Category: politics

What New South Wales unions need to give up for harmony’s sake

Gerard Phillips, a partner in the Middletons law firm, wrote in the 7 August 2008 edition of the Australian Financial Review about the belligerence of the trade union movement in New South Wales in relation to the harmonisation of OHS Laws in Australia.

He addresses two legal barriers to harmonisation that he believes should end.  In New South Wales unions have the legislative right to prosecute safety breaches.  Gerard argues that harmonisation won’t be achieved without the unions relinquishing this right.

It has been clear for months that New South Wales will have to give up some elements of its OHS legislation in order to allow harmony.  If it needs to save face, it would be lobbying now for enough resources at a national level to mount rigorous OHS enforcement.

As the Victorian OHS law is the front runner for a national OHS legal model, unions can take some solace from the extension of Victoria’s right of entry provisions that, prior to 1984, were tipped to generate industrial warfare In Victorian worksites.  There were, at the time, many lawyers touting for business by recommending a tightening of paperwork, vetting all credentials before letting “them” on your site and accompanying “them” wherever they go.

Business achieved some important concessions with the registration of ARREOS (Authorised Representatives of Registered Employee Organisations) and a legal comeback if the ARREOS breach their authority, but an ARREO visit can still be daunting as WorkSafe found in February 2008.

WorkSafe advises that

An ARREO may enter a workplace during working hours to enquire into a suspected contravention of the OHS Act or regulations. The suspected contravention must relate to or affect the work being carried out by people who are:
• members of the registered employee organisation;
• subject to a certified agreement which binds the registered employee organisation; or
• eligible to be members of the registered employee organisation and are not subject to a certified agreement.

Gerard Phillips also can’t see why a union should have prosecutorial powers that no one else, other than the OHS regulator, has.  Although he acknowledges that for enforcement to work any prosecutor must be “appropriately funded”.  If the New South Wales government decided to reduce WorkCover NSW costs by sharing responsibility, I don’t think the economic benefit outweighed the political damage.

Phillips also sees no great difficulty in the onus of proof being held by the prosecutor.  This authority is already in the legislation of Victoria and Western Australia with no complaints from the union movement that safety standards have declined as a result.  The unions will need to give ground on having the onus rest with the business owner, and the employer groups will dance a gig when they do.

I remember Australia’s Royal Commission into the building industry where employer groups asserted, with little proof, that OHS is used by unions for purposes of industrial action.  Terence Cole in his final report illustrated the accusations well.

“….employers have raised concerns about the unions raising industrial concerns under the guise of safety issues, and the adoption of the role of safety policemen by unions to the exclusion of the statutory inspectorates. The issue of safety is a constant source of friction in the workplace, either because it is not being appropriately addressed, monitored, enforced, or is being abused.”

This may or may not be true, however unions in New South Wales risk providing the truth that employer associations have long desired if they continue in holding onto a strong poker hand when the other players have changed to playing whist.

Gasflow resumes from Varanus Island

Apache Energy has advised that gas flow has been reinstated on 6 August 2008 following the June 3 pipeline explosion on Varanus Island.  This has been achieved earlier than forecast.

Apache Energy’s MD, Tim Wall, said he was 

“…pleased to welcome the Premier of Western Australian, Hon Alan Carpenter MLA and the Minister for Energy, Hon Fran Logan MLA to site today to witness first-hand the restoration and repairs to the Varanus Island facility.”

According to a media statement, the partial resumption of supply is expected to be ramped up a further 120 TJ/day to 240 TJ/day by mid-August and pre-incident rates of production by the end of the year.

Alan Carpenter told reporters

“This is a significant relief for gas users as well as the economy of Western Australia…The worst of the situation is clearly over; we still have a long way to go.”

Mr Carpenter could also have been talking about his political future as only a day later he called a snap election for September 6.  The resumption of gas flow must have been one of the factors encouraging this call, which has been described as “panicked” by many commentators, although far less influential in his decision-making than the resignation of the short-term opposition leader, the world-famous chair-sniffer Troy Buswell.

Another Australian politician attempts suicide

Over the last few days Australian media has been covering the hospitalisation of Tasmanian MP, Paula Wriedt.  It has become apparent that Ms Wreidt attempted suicide as a result of a combination of work and family pressures.

Being a politician is a difficult job and, as with any job, pressure can become excessive.  This was seen over the last few years in New South Wales with the reported suicide attempt of John Brogden in August 2005 and his retirement due to ill-health, and the resignation of Andrew Tink in March 2006 due to a stress-related illness.

In 2005, Australian politician Andrew Bartlett wrote about John Brogden, the pressures of stress in politics and how the media reports on politicians.

