OHS is becoming criminal law in a social context

On 14 October 2009, Australian law firm Deacons hosted a breakfast seminar of the draft OHS model law proposed by the Australian Government.  The speaker, Mike Hammond, expressed concern about many sections of the draft laws because they do not seem to fit how OHS law has been structured in Australia and the UK for over thirty years.

This is not to say the clauses and sections are worthless, useless or wrong, but the Government has not provided enough information on the rationale for the changes or the context for those changes so that those who need to use the law understand the law.

Hammond had five major concerns with the proposed law in the Victorian context:

  • Person conducting business or undertaking vs employer
  • Officers’ duty to exercise due diligence
  • Failure to acknowledge “Control” as issue of first principle
  • Abrogation of right to silence and privilege against self-incrimination for individuals
  • Unions able to cause work to cease

Hammond is, of course, looking at the laws from a lawyer’s perspective and not that of a safety professional or business operator but he raised some excellent points, some of which have been discussed previously in SafetyAtWorkBlog.

The coverage of the proposed OHS laws is so broad as to include anywhere where work is conducted.  Tooma, a partner of Hammond at Deacons, touched on this impractical definition in some of his statements.  The way some work is done in 2009 is radically different from 1985 for example, mainly due to technology.

This blog article could be written on a kitchen table, in a cafe, on a park bench or a desk in an office.  Each of these would be workplaces because work is being undertaken however if the article is being written on a laptop in a cafe, at the moment, the cafe owner would have no OHS obligations on my actions.  There would likely be public liability and safety issues, particularly if the laptop was also plugged into the cafe’s power supply, for instance, but the cafe is only a workplace for the employees of the cafe.  Under the draft Safe Work Act (or Bill), if the customers are working there, the cafe owner would have OHS obligations for them.  The customers, the workers, of course would have their own OHS obligations as they do now.

Hammond made the point that the new proposed laws dispense with the legal relationship of employer and employee.  This fundamentally changes the coverage of OHS legislation.  As I put it to Hammond at the seminar, the changes remove the “occupational” from the OHS law.  It has become a criminal law in a social context.

Hammond sees no reason to change the employment relationship to the extent proposed if the aim is to encompass the new varieties of work activity and workplace.  He believes that these circumstances can still be met specific provisions to deal with the new varieties of work whilst maintaining the fundamental employer- employee relationship.  Business and society would then be able to better understand some of the changes because the context would be within what has been understood for decades as “work”.

The proposed Safe Work Bill is trying to be too much too quickly and will set back OHS gains a long way.  OHS has accrued considerable social awareness and acceptance.  The legal principles of a safe workplace and safe work have been largely embraced by the community.  Australia has not experienced the “OHS has gone mad” campaigns waged in the United Kingdom but if this law proceeds as it is, government will not be able to manage it, business will dismiss it through frustration, and the community will think (rightly) that OHS is a joke.  Safety professionals and OHS regulators will be seen as sucking the sense out of what used to be sensible.

Mike Hammond has seen criminal law reacting to changing social circumstances.  He said that this proposed law is attempting to set a social agenda and a dangerous precedent.

Kevin Jones

Verify website data

At SafetyatWorkBlog the use or reuse of material is carefully considered.  Some articles are not proceeded with, or media used, because of copyright, restrictions or cost.  No content is used from websites without permission or without referring back to the original source and providing hyperlinks if possible.  An example of how internet information can go wrong occurred earlier this month in Australia.

On 2 October 2009 the Safety Institute of Australia advised its members through its homepage that the Cancer Council, one of its strategic partners, is

“is gearing up to launch three new workplace guides as part of National Skin Cancer Week in November.”

The guides are listed on the SIA website:

  • Skin cancer and outdoor work: a guide for employers
  • Skin cancer and outdoor work: a guide for working safely in the sun brochure
  • SunSmart and iCourses ‘Working safely in the sun’ online training course

www-sia-org-au_news_updates_sun-protect-workplace-announce20091002-htmlThe odd thing was that the first guide listed was published in January 2007.  The second seems to be a companion leaflet for the guide for employers.  They are not new and are not being launched in November 2009.

When the anomaly was brought to the attention of the Cancer Council advised SafetyAtWorkBlog that their website had not been updated for a long time and that the information was out of date.  Not only should this have been obvious from the age of the publications listed but the page said the guides were to be launched on Tuesday November 20.  In 2009 November 20 is a Thursday.  The advice on the SIA site is based on old information.

(A slightly more recent policy statement for “sun protection in the workplace” is available elsewhere on the Cancer Council website)

It is very important, particularly in OHS where safety advice can change frequently, that any information taken from the internet is verified, especially if one is putting one’s name to it as the SIA’s CEO did in this instance.

