industrial relations – Page 18

Legal opinion on Australia’s model OHS laws

The comments on the Australian Government’s response to the report into Australia’s model OHS laws have been pretty muted. There were the obligatory compliments from those in favour and the obligatory criticisms from those against but both types of response were in the immediate aftermath of the Workplace Relations Ministers’ Council meeting in mid-May 2009.

Going from the institutional and media quiet, there must be few changes that are expected to have any great impact. Law firm Blake Dawson released their take on the government’s response. Here is their advice to employers – pretty much “wait and see”:

Lessons for employers

The decisions made by the WRMC on the proposed national model OHS Act will bring changes to virtually all areas of OHS in all Australian jurisdictions.

All employers and other duty holders should carefully review the model OHS Act upon its release and consider whether changes need to be made in advance of the laws being enacted.

Particular areas of focus are likely to be:

ensuring all duty holders have a clear understanding of the nature and scope oftheir duties and obligations;

ensuring that officers of corporations are taking proactive steps to promote health and safety;

in respect of some Australian jurisdictions (eg NSW) preparation for the introduction of health and safety representatives and the role that HSRs may play in an organisation;

thorough preparation for regulator investigations.

It is strongly recommended that their full “alert” be read for interest.

Kevin Jones

Trade union OHS protests are shortsighted

On the eve of the ACTU Congress, the construction unions have threatened disruptions to building sites in, not surprisingly, New South Wales. This State was always going to be the one with the most to give up for the sake of national harmonisation of OHS laws.

It is reported in the Australian Financial Review on 2 June 2009 (page 11, not available online) that the CFMEU acting state secretary, Jim Tulloch, has said

“This is a line in the sand issue for trade unions……There’s a lack of leadership at the federal level and lots of states have been coerced into signing something that they are going to be held accountable for.”

This may be the case and the CFMEU may be positioning themselves prior to the ACTU Congress but the disruption is a risky strategy. Not only would any of the action be illegal, the Federal Government has yet not abolished the draconian Australian Building & Construction Commission (ABCC). Union protesters are likely to find themselves again in front of the ABCC being forced to answer questions.

The national OHS system is still being finalised but the union action will serve little purpose other than confirming the political perspective that the New South Wales government is overly influenced by the union movement. Surely by now the union movement has learnt there are other ways to achieve aims than by confrontation.

Kevin Jones

The latest OHS advice on managing swine flu

Some time ago SafetyAtWorkBlog was critical of OHS regulators releasing swine flu information because the advice was not being easily translated in the workplace, and some of the advice was just silly.

Much better advice is available from the New South Wales government however, curiously, the Workplace Guide to Managing Influenza Pandemic has been issued by the Department of Commerce. The department’s Office of Industrial Relations has released the document which makes more sense however the release seems to be contrary to WorkCover New South Wales who defers to the NSW Health Department, surely the most logical central point for communication on this public health issue.

There are too many “experts” on the workplace impact of swine flu influenza and pandemics. SafetyAtWorkBlog has kept out of this issue as we share the position of WorkCover NSW – defer to the State or National authorities.

However, some companies feel obliged to be seen to be doing something, anything, about swine flu and their half-cocked measures are discrediting their overall process of safety management.

One national company recently issued a new policy advice to all staff on swine flu. The policy was little more than a cut and paste from an official fact sheet. It added little to the employees’ knowledge of the hazard and in no way answered staff questions such as

If my child’s school is closed due to a swine flu threat, what type of leave am I entitled to take?

The company has provided annual influenza vaccinations. Will I need re-vaccinating in the event of swine flu and will the company cover this cost?

In what circumstances can my employer send me home?

Not only was it next to useless, the company had the cheek to include its own corporate logo on the policy. Public health and OHS information is usually flexible in its reuse but somebody in the company looks like they are empire-building rather than managing their staff.

People want advice on how swine flu will disrupt their lives and working lives, not information on swine flu itself. Employers should leave the health information to the health authorities and concentrate on the management of the disruption and potential health threats within their area of expertise, their own workplaces.

If employers raise expectations by issuing policies in areas outside of their expertise, they begin a spiral of the demand for information that it may be impossible to satisfy.

Kevin Jones

Radio interview on harmonisation of OHS law

Last week, I had the pleasure of being interviewed byElanor McInerney of the 3CR radio program, Stick Together. The interview concerned the harmonisation law in Australia and my thoughts on the risks and impacts it would have on Australian business and workers.

The radio program is now available as a podcast (My part is around the 19 minute mark.)

Please let me know if I am totally off the beam with my applications of the OHS laws and the political issues.

I thank Elanor and the producers of Stick Together for making this available so soon after the broadcast on 17 May 2009.

Kevin Jones

More last minute lobbying but with compromise

The Business Council of Australia is the latest employer group to actively lobby Australian industrial relations ministers over harmonised OHS laws on the eve of the crucial Workplace Relations Ministers’ Council (WRMC) meeting. BCA’s CEO Kate Lahey is reported in today’s Age newspaper as saying that the rejection of OHS law reform would say to investors that the States were not interested.

