Victoria’s Workplace Manslaughter laws are a misdirection

On July 1, 2020, Victoria receives the Workplace Manslaughter laws that it missed out on by a bee’s whatsit in 2002.  Premier Daniel Andrews will complete another election pledge and will be seen as a champion for Victoria’s workers.  The Workplace Manslaughter laws will provide some bereaved relatives with comfort and a belief that bad employers will be punished for neglecting their occupational health and safety (OHS) duties to provide safe and healthy work environments. Punishment is possible, but unlikely.

The first thing that Victorians need to understand is that Workplace Manslaughter laws are not about OHS, they are about politics.  It is no coincidence that both Queensland and Victoria’s Workplace Manslaughter laws emerged during election campaigns.  Both branches of the Australian Labor Party (ALP) needed to say something about workplace relations that did not involve the hotbed of industrial relations, especially when so much IR change would bring in National politics.

OHS allows people to talk about IR without the trade union politics.  OHS is not about money, it is about quality of life and who, in politics or elsewhere, will say that deaths at work are an acceptable consequence?  The ALP leaders were on a winner and were able to take some moral high ground and criticise business groups on an issue against which business leaders could not argue.

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Lift us up (safely) where we belong

The safe number of people in an elevator gained the attention of Australia’s Attorney General, Christian Porter. The narrow consideration of the COVID19 risks faced by workers as they return to work was taken to Porter by the head of the Property Council of Australia, Ken Morrison.

According to an article in the Australian Financial Review on May 22 2022, Morrison took up the issue with Safe Work Australia who rebuffed his approach and refused to change the original guidance. He then contacted the Attorney-General’s office who, according to Morrison:

“…. engaged with the Deputy Chief Medical Officer to ensure the health issues were properly understood and then in conjunction with Safe Work Australia ensured that revised guidelines were released which were absolutely safe, but practical, and allowed the return to work that the national cabinet has been encouraging.”

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To understand Industrial Manslaughter, look at the politics

On May 20, 2020 Industrial Manslaughter became an offence applicable to Queensland’s mining and resources sector, sometime after the offence was applied to all other Queensland businesses. Industrial Manslaughter (IM) laws have always been as much about politics as they are about penalties, deterrence and occupational health and safety (OHS).

Some of the politics is shown by the responses from Queensland business groups (sounding like spoken through gritted teeth) but to really understand these laws, it is worth looking at the Second Reading of the omnibus Bill that included the IM amendments as politicians in several other Australian jurisdictions will face the same issues. It is also useful for OHS people to understand the political and legislative context of the penalties their employers may face.

Also, in the last week of May 2020, the first company to be successfully prosecuted under the IM laws will be sentenced, Brisbane Auto Recycling. The company’s two directors have pleaded guilty to reckless conduct and will also be sentenced.

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COVID19 and Safety Managers

Several weeks ago, researchers from Griffith University and Queensland University of Technology (QUT) commenced a survey about safety managers and COVID19. The research was called “Resilience in a COVID19 World” and aimed at

“Exploring health and safety measures taken by and for ‘essential services’ workers throughout Australia’s COVID-19 crisis, and how their contributions affect personal and organisational resilience.”

Some initial results are in a recent outline published by Dr Tristan Casey & Dr Xiaowen Hu through The Culture Effect consultancy. There were four key challenges but also significant positives.

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WorkSafe and Industrial Manslaughter webinar

On May 19, 2020, WorkSafe Victoria conducted an interactive webinar on Workplace Manslaughter laws due to be in place from July 1, 2020. The webinar was very good for those who are coming to the issue anew as the level of interaction was excellent. But the webinar also broadened beyond its topic, which was disappointing. At 90 minutes the event was too long, but revised versions of this consultation with the community should be scheduled regularly, even when physical distancing rules end.

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OHS and Mystery Professional

One responder to the “humanising OHS” series of articles did not want their identity online and I will respect their wishes. What I will say is that they have been an OHS professional in Australia for some time and is very active trainer in workplace health and safety. Our writer also suggested three additional questions which I will consider for the future

  • When are you happiest at work?
  • When are you most sad?
  • What would you tell a OHS graduate on their first day?

How did you get into Health & Safety?

A friend in Sydney caught me at a weak moment in 2004 and we started a safety company together (without qualifications or experience), with another friend which is still running today

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Tooma on Mental Health – Review

Michael Tooma is probably the most prominent occupational health and safety (OHS) lawyer in Australia. His latest book is, a little pretentiously, called “Michael Tooma on Mental Health“, but it fits with the series of OHS-related publications he has written for Wolters Kluwer. Unusually for a lawyer, there are only two chapters that specifically discuss legislative obligations, and, in many ways, these are the least interesting.

Positive Mental Health

In the Introduction, Tooma goes out of his way to stress the positive benefits of work. He is critical of the current OHS approach to workplace stress writing that we seek a “Goldilocks” application of perfection when this is really subjectively determined by each worker. Tooma challenges this in a major way through the 2012 study by Keller and others:

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