In 2002 a small sample survey into the role of work factors in suicide was undertaken in

 Melbourne by the Urban Ministry Network.  The authors analysed 109 suicide cases from the coronial database between 1989 and 2000.

The main factors in the suicides were

  • Work Stress (21%)
  • Unspecified work problems (19%)
  • An argument or disagreement with a work colleague or boss (13%)
  • Fear of retrenchment (12%)

According to the report, a work injury or work-related mental illness had an impact on the person’s suicide in 31% of the cases.

These figures indicate that work-related suicide is an issue of genuine concern and one that should demand further research.

The Victorian State Coroner at the time of the report and a strong advocate for preventive safety, Graeme Johnstone, write in the foreword:

As a society we tend to concentrate on the obvious – in terms of the workplace that means traumatic injuries and deaths.  We understand that by identifying factors in traumatic workplace injuries and deaths we will be better able to prevent some of the deaths and reduce the number of injuries. This also may be true in the area of suicide and it is why this study on work factors in suicide has so much potential.

One of the authors of that study, John Bottomley, is looking for research funding for a second analyse of suicides.  He can be contacted through the website HERE   His research outline is listed at the top of this page.

In 2000 an Australian politician succeeded in killing himself.  The ABC spoke to an expert on the treatment of depression.

A book review of the Bottomley study is available HERE

UPDATE

Paula Wriedt has spoken to the press for the first time since being admitted to hospital.  She thanks her estranged husband, medical staff and family for their help.

Why are many of China’s coalmines closed?

Safety At Work magazine has been reporting on the seemingly endless deaths in the Chinese mining industry for many years.  Many of the mine fatalities are of multiples that would generate huge investigations in the west.  Many deaths are compounded by the attempts of mine managers to minimise the scale of the disasters by delaying reporting the incident, not reporting at all, or disposing of the bodies. 

These incidents have occurred mostly in privately-run mines and over the last couple of years the government has had regular crackdowns on the industry.

China is a good example of a country that manages safety in reaction to disasters.  Poor safety management is often ignored as long as production is guaranteed.  This is evident in its manufacturing sector as much as it is in mining.

John Garnaut in The Age newspaper on August 4 2008 reports on the actions of the Chinese government in the mining sector in the lead up to the Beijing Olympics.  Garnaut reports that migrant workers were sent home weeks ago without pay.  At one mine he attended, work was stopped by management, ostensibly due to his presence as a journalist.

The closure of these mines has had a heavy impact on the coal supply and coal prices and Garnaut says that the action of the government has come about to

“prevent the Olympic Games from being marred by embarrassing reports of mine disasters.”

China’s decision shows how sensitive it is to criticism from other countries. The mess over internet access is a further example.

China does not only manage safety reactively, it manages through diversion, concealment and censorship.

What Garnaut’s reporting and China’s censorship shows is that safety of workers, and accountability of business owners can be improved through the attention of outsiders.  For over seven years, in my experience, China has been experiencing almost monthly fatalities in its coal industry.  I have been publishing whatever reports I can obtain (legitimately) from the wire service, however similar reports have not been appearing in the mainstream, or event the trade, press.  The community is generally unaware of the cultural negligence that the Chinese system of production and regulation allows. 

Perhaps it is a truth that few of us really care but one of the major threats to any management process is hypocrisy.  The Chinese government may be comfortable with that but our own governments should not be hypocrites in our trade negotiations with partners like China.

UPDATE

The Associated Press has reported a gas explosion in a coal mine in at the Baijiagou mine in the northeast of Liaoning province on 18 August 2008. Twenty-four workers are trapped but fifty-six other miners escaped without injury. The story came through the Xinhua News Agency in China, so it will be worth seeing, during this Olympics fervour, what attention this disaster receives from the West

Corrosion at Varanus Island

In mid-July 2008, the West Australian Liberal Party detailed leaked correspondence concerning the maintenance program at the Apache Energy facility at Varanus Island.  In the letter from July 2007, the director of petroleum and major hazard facilities, Richard Craddock, said

“The Five-Year Integrity Review report does not objectively demonstrate that the … pipeline complies with the conditions of … licence PL17, the variations under PL17 and the primary technical standard AS2885.”

The letter identified several areas of attention – pipeline integrity, corrosion and safety management.

A spokesman for Energy Minister Fran Logan said the issues raised were about a mainland pipeline however he also said that the Department of Industrial Relations “did raise the issues that were raised with Apache.”

Economic forecasts by the Chamber of Commerce and Industry WA said the pipeline explosion on Varanus Island had lead to a $6.7 billion reduction in business production and a $2.4 billion negative impact on the general WA economy.   

Other reports are emerging over interdepartmental disputes in the area of enforcement of pipelines.

Other reports on the Varanus Island explosion are available in this blog by search “Varanus” in the search field on this page.

