What New South Wales unions need to give up for harmony’s sake

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Gerard Phillips, a partner in the Middletons law firm, wrote in the 7 August 2008 edition of the Australian Financial Review about the belligerence of the trade union movement in New South Wales in relation to the harmonisation of OHS Laws in Australia.

He addresses two legal barriers to harmonisation that he believes should end.  In New South Wales unions have the legislative right to prosecute safety breaches.  Gerard argues that harmonisation won’t be achieved without the unions relinquishing this right.

It has been clear for months that New South Wales will have to give up some elements of its OHS legislation in order to allow harmony.  If it needs to save face, it would be lobbying now for enough resources at a national level to mount rigorous OHS enforcement.

As the Victorian OHS law is the front runner for a national OHS legal model, unions can take some solace from the extension of Victoria’s right of entry provisions that, prior to 1984, were tipped to generate industrial warfare In Victorian worksites.  There were, at the time, many lawyers touting for business by recommending a tightening of paperwork, vetting all credentials before letting “them” on your site and accompanying “them” wherever they go.

Business achieved some important concessions with the registration of ARREOS (Authorised Representatives of Registered Employee Organisations) and a legal comeback if the ARREOS breach their authority, but an ARREO visit can still be daunting as WorkSafe found in February 2008.

WorkSafe advises that

An ARREO may enter a workplace during working hours to enquire into a suspected contravention of the OHS Act or regulations. The suspected contravention must relate to or affect the work being carried out by people who are:
• members of the registered employee organisation;
• subject to a certified agreement which binds the registered employee organisation; or
• eligible to be members of the registered employee organisation and are not subject to a certified agreement.

Gerard Phillips also can’t see why a union should have prosecutorial powers that no one else, other than the OHS regulator, has.  Although he acknowledges that for enforcement to work any prosecutor must be “appropriately funded”.  If the New South Wales government decided to reduce WorkCover NSW costs by sharing responsibility, I don’t think the economic benefit outweighed the political damage.

Phillips also sees no great difficulty in the onus of proof being held by the prosecutor.  This authority is already in the legislation of Victoria and Western Australia with no complaints from the union movement that safety standards have declined as a result.  The unions will need to give ground on having the onus rest with the business owner, and the employer groups will dance a gig when they do.

I remember Australia’s Royal Commission into the building industry where employer groups asserted, with little proof, that OHS is used by unions for purposes of industrial action.  Terence Cole in his final report illustrated the accusations well.

“….employers have raised concerns about the unions raising industrial concerns under the guise of safety issues, and the adoption of the role of safety policemen by unions to the exclusion of the statutory inspectorates. The issue of safety is a constant source of friction in the workplace, either because it is not being appropriately addressed, monitored, enforced, or is being abused.”

This may or may not be true, however unions in New South Wales risk providing the truth that employer associations have long desired if they continue in holding onto a strong poker hand when the other players have changed to playing whist.

Using workers compensation claims as exit strategies

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There have been two instances in Australia in the last week where workers compensation claims have made the news. The first was in relation to the suicide attempt by Tasmanian politician, Paula Wriedt.  She has revealed that after the break-up of her marriage she had an affair with one of the government chauffeurs, Ben Chaffey.

According to one media report, Chaffey has argued

“that his employment became untenable as a result of the relationship and his employer’s response to it.  He is seeking a severance payment thought to be about $A140,000 to compensate for this, and for stress and harm suffered.”

It is also reported that he has been on “stress leave” for several months.

The other case involves unfair dismissal action being taken by public transport ticket inspector, Glenn Hoyne in the Australian Industrial Relations Commission (AIRC) against his dismissal by Connex.  Hoyne made accusations on a Melbourne talkback radio show about Connex setting quotas for issuing ticket infringement notices and that inspecting was a revenue-raising exercise only.

Connex investigated the claims and described the allegations as “bribery, blackmail or extortion”.

Hoyne took leave in December 2007 and submitted a workers compensation claim due to work-related stress.  The situation was clearly tense.

The AIRC Deputy President, Brian Lacy, described Hoyne’s actions as not a threat to Connex but

“some sort of industrial claim, albeit misguided, for a severance payment.”

These two cases illustrate how murky human relations, and human resources, can be.  Both parties are seeking recompense for actions that are work-related and both actions will result in a resolution.  But neither will generate any real preventive action.  One claim has been described as a pitch for a severance payout and the other is stress from a broken work-related relationship and the employer’s response to a sexual relationship.

When did people begin to expect a monetary payout above their entitlements for leaving a job that they didn’t like or for when a relationship with a work colleague ended?

A law firm newsletter from 2005 reported on a case of a stress claim, which may provide a counterpoint to the situations above:

“The employee claimed, and was successful in establishing that his stress was directly caused by his employer’s failure to keep him informed of changes in the workplace. In essence, the prospect of redundancy was seen as a sufficient causative factor in the employee’s work related injury.”

The newsletter goes on to advise

“employers must assess the circumstances and sensitivities of individual workers when making management decisions in order to avoid stress claims being made or where claims are made, to avoid liability for such claims.”

Maybe this is the only safety management lesson we can learn from the unhappy ticket inspector and the stressed-out chauffeur, manage your people well.

Gasflow resumes from Varanus Island

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Apache Energy has advised that gas flow has been reinstated on 6 August 2008 following the June 3 pipeline explosion on Varanus Island.  This has been achieved earlier than forecast.

Apache Energy’s MD, Tim Wall, said he was 

“…pleased to welcome the Premier of Western Australian, Hon Alan Carpenter MLA and the Minister for Energy, Hon Fran Logan MLA to site today to witness first-hand the restoration and repairs to the Varanus Island facility.”

According to a media statement, the partial resumption of supply is expected to be ramped up a further 120 TJ/day to 240 TJ/day by mid-August and pre-incident rates of production by the end of the year.

Alan Carpenter told reporters

“This is a significant relief for gas users as well as the economy of Western Australia…The worst of the situation is clearly over; we still have a long way to go.”

Mr Carpenter could also have been talking about his political future as only a day later he called a snap election for September 6.  The resumption of gas flow must have been one of the factors encouraging this call, which has been described as “panicked” by many commentators, although far less influential in his decision-making than the resignation of the short-term opposition leader, the world-famous chair-sniffer Troy Buswell.

Irrational decision-making

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Occupational health and safety often gets sidetracked from the main issue of preventing injury and illness at work.   I often hear employers, particularly in small business, complaining that their workers continue to do the wrong thing even though the employers have done everything they can think of.  

Sometimes an approach is offered that seems like a quick-fix to all the safety problems.  The one that always annoys me is behavioural-based safety.  BBS is like the Hydra and reappears regularly in different guises and with different jargon.

A podcast crossed my desktop this morning that provides a different perspective on “why rational people make irrational decisions”.  

The podcast illustrates the conflicts in trying to make the right decision by discussing the decision of a pilot in the Canary Islands who caused a major crash.  The pilot was also the head of safety at KLM Airlines.

The podcast does not focus on workplace safety but the discussion is probably the better for it.

Is there anything worn under your PPE?

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Associated Press has reported on an initiative by a US postal worker to have a kilt as an option for his work uniform.  According to media reports, Dean Peterson has lobbied his union colleagues to push for the clothing option because

“Unbifurcated Garments are far more comfortable and suitable to male anatomy than trousers or shorts because they don’t confine the legs or cramp the male genitals the way that trousers or shorts do.”

This is not the first time that kilts have been seriously proposed as workwear. Workplace kilts are already on sale and I remember an Australian building worker wearing one some years ago. Utilikilts is probably the best known supplier of this garb.

Whether I would wear one after over 40 years of long trousers I am not sure but with increasing hazards of working outdoors in summer, I think the kilt should be seriously considered. However I would be interested in hearing of any reasons to not permit this option on the workplace safety grounds.