politics – Page 164 – SafetyAtWorkBlog

Employer concerns on OHS law review

In support of the Safety Show mentioned in a previous article, the organisers have issued a media release which provides illuminating quotes on the issue of the Australian Government’s program for review of OHS laws:

One of those keen to comment is exhibitor at The Safety Show and chief executive of the Australian Federation of Employers and Industries, Garry Brack [significantly NOT a speaker at the Safety Conference ED.].

“We are concerned about the content of the model laws,” Mr Brack says. “New South Wales’ OHS Act is the most difficult piece of legislation in the developed world and we believe this is a lost opportunity to wind up with more balance.”

“If an employee does the wrong thing, the employer is found guilty. We’re not arguing that employees should be prosecuted but reject the notion that employers should be liable when employees fail to meet safety requirements.”

Clearly Brack has not compared the NSW OHS Act to the Federal Taxation legislation.

Brack reflects many of the perspectives of those who deal with OHS in the State of New South Wales. The pent-up frustration is clear and the employers do not believe the reassurances from the Federal Government.

Brack also illustrates the desire for prescription in OHS law. If people, in this case employers, know how to comply with a law, they are more likely to do so.

“Smaller employers don’t have the financial resources and in-house expertise to interpret what is ‘reasonably practicable’. They say ‘Tell us what we have to do’. They don’t wanted to return to the lunacy of years ago where every nut and bolt was defined but they do need a more prescriptive approach and help from regulators.”

He highlights a concern about the OHS laws shared by SafetyAtWorkBlog, small business has always struggled to provide an appropriately safe workplace. “Reasonably practicable” does not help. However, Brack’s desire for prescription is nostalgic at best, some would say fantasy. This government has no intention of taking a seemingly regressive step to prescription and Brack has been aware of this for years. At some point one has to accept reality and work with what is being offered.

Variations

Another exhibitor discussed the expectation that States will still add their own variations to the model OHS laws. This option has never been hidden by the government or the various review panels. In fact, this flexibility has been a major point in the government’s choice on harmonisation rather than uniformity.

“National legislation is highly desirable to avoid the massive duplication of work for national organisations,” Mr [Bill] Henman [of the College of Warehouse Training] says. “Unfortunately, the legislation will be enforced by various state jurisdictions and this will result in variation between states in interpretations, penalties and the finer points of the legislation. The devil is in the detail. [ED. please kick the next person who uses this cliche] Different penalties in different states currently affect the priorities of safety managers and standardised penalties would provide better outcomes.”

Henman needs to read the legislation and supportive documents to see that standardised penalties are proposed. Though Henman is considering one of the most important issues that does not seem to be in consideration in much of the commentary on the legislation to date – improved safety.

“It’s very hard to say whether these new laws will make workplaces safer. The culture of those less safety conscious workplaces where the employer bends the rules has to change. One would hope the new laws will help engender better safety cultures.”

The Master Builders Association of NSW‘s OHS risk management officer, Tim Stootman, echoes the perspective of Garry Brack, looking at the legislation through the experience of a New South Wales employer:

“Master Builders supports the review of OHS laws and believes that this is an opportunity for better, rather than greater, OHS regulation,” Mr Stootman says. “Better, rather than greater, regulation will assist to improve OHS performance in the construction sector.

Master Builders supports the rejection of what could be called a ‘highest common denominator’ approach to OHS duties. Essentially, this approach would have seen an absolute duty of care on employers to ensure the health and safety of their employees and provides unions with the right to bring a prosecution for a breach of the OHS law, the latter a provision adopted in recent changes to the law in the ACT.

The Draft National Model OHS Act is a positive step towards harmonisation of OHS laws in this country.”

Submissions to the government on the draft Safe Work Bill are being regularly posted at the Safe Work Australia website. SafetyAtWorkBlog is watching the submissions and will draw attention to some of the more useful comments in the submissions.

Kevin Jones

Accusations of poor nuclear safety

Australia does not (yet) have nuclear power but its most prominent nuclear reactor is at Lucas Heights in Sydney. On 21 October 2009, the Australian Greens Senator Scott Ludlam was told that several incidents had occurred at the reactor since 2008.