The Sunsmart guidances produced by the Cancer Council still contain solid advice but if the risk of skin cancer or the hazard of working in direct sunlight is relevant to your worksites, make sure that the safety guidance is current and do not just rely on one information source.  In this instance, see what advice  the local OHS authority can provide, particular in the couple of months preceding summer.

If you run your own OHS information website or intranet, be extra careful when using other organisation’s information………..and check the dates of the information.

Who is advising John Holland?

The person, Sir John Holland, died in May 2009.  The company, John Holland Group (JHG), is in danger of a shortened life if it continues to make bizarre decisions.

John Holland Group has been widely criticized by the union movement, principally for its decision to jump out of State OHS jurisdictions to the Commonwealth (Comcare) structure.  This was seen as a purely financial response to a politically sensitive  opportunity that was presented by the Liberal government of then-Prime Minister John Howard.  Comcare was seen as the insurer of the defence forces and public servants and, unions claimed, enforcement of OHS to an acceptable level was beyond the skills and resources of the administrative agency.

Due to union pressure, John Holland Rail was dropped from the finalists for a national safety award in early 2009.  JHG probably came in for more criticism than other companies who also jumped because it is in the highly-unionised construction sector and their construction work is so public.

One of the advantages of moving to the Federal OHS scheme was that any prosecutions would occur in that jurisdiction and JHG has been prosecuted there.  JHG had several OHS breaches in 2005 and 2006.  It came under the Federal OHS law in March 2007.  In September 2008, Worksafe Victoria charged the company over one of the 2006 breaches.

According to a report in The Age on 14 October 2009, JHG

“issued a High Court challenge, claiming the charges were ”incompetent” because it was not liable for conviction under Victorian workplace law for offences committed before it came under the Commonwealth jurisdiction.”

John Holland v Vic Workcover Authority  John Holland v Ins_High Court challenges are not cheap and the wisdom of the decision to contest the State actions was always questionable, doubly so now the High Court unanimously decided against JHG’s arguments.

The High Court challenge confirmed for many the impression that John Holland Group will try to avoid safety obligations, if possible, and that the move to a “softer” regulatory scheme was one of the reasons behind the move to the Comcare scheme.  The legal action undermines all of the positive safety culture messages that the corporation has issued.

JHG is involved with many new infrastructure and construction projects.  Harmonised OHS laws are set for 2011 which include the federal OHS laws under which Comcare operates.  Within a decade of taking up an opportunity for a “softer” regulatory regime, the advantage may be gone and the John Holland Group Board should ask themselves “was it worth it?”

Kevin Jones

Grappler death in forestry operations – WorkSafeBC Slide Show

Below is the latest safety video from WorkSafeBC.  It is included not only as an important indication of a hazard that can be readily controlled or avoided but as a terrific example of how generic safety alerts can be given currency by using the available technology.

It is one thing for text-based safety alerts to be circulated, or for media releases to be broadcast, but this type of safety alert has more influence and provides a clearer understanding of the hazard than text ever could.

Yes, the video is Canadian and may not reflect the work practices in other countries but the hazard is usually the same.  In this case, it was the location of the spotter, the level of communication between the workers and overall a clearly inadequate system of work.

WorkSafeBC should be applauded for its efforts in communicating safety to a broad audience in an effective manner.

Kevin Jones

A spotter working in blind conditions was struck by a grapple. Confirm spotters are in the clear before throwing a grapple.

[vodpod id=ExternalVideo.882790&w=425&h=350&fv=allowfullscreen%3Dtrue%26quality%3Dhigh%26bgcolor%3D%23ffffff%26]

The bad news and the good news of New Zealand agricultural safety

On 8 October 2009, New Zealand’s Department of Labour issued a press release that stated

“New research confirms the importance of work in agriculture safety and health. The research by Otago University’s Injury Prevention Research Unit found that the rate of serious injuries and fatalities on New Zealand farms has remained high in contrast to declines in other industries over the past two decades.”

The release states that DoL continues to place a high importance on preventative action in the agriculture sector, an undeniably important economic sector for New Zealand.

OR72 coverHowever, what was most noticeable was that

“the rate of serious injuries and fatalities on New Zealand farms has remained high in contrast to declines in other industries over the past two decades.”

Surely this is not a good news story.  Twenty years of preventative interventions in the agriculture sector have not been as successful as those in other industries.

SafetyAtWorkBlog contacted DoL for clarification.  The commitment of DoL to the agriculture sector was re-emphasized.  DoL responded very promptly to our enquiries and provided links to additional information including the original research report.

