Last week, the release of the final report of Australia’s review into National Model OHS Law was touted by many as immediately after the meeting of the Workplace Relations Ministers Council (WRMC). This occurred with the first report in 2008. WRMC met in a teleconference yesterday. When the report is released officially (rumours are that the report is already doing the rounds of the unions and the employer associations), SafetyAtWorkBlog will provide a link to the report and some initial commentary.
However, as reported yesterday, the Australian Financial Review obtained a copy of the report and highlighted several issues of interest. The AFR report held no great surprise for safety professionals but the union movement is going to be ideologically tested.
Early in the review process, the New South Wales union movement was very vocal about the risk of losing their right to initiate prosecutions over OHS breaches. The right was rarely applied and could be a very costly exercise. Since that time there has been silence from that quarter, perhaps because they realised that its contentious right was out-of-step with the rest of the country and the review process is all about legislative harmonisation.
According to media reports this week, the Review Panel’s final report recommends the omission of the right to prosecute but allows an option to instigate prosecutions through the OHS regulators. In effect it keeps the power where it is most cost-effective and through which a similar outcome could be achieved. It gives the unions a seat at the table, just not the same seat but still with a comfy cushion.
Prior to the WRMC meeting, Sharan Burrows issued a media statement on several matters, the source of the ACTU quotes in today’s AFR article, in which she said
Media reports also suggest that the Ministers will tonight discuss the final report of the National Review of OHS Laws.
“It is vital that the national, harmonised health and safety laws are based on the highest possible standards. This should include providing workers with the right, through their unions, to initiate prosecutions against employers when there are serious health and safety breaches.
“In the past, union prosecutions have been few in number but have secured important improvements for employees who work in potentially dangerous situations. We also need a truly tripartite, well resourced national workplace health and safety watchdog that is able to set, monitor and upgrade health and safety standards,” said Ms Burrow.
It seems that Ms Burrows may, pragmatically, welcome the cushion.
Also, the union movement would be well aware of the potential boost to the revenues of OHS training providers, a status many unions and union bodies enjoy. A national five-day training course for Health & Safety Representatives could be financially useful. Also the courses have always been a very good recruiting opportunity.
In April 2002, I interviewed Lawrence Lorber of US law firm Proskauer Rose on workplace bullying. It was at the height of the Enron collapse and corporate behaviour towards staff was gaining a lot of attention. Over the last fortnight I have been researching some of the management books and concepts concerning leadership, emotional intelligence, modern expectations of managers – all of which could be thrown into “workplace culture.”
As I was reading back issue of the SafetyATWORK magazine, I used to published, there seemed to be valuable comments from Lawrence that remain relevant. Below is an extract of the interview. The full interview is available HERE
SAW: In Australia, the approach to workplace bullying seems to be coming from a systemic management system rather than one relying on psychological assessment.
LL: The highly competitive and highly contentious nature of what is coming out about Enron, the “up or out” atmosphere is one aspect of a system that can lead to managers or co-workers to engage in bullying. The characteristics of being tough or abrasive may be necessary to get ahead in the organisation. The environment can encourage or create bullying tendencies. However, not everybody turns into Attila the Hun in a highly competitive environment. Others survive without taking on the attributes of the bully.
Psychological testing is frequently applied in the States with regard to executive promotions. Dealing with bullying does require a combination of the systemic and individual approach. I work for some companies who are publicly perceived as fairly aggressive, there are tough people there who I might not want to work for but they are effective. They might be perceived as bullies. But looking at bullying as an environmental issue does mask the problem.
SAW: Managers sometimes need to motivate a staff member, perhaps, by rebuking them. The receiver of the rebuke may perceive that as bullying. How can we balance these perceptions?
LL: There were management books in the States in the 1980s, which encouraged management by intimidation. At one point that was the vogue. After the movie PATTON came out, everyone wanted to be General Patton.
If you look at a harsh manager who is demanding in an abrasive manner, that could be bullying.
How do you define bullying? Do you define it by your own reaction? A very US example is sex harassment. Is harassment in the eyes of the beholder? Does it have to be a reasonable woman who believes she is being harassed? In the circumstance where the bully is a male and the recipient is a female, frequently that becomes harassment.
SAW: That is a problem for the managers where for the last 30 years, harassment, bullying and discrimination has been handled outside the OHS field, in Human Resources. Now there are national and international moves to combat bullying because of the stress at work issues. I haven’t seen that approach in the United States.
LL: Here it’s not health and safety. Our definition of harassment is an “intimidating atmosphere”. That can also be a definition of bullying.
I don’t think it will be considered as a health and safety issue because workplace stress is not a field that is devoid of regulation. It is simply being regulated in a different context-employment discrimination and to a lesser extent under the disability laws.
The Australian Financial Review has obtained a copy of the 470-page report of the Review Panel into OHS Model Law prior to its release by the Australian government.
The most significant recommendation reported by the paper is that unions will not be allowed to prosecute for OHS offences. This entitlement by unions in New South Wales has been a constant source of industrial tension in that State. However the panel did suggest that anyone can request OHS regulators to undertake a prosecution or they can appeal a regulator’s decision not to prosecute.
Employers across Australia will be obliged to provide paid leave for employees to attend health and safety representative training courses – probably five days.
The proposed legislation also allows for common law rights to stop work if it is deemed unsafe.
The full AFR article is not available online but can be found on page 3 of the hard copy.
SafetyAtWorkBlog has previously referred to safety videos produced by the US Chemical Safety Board (CSB). The latest safety message from Chairman John Bresland relates to combustible dust explosion risks, a hazard that exists around the world and one that has been mentioned in this blog.
A curious element in this very good video is that he is lobbying the “incoming leadership at OSHA” to act on the CSB’s combustible gas recommendations. John’s video was released on 4 February 2009. The confirmation of a new Labor Secretary is still to occur and the latest nominee, Hilda Solis, has become embroiled in a taxation “scandal” relating to her husband’s auto repair business.
Bresland’s messages are always of good general safety relevance, a major reason why they are embedded in SafetyAtWorkBlog, but the latest one has some peculiar tones given the current US political circumstances. In Australia, we rarely have Chairman or CEOs of government agencies making such statements. It is indeed curious.