According to a media release from the Greens, Australian Nuclear Science and Technology Organisation (ANSTO) revealed that

“A major recent event involving a vial being dropped and left unreported for up to three hours leading to exposure by workers.
An internal audit found gross deficiencies in safety procedures.
Management was unaware some workers present during the incident had not completed OHS induction training or a radiation safety course.
Procedures required upgrading since the incident.
Other incidents have occurred since and procedures are constantly being upgraded.”

A short AAP article on the comments is also available online. The article is likely to gain considerable media attention through the inclusion of the following comment

“A spokesman for Senator Ludlam told AAP that if safety procedures could not be followed at Australia’s nuclear reactor, “God help” Australia if ANSTO was put in charge of a full scale nuclear power facility.”

It seems unfair to put out this story without some response from ANSTO. Late this afternoon ANSTO released a detailed response to the Greens claims and AAP story which it claims were full of inaccuracies. Below are some extracts of the statement which is available here in full.

“No incident of the type reported took place at the OPAL reactor. An incident did take place on 28 August 2008 at ANSTO’s radiopharmaceutical production facility. This was not a spill and no staff were exposed to significant radiation doses. The incident took place in a shielded manufacturing enclosure.”

“ANSTO acknowledges that conservative decision making was not used at the start of this incident. Procedures have improved since as acknowledged in the Greens’ press release.”

“The quantity of medical isotope in the vial was 1/10 of a teaspoon and when the vial was dislodged the worker initially attempted to retrieve it and notified his supervisor within 30 minutes of the initial incident. The vial was finally retrieved after three hours. Molybdenum-99 production did not continue following the incident.”

“Incident reporting is a standard practice in the radiopharmaceutical manufacturing environment. Senator Ludlam appears to have confused the reporting of incidents with an assumption of these incidents being severe or hazardous to workers. This is not the case.”

Nuclear issues always need to be taken seriously and, as with any incident, must be investigated appropriately. The Greens have made, understandable, political mileage out of the information revealed in the Senate hearings. The comments match the interests of its constituents and members.

What it also indicates is that Australia has yet to enter a nuclear energy debate that has already been experienced in Europe and elsewhere over the last thirty years or so. As nuclear energy becomes an increasingly important option for Australia in response to climate change, the debate is likely to be furious.

Kevin Jones

Independent Aussie politician forecasts “near riots” on OHS

Rob Oakenshott is an independent politician in the New South Wales parliament, He was formerly a representative of the National Party. Oakenshott is one of the first Australian politicians who are not directly involved in the program of OHS law harmonisation to raise any concerns.

What spurred him to speak was a recent case in the High Court of Australia centring around NSW’s absolute OHS duty of care. Comments from the Allens Arthur Robinson newsletter say:

“The matter will present an opportunity for the court to determine whether the interpretation of the duties under the OHS Act is so restrictive that it makes it impossible for an employer to comply with them and practically removes the benefit of the statutory defences. The issue of the difficulty of complying with the legislation is something that the defendants have submitted runs counter to the rule of law and the Constitution.”

Oakenshott stated in a media release (not yet available on his website):

“I am also concerned that aspects of NSW state legislation such as the absolute liability elements are being considered by the Federal Government,” he said. “Having been involved in state politics for fifteen years, I can assure the government they will have near riots on the streets from the small business community of Australia if they mirror NSW legislation in the quest for harmonious national laws.”

This would be the first time that OHS would ever have raised the passion of Australian small businesses to this extent. A survey produced for the ACTU (considered to be representative of the general population by the research company) quoted the following statistics:

67% believe that workplace safety is important, but only 40% see it as “very important”.

Kevin Jones

CFMEU, IPA, Gretley Mine – political lessons

Readers outside of New South Wales may vaguely remember that in 1996 four miners died in a coalmine in the Hunter Valley 0f New South Wales. They may also remember that the was some press about the prosecution of some directors of the mining company. It was one of those incidents and court cases that should have gained broader attention that it did.

As OHS stakeholders in Australia ponder the ramifications of the Government’s proposed Safe Work Bill, it is important to also ponder the legal legacy of the Gretley mine disasater. It may provide non-NSW and non-mining readers with a better understanding of the resistance to the new harmonised laws from the mining industry in both New South Wales and Western Australia.

