There are still some OHS professionals who are uncomfortable with approaching workplace hazards that do not involve nip-points and energy-transfer. In fact there are some who can’t cope with the industrial relations interplay with occupational health and safety. A major industrial relations problem ran for some time at Tristar Steering and Suspension. The absurdity of this…
In May 2008, the Safety Institute of Australia held a conference where, for one day, CEOs and senior executives talked about their experiences with workplace safety and how they manage OHS in their workplaces and with their boards of management. The presentations were of variable interest but those that were good were very good. The…
Michael Tooma, a lawyer with Australian law firm Deacons, has stated
“Despite the enthusiastic manner in which the harmonisation agenda has been pursued, and the appearance of progress in that regard, it is likely that the quest for uniformity in OHS laws across Australia will remain elusive.”
His reasons for this statement in a recent edition of Safety Solutions magazine (August/September 2008) are
- The National OHS Review was set up to develop model legislation for implementation in each State jurisdiction;
- Duty of Care is absolute in two States, Queensland and New South Wales;
- “Reasonable practicable” is not applied in each State to the same extent;
- The New South Wales right for unions to undertake prosecutions for OHS breaches;
- Not each State has a legal forum dedicated to handling OHS prosecutions;
- The level of enforcement of OHS law is inconsistent between States; and
- The level of maximum penalty available.
Tooma is worth listening to for lots of reasons but principally he seems to be less wrapped up in political baggage compared with other OHS legal commentators.
Tooma seems to favour an industrial or OHS court because of the substantial jurisprudence that has been achieved through the New South Wales Industrial Commission. I support the expansion of this type of court as NSW decisions, regardless of legislative differences, can be particularly useful is clarifying the most suitable OHS interventiosn for particular hazards.
He also says that enforcement must be consistent. This is true or else, if given the chance, an employer could undertake certain hazardous tasks in the jurisdiction where enforcement or prosecution is less effective and active.
This relates, in a way, to Tooma’s last point on penalties. An OHS offence in Victoria could lead to jail but in Tasmania, not. A monetary fine of over $1 million could apply in some States with only $180,000 in another.
It seems that the fantasy of one OHS law for Australia will remain a fantasy. The trick will be whether, after months of government review and hundreds of submissions, there will be sufficient consistency across the States. The likelihood is that we will be slightly better off but still with State variations. We have a little less red tape but red tape nonetheless.
My question will be, was it worth it?
If I have a cold that could spread to my work colleagues, I take the day off. I use my entitlement of sick leave to achieve two aims – to get myself well and to avoid infecting my workmates. Both these aims are within the context of occupational health, safety and wellness.
The Australian newspaper today provided an outline of a new absentee-management IT system that would provide good support for sick leave management. You ring in sick and a qualified nurse will estimate the necessary period off work and notify your supervisor. There are several flaws that I can see in the system:
- What if a worker produces a medical certificate that contradicts the determination of the nurse?
- Can diagnosis really be undertaken over the phone?
- This service only seems to relate to health matters. What about stress?
- Some companies allow for “doona days” where time off is allowed to “chill out” and to minimise stress. Are these classified as a sick day? They certainly provide health benefits.
The article’s focus is on the IT system but given that the article is written by the newspaper’s Human Resources writer, it is a little dismissive of the role of sick leave entitlements.
“Mondayitis” may be a glib throwaway term but there is also an implication that taking Monday’s off repeatedly is a sign of abuse of the system. Repeated regular absences may be an important symptom of a workplace matter that needs addressing and not just disciplining. For instance, if your boss repeatedly embarasses you in the Monday-morning staff meeting, you may feel this is a good reason to avoid Mondays. The better path would be to address the cause of the absence, should your employer provide such opportunities.
Australian governments have all missed the solid, positive support that workplace safety can provide in pushing through useful OHS, and industrial, initiatives. It would be a courageous employer who argued against any initiative that is intended to imporve the level of safety in any workplaces.
The Deputy Prime Minister and IR Minister, Julia Gillard, reminded me of this when she spoke about the intoriduction of the government’s Fair Work Australia authority. I have written elsewhere that the time is right for the Minister to also announce a “Safe Work Australia” authority which can arise out of ashes of the Australian Safety & Compensation Council. I would suggest that Safe Work Australia could also use the structure of the Workplace Ombudsman, have Comcare for the paperwork, establish a dedicated OHS stream in the justice system and use the moral authority of a new independent OHS Ombudsman. This would be my mix for a strong, fair, independent and national OHS process for Australia.
In Gillard’s speech on Fair Work Australia though, she provided little hope of such an achievement. This government continues to consider OHS as a separate discipline (or perhaps a subset) to Industrial Relations except when business accuses the unions of gaining IR advantage through OHS actions. OHS could be legtitimately used to present consultation and consensus in a united IR strategy but there is little indication of that, indeed the gulf is widening.
In Gillard’s speech on industrial relations she mentions “promoting workplace flexibility” as an important part of the platform. This appears a couple of lines after a mention of “business flexibility”. These are not interchangeable terms and seem to be included to soften the message, as there is no further mention, or expansion, of these concepts.
In HR and OHS terms we are looking at flexible work structures that can reduce workplace hazards, improve staff retention, increase career longevity and provide sustainable productivity. Whether this is workplace flexibility or business flexibility seems to depend on which end of the management structure you come from but there should be no ambiguity in government statements on the issue of flexibility. Then again maybe staff health, safety and welfare is only a distraction.