industrial relations – Page 15

Productivity is also the Government’s aim with OHS law reform

A few posts back the productivity priorities of Australian employer groups toward OHS harmonisation were noted, particularly that of the Australian Chamber of Commerce & Industry.

On 25 August 2009, Australia’s Workplace Relations Minister, Julia Gillard, addressed the 15th World Congress International Industrial Relations Association. The Minister mentioned OHS and said:

“So, our new workplace relations system is now up and running. We are close to reaching agreement with State Governments to end the fragmentation of the past and have the entire private sector by the one national workplace relations system.

Additionally, for the first time ever, after a 25-year wait, Australian businesses and workers are close to having a uniform national occupational health and safety laws. A massive step forward in achieving a seamless national economy that Australia needs to release lasting and much-needed productivity improvements.

But the legal changes are the beginning, not the end, of the reform process.

Australians should now move beyond a focus on law changes to a new focus on cultural change in the workplace. We need to build partnerships between management and workers and their unions that operate for the benefit of all.

Change of this sort is slower to take root than rapid structural reform.

It is more dependent on intangibles, including the goodwill and motivation of those who take part. But in the long run it will have an important impact on our economic prospects.

So over the coming months and years we will be looking at ways of embedding change through workplace relations, innovation and leadership practices in workplaces.” [my emphasis]

Minister Gillard talks of OHS law reform in the same productivity terms as the employer groups. This may be down to the audience at the conference and the congress’ theme as well as industrial relations being the main focus of the government’s reform agenda but it is an inclusion that, for fairness, it was worth highlighting.

Rather than taking the OHS paragraph by itself, it is telling to see the section in the speech that includes the only direct mention of OHS law reform. Minister Gillard continues to emphasise the process of establishing harmony across industrial relations as much as in OHS law.

She also is clearly up on the latest business lingo, even though some of the phrases have a cloudy definition –

“cultural change”
“intangibles”
“innovation”
“leadership”
“collaboration”

The Minister rightly states that law reform is at the end of one process but often at the start of a far more difficult reform process. There is no guarantee that the new OHS will have a smooth entry and, as with any law, the best test for its suitability is in the Courts, sadly.

Kevin Jones

Why isn’t safety and health a continuum in a worker’s life?

Several years ago I attended a safety seminar hosted by Seacare. Maritime safety is not part of my “brief” but safety is, and I was seeking alternate perspectives on my specialist area. Seacare conducted a session where the treatment and management of an injured worker was work-shopped from incident to return-to-work.

It was the first time I had seen a panel of experts deal with the life of a worker across the injury management continuum. The session showed the necessity to communicate across several disciplines and to always keep the focus on the injured worker. I had never seen a better example of risk management in relation to an employee’s welfare.

If only the real world was as organised.

WorkLife Book Covers 003 Work/life balance in Australia is skewed towards those workers who have young families or a role as a carer. This is due to work/life balance evolving from the feminist and social concepts of the 1970s and in response to the increased number of women in paid employment. Barbara Pocock sees these matters in the 1970s as themselves a reaction to the “male-dominated employing class” that, in one exampled, believed that 3 month’s long-service leave was more important than maternity leave. (p212, The Work/Life Collision)

Work/Life Balance Origin

(Wikipedia has a peculiar article on work/life balance that has some interesting points and reference links but then undoes its good work by relying on a couple of major sources and many of them are commercial consultants. That the Australian work in this area is not referenced, indicates a major deficiency. Please note that the concept of balancing work life and non-work life existed well before “work/life balance” was first used. SafetyAtWorkBlog would point the concept’s origin to around the same time as Australia’s introduction of the eight hour day in the mid-1800s or even earlier with Robert Owen in the UK calling for a 10-hour day.)

In the 2000s the emphasis remains not on work/life balance but work/family. As a result, work/life balance will remain an issue handled in the management silo of human resources and being seen as relevant to a lifestage of an individual rather than the individual themselves. There is also an inherent gender bias that could be minimised if the silo was removed.

The Seacare workshop illustrated for me that an injured worker is managed by different silos throughout their rehabilitation. Wherever possible the employer outsources this management to experts in OHS, trauma counselling, medicine, physiotherapy, return-to-work coordinators, and other specialists. The common element through all of these silos is the individual and that person’s health.