On 15 October 2009, Andrew Vickers of the Construction Forestry Mining & Energy Union used the Gretley saga as a justification to call for the harmoinised legislation and support systems to allow for variations to meet the special needs of the mining sector.

cover PHILLIPS 5.04925E-210RETLEY On the other side of political fence, Ken Phillips of the Institute of Public Affairs, a conservative thinktank, produced a document about the politics of the Gretley saga. The publication was supported by a video, available below. Phillips’ paper is a useful illustration of business’ opinions of the unions and New South Wales’ OHS legislation. This legislation is a centrepiece to the ACTU and union movement’s concerns and opposition to many elements of the current draft Safe Work Bill.

Prominent sociologist, Andrew Hopkins, has written about the OHS management issues raised by the disaster and its aftermath.

SafetyAtWorkBlog believes that these political and safety resources can provide a primer to many of the issues being discussed in the current debate on OHS laws.

Kevin Jones

Safe Work Bill, suitably qualified and professional plans

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

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.”

The 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

New Australian Embassy in Laos creating traffic safety issues.

The new Australian embassy located on Route Thadeua, the major arterial through Vientiane, is set in a high security compound, somewhat out of keeping with the slow pace of Laos. Some say that the PDR after Laos comes from Please Don’t Rush.

When the Japanese upgraded Route Thadeua, the major route out of the city to Thailand, they put in a central median strip without turn lanes so any turning traffic forces the traffic behind to swing into what is now unofficially the motor bike lane closest to the curb. Motor bikes vastly outnumber cars in Laos, one of the worlds least developed countries and governed by a hard line and corrupt Government.

Openings in the strip are irregular, but inevitably one is always situated outside embassies.

The traffic engineers installed concrete blocks around 75 centimetres long along the edge of the road which means that off street parking is virtually impossible. Some businesses have subsequently demolished the blocks.

Footpaths were not part of the Japanese aid package

The Australian Embassy has a nice strip of suburban lawn outside the high walls but have chosen to retain the concrete blocks, meaning that the lines of cars outside while their owners are meeting or making entreaties to the Embassy staff, ostensibly block one of the two available lanes. The Please Don’t rush adage only stands when a person is working and not mounted on a machine. Laos are largely inept drivers with no idea of consequence. They are like a nation of probationary drivers.

Impatient and opportunistic and accidents are put down to supernatural forces such as in Luang Prabang, the World Heritage city where a spate of fatal accidents was said to be caused by a ghost women motorcycle rider.

Of course, the opening in the island is right outside the embassy. Late last week the traffic was backed up at the beginning of peak hour and motor cycle riders were being inched off by impatient drivers trying to squeeze through between a line of U-turning traffic and the cars parked outside the embassy. Other motor cycle riders were risking their lives and cheap Chinese motor bikes by dodging through any narrow spaces in front of cars that had just got through and accelerating out.

It would take very little for the embassy to create a car park outside.

The grass is nice but safety would be better. The excuse may inevitably be security and the blocks do deter any potential car bomber. But this is Laos not Iraq, and it seems to be an act of stupidity to pass on risk to the Lao public on a permanent basis for a risk that may or may not arise.

Vientiane is a land locked and hot city and getting hotter. It has few swimming pools that aren’t in private hands. On top of the decision to close the Australian Recreation Club pool and sports facilities to the general public, a move that was wildly unpopular, and left this great facility for the sole use of a few (7-9) embassy staff, the cocktail party chat is not flattering.

By an Asian reporter

Category: politics

Employer concerns on OHS law review

Variations

Like this:

Accusations of poor nuclear safety

Like this:

Independent Aussie politician forecasts “near riots” on OHS

Like this:

CFMEU, IPA, Gretley Mine – political lessons

Like this:

Safe Work Bill, suitably qualified and professional plans

Like this:

NSW contractor representative talks bluntly about the politics of OHS laws

Like this:

New Australian Embassy in Laos creating traffic safety issues.

Like this:

Variations

Share this:

Like this:

Share this:

Like this:

Share this:

Like this:

Share this:

Like this:

Share this:

Like this:

Share this:

Like this:

Share this:

Like this: