Successful appeal in finger injury case

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SafetyAtWorkBlog mainly keeps away from referring to specific court decisions on OHS Prosecutions because, to a large extent, these are decisions of law rather than safety management.  The judgements also require clear legal interpretation so that any management lessons of the judgement can be extracted.

Another reason is that SafetyAtWorkBlog intends to be a FREE conduit for OHS discussion and news. We don’t agree that blogs should refer to information that can only be accessed through subscriptions.  That approach renders a blog advertising which is contrary to what we believe a weblog should be.

In this context some readers may be interested in reading the judge’s decision in an appeal case that has appeareed on several Australian OHS sites in the last day.

According to a judgement in the South Australia Industrial Court:

Adelaide Industrial Labour Service Pty Ltd (AILS)… is a labour hire company which employed John McCutcheon on 19 May 2005. At the time Mr McCutcheon was eighteen years old and had no trade qualifications or experience.
On 19 May 2005 AILS sent Mr McCutcheon to work for Dagenham Pty Ltd (trading as Link Plus) as a labourer.
On 20 May 2005 Mr McCutcheon whilst operating a pipe bending machine which was unguarded, sustained serious finger injuries to both hands. Mr McCutcheon had not received adequate instruction or training to operate that machine.
Dagenham was charged with a breach of s 19(1) of the Occupational Health Safety and Welfare Act 1986 (the Act) and was sentenced on 18 December 2006 by Ardlie IM to a penalty of $12,000, discounted on account of its guilty plea to $9,000.

The court has reduced the fine by $3,000 and has found that the Industrial Magistrate in the initial case made a defective decision.

The full decision is available for download HERE

Australia’s OHS Review questions and resources

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The public submission period for the National OHS Review Panel ends on 11 July 2008, so don’t miss your chance to influence Australia OHS legislation.

To help you prepare your submissions, the is a page that lists the questions that are included in the review panel’s issues papers.

As was noted in the movie “Russia House” lists often indicate what is already known as well as what is required.  The questions from the issues paper provide a very rough introduction of the topics that the panel believes should be addressed.

The panel has also compiled an excellent collection of relevant OHS reports from Australia and overseas.  If you need to ensure your collection is complete you may want to cross-check.

Likely Process of State OHS Legislation

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As part of the COAG meeting in early July 2008 the Ausralain governments have signed an Inter-Governmental Agreement for Regulatory and Operational Reform in Occupational Health and Safety. For those of you interested in how the replacement body for the Australian Safety & Compensation Council will operate and be funded, this is the blueprint.

However, part of the agreement on OHS reform does not sit right with the commitments we have heard from the government over the last 6 months or so.  Perhaps our interpretations and expectations were a little unrealistic.

Part 5 of the inter-governmental agreement says

5.1 Model OHS Legislation
5.1.1 The Parties commit to work cooperatively to harmonise OHS regulation through the adoption and implementation of model OHS legislation.
5.1.2 The Parties support the National Review into Model Occupational Health and Safety Laws, announced by the Commonwealth Minister on 4 April2008.
5.1.3 Model OHS legislation will comprise a model principal Act supported by model OHS regulations and model codes of practice. Model OHS legislation will be developed by [ASCC replacement body] in accordance with the terms of this Agreement.
5.1.4 The development process for model OHS legislation will allow for interested persons to make representations concerning any proposed model legislation. Prior to submitting any proposed model legislation to WRMC, [ASCC replacement body] will give due consideration to any representations duly made to it and make such alterations to the proposed legislation as it sees fit.
5.1.5 The Parties agree that a national compliance and enforcement policy will be developed to ensure a consistent regulatory approach across all jurisdictions.
5.1.6 For the purpose of ensuring that model OHS legislation applies throughout Australia, each Party to this Agreement will, subject to its parliamentary and other law-making processes, take all necessary steps to enact or otherwise give effect to model OHS legislation within its jurisdiction within the timeframes agreed by WRMC.
5.1.7 For the purposes of subclause 5.1.1, the adoption and implementation of model OHS legislation requires each jurisdiction to enact or otherwise give effect to their own laws that mirror the model laws as far as possible having regard to the drafting protocols in each jurisdiction.
5.1.8 The adoption and implementation of model OHS legislation is not intended to prevent jurisdictions from enacting or otherwise giving effect to additional provisions, provided these do not materially affect the operation of the model legislation, for example, by providing for a consultative mechanism within a jurisdiction.
5.1.9 [ASCC replacement body] will make model OHS legislation publicly available on its website when it is agreed by WRMC. [ASCC replacement body] will hold and maintain all original copies of agreed model OHS legislation, including any subsequent amendments.

