Brothels continue to misunderstand the employee/contractor difference

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For many years the brothel industry in Victoria has struggled with its occupational health and safety obligations, not because it does not understand them but that it denies OHS laws are relevant as many in the industry continue to believe that sex workers are not employees.  Some use a Tax Office ruling on employee status to support their argument against OHS.

A recent investigation by the Fair Work Ombudsman (FWO) seems to further illustrate the industry’s misunderstanding of employees.  According to an FWO media release nineteen brothels, over 70% of brothels investigated, underpaid clerical staff around $A65,000 but of more relevance to OHS is that

“Some businesses were found to have misclassified employees as independent contractors.”

This was a position put by many brothel owners and industry lobbyists when I was consulting and writing about the industry almost a decade ago.  For a long time OHS laws have extended beyond the employee/employer relationship to include those affected by the work being undertaken on the premises. The more modern Work Health and Safety laws go further by focussing on the work activity rather than the place of work.

As the OHS/WHS focus increases on psychosocial hazards – impairment, fatigue, stress etc – the adult entertainment industry has particular challenges; challenges that could be seen as threats or opportunities but certainly challenges that will not go away.  It is very positive that the industry groups have agreed to support a specific website for the sex industry but now they need to start working seriously on complying with their OHS/WHS obligations through collaboration, consultation and innovation, instead of denial.

Kevin Jones

More on this industry and this topic can be found in an earlier SafetyAtWorkBlog article.

Opaque response on construction industry safety code

Model-Health-and-Safety-Management-Plan (2)Victoria’s Construction Compliance Code Unit in the Department of Treasury and Finance has just completed its public comments stage for its model Health and Safety Management Plan (HSMP).  The comments period was extended by a month after initially ending after only one month‘s public consultation on 6 January 2014.  New South Wales and Queensland have mirrored the Victorian construction compliance code so the significance of this OHS submission stage should not be underestimated however the submission process and unusual secrecy is not building the faith and trust in the HSMP that the process needs for it to succeed.

The regular process for submissions to government inquires is for those submissions to be made publicly available, with the permission of the writer.  The CCCU seems to have no plans to follow this protocol which is an enormous shame as the submissions would have provided a window into both the understanding of OHS in the Victorian construction sector, an understanding of the OHS role of the CCCU and an insight into how the CCCU is generally perceived by the Victorian community.

SafetyAtWorkBlog put the following (we think reasonable) questions to the CCCU last week in preparation for the end of the commentary phase:

  • Could you please estimate the number of submissions the CCU has received on the model Health and Safety Management Plan (HSMP) to date?
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Citi Research report provides insight into Australian corporate safety performance

On 29 January 2014 Australia’s Fairfax newspapers published an article called “Safety performances at Australia’s top companies is serious business” written by Adele Ferguson.  The article is based on an analysis by Citi Research of the safety performance of companies listed in Australia’s ASX100 share index.  Citi Research (Citi) has kindly provided SafetyAtWorkBlog with a copy of this report developed for its fund manager and superfund clients.  It is a terrific reference document providing a useful insight to the OHS performance of prominent Australian corporations.  It cannot be definitive but we know of nothing else like it in Australia.

In the Fairfax article Ferguson wrote:

“While safety is a complex issue largely due to the fact that safety records are difficult to measure and difficult to compare across companies and industries, it is an important area to explore. For starters, it is a good proxy for the way a company deals with staff and manages risk more generally.”

Safety does not have to be complex but the measurement of safety performance can be as, even though there is a (dreadfully outdated) Australian Standard for measuring OHS performance, companies tweak the existing measures and the principal measurement, the Lost Time Injury Frequency Rate (LTIFR), has been found to be a flawed indicator.  LTIFR is tolerated as a measurement simply because a better alternative has not been developed or widely accepted.

The Citi Research report lists LTIFRs for most of the 117 companies but it balances this with almost as many Total Recordable Injury Frequency Rates (TRIFR).  

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Interesting new appointment at South Australia’s Master Builders

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Modern workers rarely stay in jobs longer than six or seven years because they choose to move on or are working on projects that have a short lifespan. Sometimes opportunities arise that can steer people in unpredictable directions, sometimes to positions of influence.  One example of this type of journey could be Ian Markos.

One newspaper recently wrote:

“The recently appointed director of policy for the SA branch of the MBA, Ian Markos, said a “nanny state” approach was stifling job creation. “There’s a raft of laws and regulations. You’ve got employment laws, you’ve got taxation laws, you’ve got environmental laws, you’ve got work health and safety laws, local council regulations. We’re saying enough is enough,” he said.”

Criticism of occupational health and safety (OHS) laws is not surprising from the Master Builders Association but Ian Markos was with South Australia’s OHS regulator, SafeWorkSA, for many years (with a once-only appearance on Gardening Australia) as the Chief Officer, Compliance, Advisory, Legal and Investigations. Continue reading “Interesting new appointment at South Australia’s Master Builders”

Serious questions raised about the effectiveness of OHS enforcement strategies

Richard Johnstone is always worth reading as he writes perceptively about occupational health and safety (OHS) and its enforcement.  The new book from Baywood PublishingSafety or Profit” provides a chapter by Johnstone that argues:

“…that despite the rhetoric of stronger enforcement and more robust prosecution, the dominant ideology of work health and safety enforcement – ambivalence about whether work health and safety offenses are “really criminal” and viewing prosecution as a “last resort” in the enforcement armory – still dominates the approach of Australian work health and safety regulators.” (page 113)

The importance of Johnstone’s chapter is that he reminds us that much of the current OHS debate is circular and limited and fails to question the soft enforcement strategy that has existed since the

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