OHS Law Review and the International Labour Organisation

Several submissions, from those currently publicly available, to Australia’s National OHS Law Review have referenced OHS conventions of the International Labour Organisation (ILO). It is early days in the process of assessing submissions and one would expect more details on ILO Conventions to come from submissions of the ACTU and ACCI, both members of the…

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Likely Process of State OHS Legislation

As part of the COAG meeting in early July 2008 the Ausralain governments have signed an Inter-Governmental Agreement for Regulatory and Operational Reform in Occupational Health and Safety. For those of you interested in how the replacement body for the Australian Safety & Compensation Council will operate and be funded, this is the blueprint.

However, part of the agreement on OHS reform does not sit right with the commitments we have heard from the government over the last 6 months or so.  Perhaps our interpretations and expectations were a little unrealistic.

Part 5 of the inter-governmental agreement says

PART 5 – OCCUPATIONAL HEALTH AND SAFETY REFORM
5.1 Model OHS Legislation
5.1.1 The Parties commit to work cooperatively to harmonise OHS regulation through the adoption and implementation of model OHS legislation.
5.1.2 The Parties support the National Review into Model Occupational Health and Safety Laws, announced by the Commonwealth Minister on 4 April2008.
5.1.3 Model OHS legislation will comprise a model principal Act supported by model OHS regulations and model codes of practice. Model OHS legislation will be developed by [ASCC replacement body] in accordance with the terms of this Agreement.
5.1.4 The development process for model OHS legislation will allow for interested persons to make representations concerning any proposed model legislation. Prior to submitting any proposed model legislation to WRMC, [ASCC replacement body] will give due consideration to any representations duly made to it and make such alterations to the proposed legislation as it sees fit.
5.1.5 The Parties agree that a national compliance and enforcement policy will be developed to ensure a consistent regulatory approach across all jurisdictions.
5.1.6 For the purpose of ensuring that model OHS legislation applies throughout Australia, each Party to this Agreement will, subject to its parliamentary and other law-making processes, take all necessary steps to enact or otherwise give effect to model OHS legislation within its jurisdiction within the timeframes agreed by WRMC.
5.1.7 For the purposes of subclause 5.1.1, the adoption and implementation of model OHS legislation requires each jurisdiction to enact or otherwise give effect to their own laws that mirror the model laws as far as possible having regard to the drafting protocols in each jurisdiction.
5.1.8 The adoption and implementation of model OHS legislation is not intended to prevent jurisdictions from enacting or otherwise giving effect to additional provisions, provided these do not materially affect the operation of the model legislation, for example, by providing for a consultative mechanism within a jurisdiction.
5.1.9 [ASCC replacement body] will make model OHS legislation publicly available on its website when it is agreed by WRMC. [ASCC replacement body] will hold and maintain all original copies of agreed model OHS legislation, including any subsequent amendments.

Clearly, there is not going to be one OHS Act and jurisdiction for Australia.  Many OHS organisations and businesses advocated for a single administrative structure but there was always the Constitution in the way.  The Workplace Relations Ministerial Council (WRMC) has suggested that each State structures its own OHS legislation “subject to its parliamentary and other law-making processes” (5.1.6 above)

Certainly States could not implement something that conflicts with the core obligations and conditions but the quote above clearly allows State politics to affect OHS operations within the State.  However you look at there is clearly room for the States to move.

However this movement will be tempered by having amendments and new legislation “approved” by the WRMC and then have each of the States amend their own OHS legislation to accommodate the other State’s changes, in order to keep close to national uniformity

5.5.2 Any Party that proposes to amend its legislation or introduce new legislation so as to materially affect the operation of model OHS legislation will submit the proposed amendments or new legislation to WRMC for decision. Each Party agrees that it will not progress implementation of any such amendment or such new legislation unless WRMC has endorsed the proposed amendment or new legislation.
5.5.3 Where WRMC approves an amendment to legislation or new legislation that affects the operation of the agreed model OHS legislation, all Parties will (unless otherwise agreed by WRMC) undertake all necessary steps to introduce appropriate changes to their legislation with a view to ensuring that OHS legislation remains nationally consistent.

In no way does any of this diminish the level of political activity related to OHS law making over the next few years.  In fact I would be surprised if the lobbyists are not revising their strategies now.

The structure sounds workable while there is a friendly relationship between State and Federal governments.  If one of the States changed to a conservative government the timelines or processes could vary considerably.  There has already been persistent questioning about New South Wales Premier Morris Iemma’s tenure over the last week.  For the reform process to work, the NSW Labor Party would need to provide a strong leader before the next election so as to avoid a conservative government.  New South Wales has some of the most (according to business groups) draconian OHS legislation.  If a Liberal government came into power, and with a clear mandate, OHS will become a battleground.

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