politics – Page 44 – SafetyAtWorkBlog

Where is the evidence of OHS misuse for IR purposes?

The mainstream press has dipped into some of the submissions to the Australian Government on its harmonisation of OHS laws. Kirsty Needham reports on the submissions in the Sydney Morning Herald.

Needham reports on basically the submissions of the Australian Chamber of Commerce & Industry and the Australian Council of Trade Unions – the ideological opposites on safety regulation. She quotes ACCI’s David Gregory:

“There is no doubt that health and safety has been used as an industrial relations issue on plenty of occasions … we want to put reasonable boundaries around those entitlements.”

This position is always attached as a myth by the unions but it is an accepted fact in the minds of employers, OHS professionals and many workers. The Royal Commission into the Building and Construction Industry in 2003 found that

“in the building and construction industry throughout Australia, there is…..widespread use of occupational health and safety as an industrial tool.”

“The types of inappropriate conduct which exist throughout the building and construction industry include….the use by a union of occupational, health and safety (OH&S) issues as an industrial tool, intermingled with legitimate OH&S issues;”

“Occupational health and safety is often misused by unions as an industrial tool. This trivialises safety, and deflects attention away from real problems. Unions have a legitimate interest in the safety of their members. This should not be altered. However, the scope for misuse of safety must be reduced and if possible eliminated.”

“Misuse of non-existent occupational health and safety issues for industrial purposes is rife in the building and construction industry. Genuine occupational health and safety hazards are also rife.”

A major source of evidence for the repeated statement of fact is mentioned in the final report from February 2003 was an “OH&S case study (Tas).”. SafetyAtWorkBlog is trying to obtain more details on this.

One example of the evidence that is readily available relates again to the Royal Commission. The Commission undertook an investigation into industrial disputes a the construction site of The Age newspaper in Tullamarine. The Commission reports

“the evidence from Mr Judson [Wayne Judson is a Director of Probuild] will be that during the negotiation of the project agreement (which was a period where any industrial action between Probuild and the unions would have been unprotected) there were many occasions when safety walks and OH&S issues were used as a device by the unions to pressure Probuild and Fairfax to agree to the project agreement and nominated shop stewards.

The potential misuse of OH&S raised, not of course for the first time in this Commission, is a very serious matter. To misuse OH&S debases the currency of safety. ‘Crying Wolf’ often enough on enough sites creates the risk that no one knows whether a safety claim is about something real and important or whether it is simply a means of supporting the latest industrial demand.”

Some of Commissioner Cole’s comments on the debasement of safety are sound but the “evidence” is from the builder and may not constitute the reality, only opinion in a submission to an investigative body. The Commissioner carefully labels the issue “a potential misuse”.

SafetyAtWorkBlog would say that the fact of misuse of OHS issues for industrial purposes may be an example of the establishment of a fact through “crying wolf”, to use the Commissioner’s term. The frequent statement of a belief does not establish a fact.

Also, to some extent, the construction industry hogs the OHS limelight in much of the tripartite consultation. This is because of the industrially charged nature of construction in Australia and the fact that construction sites are usually highly visible to public. The construction industry is an important economic driver but perhaps this prominence is masking some of the other OHS issues that the Government needs to consider.

As the Australian Government proceeds in its harmonisation of OHS laws and as it reads the hundreds of public submissions, there should be a red flag on each mention of the misuse of OHS for industrial purposes so that assertions are not misread as facts.

Kevin Jones

Australia’s employers’ thoughts on OHS law

The public submission period for commenting on the Australia’s OHS model laws has closed and the submissions are gradually being made available on the Safe Work Australia website.

At the time of writing there are around 15 submissions listed and Safe Work Australia has indicated that there are many more that are being sifted through at the moment.

Each submission had the option for the comments to be confidential. Confidential submitters told SafetyAtWorkBlog that one reason for confidentiality was so that their comments did not reflect on their current employer. This is understandable but also adds an allure to the submission. It will be interesting to note which of the large associations apply confidentiality to their submissions.

One employer association who is “loud and proud” of their submission is the Australian Chamber of Commerce and Industry. The ACCI submission is currently available only from its website. Below is what the ACCI’s Director of Workplace Policy, David Gregory, says in a media statement that accompanied the release of the submission

“…[Gregory ] has rejected union claims that business groups are pushing for changes that would reduce health and safety rights for workers.

ACCI also urged Australia’s governments to work towards a truly uniform national OHS system with respect to the approach by OHS inspectors, regulators and the courts.”

