Category: Gillard

OHS debate is over, says Deputy PM

Deputy Prime minister and Workplace Relations Minister, Julia Gillard, has told the Australian Financial Review (only available online to subscribers) that the OHS law changes were finalised at the recent Workplace Relations Ministers’ Council.

Gillard again rejected the trade union movement’s concerns about weakened worker protection.  The Minister emphasised that substantial economic benefits would flow to business as a result of increased administrative efficiencies.

However, the likelihood of a nationally harmonised OHS system seems as far away as ever with the West Australian Government continuing to refuse to apply the new laws which it sees as too friendly to the unions.

Significantly, the Australian Government has backed down from its earlier threat to penalise any governments that do not support the changes.  This lets the WA Liberal Government off the hook and provides the New South Wales Liberal Party with an easy platform option for the 2010 State election.

The conservative forces in Australia can take heart but Minister Gillard’s position has the union movement facing difficult decisions.  It has strongly funded a campaign against elements of the OHS laws and branded the laws as “second-rate safety”.  It now needs to decide whether to give up the campaign totally as a lost cause or to pare it back so that, over time, the campaign fades away, as did the industrial manslaughter campaign of around five years ago.

The ACTU has expressed disappointment but must have realised, privately at least, that some union powers, considered to be extreme by business and industry groups and over which the business complaints have been load and long, were going to be sacrificed in any harmonisation process.

Former Prime Minister and ACTU President Bob Hawke achieved many industrial relations reforms in the early 1980’s by pushing “consensus”.  This negotiation process had strong similarities to the current OHS harmonisation however big C Consensus is now rarely spoken by the Australian trade union movement.  One of the few contemporary outings was when current ACTU Secretary Jeff Lawrence, who expressed the disappointment above, speaking about industrial relations said on 14 June 2007:

“I’m tough enough but I’m also a person who likes to work by consensus”.

To operate constructively at the big tripartite table of OHS, the unions will need to accept a defeat and gain whatever they can from the new rules.  This is doubly important in the lead-up to the planned harmonisation of workers compensation.  Australia will see some fiery union rhetoric when harmonisation threatens to reduce the income and entitlements of workers who are already injured.

Kevin Jones

Public Comments vs Petition – modern lobbying required

Recently SafetyAtWorkBlog noted that almost one quarter of the submission to the government on its proposed national model OHS law were from individuals and confidential.  There was a suspicion of bulk proforma submissions.

One example that is available through the publicly accessible submissions is a letter to the Minister, Julia Gillard, from the Dr Sharann Johnson, President of the Australian lnstitute of Occupational Hygienists.  The letter raises concerns over the omission of “suitably qualified” from the legislation.  It concludes

“I strongly implore you to reconsider your decision not to include a requirement for the providers of Occupational Health and Safety advice and services to be “suitably qualified” in the national new model OHS legislation.  lt would be disappointing to see this amalgamation of legislation miss the opportunity to make a significant impact on the standard of OHS advice provided to Australian industry and ultimately improve our health and safety performance at a national level.”

Similar concerns to Dr Johnson’s have been discussed elsewhere in  SafetyAtWorkBlog but on the issue of proforma submissions it is noted that three other submissions, Kevin Hedges, Gavin Irving and a personal submission by Dr Johnson, contain almost exactly the same text.

What these and other proforma submitters are producing is not a response to a draft document or a submission but a petition.  Petitions have existed for centuries and carry considerable political clout but putting in a cut-and-paste submission is unhelpful.  It signifies a united position but is not constructive.  A petition to the Government or specific ministers on a single issue, such as “suitably qualified”, may have had more influence if it included an influential number of signatories and was lodged at the appropriate time, in response to outrage over the particular matter.

There is no criticism of the content of the AIOH letters only of the method of delivery and strategy.  There are many more confidential submissions that have also applied a similar strategy.

SafetyAtWorkBlog contacted Safe Work Australia over the issue  and asked “How many proformas were used and who were they by?”  A spokesperson responded

“Of the 480 submissions received, just over 200 standard form submissions were received from union members, in five different proformas.  Each of the five forms contained similar comments.  In addition, we identified a small number of standard form submissions from one professional association.”

In developing better legislation, the influence on the process from “weight of numbers” is likely to be far less in this circumstance than would be gained through constructive and innovative suggestions.

