Company directors and OHS obligations

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Since the final report of Australia’s Review into Model OHS Law, discussion has been remarkably quiet.  The ACTU was scheduled to meet for discussions on the report last Monday and no public statements have been made.  Most of the labour law firms have been quiet also.  It is fair to say that most are trying to digest the 480 page report.

But one employer group has provided an opinion piece in the business pages of The Age newspaper on March 2 2009.  The article says little that is new but it is mischievous in some of its comments. 

John  Colvin, CEO of the Australian Institute of Company Directors, writes of his concerns about increased exposure for the Institute’s members.  Colvin is concerned that upcoming OHS laws may be unprincipled and counterproductive.

The Model OHS Law report has said that it supports the statement of OHS principles as are already in place in the Victorian OHS legislation.  According to WorkSafe Victoria

“The Act sets out the key principles, duties and rights in relation to occupational health and safety. The general nature of the duties imposed by the Act means that they cover a very wide variety of circumstances, do not readily date and provide considerable flexibility for a duty holder to determine what needs to be done to comply.”

These principles are

4. The principles of health and safety protection

(1)    The importance of health and safety requires that employees, other persons at work and members of the public be given the highest level of protection against risks to their health and safety that is reasonably practicable in the circumstances.

(2)    Persons who control or manage matters that give rise or may give rise to risks to health or safety are responsible for eliminating or reducing those risks so far as is reasonably practicable.

(3)    Employers and self-employed persons should be proactive, and take all reasonably practicable measures, to ensure health and safety at workplaces and in the conduct of undertakings.

(4)    Employers and employees should exchange information and ideas about risks to health and safety and measures that can be taken to eliminate or reduce those risks.

(5)    Employees are entitled, and should be encouraged, to be represented in relation to health and safety issues.

The article is mischievous in a number of areas.  Colvin mentions how the current laws vary from state to state.  He mentions that

Some carry personal criminal liability for directors, even where they may not have had any personal involvement in a breach. In some states, they reverse the onus of proof, removing the presumption of innocence, and offer narrow legal defences and limited appeal rights.” (my emphasis)

Colvin is talking primarily about New South Wales, the State that everyone agrees has the OHS law that is most onerous for employers.  However, the New South Wales union movement has been remarkably quiet and flexible on the issue of its OHS laws.  There has been some rhetoric for the benefit of its members and to retain some ideological “face” but the union movement across Australia is coming to accept the reality of better OHS outcomes from nationally harmonised legislation.  

Repeatedly the National OHS Law Review panel stated that it has based its decisions on the structure of the Victorian legislation as, for one reason, it has undergone the most recent legal review.  Colvin’s focus on New South Wales OHS law is outdated, reflective, and unhelpful.

Colvin mentions a survey that found

“..more than 65 per cent said the risk of personal liability occasionally made them take an overly cautious approach in the boardroom and another 13 per cent said this happened frequently. Almost two-thirds felt this had inhibited an optimal business decision to a medium to high degree.”

This indicates that the risk of being prosecuted on OHS breaches is being discussed at board level – great result.  Whether this translates to the board improving the OHS performance of their company is doubtful as Colvin’s article implies that directors are looking at ways of avoiding responsibility and liability rather than accepting the reality of their OHS obligations and working to improve them.

Colvin says that

“Directors should not be held criminally liable for a company’s misconduct simply because they are a director.”

Directors are not prosecuted for OHS breaches because of their status or position.  They are prosecuted because of the decisions that they make and the ramifications of those decisions.  If a director is dismissive of OHS issues and palms them off to someone else in the organisation and an incident occurs, should not the director be called to account for why they considered the safety of their workers to be unimportant, even when for over thirty years directors and executives have had responsibility for OHS compliance?

Colvin believes that holding directors accountable implies that directors have more control over the actions of their employers than they do.  Current business and management theories promote the position that directors should be more in touch with what is happening on the shopfloor.  The theories promote informed leadership and an increased awareness of how the company and its people work, they promote a level of engagement that creates a positive workplace culture and displays leadership.   Colvin seems to be encouraging the opposite.

He ends his article with

“More fundamentally, it unfairly treats directors more harshly under the law than the rest of the community.”

He misunderstands the application and aims of OHS law.  All people in a workplace have a responsibility to ensure a safe and healthy workplace for themselves, for employees and for members of public on and off their worksites.  Directors have more detailed obligations, but not less, because they have control of production and benefit more from the success of the company than do the employees. 

Ultimately, Colvin’s article reflects the misunderstanding of OHS that directors and companies have had for decades.  Companies need to realise that the best performing companies in OHS, and those with the best productivity, are those that have embraced their obligations for safety and have incorporated the principles within their own culture. 

The review into model OHS law has indicated the way of the future and company directors would be well-served to realise this and get on board.  Being left behind will benefit no one, especially the shareholders.