“Employers want a model Act that delivers both improved workplace safety outcomes and an effective legislative framework that will encourage employers and workers to be proactive and collaborative in improving the safety of their workplaces. Unnecessary prescription will ultimately serve only to distract and discourage both employers and employees from delivering safer workplaces. ACCI has provided some positive suggestions in its submission that should be adopted to improve the operation of the Act.”

ACCI has strongly backed the reinstatement of a definition of ‘due diligence’ in the model Act, as the absence of a definition will mean that company officers will be unclear about their duty and how compliance may be achieved.

Employers have also identified a number of aspects of the model OHS Act which are open to potential misuse such as union right of entry, persons assisting health and safety representatives, and procedures for establishing multi-employer workgroups, which require redrafting to ensure that they are fair and balanced and do not undermine the safety objectives of the Act.

ACCI in its submission advocates that the maximum penalty for a corporation under the Act should be set at the current Australian maximum of $1.65 million, arguing that the proposed $3 million maximum will simply fuel a litigious and compliance-based approach to OHS.

Gregory’s first point addresses ideology more than anything else. The trade union movement will always be suspicious and uncomfortable with any organisation that is willing to put productivity before safety. The introduction of the ACCI submission makes it clear that the focus of the submission is not on improving safety but on improving the management of safety, two very different OHS approaches.

Recently a new book from Federation Press, “Work and Strife in Paradise“, a history of labour in Queensland illustrated how industrial harmony existed in that state for decades prior to the introduction of Robens-style legislation. For a long time unions and employer groups knew where they stood ideologically and therefore could anticipate responses and could negotiate from stable philosophical platforms. The industrial relations changes from the 1960s onwards complicated negotiations which did have some impact on OHS in that State.

[For the first time, to SafetyAtWorkBlog’s knowledge, a chapter is included in a labour relations book on research into employer associations.]

One would have to expect a definition of “due diligence” to be included in the upcoming OHS Act is the employers are in favour of this. The consensus in many OHS seminars is that such a definition is required.

The concerns over union rights is a hoary chestnut that has not been seen as a problem in Victoria where many of the suggested legislative features have originated.

The issue of penalties is a little hollow. Many corporate executives are covered by Directors’ & Officers’ Liability insurance as much as is possible. And fines do not generate litigation. The neglect of obligations and duties lead to prosecution and then penalties.

The ACCI submission states more clearly that

“…OHS breaches should generally be subject to civil rather than criminal penalties. Such an approach should be taken for the entire model OHS Act and not just selectively applied to aspects such as breaches in relation to union right of entry.”

It would interesting to know what ACCI’s position is on non-financial penalty options.

The impression obtained from the ACCI statement and submission is that they were principally intended for the audience of the ACCI membership. ACCI has a seat at the Safe Work Australia Council discussion table through its representative Annette Bellamy. It is suggested that it is here where the conservative and capitalist arguments on OHS laws will be put.

Kevin Jones

Asbestos is an example of immoral economic growth

The financial newspapers often refere to a BRIC group of countries or, rather, economies. This stands for Brazil, Russia, India and China and is used to describe the forecasted economic powerhouses for this century. But there is also the risk of economic growth without morality. India is a case in point and asbestos can be an example.

The health hazards of asbestos have been established for decades but only officially acknowledged more recently. One would expect that when some countries ban the import, export and manufacture of a product that other countries may suspect that something may be amiss.

In the introduction to the September 2008 book “India’s Asbestos Time Bomb” Laurie Kazan-Allen writes

“Historically the burden of industrial pollution has reached the developing world much faster than the fruits of industrial growth” writes Dr. Sanjay Chaturvedi. This statement is well illustrated by the evolution of the asbestos industry in India. In the frantic rush for economic development, there has been a pervasive lack of concern for the health of workers and the contamination of the environment. Sacrificing the lives of the few for the “good” of the many, the Indian Government has knowingly colluded in this sad state of affairs.”

Kazan-Allen is a longtime campaigner on asbestos. In 2001 she put this question to the Canadian Medical Association Journal.

“Chrysotile has caused and is continuing to cause disease and death worldwide. It is hypocritical for Canada to continue to produce chrysotile when it is not prepared to use it domestically. If chrysotile is unsuitable for Canadian lungs, how does it become suitable for Korean, Indian and Japanese lungs?”

