Category: politics

Unpaid overtime is the new danger money

In Australia there is increasing pressure to work more hours than what one is paid for. Many different organisations use this fact to push for various improved benefits, in many circumstances the statistics are used in support of wage improvements.

But working beyond contracted hours will certainly affect one’s work/life balance as there are only so many hours in the day and if work dominates one’s life, family time or rest will be sacrificed. The imbalance leads to a range of negative psychological and social actions. An article in Wikipedia on working time summarises this.

“In contrast, a work week that is too long will result in more material goods at the cost of stress-related health problems as well as a “drought of leisure.”  Furthermore, children are likely to receive less attention from busy parents, and childrearing is likely to be subjectively worse.  The exact ways in which long work weeks affect culture, public health, and education are debated.”

Australia has yet to have the debate on the matter of working hours that has been seen in Europe and England but the issue exists very much in Australia, although it has yet to gain any traction.

According to a media report by the Australian Council of Trade Unions a new research report by the Australia Institute

“… found that each year, the average full-time Australian worker does 266.6 hours of unpaid overtime, or an extra six-and-a-half working weeks…. The think tank estimates that through unpaid overtime, workers are forgoing a total of $72.2 billion in wages or 6% of GDP.”

The Australian Institute report found the following

  • Forty-five per cent of all Australian workers, and more than half of all full-time employees, work more hours than they are paid for during a typical workday.
  • Unpaid overtime is more common among people who work a ‘standard’ business workday (that is, not shift work) and among white-collar workers.
  • Workplace culture is a dominant contributing factor, with 44 per cent of people who work unpaid overtime saying that it is ‘compulsory’ or ‘expected’ and another 43 per cent saying that it is ‘not expected, but also not discouraged’.
  • Across the workforce, the average employee works 49 minutes unpaid during a typical workday.
  • Full-time employees work 70 minutes of unpaid overtime on average, while parttime employees work 23 minutes.
  • Men work more unpaid overtime than women (63 minutes versus 36 minutes a day). Men with young children work a great deal more than women with young children (71 minutes compared with 30 minutes).
  • Unpaid overtime increases with income: people in low-income households work an average of 28 minutes of unpaid overtime a day compared with 61 minutes for people in high-income households.
  • When asked what would happen if they didn’t work unpaid overtime, most say that ‘the work wouldn’t get done’, suggesting that the demands placed on employees are too much for many people.
  • A majority of survey respondents who work additional hours said that if they didn’t work overtime they would spend more time with family, and many said that they would do more exercise.

The report clearly states that allowing “unpaid overtime” has a strong cost in social and individual health but there is an OHS perspective that over gets overlooked due to public health and industrial relations dominating the issue.

In a media statement from October 2009, as an example, Deloittes quoted some scientists, in support of a anti-sleep device, on statistics that have been bandied around for some time:

“…scientists equate fatigue to blood-alcohol levels: if a person has been awake for 18 hours, it’s the equivalent of having a .05 level of alcohol in their body; if they have been awake for 21 hours, it’s equivalent to a.08 level.”

There are several further examples on negative health impacts in the Australia Institute report.

It can be strongly argued that by allowing, or expecting, “unpaid overtime”, employers may be encouraging workers to travel home while impaired and that employers are creating a work/life imbalance by requiring “unpaid overtime”.   Certainly it could be argued that even during unpaid overtime, the cognitive function of the employee is less than expected, or even have the worker unfit for work.

Arguing about unpaid overtime clearly makes the debate one of money not safety or wellness or the social contract, and this is the argument’s inherent weakness.

Arguing for compensation for “unpaid overtime” is arguing for “danger money” – how much money will a worker accept in order to keep working into the unhealthy and dangerous hours beyond their regular contracted hours?  This type of argument disappeared almost twenty years ago in Australia when the Australian awards system was reformed to remove allowances in relation to working at heights, picking up roadkill, or working in excessive heat.   It was agreed that “danger money” was inappropriate and that OHS principles demanded the risks involved with these tasks be reduced rather than “paying workers” to place themselves at risk.

ACTU Secretary Jeff Lawrence, in his media statement in support of Go Home on Time Day, and The Australia Institute in its media statement on its report both underplay a major point in the debate on working hours when they argue in economic terms.  Lawrence says

“If the work demands are too much to complete in a normal working day, then employees should be paid for their extra hours, or their employer must hire more staff.”

The institute mentions wellness in passing but emphasises in its media release

“..the 2.14 billion hours of unpaid overtime worked per year is a $72 billion gift to employers and means that 6% of our economy depends on free labour.”