OHS & Work/Life Conflict

Occupational health and safety has a big advantage over work/life balance in that it focuses on the individual first. Employers must provide for the health and safety of the worker and, by and large, employers get the safety obligation right. This part of the process has long-established practices based principally on engineering solutions – stopping things falling on a worker, stopping the worker falling into machinery, stopping the inhalation of toxic dust – effectively “blue collar” solutions to “blue collar” hazards.

The mental health of the worker was not a big concern. This is partly because in most of Australia, legislation only ever related to health and safety, and rarely to welfare. Where welfare was a legislated consideration for the management of workers, the social context of the worker was acknowledged myuch earlier and work/life issues began to grow.

The regrettable element of this evolution was that “health” remained a narrow workplace definition instead of embracing the “welfare” or mental health of the worker. If health had been supported by a definition that included welfare in all Australian States’ OHS legislation, the mental health needs of workers and the social contexts of worker management would have been discussed much earlier and in parallel.

Work/Life Balance Awards – A Missed Opportunity

An example of the divergence and the need, in my opinion, to reintegrate work/life balance and occupational health comes from some correspondence I have had with the organisers of the National Work/Life Balance Awards in the Australian Department of Education, Employment and Workplace Relations (DEEWR). Until very recently, these awards were called the National Work and Family Awards.

DEEWR includes in its structure Safe Work Australia, the organisation responsible for monitoring OHS across the country. It seemed odd to me, from the big holistic picture, that DEEWR has not included Safe Work Australia in the judging panel for the 2009 Work/Life Balance Awards. DEEWR advised me that it believes the OHS experience of two of the judging panel, the Australian Council of Trade Unions and the Australian Chamber of Commerce and Industry, was sufficient. Perhaps but why not draw on the OHS expertise of one’s own staff as well?

It also seemed odd that one organisation would conduct two national awards programs – the National Work/Life Balance Awards and the Safe Work Australia Awards. DEEWR advised me that

“The [National Work/Life Balance Awards] recognise organisations that are outstanding in achieving positive outcomes through the implementation and communication of work-life balance policies, practices and initiatives which meet the needs of both the employer and its employees. The Safe Work Australia Awards focus on OHS more broadly and recognise businesses and individuals for their outstanding efforts in OHS and for making safety a high priority in their workplace.”

If the Safe Work Australia Awards focus on “OHS more broadly” why not have one set of awards that acknowledges both the work and social contexts of employees? This is harder to answer when

“Applicants for awards must consent to an assessment to determine whether they have complied with the Fair Work Act 2009, the Workplace Relations Act 1996 and any relevant state or territory legislation, award or other industrial instruments” [my emphasis]

This would surely include the OHS legislation of each State and the Commonwealth.

DEEWR does not involve any of the state OHS regulators in the awards process. The judging panel does not analyse the workers’ compensation premium awards rates of award contenders. State regulators could surely provide a useful perspective as it is mostly under their jurisdictions that businesses are prosecuted for OHS breaches. Worker’s compensation premiums are used by all regulators as a major (sometime the only) indicator of safety performance and for targeting of enforcement programs. The judges of the National Work/Life Balance Awards do not.

OHS professionals and return-to-work coordinators acknowledge that the non-work life and mental health of workers are important elements in regaining a fully-functional employee.

DEEWR made the decision to rebrand the awards to Work/Life instead of “work and family”. This does not reflect the complex interrelations of the social and individual contexts of the health and safety of individual workers.

DEEWR is coordinating the reforms of laws into both OHS and workers compensation. The Australian Government is working on legislative harmonisation across all legislative jurisdictions in workplace health and safety. These OHS laws are likely to extend employer obligations well beyond workers to the public and those potentially affected by work practices..

However DEEWR is missing a major opportunity to set the agenda for the future by acknowledging that the impacts on an individual of the work life and the home life should be managed across the social and employment disciplines.

Kevin Jones

The images included in this posting show some of the many terrific books dealing with, or mentioning, work/life management.

Why OHS performance targets don’t equal safe workplaces

On 19 August 2009, the Australian Financial Review (AFR) published an article (not available online) about the lack of success of OHS regulators meeting their agreed performance target. The article is based on the information provided by Safe Work Australia in its 2006-07 progress report.