A foundation of public health and workplace safety management is that bad practices, immoral practices, are corrected, not accommodated. At some point the exploitation of others for the financial betterment of a few must end. Could that lead to a “compassionate capitalism” or is that just another term for “socialism”? These semantics are being argued at the moment in the United States over health care but the question needs to be asked globally, just as it is on climate change and on the financial markets.

The global implications of poor OHS management and practices needs to be placed on the policy agenda not only of the ILO, United Nations and trade union movement, but the business groups, and professional associations who need to develop their social charters. If those voices are not added to the debate, safety will also be a fringe issue and it is too important for that.

Kevin Jones

Gov’t responds to insulation installer’s death

Recently SafetyAtWorkBlog reported of the death of a worker installing insulation in a domestic home. A staple for the foil insulation apparently pierced an electrical cable and electrocuted the worker.

The Queensland Government has introduced mandatory provisions to avoid the hazard in the future. In a media release on 1 November 2009, the Industrial Relation Minister, Cameron Dick,

“… issued a ministerial notice under the Electrical Safety Act 2002 to prohibit the use of metal fastenings for ceiling insulation.”

The ban is effective from 1 November 2009.

It may already be the case, elsewhere in the world, that non-conductive fasteners are used for installing metallic insulation. If not, the rules introduced by the government should prove useful references.

“The ministerial notice means that installers will have to use nylon or plastic fasteners (which are already in use within the industry), glue or tape to fix foil insulation in ceilings.

As well as banning metal fasteners, the notice also:

forces insulation installers to comply with the Wiring Rules with respect to the placement of any type of insulation near recessed downlights

makes electrical safety risk assessment training mandatory for all installers

forces installers to document their on-site electrical safety risk assessments and keep a record f or five years.”

Such a mandatory rule is clearly a necessary short-term fix but it does little to address the concerns of the Master Electricians Association. Training and enforcement are the long-term solutions but policymakers must also anticipate the applications of their policies more closely. New policies should not be announced in an industry that does not have the resources to meet the policy’s aims.

Kevin Jones

Senator calls for Senate hearing on the safety of posties

Senator Steve Fielding is the head of the Family First Party, the smallest political party in Australia’s Parliament at the moment. Fielding is one of the handful of senators who hold the balance of power in the parliament and therefore has more political influence than a party of the size of Family First usually has.

On 19 October 2009, as a result of evidence given at a Senate inquiry by a representative of Australia Post, Senator Fielding said, in a media statement:

“There are serious allegations staff have been forced back to work simply to sit in a room to watch television so managers can get their bonus for having lower lost injury time figures,” Senator Fielding said. “This is outrageous and puts the health of workers at risk because of some greedy managers.

“No wonder Australia Post won an award last month for its rehabilitation of injured workers if it’s fudging the numbers. There’s an obvious conflict of interest between InjuryNET, which looks after the doctors that Australia Post sends its workers too, and Australia Post itself.

“Dr David Milecki, who is a consultant to Australia Post’s return-to-work program, also runs InjuryNET.

“Australia Post even admitted that this contract did not go through an independent process – there was not even a tender process.

“We need a senate inquiry urgently to make sure Australia Post employees are being looked after and that they’re aren’t being taken advantage of by dodgy managers who are more interested in their bonuses.”

SafetyAtWorkBlog contacted Australia Post to gauge some reaction. A spokesperson says that Australia Post will be cooperating fully with any Senate inquiry.

Every country has its fair share of eccentric politicians. The current feeling is that Steve Fielding is Australia’s. But regardless of character or competence, the Senator has authority and a responsibility to investigate the concerns listed above.

This is a developing story but one that may relate a little to issues raised in the recent SafetyAtWorkBlog about awards nights.

Kevin Jones

Asbestos and corruption as a case study

Australia has been a major supplier of asbestos to the world for decades. It has also been a major corporate beneficiary of the revenue for the sale of this poisonous material.

The latest situation in Melbourne is a good example of all that is wrong with asbestos and worker exposure. According to reports in The Age newspapers in late October 2009, a property developer has allegedly offered $A57,000 to a safety officer on a hospital redevelopment project, allegedly, in order to turn a blind eye to the issue of asbestos at the site. According to the newspaper reports, some in the industry have described this payment as a bribe.

In February 2006, the developer received a report from an independent consultant advising that asbestos be removed prior to demolition. The developer removed most but not all. It is in this patch of remaining asbestos that two workers dug through the concrete with a jack hammer and concrete saw, generating considerable dust from the concrete and the asbestos. The workers were not wearing any protective masks.