Employing more staff is preferable but removing the culture of unpaid overtime is far more important.   Arguing on the basis of economics, ie “being paid for their extra hours”, may expose the worker to greater risk of injury or illness at the workplace or on the way home.   Quality of life, work/life balance and personal health and safety are stronger arguments for “going home on time”, arguments supported by The Australia Institute and the Australian Greens.

Kevin Jones

Tasmania’s workers compensation changes pass

It is easy to forget that workers compensation is clicking along during this intense period of analysis of OHS laws.  Workers compensation legislation passed through Tasmania’s House of Assembly this week (it still needs to get through the Legislative Council).  The Minister for Workplace relations, Lisa Singh, highlighted the following components of the changes in a media release on 6 November 2009.

“The key reforms will:

  • Improve access to common law damages for compensation by reducing the whole of person impairment threshold from 30% to 20%;
  • Amend the first step-down to 90% of normal weekly earnings rather than 85% of normal weekly earnings;
  • Delay the operation of the first step-down, so that it comes into effect at 26 weeks of incapacity rather than 13 weeks;
  • Streamline the management of injury and illness to deliver better health and return to work outcomes for injured workers and lower costs to employers;
  • Foster and reinforce a return to work culture among employers, workers and other stakeholders;
  • Provide greater income security for injured workers by increasing the duration and reducing the “step-down” of weekly compensation payments for injured workers;
  • Increase lump sum compensation up to $250,000 for permanent impairment or death to levels more comparable to those provided in other states and territories;
  • Provide additional financial incentives for workers and employers to participate in rehabilitation.”

The reforms are based on the Government’s response to the recommendations of Victorian consultant Alan Clayton and the Return to Work and Injury Management Model developed by the WorkCover Tasmania Board.

Alan has been a prominent advisor on workers compensation to governments around Australia for some time.  His Tasmanian review and recommendations were in 2007 and are available online.  The Government’s response is also available.

The Minister has said

“With the range of views that were put forward during consultation I am confident that this legislation strikes the right balance of fairness for workers and their families and support for employers and business.”

Simon Cocker, of Unions Tasmania, said in response to the Bill:

“The Workplace Relations Minister is to be congratulated for pursuing these improvements which will ensure that injured workers are better supported when they return to work and are paid more appropriate rates of compensation while off work.”

“The step-down provisions that currently operate have been shown to be unfair and place injured workers and their families under financial stress at a time when they are often struggling to cope with the impact of a serious injury.”

“Delaying the step down and softening its financial impact is an improvement.”

The Australian Government paid considerable attention to the Victorian OHS Act  because it was the most recent review of that legislation.  If the government continues this trend, the Tasmanian changes may be very significant for the rest of the country.

Kevin Jones

UPDATE: 19 November 2009

Tasmanian workers’ compensation laws passed the Legislative Council on 18 November 2009.

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

Justice in workers’ compensation reforms

A South Australian colleague has pointed out some interesting elements in WorkCover SA’s review of employer incentives discussed earlier.

The following text are some of the aims of South Australia’s Workers Compensation and Rehabilitation Act.

(1) The objects of this Act are—

(a) to establish a workers rehabilitation and compensation scheme—

(i) that achieves a reasonable balance between the interests of employers and the interests of workers

(iv) that reduces the overall social and economic cost to the community of employment-related disabilities

(2) A person exercising judicial, quasi-judicial or administrative powers must interpret this Act in the light of its objects without bias towards the interests of employers on the one hand, or workers on the other.

My colleague points out that a review of employer incentives is well and good but what are the incentives for employees, given the objects of the Act concerning balance and bias?

She also criticises

“…the current incentive for employers of paying the first two weeks of the injured workers income payments if the employer supplies the claim agent with the employer section of the injury/incident report goes against the intent as outlined in Objects of the Act, as there is not any corresponding incentive offered to the injured worker.”

Whether the injury report is valid or useful is irrelevant to the incentive as it is the lodgment of the form that generates the incentive rather than any rehabilitation action for the injured worker.

There is no doubt that the workers compensation scheme needed a review.  The recent Return-To-Work (RTW) conference in Adelaide had an atmosphere of hope after the introduction of the RTW coordinator requirements for businesses.

South Australia is different from most other Australian States where a single company handles workers compensation insurance, Employers Mutual.  Not only is there a huge lack of competition in South Australia but the government and the insurer are close.

There is also a political element with Paul Caica being given the portfolio in order to fix it.  In June 2009, the Minister announced a range of projects from a fair pool of funds but many of them are focused on the workers rather than providing structural change to the system.  It is hard not to speculate how workers may benefit if the insurance industry in the State had competition.