As Australia is likely to go through similar public comment phases on a raft of OHS regulations and documents over the next 12 months, assuming the Government does not shelve the project.  It is important for the proforma submitters to review their strategies and, perhaps, establish more direct contact through lobbying the relevant Ministers in each State and Federally, on behalf of their large (?) membership. In this way the Government would be familiar with the various organisations, would understand the background to those organisations’ arguments, and would then anticipate the innovative solutions that OHS organisations, professionals and experts, would put forward.

This strategy has worked for the unions and business groups for decades.  It may be time for a new strategy for some groups that combines reliable techniques like petitions with personal contact to be followed up by a knock-out submission at the right time, perhaps supported by a broadly distributed media statement.

Kevin Jones

Safe Work Bill, suitably qualified and professional plans

Dr Geoff Dell of Protocol Safety Management and a prominent member of the

Dr Geoff Dell
Dr Geoff Dell

Safety Institute of Australia (SIA), believes that the most crucial issue facing the safety profession in Australia is the lack of the requirement to use a “suitably qualified” safety adviser.

The Australian Government was recommended to include such a requirement in its draft OHS model laws but rejected the recommendation because

“an unintended consequence could be that persons conducting a business or undertaking would be encouraged to delegate their responsibilities”.

This is odd because the Safe Work Bill includes seemingly clear duties:

“The person who has management or control of a workplace must ensure, so far as is reasonably practicable, that the workplace, the means of entering and exiting the workplace and anything arising from the workplace are safe and without risks to the health of any person.”

Unless the “suitably qualified” person (undefined in the Safe Work Bill) is also the “person who has management or control of a workplace”  who has to ensure safety, it is hard to see how the Government’s concerns about abrogated responsibility are relevant.

Dr Dell wrote to the Workplace Relations Minister, Julia Gillard, on behalf of the SIA.

“Our motivation for urging you for inclusion of a “suitably qualified” requirement in the model OHS legislation should not be misinterpreted as any desire on our part to diminish or eliminate the equally important requirement for companies to consult their workers, or the workers’ elected representatives, on issues and decisions relating to the workers’ health and safety. Collaboration of employers and workers in the delivery of appropriate workplace health and safety outcomes is an essential precept.

Rather, it is our strong view that when those workplace collaboration processes need the OHS advice of others, there is an important need to ensure the persons providing that advice have the appropriate credentials to deliver that advice to the maximum benefit of those involved at the workplace.”

Pages from Geoff_Dells_letter_to_Julia_GillardThe argument is repeatedly expressed as a comparison between a suitably qualified safety advisor and doctors or plumbers or other licensed or registered occupations.  But the Government has twice now indicated that it sees no the risks of abusing such a formalised position outweigh the benefits – the first in not accepting a review panel recommendation and second by omitting the issue in the Safe Work Bill.

Should the safety profession, as a whole, continue to push the issue with an unsupportive government or should it accept that the battle is lost and begin a Plan B? A plan where, perhaps, the market begins to demand certainty about the skill level of their safety advisors to such an extent that a scheme of accredited safety professionals is an indispensable business resource?

This may be the tactic of the SIA in its support of  an elite level of safety professional who must have a tertiary OHS qualification.  It is certainly devoting considerable resources to the program, supported by hundreds of thousands of dollars from WorkSafe Victoria.  The caveat of this approach is that the SIA gets control of the profession.

This is not the case with the professions with which the SIA likes to compare itself.  Those professions have independent assessment bodies, ethics bodies and sometimes industry/profession ombudsmen.

What the safety profession needs to counter is the argument that the Government has accepted from somewhere, that business is highly likely to push its OHS responsibility to others if it can.  The profession, and the SIA, needs to convince the Government that business will accept its OHS duties.

Dr Dell told SafetyAtWorkBlog that the Safe Work Bill has been written for lawyers by lawyers and seems aimed at what to do after an incident has occurred.  It is about harm minimisation and not safety.  He says that the preventative aim of OHS legislation has been severely diluted.  In this he echoes some of the  SafetyAtWorkBlog position that the new laws are not about safety management but about safety law, and have little bearing on the shop floor where hazards are most often faced and controlled.

It is also important to remember that OHS law was intended to be a law that could be understood by the layman and implemented by the layman.  The new Safe Work Bill will be incomprehensible to anyone other than lawyers and even then, as seen from recent blog articles about Mike Hammond, Michael Tooma and others, the lawyers are unlikely to agree on interpretation and application.

Kevin Jones

[Note: Kevin Jones is a Fellow of the Safety Institute of Australia]

NSW contractor representative talks bluntly about the politics of OHS laws

Ken Phillips, executive director of Independent Contractors of Australia, wrote an opinion piece in The Australian on 6 October 2009 that demands attention.

