politics – Page 46 – SafetyAtWorkBlog

NSW contractor representative talks bluntly about the politics of OHS laws

Ken Phillips, executive director of Independent Contractors of Australia, wrote an opinion piece in The Australian on 6 October 2009 that demands attention.

Phillips supports the Federal Government’s program of harmonisation of OHS laws in that it will remove what he sees as the injustices of the OHS legislation in New South Wales.

“The situation is different in NSW, which has OHS laws unlike any other in Australia. OHS prosecutions elsewhere are criminal matters, but in NSW prosecutions are conducted in industrial relations courts, not criminal courts, with no right to a jury or to appeals……

This has led to the layering of gross injustices on top of workplace tragedies in NSW. Take one example. A NSW plumber has a criminal conviction against him after a hot water valve he installed in an aged nursing home failed. An elderly woman was scalded and tragically died. The court found the plumber had properly installed and maintained the valve. The valve failed because of a microscopic fracture in an internal sealed component. Yet NSW OHS law required that the plumber be declared guilty.”

Phillips sees the union movement’s response to harmonisation as short-sighted. He describes the union advocacy of the NSW laws in terms of class, a concept rarely voiced in Australia outside academic sociological circles or the basements of Trades & Labour Councils.

“It’s a law and process based on old-fashioned political notions that employers always put profits above worker safety and that employers must be threatened with harsh legal retribution to make them heed safety regulations. This is class obsessed, hate-filled labour at its worst, embedding its hatred in law. It selectively destroys the application of criminal justice to achieve its tribal ends.”

The language is inflammatory but reflects the level of concern felt by many business operators in New South Wales who are fearful of OHS rather than engaged in positive safety management. The absolute level of safety demanded by the OHS law is indicative of what can happen when an aspirational concept is realised.

It is not so long ago that one employer association director in New South Wales stated on national television that OHS laws are not needed because employers do the right thing.

The harmonisation process, as SafetyAtWorkBlog has said previously, is intended to be a process of negotiation towards a common goal of safer workplaces. The union movement is undoubtedly in the ascendant having helped the Australian Labor Party (ALP) break the conservative governments of the 1990s, and believes that the ALP owes it.

Trevor Cook, writing in The Australian, estimates that the union campaign in the 2007 election generated a 2% swing to the Labor Party. He succinctly describes the achievement after years of the Left’s political parties placating the business sector:

“They treated unions as just another interest group. Against that background, the 2007 election in Australia was a rare and remarkable event. It had been decades since a social democratic party anywhere in the world had fought and won an election where industrial relations was a leading issue.”

From the union perspective, the Minister for Workplace Relations, Julia Gillard, needs to “pay the piper” after the unions rid the country of the conservative rats. The substantial challenge for Gillard is to avoid the second phase of the Hamelin story, before the entire union movement rescinds its support and takes her “children” – the future industrial relations structure.

Kevin Jones

New Australian Embassy in Laos creating traffic safety issues.

The new Australian embassy located on Route Thadeua, the major arterial through Vientiane, is set in a high security compound, somewhat out of keeping with the slow pace of Laos. Some say that the PDR after Laos comes from Please Don’t Rush.

When the Japanese upgraded Route Thadeua, the major route out of the city to Thailand, they put in a central median strip without turn lanes so any turning traffic forces the traffic behind to swing into what is now unofficially the motor bike lane closest to the curb. Motor bikes vastly outnumber cars in Laos, one of the worlds least developed countries and governed by a hard line and corrupt Government.

Openings in the strip are irregular, but inevitably one is always situated outside embassies.

The traffic engineers installed concrete blocks around 75 centimetres long along the edge of the road which means that off street parking is virtually impossible. Some businesses have subsequently demolished the blocks.

Footpaths were not part of the Japanese aid package

The Australian Embassy has a nice strip of suburban lawn outside the high walls but have chosen to retain the concrete blocks, meaning that the lines of cars outside while their owners are meeting or making entreaties to the Embassy staff, ostensibly block one of the two available lanes. The Please Don’t rush adage only stands when a person is working and not mounted on a machine. Laos are largely inept drivers with no idea of consequence. They are like a nation of probationary drivers.