Below is a chart that WorkSafe’s John Merritt showed at a recent OHS seminar which clearly shows how far the State of Victoria has to go to reach the 2012 target, and it is one of the better performing States.

vic_ohs_johnmerritt_leadership_080804 graph

The Australian Council of Trade Unions (ACTU) has placed its hope for improvement in the upcoming harmonised OHS laws. Jeff Lawrence is quoted in the small AFR article from the ACTU media release:

“Australia has a long way to go before success can be claimed on achieving national targets for workplace death, injury and disease,” Mr Lawrence said. “With proposed uniform national occupational health and safety laws, we have a once-in-a-generation opportunity to lift protections for workers by achieving the world’s best safety standards for the entire country.”

Jeff Lawrence and the ACTU need to remember that harmonised OHS model laws have never been about improving workplace safety. They are about setting the legal framework within which employers and employees improve safety in their workplaces. Safety improvement comes from the management of risk and hazards, not whether it is easier for a union to get onsite or for a company to be more easily prosecuted or for fines to be set at record amounts.

(In fact until recently, Australian lawyers and some OHS lawyers acknowledge that fines do not work for anything other than punishment. Other legal penalty options have been promoted for some time but these seem to have been ejected from the proposed National OHS law.)

The ACTU, and the employer groups, need to start assisting companies to reduce hazards, not only the sites or industry sectors of their own members. Unions are often keen on pushing corporate social responsibility but do not promote safety outside their member organisations. So where is their own corporate social responsibility?

The principal motivator of the union movement in Australia has always been industrial relations, of which OHS is of occasional relevance. Though it is acknowledged that in some specific union sectors, particularly the emergency services and construction, safety has a higher priority than elsewhere.

If the union movement was genuine about improving the lot of Australian workers and of the importance of safety, assisting in the education of business operators, outside their own union sector, to improve safety may show to some workers that being a member of a union may be a good thing.

As has been discussed elsewhere the OHS performance targets of the regulators are purely academic. Former Prime Minister John Howard introduced the concept of “aspirational targets” to the Australian political lingo and the current OHS targets were set during his government. Aspirational targets are those that you sort-of try to reach but if you don’t, it doesn’t matter, as there is no penalty.

If the regulators were genuine about reaching this target, the enforcement of OHS would be substantially different and harsher. The technical assistance for business to improve safety would not rely on the regulators alone or some token business consulting funding. But the targets have no big “stick”, the legislation is in a state of uncertainty, the unions have limited influence, and the community’s awareness of workplace safety is up but still only a trickle on their decision-making radar.

The targets also have no “carrot” other than a media opportunity to say that one State OHS regulator performed better than another, and that will surely create harmony.

No enforcement + no penalty = no effort.

Kevin Jones

OHS and workload – follow-up

SafetyAtWorkBlog has had a tremendous response to the article concerning Working Hours and Political Scandal. Below are some of the issues raised in some of the correspondence I have received from readers and OHS colleagues.

The Trade Union Congress Risk e-bulletin has a similar public service/mental health case which has been resolved through the Courts. The site includes links through to other media statements and reports.

Australia’s Department of Education, Employment and Workplace Relations has launched its work/life balance awards for 2009. The information available on the awards is strongly slanted to a work/family balance which is very different from work/life and excludes employees making decisions for the benefit of their own mental health – a proper work/life balance which is the philosophical basis underpinning OHS legislation. SafetyAtWorkBlog is investigating these awards with DEEWR.

SafeWork in South Australia is working on a code of practice on working hours and has been providing OHS advice on this matter since 2000.

The WA government has had a draft code on working hours for some time.

A legal reader has pointed out that “the 38 hour week issue is not set in stone …[and] is not a maximum for non-award employees.” So expect more industrial relations discussion on that issue over the next two years.

One reader generalised from the Grech case about decision-making at senior levels, a concern echoed by many others.

“The Grech case illustrates the gradual disintegration of effectiveness, and the employee’s own inability to recognise that it is not a personal failing of efficiency, rather an unrecognised systemic risk.

When the employee is at senior level, there is more likelihood there will be poor attention to the warning signs. Any ‘underperformance’ would be seen as a personal failing. For those of us in the safety business, it is obvious that the system itself is in need of urgent risk management.”

There were congratulations from many readers for raising a significant and hidden OHS issue.

“Many people in industry work more than 70 hour a week. This affects their health and personal relationships.”