The Mineral Council of Australia has stated in the same article that

“… a uniform OHS act will enable all businesses to focus on improving health and safety outcomes…”

Outcomes can be many things but much of the commentary over the last week seems to misunderstand the aims of the government’s review. As I tried to emphasise on an interview on 17 May 2009 on radio 3CR, it was a review of OHS law not OHS management. Satisfactory levels of safety have already been achievable under existing OHS law. A change of law does not equate to a change of approach or commitment.

The chance of the OHS reforms not going through was weakened on the weekend when the New South Wales Industrial Relations Minister, Joe Tripodi,

“signalled a compromise on the absolute duty of care that requires employers to prove a workplace is safe…”

New South Wales was the crucial sticking point in national negotiations and and the minister’s compromise is likely to be that the reverse onus only applies to corporations and that individuals be exempt.

If the WRMC decides to follow the National OHS Model Law Review Panel reports, OHS Law will be streamlined for lawyers, the Courts and OHS regulators. This will benefit those businesses that operate across State borders but it will make little difference to the vast majority of workplaces in Australia.

The recommendations of the Reports were not that radical. The recommendations were, as expected, a copy of the Victorian OHS Act with bits added. In fact, some lawyers question whether the OHS Model Law Review was really necessary given the bland predictable outcomes.

Many were wishing for an OHS revolution like that achieved by Lord Robens in the 1970s. The fact is that the review was given limited resources and limited time to reach a conclusion. The recommendations seem to be acceptable to the government and unsurprising.

The main game in Australian politics at the moment is industrial relations. Any OHS changes will best understood through analysis of their IR implications.

Kevin Jones

Fatigue is the biggest threat to a person’s safety

Not so long ago, it was considered a legitimate criticism to blame the individual for “doing the wrong thing” at work. Depending on the type of worksite, this was considered “human error” or “bloody stupid”.

Fatigue is an interesting illustration of how occupational health and safety must cope with new perspectives on established hazards. Australian OHS legislation operates on a responsibility to manage the systems of work in a workplace, of which only one element is the worker.

A good incident investigation goes beyond the incident to see what led up to a worker acting the way they did, the reasons behind the decision. Instead of “tell me about your childhood”, OHS practitioners can legitimately ask “tell me about your sleep patterns”, or “tell me about your second job”, or “tell me about your relationship with your partner”, as these can be contributory factors to the decision made on the day or the work environment at the time of the incident.

Some recent AAP articles provide interesting examples of the different contexts in which fatigue as a workplace issue can manifest:

“Ambulance Employees Australia (AEA) said weary paramedics had fallen asleep at the wheel and administered wrong drugs because they did not have enough time off between shifts.

They have called for a minimum 10-hour break between shifts, compared with eight hours under the current award.

But Ambulance Victoria has said the fatigue issue was one of 175 union claims, which it said sought $800 million from pay talks.”

“Investigators examining the near-catastrophe at Melbourne Airport last month are exploring whether fatigue was a factor after being told the pilot had barely slept the day before the flight.

Emirates pilots are permitted to fly a maximum of 100 hours each 28 days and the pilot was also almost at the legal threshold of the number of hours he was able to fly.

Emirates has issued a statement saying safety was a top priority for the airline.”

A higher priority than a good night’s sleep apparently! Clearly it is the spread of hours that is the issue not the total over a fixed period.

Both these examples relate to workers’ interactions with the public and reflect the complexity of OHS’s spread to public safety.

It seems that every investigation now automatically assesses the fatigue level, or impairment, of the participants in incidents in the same way mobile phone records are checked in car accidents and blood-alcohol levels or drug testing in some industrial events.

If your OHS professional does not consider psychosocial issues in developing safety management plans or incident investigation, seek a second opinion, or better yet, make sure the first opinion is comprehensive.

Kevin Jones

Trade unionist talks about nanotechnology risks

In October 2008, SafetyAtWorkBlog spoke with Renata Musolino of the Victorian Trades Hall Council. At that time the trade union movement was finalising its policies and positions on nanotechnology into the campaign that is being rolled out at the moment.

In the SafetyAtWork podcast released in April 2009, Renata talks about how nanotechnologies links with mesothelioma but also some parallels with genetically modified organisms. She discusses the need for more information about the nanomaterials and how one should apply the precautionary principle in this case.

More information about Renata is available at the Victorian Trades Hall Council website

Tag: industrial relations

Legal opinion on Australia’s model OHS laws

Lessons for employers

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Trade union OHS protests are shortsighted

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The latest OHS advice on managing swine flu

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Radio interview on harmonisation of OHS law

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More last minute lobbying but with compromise

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Fatigue is the biggest threat to a person’s safety

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Trade unionist talks about nanotechnology risks

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Lessons for employers

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