Impatient and opportunistic and accidents are put down to supernatural forces such as in Luang Prabang, the World Heritage city where a spate of fatal accidents was said to be caused by a ghost women motorcycle rider.

Of course, the opening in the island is right outside the embassy. Late last week the traffic was backed up at the beginning of peak hour and motor cycle riders were being inched off by impatient drivers trying to squeeze through between a line of U-turning traffic and the cars parked outside the embassy. Other motor cycle riders were risking their lives and cheap Chinese motor bikes by dodging through any narrow spaces in front of cars that had just got through and accelerating out.

It would take very little for the embassy to create a car park outside.

The grass is nice but safety would be better. The excuse may inevitably be security and the blocks do deter any potential car bomber. But this is Laos not Iraq, and it seems to be an act of stupidity to pass on risk to the Lao public on a permanent basis for a risk that may or may not arise.

Vientiane is a land locked and hot city and getting hotter. It has few swimming pools that aren’t in private hands. On top of the decision to close the Australian Recreation Club pool and sports facilities to the general public, a move that was wildly unpopular, and left this great facility for the sole use of a few (7-9) embassy staff, the cocktail party chat is not flattering.

By an Asian reporter

OHS law debate and Law Society position

Boardroom Radio has hosted a very interesting podcast between two labour lawyers, Andrew Douglas and Michael Tooma, with the participation of Barry Silburn, the National President of the Safety Institute of Australia.

Andrew Douglas speaking at one of his firm's regular breakfast seminars

The SIA National President’s contributions were quite narrow, dominated by the issue of “suitably qualified” in the new model OHS laws (but he did struggle to get a word in edge ways).

It will be disappointing if the SIA’s submission to the Federal Government on the new laws focusses on this single and, to most, secondary issue, when the institute could achieve better results through other mechanisms and more creative thinking.

The only expansive comment from Silburn was the fact that harmonised plant regulations that were introduced over 10 years ago still resulted in different legislation in each State even though they reflected a common core. The high likelihood of this happening to the general OHS legislation was supported by the over panel members.

It is possible that the argy-bargy occurring now and at least for the next 6 weeks of public comment, will not achieve harmonisation as it was initially intended, and tried in a half-hearted way in the early 1990’s. The Federal Government could still end the debate by applying its powers under the Corporations Act, as it has in industrial relations. Some lawyers believe that this is the ace up the sleeve of the Federal Government.

The Law Council of Australia issued an interesting media statement on 30 September 2009. Below are the comments from that statement by John Corcoran, the Council’s President:

“The model laws strike the correct balance and adhere to fundamental criminal law principles. Governments must set aside jurisdictional differences and enact a uniform model OH&S law.”

“Despite the substantial differences in OH&S legislation across Australia, there is little evidence to suggest that the imposition of harsher penalties and evidentiary burdens in some jurisdictions has improved workplace safety performance. Nor has it been improved by the extension of prosecution powers to unions or other organisations.”

“There are undeniable benefits, both to workers and employers, in a uniform national OH&S system, but there is no evidence that workers in any jurisdiction will be worse off if a model law is adopted uniformly.”

These quotes give one of the clearest indications that the OHS harmonisation process about law and not safety management.

It could also be asked that if there is “little evidence to suggest that the imposition of harsher penalties and evidentiary burdens in some jurisdictions has improved workplace safety performance” what alternative strategies and penalties would the Council suggest for consideration? We will need to wait for their submission to the government for that.

Richard Johnstone, a leading academic and researcher into OHS law and enforcement polices argued in his 2003 book, “Occupational Heath and Safety, Courts and Crime”

“…that the court is an institution which, while appearing to dispense justice, is actually part of a broader process which decontextualises social issues. Courts, inspectors, prosecutors and defence counsel are involved in filtering or reshaping OHS issues during the prosecution process, both pre-trial and in court.”

Johnstone says that the process leads to a focus on the “event” rather than the broader context which includes the workplace management systems.