Phillips supports the Federal Government’s program of harmonisation of OHS laws in that it will remove what he sees as the injustices of the OHS legislation in New South Wales.

“The situation is different in NSW, which has OHS laws unlike any other in Australia.  OHS prosecutions elsewhere are criminal matters, but in NSW prosecutions are conducted in industrial relations courts, not criminal courts, with no right to a jury or to appeals……

This has led to the layering of gross injustices on top of workplace tragedies in NSW. Take one example.  A NSW plumber has a criminal conviction against him after a hot water valve he installed in an aged nursing home failed. An elderly woman was scalded and tragically died.  The court found the plumber had properly installed and maintained the valve.  The valve failed because of a microscopic fracture in an internal sealed component. Yet NSW OHS law required that the plumber be declared guilty.”

Phillips sees the union movement’s response to harmonisation as short-sighted.  He describes the union advocacy of the  NSW laws in terms of class, a concept rarely voiced in Australia outside academic sociological circles or the basements of  Trades & Labour Councils.

“It’s a law and process based on old-fashioned political notions that employers always put profits above worker safety and that employers must be threatened with harsh legal retribution to make them heed safety regulations.  This is class obsessed, hate-filled labour at its worst, embedding its hatred in law.  It selectively destroys the application of criminal justice to achieve its tribal ends.”

The language is inflammatory but reflects the level of concern felt by many business operators in New South Wales who are fearful of OHS rather than engaged in positive safety management.  The absolute level of safety demanded by the OHS law is indicative of what can happen when an aspirational concept is realised.

It is not so long ago that one employer association director in New South Wales stated on national television that OHS laws are not needed because employers do the right thing.

The harmonisation process, as SafetyAtWorkBlog has said previously, is intended to be a process of negotiation towards a common goal of safer workplaces.  The union movement is undoubtedly in the ascendant having helped the Australian Labor Party (ALP) break the conservative governments of the 1990s, and believes that the ALP owes it.

Trevor Cook, writing in The Australian, estimates that the union campaign in the 2007 election generated a 2% swing to the Labor Party.  He succinctly describes the achievement after years of the Left’s political parties placating the business sector:

“They treated unions as just another interest group.  Against that background, the 2007 election in Australia was a rare and remarkable event.  It had been decades since a social democratic party anywhere in the world had fought and won an election where industrial relations was a leading issue.”

From the union perspective, the Minister for Workplace Relations, Julia Gillard, needs to “pay the piper” after the unions rid the country of the conservative rats.  The substantial challenge for Gillard is to avoid the second phase of the Hamelin story, before the entire union movement rescinds its support and takes her “children” – the future industrial relations structure.

Kevin Jones

Business commentator is concerned over OHS and IR overlap

Respected business commentator, Robert Gottliebsen, has commented on the political and ideological challenge that Julia Gillard, Australia’s Minister for Workplace Relations, faces over the introduction of OHS model legislation.

Gottliebsen says there is a risk that the combative OHS structures in New South Wales could spread to the national context and that resisting this movement, funded and promoted by the trade unions, will be a substantial test for the Minister. In his Business Spectator article he says

“To make it tougher for Gillard, the draft [legislation] has clauses that will give unions around Australia NSW-style prosecution powers and clauses that water down training requirements.  This will mix IR issues and safety and may well increase the injury rate.”

There is a persistent debate about the IR context of OHS and vice versa, which is the tail and which is the dog.  Gottliebsen clearly sees the NSW experience as illustrating IR having too much influence over OHS management.  (For those readers outside Australia, NSW is seen widely as a failure economically and politically)

“The sad thing is that once occupational healthy and safety becomes merely a tool of industrial relations, it is politicised and linked to wage claims and is not taken seriously.  More workers go home injured or worse.  So not only do we need English-style law, but we need law that isolates safety from industrial relations skirmishes.”

This is reminiscent of the days when industrial employment awards provided allowances for dangerous or unhealthy tasks, what was universally considered “danger money”.

Robert Gottliebsen is no fool and the significance of his article is the fact that the issue was covered by a finance and business commentator at all.  It indicates the significance of what the Federal Government is proposing, politically, industrially and socially.  the foundations of OHS legislation have remained basically the same since Lord Robens’ recommendations in England in the 1970’s.  Australia has had OHS legislation since the early 1980’s.  The new model OHS legislation should similarly be seen in such longevity and broad impact.

