What employers need to know: the legal risk of asking staff to work in smokey air

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The following article is reproduced from the excellent academic communication website The Conversation, and is written by Elizabeth Shi, a Senior Lecturer, in RMIT University‘s Graduate School of Business and Law. The article is a very useful contribution to managing the risks of working in smokey environments but is only one contribution to a discussion on occupational health and safety in smokey workplaces that has many, many months to go.

Amid thick bushfire smoke in cities including Canberra and Melbourne, employers need to consider their legal obligations.

Some have directed their workers not to turn up in order to avoid to occupational health and safety risks. Among them is the Commonwealth department of home affairs which last week asked most of its staff to stay away from its Canberra headquarters for 48 hours. Other employers want to know where they stand.

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Thinking beyond one’s role on OHS

“My approach tends to be revolutionary.”

A major criticism of the Australian Prime Minister’s handling of the current bushfire disaster in South-east Australia is that he was reluctant to engage in the fire fighting or relief effort. Scott Morrison’s reason was valid – firefighting responsibilities sit with the States and Territories. The Federal Government has no direct role in this.

Australian politics, and progress, continues to be hampered by the Constitutional demarcation of National and States rights and obligations, but Morrison missed the point. One does not have to be directly involved in an event to show support and leadership, and leadership can be effective in a secondary, support role. This is equally the case for occupational health and safety (OHS).

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Stories of engineered stone companies moving interstate to avoid safety obligations

In late December 2019, Dr Graeme Edwards provided an update on Australia’s silicosis situation to the Australian Broadcasting Corporation’s PM program in which he mentions the movement of businesses to avoid occupational health (OHS) and safety obligations and duties.

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Recognition for hard work and inspiration

There seems to be a spate of intelligent and knowledgeable people talking about the structural changes required by businesses to reduce and prevent psychological harm. Two Australian voices are Lucinda Brogden and Dr Rebecca Michalak. New Zealand has Dr Hillary Bennett who recently received a Lifetime Achievement Award at the New Zealand Workplace Health and Safety Awards. Bennett’s interview with SafeGuard magazine should be obligatory reading.

Bennett is asked about the Human Resource (HR) profession and nails a critical difference in the HR approach to the occupational health and safety (OHS) one:

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Look deeper and read wider when trying to understand

This Forbes article on the France Telecom suicides, written by Jack Kelly, is doing the rounds on LinkedIn with various lessons identified by various commentators. Sadly Kelly dilutes the significance of the suicides and the jailing of executives by implying that the action in France is a special case, as if the executives were trapped by employment laws into taking the actions that led to the extreme anxiety felt by France Telecom’s workers.

Kelly’s concluding paragraph is unnecessarily equivocal:

“The trial shows that managers waging a campaign of harassment against employees could establish a precedent in France and other countries. It may serve as a strong warning to corporate executives and management that their actions have severe consequences. Pushing employees too hard may result in serious consequences for both the workers and the purveyors of the punishing behaviors.”

Kelly use of “may” weakens the significance of the executive’ actions, the successful prosecution and the jail sentences. Why write that this may happen when the article is about a real case of cause and effect between executive strategy and suicide? Surely “may” should have been “can”.

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