Johnstone succinctly lists the five key principles of effective OHS management, based on his work and that of his colleagues:

“demonstrated senior management commitment to OHS;

the integration of OHS management into core management and work activities;

the adoption of a systems approach to OHS management, involving risk assessment processes and an audit system to identify all risks and to determine which require urgent attention;

the ability of the OHS management system to accommodate to change, particularly changes to work methods, systems and processes, changes to substances, plant and equipment, and changes to the workforce; and

valuing worker input to the OHS management system.”

This is the context in which the new draft Model OHS laws should be considered. If the law does not support these principles than the law is being written for the lawyers and not for the improvement of safety for workers in Australia.

Much of the podcast discussion was about how one deals with what went wrong rather than providing guidance of how to manage to avoid the risk in the first place – the perpetual dichotomy between lawyers and safety professionals.

Kevin Jones

Business commentator is concerned over OHS and IR overlap

Respected business commentator, Robert Gottliebsen, has commented on the political and ideological challenge that Julia Gillard, Australia’s Minister for Workplace Relations, faces over the introduction of OHS model legislation.

Gottliebsen says there is a risk that the combative OHS structures in New South Wales could spread to the national context and that resisting this movement, funded and promoted by the trade unions, will be a substantial test for the Minister. In his Business Spectator article he says

“To make it tougher for Gillard, the draft [legislation] has clauses that will give unions around Australia NSW-style prosecution powers and clauses that water down training requirements. This will mix IR issues and safety and may well increase the injury rate.”

There is a persistent debate about the IR context of OHS and vice versa, which is the tail and which is the dog. Gottliebsen clearly sees the NSW experience as illustrating IR having too much influence over OHS management. (For those readers outside Australia, NSW is seen widely as a failure economically and politically)

“The sad thing is that once occupational healthy and safety becomes merely a tool of industrial relations, it is politicised and linked to wage claims and is not taken seriously. More workers go home injured or worse. So not only do we need English-style law, but we need law that isolates safety from industrial relations skirmishes.”

This is reminiscent of the days when industrial employment awards provided allowances for dangerous or unhealthy tasks, what was universally considered “danger money”.

Robert Gottliebsen is no fool and the significance of his article is the fact that the issue was covered by a finance and business commentator at all. It indicates the significance of what the Federal Government is proposing, politically, industrially and socially. the foundations of OHS legislation have remained basically the same since Lord Robens’ recommendations in England in the 1970’s. Australia has had OHS legislation since the early 1980’s. The new model OHS legislation should similarly be seen in such longevity and broad impact.

OHS may be a niche consideration for most people but how the government handles the negotiations leading to this law’s implementation will be a good indication of their political nous and their commitment to Australians.

Kevin Jones

Singapore’s Prime Minister speaks about business leadership

At last week’s Comcare conference there was considerable discussion about leadership and social capital. Coincidentally, Singapore’s Ministry of Manpower is running a Human Capital Summit this week.

The summit program indicates how these two concepts are dominating human resources and, through osmosis, other management streams such as OHS.

Mr Lee Hsien Loong, Singapore’s Prime Minister provided the opening address on 29 September 2009. In the speech he state four principles:

“we believe that human capital and talent can be nurtured….
we take a broad view of human capital and talent. We recognise that domain expertise is important, and organisations need specialists in fields relevant to their business. But organisations will also benefit from talent who come from unrelated fields, with diverse experiences, who can inject fresh perspectives…
we believe that the way to bring out the best in people is by creating a conducive environment. Talented people cannot be motivated by pressure, nor even by financial incentives alone…
talented individuals must feel a sense of responsibility to the community. Within their own fields, they have to help nurture the next generation of outstanding achievers.”

One could dismiss as “conference rhetoric” but similar commitments are being made by government officials and politicians throughout the world and the weight of numbers is turning into a movement.

If OHS professionals want to gain the ear of important decision makers, it will be necessary to “talk the talk”, even if that talk is jargon from an unfamiliar discipline, such as human resources. The challenge is to bring commitment and knowledge to underpin the “talk” because “hollow vessels make the most noise”.