The need for reform was clear as the South Australian workers’ compensation scheme was bleeding money but it must have been politically attractive to try to postpone an analysis of the system until the Federal Government started its national review of workers’ compensation system in a few years’ time.  It may have been that such a strategy was planned until the global financial crisis changed the public’s tolerance for government debt forcing the SA government had to act.

Kevin Jones

Coincidence or unique perspective?

Since the end of the end of the public comment phase on Australia’s national model OHS laws, Safe Work Australia has been daily uploading submissions to their website.  Within the last lot of uploads was a block of around 100 submissions, all of which are marked confidential and have, apparently, been submitted by individuals.

One confidential submitter shares his name with a person who has been associated with some peculiar industrial relations behaviour.  In August 2009, during a heated industrial dispute concerning work on the West Gate Bridge, a trade unionist pleaded guilty to dangerous driving and to carrying a piece of pipe without lawful excuse, according to one media report.

A person with the same name is also listed in an order issued by the Federal Court of Australia in March 2009 that places restrictions on several people in relation to the West Gate Bridge project and the premises of contractor John Holland.

It is not possible to determine if this is a coincidence because the submission is confidential and submissions do not include contact details.  But if it is the same person, it is a shame that the OHS submission is not publicly available because a person who may have been involved in an intense industrial dispute and who may have been legally restrained would surely provide an interesting perspective on the relationship between OHS and industrial relations.

It is relatively easy to determine the politics of organisations that make submissions but when lodged by individuals political perspectives or professional connections cannot be determined, even when the submission is not confidential.  That such a large number of confidential submissions have been lodged is curious but due to due process, it is likely to remain so.

Kevin Jones

Where is the evidence of OHS misuse for IR purposes?

The mainstream press has dipped into some of the submissions to the Australian Government on its harmonisation of OHS laws.  Kirsty Needham reports on the submissions in the Sydney Morning Herald.

Needham reports on basically the submissions of the Australian Chamber of Commerce & Industry and the Australian Council of Trade Unions – the ideological opposites on safety regulation.  She quotes ACCI’s David Gregory:

“There is no doubt that health and safety has been used as an industrial relations issue on plenty of occasions … we want to put reasonable boundaries around those entitlements.”

cover V01Summary_PressFinalThis position is always attached as a myth by the unions but it is an accepted fact in the minds of employers, OHS professionals and many workers.  The Royal Commission into the Building and Construction Industry in 2003 found that

“in the building and construction industry throughout Australia, there is…..widespread use of occupational health and safety as an industrial tool.”

“The types of inappropriate conduct which exist throughout the building and construction industry include….the use by a union of occupational, health and safety (OH&S) issues as an industrial tool, intermingled with legitimate OH&S issues;”

“Occupational health and safety is often misused by unions as an industrial tool.  This trivialises safety, and deflects attention away from real problems.  Unions have a legitimate interest in the safety of their members.  This should not be altered.  However, the scope for misuse of safety must be reduced and if possible eliminated.”

“Misuse of non-existent occupational health and safety issues for industrial purposes is rife in the building and construction industry.  Genuine occupational health and safety hazards are also rife.”

A major source of evidence for the repeated statement of fact is mentioned in the final report from February 2003 was an “OH&S case study (Tas).”.  SafetyAtWorkBlog is trying to obtain more details on this.

One example of the evidence that is readily available relates again to the Royal Commission.  The Commission undertook an investigation into industrial disputes a the construction site of The Age newspaper in Tullamarine.  The Commission reports

“the evidence from Mr Judson [Wayne Judson is a Director of Probuild] will be that during the negotiation of the project agreement (which was a period where any industrial action between Probuild and the unions would have been unprotected) there were many occasions when safety walks and OH&S issues were used as a device by the unions to pressure Probuild and Fairfax to agree to the project agreement and nominated shop stewards.

The potential misuse of OH&S raised, not of course for the first time in this Commission, is a very serious matter. To misuse OH&S debases the currency of safety. ‘Crying Wolf’ often enough on enough sites creates the risk that no one knows whether a safety claim is about something real and important or whether it is simply a means of supporting the latest industrial demand.”

Some of Commissioner Cole’s comments on the debasement of safety are sound but the “evidence” is from the builder and may not constitute the reality, only opinion in a submission to an investigative body.  The Commissioner carefully labels the issue “a potential misuse”.

SafetyAtWorkBlog would say that the fact of misuse of OHS issues for industrial purposes may be an example of the establishment of a fact through “crying wolf”, to use the Commissioner’s term.  The frequent statement of a belief does not establish a fact.