Australia is dealing with the corporate immorality of James Hardie Industries, although there is much more that can be down. Wittenoom is closed and has almost disappeared. Companies are required to have an asbestos register for their properties. Tasmania is to become free of asbestos by 2020. There is a lot of activity, so much that the control of this poisonous material should not be handled in an ad hoc manner. Governmental vision is required to commit to the removal of asbestos and the clean-up of contaminated sites.

It is an easy moral call for governments – the toxicity of asbestos is indisputable, the public health risks are known. But it will cost. Governments are in a similar bind as with climate change policy – decades of prosperity at the same time as not considering the health legacy of that wealth.

There is no such thing as an emissions trading scheme for asbestos. It is suspected that, if at all, the government will need to apply surcharges or tax incentives for companies to support any initiative. This always flows back to the consumers paying ultimately. Anti-asbestos advocates can rightly feel angry at the fact that companies have benefited greatly from knowingly selling a toxic material, and the same companies are likely to benefit again through the clean-up. This may simply be the price we must pay for living in a society based on capitalism. God help the new “capitalist” nations like China.

Kevin Jones

SafetyAtWorkBlog hopes to finalise a podcast with journalist and author, Matt Peacock, by the end of this week. Peacock is the author of Killer Company

Nice comparison on Directors’ complaints

In the Australian Financial Review in October 2009 there was an opinion piece (not available online) from the CEO of the Australian Institute of Company Directors (AICD), John Colvin, expressing concerns about the accountability of directors under legislation including the proposed OHS laws in Australia.

According to a report by Adam Schwab in the Crikey newsletter of 23 October 2009 (also not freely available online), Colvin wrote in the AFR:

“There are more than 660 state and territory laws which impose personal liability on individual directors for corporate misconduct. That is, a director is liable because he is a director, even when he may not have had any personal involvement in the breach…”

Schwab writes

“The AICD noted, the NSW courts have taken a hard-line enforcing the deemed liability laws. According to AICD data, between 2004 and 2008, 144 company directors were found guilty of OHS offences, of which 115 of those prosecutions occurred in NSW.”

Schwab then provides a comparison of risk that I wish I’d thought of:

“That means the proportion of directors convicted over these so-called onerous laws is 0.0068%. To compare, there is roughly a 0.04% chance of someone being struck by lightning. Therefore, based on the AICD’s own data, company directors are six times more likely to be hit by lightning than to be prosecuted. It also shouldn’t be forgotten, directors’ liabilities are almost always covered by indemnity insurance and most prosecutions result in a mere financial penalty.

While the NSW OHS laws result in occasional harsh results, to extrapolate one set of allegedly ill-advised laws across the country is much like a cry of wolf.”

This perspective will be an important one to remember when considering the submissions being lodged with Safe Work Australia on the OHS model laws by 9 November 2009. The corporate submissions particularly but also those from the OHS law firms that spruiker the exposure of company directors ruthlessly whenever OHS and accountability is discussed.

Some of us remember the “glory days” when industrial manslaughter was widely considered in some Australian States. (There is a noticeable absence of controversy of the industrial manslaughter law that is operating in the Australian Capital Territory)

Also important is the point that Schwab makes about indemnity insurance for Directors and Officers, a matter that has been discussed elsewhere in SafetyAtWorkBlog.

The amount of “get-out-jail-free” options available for directors should encourage more attention to alternative, non-financial penalties for breaches of OHS law. Over the last 24 hours the United States has been talking about replacing executive cash remunerations with stocks so that director’s incomes are reliant on the share price of the corporation which, in turn, relates to the quality of leadership from the director.

As long as Australia’s principle OHS penalties involve money, directors can buy their way out of trouble. If Australia’s Prime Minister, Kevin Rudd, can face an entire country and apologise for the bad behaviour of others, and the bad policies of other governments in relation to the interaction with indigenous peoples, why should company directors not have a similar obligation when their poor management of a workplace kills someone? If corporate executives are that keen on leadership, let’s see them apply some of the leadership that Rudd showed, and accept responsibility when they should.

Kevin Jones

Tag: politics

Where is the evidence of OHS misuse for IR purposes?

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Australia’s employers’ thoughts on OHS law

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Asbestos is an example of immoral economic growth

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Gov’t responds to insulation installer’s death

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Senator calls for Senate hearing on the safety of posties

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Asbestos and corruption as a case study

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Nice comparison on Directors’ complaints

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