Kevin Jones

Increasing risk of silicosis in the majority world

Australian safety expert and activist Melody Kemp reported from the annual meeting of the Asian Network for the Rights of Occupational Accident Victims (ANROAV) that was held in late September 2009 in Phnom Penh.

The meeting featured many stories about the increasing risk of silicosis in Asia. Melody writes in the 27 September edition of the blog “In These Times”:

“Silicosis afflicts workers working with gems, ceramics, rock blasting, drilling and crushing, and mining. It haunts unprotected workers in glassworks, mines and foundries, as well as those who live within reach of the dust. It’s usually fatal by the time it is diagnosed.

Largely eradicated in the economic North, silicosis is now the scourge of the Global South. Millions die from the illness each year.”

The size of the growing occupational and community threat is frightening.

“China alone reports over 100,000 new cases of industrial lung disease per year, and has more than 4 million existing cases. And those are just the official figures. Even industrially advanced South Korea sees over 1,000 new cases of occupational chest disease each year, reported Dr. Domyung Paek, a pulmonary specialist from Seoul National University.”

Melody has contacted SafetyAtWorkBlog asking for assistance in attracting occupational medical experts to Cambodia and other countries undergoing rapid industrialisation. She can be contacted by clicking HERE.

Kevin Jones

Harmonisation documents available but path is far from settled

On 25 September 2009, Australia’s Workplace Relations Ministers Council
(WRMC) agreed to release the draft legislation for public comment.

According to one media report, the New South Wales Finance Minister, Joe Tripodi,

“…moved at the [WRMC] meeting to have union prosecutions included in the new laws and was defeated by eight votes to one.”

The documents are now available for download HERE.

According to Safe Work Australia’s media statement:

“The suite of documents available for public comment includes a model Act, administrative Regulations and consultation Regulation Impact Statement (RIS). The RIS will allow individuals and organisations to comment on the potential costs and benefits of the proposed Regulations. The RIS has been prepared by Access Economics.”

Curiously, it also says that Access Economics is

“…surveying businesses across a range of sizes, industries and regions in an effort to obtain primary data on compliance costs and safety benefits.”

It is odd that this has not been done earlier to, perhaps, substantiate the claims that the OHS law changes will reduce costs and “red tape”.

At the Comcare Conference in Canberra in late September 2009, Geoff Fary, illustrated very effectively the small sector of business that would be affected by the national laws. Fary estimates that only around 1% of Australian businesses are likely to be liable to the “red tape” argument. Many of these companies could be expected to already have some form of national OHS management systems, perhaps through Australian management standards.

Whether the percentage of affected 1% or 5% it is hoped that the Access Economics survey does not focus only on this sector. Previous surveys have indicated a large ignorance or apathy about national harmonisation. This is likely because the vast majority of Australian businesses operate within a single jurisdiction so the harmonisation is considered irrelevant. The sad reality is that the OHS legislative structures in Australia for the next 10 to 20 years will be determined by the corporate sector, the regulators themselves, and the labour law firms and not necessarily by the small to medium-sized businesses for whom OHS can be the most burdensome.

SafetyAtWorkBlog had the chance to ask Geoff Fary, the assistant secretary of the ACTU, of his thoughts on the continuing opposition to harmonisation expressed by Troy Buswell, the Western Australia Treasurer. Fary said that harmonisation

“…could occur without Western Australia being involved. It couldn’t occur, I believe, without Victoria or New South Wales or Queensland being involved but because of the nature of the place and the geography of the place it could occur without Western Australia, and I think there is probably a strong possibility….that harmonisation will proceed in the absence of Western Australia.”

If this evenuates the harmonisation process becomes an academic exercise yet again.

Kevin Jones

Tag: politics

NSW contractor representative talks bluntly about the politics of OHS laws

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New Australian Embassy in Laos creating traffic safety issues.

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OHS law debate and Law Society position

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Business commentator is concerned over OHS and IR overlap

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Singapore’s Prime Minister speaks about business leadership

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Increasing risk of silicosis in the majority world

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Harmonisation documents available but path is far from settled

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