Also, to some extent, the construction industry hogs the OHS limelight in much of the tripartite consultation.  This is because of the industrially charged nature of construction in Australia and the fact that construction sites are usually highly visible to public.  The construction industry is an important economic driver but perhaps this prominence is masking some of the other OHS issues that the Government needs to consider.

As the Australian Government proceeds in its harmonisation of OHS laws and as it reads the hundreds of public submissions, there should be a red flag on each mention of the misuse of OHS for industrial purposes so that assertions are not misread as facts.

Kevin Jones

Australia’s employers’ thoughts on OHS law

The public submission period for commenting on the Australia’s OHS model laws has closed and the submissions are gradually being made available on the Safe Work Australia website.

At the time of writing there are around 15 submissions listed and Safe Work Australia has indicated that there are many more that are being sifted through at the moment.

Each submission had the option for the comments to be confidential.  Confidential submitters told SafetyAtWorkBlog that one reason for confidentiality was so that their comments did not reflect on their current employer.  This is understandable but also adds an allure to the submission.  It will be interesting to note which of the large associations apply confidentiality to their submissions.

One employer association who is “loud and proud” of their submission is the Australian Chamber of Commerce and Industry.  The ACCI submission is currently available only from its website.  Below is what the ACCI’s Director of Workplace Policy, David Gregory,  says in a media statement that accompanied the release of the submission

“…[Gregory ] has rejected union claims that business groups are pushing for changes that would reduce health and safety rights for workers.

ACCI also urged Australia’s governments to work towards a truly uniform national OHS system with respect to the approach by OHS inspectors, regulators and the courts.”

“Employers want a model Act that delivers both improved workplace safety outcomes and an effective legislative framework that will encourage employers and workers to be proactive and collaborative in improving the safety of their workplaces.  Unnecessary prescription will ultimately serve only to distract and discourage both employers and employees from delivering safer workplaces.  ACCI has provided some positive suggestions in its submission that should be adopted to improve the operation of the Act.”

ACCI has strongly backed the reinstatement of a definition of ‘due diligence’ in the model Act, as the absence of a definition will mean that company officers will be unclear about their duty and how compliance may be achieved.

Employers have also identified a number of aspects of the model OHS Act which are open to potential misuse such as union right of entry, persons assisting health and safety representatives, and procedures for establishing multi-employer workgroups, which require redrafting to ensure that they are fair and balanced and do not undermine the safety objectives of the Act.

ACCI in its submission advocates that the maximum penalty for a corporation under the Act should be set at the current Australian maximum of $1.65 million, arguing that the proposed $3 million maximum will simply fuel a litigious and compliance-based approach to OHS.

Gregory’s first point addresses ideology more than anything else.  The trade union movement will always be suspicious and uncomfortable with any organisation that is willing to put productivity before safety.  The introduction of  the ACCI submission makes it clear that the focus of the submission is not on improving safety but on improving the management of safety, two very different OHS approaches.

Queensland labour history coverRecently a new book from Federation Press, “Work and Strife in Paradise“,  a history of labour in Queensland illustrated how industrial harmony existed in that state for decades prior to the introduction of Robens-style legislation.  For a long time unions and employer groups knew where they stood ideologically and therefore could anticipate responses and could negotiate from stable philosophical platforms.  The industrial relations changes from the 1960s onwards complicated negotiations which did have some impact on OHS in that State.

[For the first time, to SafetyAtWorkBlog’s knowledge, a chapter is included in a labour relations book on research into employer associations.]

One would have to expect a definition of “due diligence” to be included in the upcoming OHS Act is the employers are in favour of this.  The consensus in many OHS seminars is that such a definition is required.

The concerns over union rights is a hoary chestnut that has not been seen as a problem in Victoria where many of the suggested legislative features have originated.

The issue of penalties is a little hollow.  Many corporate executives are covered by Directors’ & Officers’ Liability insurance as much as is possible.  And fines do not generate litigation. The neglect of obligations and duties lead to prosecution and then penalties.

The ACCI submission states more clearly that

“…OHS breaches should generally be subject to civil rather than criminal penalties. Such an approach should be taken for the entire model OHS Act and not just selectively applied to aspects such as breaches in relation to union right of entry.”

It would interesting to know what ACCI’s position is on non-financial penalty options.

The impression obtained from the ACCI statement and submission is that they were principally intended for the audience of the ACCI membership.  ACCI has a seat at the Safe Work Australia Council discussion table through its representative Annette Bellamy.  It is suggested that it is here where the conservative and capitalist arguments on OHS laws will be put.

Kevin Jones

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