“Overwork and under-resourcing lead to poor decision making, adverse business outcomes, and in the long term psychological and physical ill health. Both the government and corporate sectors are paying little attention to this issue.”

The workplace hazards resulting from fatigue are being addressed in several industries such as transport, mining and forestry, where attentiveness is hugely important because of the catastrophic consequences of poor judgement.

One of the issues from the Grech case is that the quality of judgement in non-critical, or administrative, occupations can be severely affected by fatigue, mental health and other psychosocial issues. These may not affect the health and well-being of others but can have a significant effect on the individual. OHS does not only deal with systemic or workplace cultural elements but is equally relevant to the individual worker.

Kevin Jones

[Thanks to all those who have written to me and continue to do so. KJ]

Who is all this OHS harmonisation for?

The public comment phase of Australia’s review of its OHS law harmonisation process begins in September 2009. To a large degree it is at this stage that the stakeholders can start refining their horse-trading. It will also be interesting to watch as the distraction of the new industrial relations legislation has gone since that law was introduced.

Safe Work Australia is using the traditional limited consultative troika – government, employers and unions, and will need to give public submissions considerable weight to balance interests.

Two of the employer groups have already started setting out some guidelines and expectations.

A statement from the CEO of the Minerals Council of Australia (MCA), Mitchell Hooke, was released on 14 August 2009. The only new element of the media release was

“The MCA has called for the National Mine Safety Framework to form the basis of national minerals-industry specific regulation within the Model OH&S Act.”

One of the aims of the harmonisation movement is to minimise regulations for specific industry sectors.

The Australian Chamber of Commerce & Industry was more expansive in its statement of 5 August 2009. The ACCI overstates the cost burden of OHS legislation in each State. The Model OHS Law Review Panel found overwhelming similarities between the legislations but acknowledged that the variations would be difficult to resolve.

The following quote from the ACCI statement illustrates the value of the ACCI perspective and also its major shortcoming.

“However, harmonisation of legislation is not of itself the solution to the compliance burden problem, but rather it will be the final content and quality of the model legislation and the approach to its implementation and enforcement that will be the critical determinants as to whether or not productivity gains are in fact realised in practice.”

It is accurate to say that the success of the legislation will be gauged by its implementation and enforcement. However, the conservative ideology of the ACCI is on show when it states that the harmonisation is intended to provide productivity gains. OHS legislation’s first aim should always be to improve the safety and health of the workforce which, in turn, increases productivity.

ACCI and other employer associations too often jump the safety element and go straight to productivity yet it is the safety of employees that is by far the greatest value that employers share with the community and the unions. Elsewhere in the ACCI statement, the importance of safety is acknowledged but the communication of priorities is muddled.

The ACCI also says “OHS laws should never be used as a vehicle to drive other agendas,” and then goes on to push issues of industrial relations and union behaviour that are not the core focus of the OHS model legislation process.

The ACCI statement closes on a more philosophical approach to OHS. It talks about “cooperative development”, “safety culture” and “continued engagements” but its own cooperation can be seen as conditional in the majority of the statement.

There is one statement that all involved in OHS law reform should consider. The ACCI states that practical and easily understood regulation is required.

“This is particularly important for the majority of employers who operate only in one jurisdiction and who will not receive a direct productivity benefit under harmonisation but who will bear the cost of understanding and complying with a new OHS Act and regulations.”

Not much will change for those companies who operate in a single State of Australia. It is also useful to note that the vast majority of businesses in Australia are small- and micro-businesses for whom all of this national hoo-ha is almost totally irrelevant.

The Australian Bureau of Statistics said in a webpage that was updated in September 2008 that

“Small businesses comprise the vast majority of Australian businesses. The importance of the small business sector to the Australian economy is recognised by researchers, government and policy makers as well as the business community as a whole. It is acknowledged that the characteristics and business drivers of small business are potentially very different to those of larger businesses and as such require specific, targeted policy initiatives. Central to the development of effective policy initiatives is a sound understanding of the nature and characteristics of this sector of the business economy.”

The employer associations do not represent the largest employment sectors in Australia – small businesses, micro-businesses and home-based businesses. Nor do the trade unions. So who exactly are the biggest beneficiaries of this whole OHS harmonisation process?

Kevin Jones

Working Hours and Political Scandal

Over the last month or so, Australian politics has been scandalised by a senior Treasury official admitting to faking an email that implied political favouritism by the Australian Treasurer, Wayne Swan, and the Prime Minister, Kevin Rudd.