Kevin Jones

International Women’s Day (of safety)

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The global theme for the 2009 International Women’s Day (8 March 2009) is 

“Women and men united to end violence against women and girls”

The organising committee is at pains to stress that although this is a global theme, individual nations, individual states and organisations are able to set their own themes.  Some themes already chosen include

  • Australia, UNIFEM: Unite to End Violence Against Women 
  • Australia, QLD Office for Women: Our Women, Our State 
  • Australia, WA Department for Communities: Sharing the Caring for the Future 
  • UK, Doncaster Council: Women’s Voices and Influence 
  • UK, Welsh Assembly Government: Bridging the Generational Gap

Given that Australian health care workers suffer occupational violence, amongst many other sectors, and that employers are obliged to assist workers who may be subjected to violence at work or the consequences of non-work-related violence, it seems odd that so often the major advocates of International Women’s Day remain the unions.

It is also regrettable that many of the themes internationally and locally are responding to negatives rather than motivating action from strengths.

As is indicated from the list above, the public sector agencies are keen to develop programs around the international day.  The societal and career disadvantages of women are integral to how safety is managed.  

Stress, violence, adequate leave entitlements, security, work/life balance, chronic illness – all of these issues are dealt with by good safety professionals.  Perhaps a safety organisation or agency in Australia could take up the theme of “Safe work for women” and look at these issues this year using gender as the key to controlling these hazards in a coordinated and cross-gender fashion.

In support of women’s OHS (if there can be such a specific category), readers are reminded of an excellent (and FREE)  resource written by Melody Kemp called Working for Life: Sourcebook on Occupational Health for Women

Kevin Jones

Safety Interviews

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A couple of weeks ago I conducted interviews with several speakers in the Safety In Action Conference to be held in Melbourne, Australia at the end of March 2009.  The finalised videos are below.

Helen Marshall is Australia’s Federal Safety Commissioner who has a challenging job monitoring major government construction sites.

Dr Martyn Newman is a a fascinating speaker on the issues of leadership and emotional intelligence and how safety professionals can benefit for applying these concepts to their corporate aims.

Jill McCabe is a recent member of WorkSafe Victoria who provides quite startling survey information on the attitudes of supervisors to workplace safety.

Barry Sherriff is a partner with law firm Freehills and was recently also one of the review panellists into Australia’s OHS law review.  Since this video, the final report of the panel has been publicly released and Barry will be discussing harmonisation at the Safety In Action conference.

John Merritt is the Executive Director of WorkSafe and a strong advocate of workplace safety.  

Although part of my job is to help promote the Safety In Action conference, I have tried to provide a resource that will not be temporary and is actually useful to safety professionals everywhere.

Tip: Use the high quality YouTube settings if you can.  It makes these much easier to view but does not improve the appearance of the interviewer.

Kevin Jones

 

Leading from the top on impairment

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Advocates of safety culture regularly profess that it must be lead from the top of the corporate structure down.  This applies a false definition of leadership.  Leadership is innovation, understanding and support regardless of one’s position on the corporate ladder.

It is true that professing leadership and corporate goals should be supported by the appropriate actions but that is often the avoidance of hypocrisy rather than seeking active change. It must be acknowledged that leadership can also come from below  – in the mail rooms, the cellars, the janitors and from the shopfloors.

Workers in many industries are subjected to random drug and alcohol tests.  Often these apply to those workers who operate machinery or drive transport vehicles.  And rightly so.  These workers must undertake their tasks without any impairment of their cognitive functions.  Impairment is a concept that the Australian union movement has struggled with for well over a decade mainly because in the industrial relations world this is close to being “fit for work” and how does one define that?  It also has some relationship to “blaming the worker”.  In occupational health and safety, it is seen as looking after one’s self whilst looking after others and the obligation to do this has existed for decades in OHS legislation.

Impairment is commonly discussed now in terms of driving while drunk or stoned or while using a mobile phone.  But long before this there was “impaired judgement”.  As well as being fit-for-work, people needed to be fit-to-think. 

On 4 December 2008, the New South Wales Health Minister (and former Industrial Relations Minister) John Della Bosca rejected a proposal from the Rail, Bus & Tram Union (RTBU) to “to make breath-test kits available on a voluntary basis to MPs wanting to check their blood alcohol levels before they turn up for late night votes.”

It is reported that the RTBU secretary Nick Lewocki has said 

“All rail workers are subjected to random drug and alcohol tests, an infringement on their personal lives that they are told is necessary due to the safety critical nature of their work. But driving the state is every bit as safety critical, and decisions our politicians make on issues as diverse as health, education and transport policy do affect public lives.” 

Ignoring the political devilment of the RTBU, the comment focuses on being unimpaired when making decisions, regardless of the occupation, work task or corporate position.  The Minister has been put in a difficult position where he can’t be seen as responding to union naughtiness but there is merit in leading from the top and making breath-test kits available.  They are not suggesting random testing or mandatory testing but it is reasonable to expect important decision-makers to be fit-to-think and fit-to-decide.

Perhaps drug testing in the workplace would not be seen as the contentious issue it is if it had already been introduced in the boardroom.  The gesture would not be as empty as the corporate leaders may think particularly leading into the season when sauce and ganders were traditionally eaten.