Clearly, there is not going to be one OHS Act and jurisdiction for Australia.  Many OHS organisations and businesses advocated for a single administrative structure but there was always the Constitution in the way.  The Workplace Relations Ministerial Council (WRMC) has suggested that each State structures its own OHS legislation “subject to its parliamentary and other law-making processes” (5.1.6 above)

Certainly States could not implement something that conflicts with the core obligations and conditions but the quote above clearly allows State politics to affect OHS operations within the State.  However you look at there is clearly room for the States to move.

However this movement will be tempered by having amendments and new legislation “approved” by the WRMC and then have each of the States amend their own OHS legislation to accommodate the other State’s changes, in order to keep close to national uniformity

5.5.2 Any Party that proposes to amend its legislation or introduce new legislation so as to materially affect the operation of model OHS legislation will submit the proposed amendments or new legislation to WRMC for decision. Each Party agrees that it will not progress implementation of any such amendment or such new legislation unless WRMC has endorsed the proposed amendment or new legislation.
5.5.3 Where WRMC approves an amendment to legislation or new legislation that affects the operation of the agreed model OHS legislation, all Parties will (unless otherwise agreed by WRMC) undertake all necessary steps to introduce appropriate changes to their legislation with a view to ensuring that OHS legislation remains nationally consistent.

In no way does any of this diminish the level of political activity related to OHS law making over the next few years.  In fact I would be surprised if the lobbyists are not revising their strategies now.

The structure sounds workable while there is a friendly relationship between State and Federal governments.  If one of the States changed to a conservative government the timelines or processes could vary considerably.  There has already been persistent questioning about New South Wales Premier Morris Iemma’s tenure over the last week.  For the reform process to work, the NSW Labor Party would need to provide a strong leader before the next election so as to avoid a conservative government.  New South Wales has some of the most (according to business groups) draconian OHS legislation.  If a Liberal government came into power, and with a clear mandate, OHS will become a battleground.

Workplace Safety Reforms and “Red-Tape”

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As well as the National OHS Review Panel, there are several other reviews and investigations that are occurring that will change how OHS is managed and enforced in Australia. One process is under COAG (Coalition of Australian Governments) which met in early July 2008 and provided an update on its actions.

Sadly, most of the media reporting focussed on the issue of water in the Murray-Darling Basin and only a day or two later, a major draft report on climate change was released. OHS didn’t get much of a look-in.

OHS law reform is occurring under regulatory reform intending to reduce business “red tape”. I am not comfortable with this categorisation because there is no cut-off point. When is there too much red tape and when is there the right amount of red tape to ensure compliance or a good safety management scheme?

In brief, the National OHS Review is looking at harmonising the government legislation so that the administrative costs are lessened in those companies that operate across jurisdictional boundaries.

People see red tape as principally unnecessary paperwork and not the big picture of legislative reform. And, if their company operates only within one state, as most companies do, the reforms may seem of little relevance. OHS professionals may be putting emphasis on the review outcomes and processes way beyond what the public cares about.

The COAG processes, the red-tape review, gives OHS a paperwork image, an image where OHS is an unnecessary cost rather than an activity that minimises harm, saves lives and increases productivity and profitability. Marketing strategies or OHS promotions should include elements that counter this growing perception.

What annoys me the most is that the majority of the paperwork associated with OHS has been generated by lawyers and insurers who have advised that everything should be documented. “You don’t comply unless you can show that you comply”. The need for OHS paperwork has been imposed on business by forces outside that business and yet the business has to pay for the cost of preparing the paperwork. I don’t see the lawyers and insurers helping reduce red tape by saying that business needs less documented procedures and compliance.

Paperwork is an unavoidable business cost but we must remember that the decisions of other companies and organisations have generated that cost and are often unwilling to accept for that cost to be passed on to them, or deducted from their fees or premiums.

Business, by and large, in Australia will be unaffected by the various review processes into OHS management and OHS laws. The effect will be felt in the five years after the legal changes when the definition of compliance will change and systems will need to be changed to accommodate this.