Part of the Otago University project was a literature review in the sector from 2000 to 2008.  The major findings were

  • “The most common mechanisms for serious non-fatal injury and fatal injury include agricultural machinery (including vehicles –tractors, ATVs), livestock and falls for all age groups, in all three regions under review.
  • The exposures and risks of disease in the agricultural sector currently being researched and where researchers agree there is a need for further research include:
    • exposure to dust and organic materials and the relation to respiratory disorders;
    • exposure to pesticides, herbicides and insecticides and associations with various cancers including: non-Hodgkin’s lymphoma; prostate cancer, breast and ovarian cancer, leukaemia, multiple myeloma and brain cancers;
    • environmentally associated cancers (for example, skin cancer and cancer of the lip) and their association with production practice.
  • Occupational fatalities in agriculture remain high, despite decreases in occupational fatality rates for other industry groups, in all three regions over the last decade. The research demonstrates that there are various groups that are particularly at risk, these include:
    • men in all age groups;
    • older workers/farmers;
    • migrant and seasonal workers;
    • youths (particularly those aged between 11-15 years and male)
    • Children (particularly male children)
    • Farm-owners and managers, with respect to intentional fatal self harm injury) again predominantly men.”

Several other surveys were undertaken, one by telephone.  Those results are also telling.  Amongst the results was this paragraph concerning injuries:

“With respect to injury, thirteen percent (13%) of farmers from the AgriBase™ sample had had an injury, in the three months prior to interview, which had restricted their activity for a half a day or more and/or which required medical treatment from a health professional.  Generally these injuries were reasonably serious and respondents reported work capacity was poor following injury.  For two-thirds of those injured it was over a week before they could resume normal farming duties; yet only a third of these respondents made a claim to the Accident Compensation Corporation.”

Key findings of the report for governments include

“….there is no long term prevention strategy for injury and disease that specifically addresses the agricultural sector.”

“The dominant stereotype of the farmer as being rugged, independent and self-sufficient (and masculine) is also largely uncritically accepted by many stakeholders. These and associated stereotypes about the nature of rural life and notions of rural isolation are problematic and potentially can undermine effective health interventions in this sector.”

“…there is a tendency for initiatives to be ad-hoc and for there to be a lack of co-ordination and coherence, and in some instances, where there are some questions around the efficacy of various interventions, an unwillingness to accept that there are problems.”

There are many others that discuss a lack of resources, dubious targeting, a lack of coordination and inter-organisational politics.

For farmers and other individuals, some of the findings include:

“In connection to this evident stoicism was a vocational identification to the work they do; most could not imagine not farming, it was not just a job.  The implications here are that they would often keep on working with an injury (such as a back condition), as doing the work was more important, not just economically, but also in terms of their identity, and an underlying belief that it would heal itself if they just kept on going.”

“Many said they were too tired at the end of a working day to read about injury and disease or to go onto the internet to learn about it either.  When they opened the paper they wanted to know about local and international news, not health matters.  This presents some real challenges for the sector in terms of disseminating information.”

The University of Otago also issued a media release on the research project.  This release reflects the tone and results of the research project much more accurately.

The whole report reflects the current status of safety in the agricultural sector in New Zealand.  It reports on good intentions in the wrong areas, a need to look beyond the stereotypes and the need for sustained intervention.

What seems to be needed is a creative and effective response from the Government that acknowledges that past strategies have failed, or at least that some of them have.  All the existing strategies need reviewing to determine which have shown promise and could succeed if appropriate resources were allocated.  Inspiration needs to be sought from within the region and from around the world.  If this has already been sought and found wanting, the sad reality will be that it falls to New Zealand to make the change.

New Zealand’s DoL may already be facing this bleak reality.  In their media statement, the Department’s Chief Adviser, Safety and Health, Dr Geraint Emrys said:

“The Department will use the findings of the research to inform policy decisions and to better target operational interventions to make them more effective in reducing the injury and death toll in agriculture.”

New Zealand could lead the world in this important area.

Kevin Jones

Where is the human right to safe work?

Australia is in the middle of a debate about the possible introduction of a charter or bill of human rights.  The debate has been invigorated by the presentation to the Federal Government of a consultation report on human rights.

Occupational safety is often said to be an issue of human rights but this seems to be a secondary action inferred from labor rights rather than a specific statement.  Below are a selection of the articles in the United Nations Universal Declaration of Human Rights that may relate to safe workplaces:

Article 1 – All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.

Article 3 – Everyone has the right to life, liberty and security of person.

Article 7 – All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.

Article 23 –  1. Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.

Article 24 – Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay.

The closest one would get to a specific right to “safety at work” would be Article 23 – 1 where there is a right to “favourable conditions of work”.  Favourable is a term that is not seen in OHS legislation or discussions but may tie in with the Australian Government’s concepts of Fair Work.

