Darley’s delay on Work Health and Safety laws is unproductive

South Australia still has not passed the Work Health and Safety legislation that would bring it into line with most of the other States of Australia.  A major obstacle to the Bill’s progress in the South Australian Parliament is the “dithering” of Independent MP John Darley.

On 28 June 2012, Darley spoke to the WHS Bill in the Legislative Council (page 1641).  Darley reviews the status of WHS laws in Australian States, mentions Victoria’s flawed PricewaterhouseCoopers costings report but without expressing an opinion on it and acknowledges the support from major industrial and employer associations for the laws, but he seems very sympathetic to minority views on workplace safety.

Darley refers to the views of the Housing Industry (HIA) and Master Builders’ Associations (MBA) on “control”, two groups he acknowledges are “the most vocal opponents” of the Bill, and states

“Any person who does not have direct control of a risk should not have responsibility for eliminating or minimising the risk”.

Consider this position in relation to workplace psychosocial hazards.  A bully would be breaching OHS laws by bullying another worker but those executives who establish the culture of a workplace that condones the bully’s actions would not be facing any penalty.  This scenario seems to contradict a dominant safety principle that compliance and respect stems from the active example shown by an organisation’s leader.  How will the legislative obligation for a “positive duty of care” in workplaces apply with in-direct control? Continue reading “John Darley’s delay on Work Health and Safety laws is unproductive”