Godwin Grech is the public servant who has admitted faking the email and there are many reasons he has put forward, and journalists have endlessly speculated on, for his actions. SafetyAtWorkBlog will discuss a minor element of the “Ozcar affair” that has been almost entirely overlooked – OHS.

Since the scandal broke in a Senate inquiry, Godwin Grech kept a fairly low profile and was last reported to be receiving treatment in a Canberra psychiatric facility. It has been reported that Grech has a history of physical health problems and it has been reported, in an investigation into the affair by the Australian National Audit Office (ANAO), that administering the scheme was taxing on Grech. The report says

“The under‐resourcing of the implementation phase of the policy placed at risk the anticipated policy outcomes. It also placed a considerable workload on Mr Godwin Grech, the Treasury official primarily responsible for the development and implementation of the policy measure, particularly in light of his medical condition.”

It needs to be noted that additional resources were offered to Grech to assist in administering the scheme. But Treasury was also criticised in the report.

“There were no indications that these matters, or Mr Grech’s medical condition, were given due weight in the implementation planning and delivery.”

Grech admitted to the ANAO that he had not informed his employer, the Department of Treasury, of his ongoing struggle with depression.

“What senior Treasury management did not know – as I have only very recently discovered – was that I have also been suffering from chronic clinical depression for some years, dating back to at least 2003. This had not been treated.”

Page 100 of the ANAO report has Grech quoting the OHS Act’s employer obligation to “take all reasonably practicable steps to protect the health and safety at work of [its] employees’”, and then lists his working hours required by the scheme.

“My work on the Oz Car program required me to work between 75‐85 hours per week including on weekends from late October 2008 until the onset of my bowel obstruction in early February 2009. My hours varied from 60‐70 hours per week from late February to June 2009.”

The amount of hours expected is phenomenal and there is little surprise that health problems or poor judgement occurred on this hazard alone.

However, what Grech fails to quote in the information to the ANAO is another section of the OHS Act 1991 – Section 21

“Duties of employees in relation to occupational health and safety

(1) An employee must, at all times while at work, take all reasonably practicable steps:

(a) to ensure that the employee does not take any action, or make any omission, that creates a risk, or increases an existing risk, to the health or safety of the employee, or of other persons (whether employees or not) at or near the place at which the employee is at work; ……”

Employees have a legislative obligation to not put themselves at risk. It would be interesting to know why Grech took on more than was healthy for him.

This dichotomy of choice is a crucial but difficult one for all employees in all industries. When is it the right time to say no more or to ask for help or to say something is unsafe or unhealthy?

A further complexity to employment relations comes when industrial relations legislation specifies a maximum amount of working hours. The Australian Government’s very recent Fair Work Act 2009 specifies maximum weekly hours of 38. So what does this say about the employer’s OHS obligations to civil servants, such as Godwin Grech?

The Fair Work Act says (Division 3, Section 62 (1))

“An employer must not request or require an employee to work more than the following number of hours in a week unless the additional hours are reasonable:

(a) for a full time employee—38 hours; or
(b) for an employee who is not a full time employee—the lesser of:

(i) 38 hours; and
(ii) the employee’s ordinary hours of work in a week.

Employee may refuse to work unreasonable additional hours.”

In May 2008, the Prime Minister, Kevin Rudd, said the following about public service workloads:

“I understand that there has been some criticism around the edges that some public servants are finding the hours a bit much ….. Well, I suppose I’ve simply got news for the public service — there’ll be more. This Government was elected with a clear-cut mandate. We intend to proceed with that. The work ethic of this Government will not decrease. It will increase.”

Godwin Grech could be considered one example of the Rudd Government work ethic.

In this political scandal OHS is an oblique and fringe issue but its existence cannot be ignored and it raises legitimate questions about how a Labor Government, the traditional friend of the worker, manages the safety of its employees.

Kevin Jones

Drugs in the workplace – small business blog

The Age newspaper included a short article on drugs in the workplace in a small business pages on 4 August 2009. For OHS professionals there is little new information but it’s a nice summary of some of the legal and management challenges on this workplace hazard.

Sadly some of the reply comments to the article online are demoralising.

Kevin Jones

Tag: industrial relations

Productivity is also the Government’s aim with OHS law reform

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