OHS may be a niche consideration for most people but how the government handles the negotiations leading to this law’s implementation will be a good indication of their political nous and their commitment to Australians.

Kevin Jones

The harmonisation challenge in Australia gets more difficult

There are few motivations that are more effective for improving workplace safety than facing a grieving relative.

On 17 September 2009, the impact of the OHS law harmonisation on workers and their families came to the fore in an article in the Sydney Morning Herald (SMH) entitled “Deaths at work put sharper focus on liability”.  The workplace support advocates make a clear case for holding those who control the workplace accountable for injuries, illnesses and fatalities that occur in their businesses.

A letter sent to the Federal Minister for Workplace Relations, Julia Gillard, by the Workplace Tragedy Family Support Group reportedly says

”Dealing with a serious injury or the death of a family member is difficult, particularly if there is no sense of justice.  Employees must be able to seek justice against employers who do the wrong thing,” said the conveners’ letter.

Families wanted to know the responsible organisation had been held to account, the letter said.

Justice, but not revenge.  The avoidance of this justice and accountability through companies choosing to go out of business has been highlighted in New South Wales many times, so it is understandable that the reduction of the avenue to pursue justice that may occur in the OHS harmonisation process can generate such letters to politicians.

A significant element in the SMH article is the inclusion of the union perspective.  Trade unions often provide grieving relatives the only support, particularly in the period shortly after a workplace fatality.  And there is the shared grief of losing a loved one and losing an often long-serving union member.

This article and the letter to the Minister add an important emotional and social element to the development of the new national model OHS laws.  Whether the government will incorporate mechanisms to achieve justice in the legislative framework or in secondary processes could give a good indication to the broader political picture of workplace safety over the next decade.

Kevin Jones

Union opposition to Australia’s OHS laws – new radio campaign

On 14 September 2009, the Australian Council of Trade Unions (ACTU) released a series of radio advertisements that call on the government to not reduce the occupational health and safety conditions of Australian workers.

An article about the ads with interviews with the major political players is available on ABC Radio for a short time.

Conflict

There are several issues raised by the ads and the interviews.  Jeff Lawrence of the ACTU says that the new harmonised OHS laws will reduce conditions across Australia.  For “across Australia” read “New South Wales”.  The proposed OHS laws will create the most change for unions in New South Wales.  This state had the most extreme duty of care in any State and always had the most to give up.  This was always going to be the point of conflict.

Consultation

The ads can also be seen as an admission that the in-house tripartite negotiations are not going the way the union movement wanted.  The Australian Government has persisted with the tripartite consultative structure for OHS.  Each party – government, unions and employers – are supposed to have an equal(ish) say in changes to the OHS law.  The new radio ads, and the recent street protests, could indicate that the unions are not being listened to to the extent they wanted.

It could be that the union movement want to add colour and movement to the negotiations but it is an expensive method and one that does not have the same traction as their Your Rights At Work campaign that contributed to the fall of the conservative governemtn of John Howard, regardless of what the advertising sellers say.

The government of Prime Minister Rudd was always seen as sympathetic to big business.  This is a legacy of the consensus politics of the Hawke/Keating period.  The traditional voter base for the Labor Party has been eroding for years and the only way it has been able to retain or regain government over the last 25 years has been to broaden its appeal to the middle classes.

A great example of this was the fall of the government of Jeff Kennett in Victoria.  The Labor Party began wooing the rural conservatives, a sector that Kennett had almost dismissed (except for the occasional search for the best vanilla slice).  This action undercut the Liberal Party and National Party heartlands.

The ACTU is also trying to talk with the heartlands of workers but it needs to assuage concerns about the industrial relations changes.  The community is fearful that the unions are asking for too much.  The Government is aware of this and that is why the mantra of the Prime Minister and Industrial Relations Minister, Julia Gillard, is all about “restoring the balance”.

Reporting

The radio report this morning also indicates a deficiency in the Australian media.  There are no reporters in the mainstream media who specialise in OHS.  That’s understandable as OHS is often a niche area, a subset of industrial relations.  But this also means that OHS is always considered in terms of industrial relations because this is the information base from which reporters and journalists draw.

This is noone’s fault, in particular, but as you listen to the radio podcast, the IR “tone” is always there, both in the journalists and the subjects interviewed.

Perhaps the media sees no value in OHS without the IR perspective.  Perhaps it is because today’s report was always going to be about industrial relations with an OHS twist.  If this is the case, where are the OHS advocates who can comment without industrial relations baggage?  Where are the humanists, the realists, where is the OHS voice?

Kevin Jones

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