workplace – Page 189 – SafetyAtWorkBlog

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

Changing weather conditions can present unexpected hazards

In the south-east corner of Australia, a drought has existed for over a decade. This week in Melbourne, it has rained on and off for several days, changing the way the community is feeling. Farmers are happy, owners of rain water tanks are happy, gardeners are happy, even commuters who have to relearn how to drive in the wet are less complaining.

Some months ago, I spoke to a mother whose two-year-old daughter had never seen a heavy rainstorm, thunder or lightning. Early last year, a colleague and I looked out of an office building window on a 13th floor and saw smoke swirling round the city. It turned out to be rain but we had not seen rain for so long that we mis-identified it.

This morning, I was removing money from an automatic teller in the street and I was dripped on from the leaking roof of the bank for the first time ever. A local chemist had buckets on its floor to catch drips from the ceiling that they had never seen before.

Yesterday, 15 October 2009, a concrete pumper at a housing development site in Coburg sunk in some mud just enough to swing the pump’s hose into a worker, killing him. Other media reports say that a stand of the pumper may have malfunctioned.

There are always many lessons from workplace deaths but one to be taken from this incident is that external factors to the actual tasks in hand must be considered. Those factors, in this case weather and soil stability, can change within a work period and this variability of environment must be watched and anticipated.

Mud on a construction site is not a new hazard. But if a hazard is not always present or regularly encountered, it is easy to give it less attention.

Kevin Jones

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

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

Handedness is not considered when investigating a workplace incident

Robyn Parkin has completed her small survey of handedness in safety management. Initial results are below:

“92% of respondents stated that their companies do not ask whether a person is left- or right-handed on their accident report form, and 77% do not consider handedness as a possible root cause of accidents.
13 companies stated that they may consider handedness where ergonomics is a possible issue, eg with poor access to equipment controls.”

More details will be available in an upcoming edition of New Zealand’s Safeguard magazine. Robyn Parkin can be contacted about her research at robyn@impac.co.nz

Kevin Jones

Perhaps a step too far on homes as workplaces

According to an AAP report released on 8 October 2009, Australian homeowners could be liable for the injuries of workmen on their premises. According to Michael Tooma of Deacons law firm, the breadth of the proposed OHS model laws could cause big legal problems for homeowners (as if interest rate rises and balcony collapses were not enough).

“..if I call out a tradesperson to do some work at my home, my home is their workplace and I would be a person at their workplace. As such, I would have a duty to take reasonable care for my own safety and the safety of others and to cooperate with their reasonable instructions in my own home. If I breach that duty I could be liable for a criminal offence.”

The duty of care applied regardless of whether the worker was injured or not, Mr Tooma said. “If the person is exposed to risk, then potentially you’ve committed a criminal offence. Previously, there were clear boundaries around a home that really made it sacrosanct.”

The crux of Tooma’s argument is that

“The definition of a workplace in the legislation is so broad that any place where a worker works is deemed a workplace”.

Many corporations have struggled with their OHS obligations for staff who telecommute. Home-based businesses have a clearer legislative responsibility even if many of them are unaware of the responsibility.

The Model Safe Work Provisions Exposure Draft’s defines a workplace as follows

“(1) A workplace is a place where work is carried out for a business or undertaking and includes any place where a worker goes, or is likely to be, while at work.
(2) In this section, place includes:

(a) vehicle, ship, boat, aircraft or other mobile structure; and
(b) any installation on land, on the bed of any waters or floating on any waters.”

In the Discussion Paper there is an example provided of what is not a business

“A householder hiring an electrician to repair a faulty electrical socket in their home (however the electrician will either be a worker for a business or undertaking or a business or undertaking in their own right if they are self employed).”

Tooma’s point would be what if the electrician was undertaking the work in a home office (if designated) or the whole house/workplace.

Of all the “modern working arrangements” listed in the Discussion Paper, working from home is not listed. If it had been, Tooma’s comments would have seemed less alarmist, probably because their would have been more general alarm as perhaps hinted at in the AAP article.

In that article, Tooma also says

“We’re talking about the Occupational Health and Safety Act intruding on the family home and imposing criminal liability on individual home owners under legislation that is supposedly aimed at safety in the workplace.

“It’s really a quirk of the way the definition works in that everywhere a worker goes, so goes the workplace.”

AAP does not treat the issue as “a quirk”. Not with a headline in The Canberra Times of “Home owners ‘could be liable'”.

Tooma may have raised a valid point but the AAP article shows how the media can “ice the cake” of an issue. It may have been better to present this quirk to the Government through the Public Comment process (and I am sure Tooma will) but it is also on all OHS advocates to bring the relevance of OHS matters to the attention of those who may not understand the risks they could be exposed to. This blog article could be considered an example of this.

The Public Comment phase on the draft documents is still young. If Tooma’s intention was to stir debate (and not alarm) he has raised an interesting issue that should be discussed. Whether the wider community of homeowners, home-based businesses and telecommuters take this perspective, we’re yet to see.

Kevin Jones

The retention of leave indicates a broken business

The Australian Chamber of Commerce & Industry (ACCI) has released a statement that discusses the economic and personal costs of presenteeism in relation to Australia’s new National Employment Standards.

In the statement the ACCI mentions:

“…the colossal national stockpile of annual leave and its toxic impact on the wellbeing of business and employees.”

“It doesn’t take Sherlock Holmes or even Dr Watson to deduce that employees who take their annual leave are far less likely to take a ‘sickie’ due to fatigue or illness.”

The statistics quoted by ACCI include:

123 million days stockpiled nationally.

$33.3 billion value to national leave stockpile.

73% of national leave stockpilers are likely to be managers and earn more than $70K per annum.

71% of leave stockpilers nationally are likely to be male.

73% of leave stockpilers consider work/life balance to be important to their lives.

70% of leave stockpilers consider taking leave to be a good way to achieve work/life balance.

It is not unreasonable to assert that the excessive retention of leave by an individual is an indication that that person does not understand that annual leave is an important element of their own mental health and safety at work.

If an executive believes they are indispensable to the company then that executive is making poor OHS decisions that flow to other employees. Just as positive change can come from the senior management so can unhealthy work practices. The retention of leave is just such a practice.

In a broader corporate and management context, the retention of excessive leave is an indication of a poorly managed business. Leave, and its mental health benefits, should be integrated into the operational business strategy. No one should be indispensable in a work role, although it is acknowledged that Plan B’s are not always as effective as Plan A’s.

Business continuity and risk management demand that contingencies be put in place for prolonged absences, or short leave breaks.

ACCI has to be admired for bringing the retention of leave to the attention of its members but the release is principally an information leaflet for a government tourism website. Being physically absent from work is very different from being mentally absent from work.

To achieve a proper break from work, contact with the workplace and clients must be severed. Even in this situation it may take several days to break out of “work mode”, to stop reaching for the mobile phone, to stop worrying about whether a work task is being done and to start the process of relaxing.

A “good” workplace, a “workplace of choice”, should have work management structures in place to allow its employees to recuperate from the pressures of work. This is beyond flexible work structures and needs a business to thoroughly understand the mental health needs of its workers and business continuity.

Kevin Jones

The original research data for the figures above has been located and is available elsewhere on SafetyAtWorkBlog

Category: workplace

CFMEU, IPA, Gretley Mine – political lessons

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Changing weather conditions can present unexpected hazards

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OHS is becoming criminal law in a social context

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Where is the human right to safe work?

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Handedness is not considered when investigating a workplace incident

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Perhaps a step too far on homes as workplaces

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The retention of leave indicates a broken business

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