Article 25 – 1 refers to “the health and well-being” but the following examples place this clearly in the social, non-workplace context.

Article 25 – 1. Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.

One could argue that the right to a “standard of living” may include the qualitative elements of a safe working environment but a standard of living –  usually income, education and, sometimes, access and quality of health care – is not the “quality of life” which includes safety.

The report referred to above again does not have an overt statement that people have a right to a safe workplace but it does say, in its summary, that introducing a Human Rights Act

“…. could generate economic benefits, reducing the economic costs associated with policies that do not protect the lives and safety of Australians.”

This language may get a sympathetic ear from the Government in its context of a review of OHS legislation.

But no-one is making the case for a right for a safe workplace.

The argument that a specific right is not required as the state and national OHS legislation places clear obligations on employers and employees does not hold water as similar obligations are in other legislation and some of those sectors are advocating for human rights.

It should be clear from this article that SafetyAtWorkBlog is not a lawyer or a human rights specialist. But what the Government is looking for is discussion on the potential impacts of a Human Rights Act and it is clear from much of the contemporary discussion on occupational health and safety that the overlap between OHS and social safety is increasing very quickly, in the opinion of SafetyAtWorkBlog, quicker than the legislations and laws can cope.

In the past the trade union movement would take the running on human rights as part of their social charter but, as has been said in other SafetyAtWorkBlog articles, the trade unions still remain focused on the material interests of work, primarily, and are currently lobbying on OHS in Australia, primarily, from an industrial base.

The labour lawyers are debating the intricacies of the proposed OHS laws rather than the big picture, the context of the OHS laws in the broader legal and social fabric.  Perhaps this is considered a dead area of examination and discussion.  Once a law is introduced or a precedent set, lawyers tend to adjust their analytical thinking to fit.  Safety professionals and commentators have the luxury to think more broadly.

The safety professional associations are remarkably quiet on the whole idea, preferring to bow to their legal advisers while at the same wondering how they can find relevance in the evolving social context of OHS.

If readers of SafetyAtWorkBlog can shed any light on the human right for safe work, please submit comments below.

Kevin Jones

More on leave retention and mental health

The research statistics quoted in an earlier blog article have finally been located.

Page 1 from Research dataIt is important to understand the limitations of the study.  Firstly, these are not statistics from the Australian Bureau of Statistics so they do not have the same weight as the regularly issued Labour Force statistics.  It would be great if the government began collating this useful economic and business information.

The data released by Tourism Australia also does not include owner-operators or part-time employees.  Part-time employees account for over 3 million Australians out of a total population of 22 million*. That seems a large number to leave out of the calculation.

Nor does the study include any annual leave that does not involve travel.  So if one takes annual leave and recuperate in one’s backyard for four weeks or some quality time with the kids, this is not included.

These restrictions alone show that official statistics on leave use and retention are needed.

The Research Data has some comments specifically about the workplace

“There is a consistent and widespread perception that leave is harder to take than it used to be. Two separate shifts have contributed to this feeling: that it is harder to take time off from work and that it is more difficult to plan holidays.”

Whether it is harder to plan holidays is not relevant to SafetyAtWorkBlog but why is it harder to take time off from work? It is unclear if this is a perspective of the employee or the employer. What is easier to accept is that

“Organisations were no longer seen to factor leave-taking into employee workloads, but expected people to work 52 weeks per year.”

From an OHS perspective this is unforgivable, unhealthy and unsafe. Any companies that do this are breaching their OHS obligations of providing a safe and healthy working environment.

“People are shifting into ‘work addiction’ behaviour irrespective of how they feel about it. They’re working longer hours and are under pressure to perform. Despite a higher consciousness of the importance of work/life balance, many believe things are going in the other direction.

Rather than the onus of planning leave being on the organisation as in the past, it was viewed that this has shifted to the individual. Whereas many organisations used to have cover for people going on leave, it was seen that it is now the responsibility of individuals to organise their workloads if they want to take leave.”

Further research on what caused the change of attitude would be fascinating. It is suspected that the survey frenzy generated by the global financial crisis may be showing results soon on this issue.

What the research data indicates is that there may be “employers of choice” and one’s awareness of work/life balance is high but the reality is vastly different.   There may be financial, organisational and career barriers to achieving some form of stability in mental health and productivity.  What is undeniable is that having leave from work is as important for one’s mental wellbeing as sleep, and to neglect either is not healthy or productive.

What we need is hard and authoritative evidence so that those who motivate change can do so from a position of authority rather than from impressions.

Kevin Jones

*As with all statistical calculations in SafetyAtWorkBlog, please verify them from the original data. (Arts graduates can describe “alliteration” but can’t count very well) If wrong, please advise us immediately.

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