Tag: union

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

Executive resigns over work-related suicides

According to various media reports, a senior executive of France Telecome has resigned due to the mismanagement of the organisational restructure of the company which has been happening for almost two years and that, some say, has led to suicides.

One report says:

“France Telecom’s deputy chief executive Louis-Piere Wenes had faced calls to resign from employees who say management policies are responsible for the firm’s so called “spiral of death”.”

A UK newspaper includes a quote from M. Wenes:

“Despite the hard edge of the technological and economic fight, especially in our business, nothing can justify men and women putting an end to their lives. Today, like before, I cannot accept it.”

France Telecome’s media statement reads:

“Louis-Pierre Wenes, the current Deputy CEO in charge of Operations in France, has asked Didier Lombard, Chairman and CEO of France Telecom, to relieve him of his responsibilities. Didier Lombard has accepted this request and thanks Louis-Pierre for all that he has accomplished since December 2002 and for the significant contribution that he has made to the turnaround and the performance of the Group.

As of today, Stephane Richard is appointed Deputy CEO in charge of Operations in France.”

UPDATE: 7 October 2009

Additional information and links available HERE

Harmonised OHS laws – winners and losers

Andrew Douglas, an Australian OHS and employment relations lawyer, has followed up some his points made in a podcast on 2 October 2009 in an article available on his firm’s website.

Part of the article says

So what is different about the Model Act and how will it be interpreted? When interpreting an Act you always turn to the objects of the Act. Courts look at the provisions in dispute through the lens of the objects. For example, the Victorian OHS Act merely looks towards providing a safe place of work for workers and the public and makes it clear that interpretation should be directed by the principles of OH&S. It includes an object to work together without specific mention of the unions. Contrast this with the Model Act (MA). The objects include:

  • The primacy of a safety management system
  • Consultation including unions
  • Rather than being compliance focussed the objects are expansively drafted to include:

“The principle that workers…should be given the highest level of protection.”

As a result – all interpretations of the MA should be considered “aspirationally” rather than “compliance focused”.

The third dot point will be manna for those “best practice” advocates but clearly it will be very difficult to “comply” with this legislation.  That raises the question of whether one of the major political aims of the harmonisation processes – to cut red tape and thereby reduce compliance costs – can really be achieved.  Or is the compliance cost being made easier for the corporate few at the cost of the small business “many”?

A small but significant omission in the MA aims is “to eliminate hazards, at the source…”  This aim in the Victorian Act was extremely useful in advising companies to keep analysing risks in order to get to the core contributory factors on incident and hazards.  This motivation disappears in the MA with its focus on “reasonably practicable”.

“Reasonably practicable” allows business operators to consult on whether the control measure reaches what stakeholders feel is adequate and then stop.  “Close enough is good enough and, if not, WorkSafe will tell us.  If it is way off, WorkSafe may prosecute.”  This is lazy safety management.

Looking for the source of the hazard to eliminate it keeps business improving its state of knowledge on safety, looking for new solutions for difficult hazards.

Douglas identifies the winners and losers with this new proposed legislation:

Winners

  • “Business that crosses borders will have one regime to comply with. That is simpler, cheaper knowledge and easier to train operational staff/increased flexibility.
  • Unions – expanded rights of entry, locked into consultative mechanisms and cheaper to train in OH&S – across Australia flexibility.
  • Regulators – shared knowledge, resources, and training.

Losers

  • Small to middle size businesses who cannot afford the new documentation boom that follows duty compliance and whose officers will lack the knowledge and time to positively comply.”

It will be interesting to see the submissions from the small business sector, if available, over the next few weeks.  Similarly, the employer and industry associations will need to show how they represent the range of business interest of all their members and not just the multi-state companies.

The recent stats quoted by SafetyAtWorkBlog that showed a high degree of ignorance on harmonisation changes by most businesses are understandable because if you operate in only one State, why would harmonisation bother you?  Now the MA is out, the state impacts of the national program are becoming clearer and more worrisome.

Kevin Jones

[Please note that in this article WorkSafe is used as a generic term representing OHS regulators across Australia]

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

23rd suicide at France Telecome in 18 months

Adam Sage has been following the suicides that have occurred in France Telecome for some time.  On 23 September 2009 in the TimesOnline (a week later in The Australian newspaper??), Sage provides a useful summary and cogitation on the “cluster”.

But although this number of suicides in one company should be alarming, it is not really a cluster as the suicide rate for Telecome’s employees was only slightly above the national average of 14.7 per 100,000 people.  Sage reports that France is a country with a high comparative suicide rate.  The relevance to SafetyAtWorkBlog is that Sage goes on to identify work-related factors that contribute to suicides.

He quotes a sociology professor who says the French “define themselves by their professions”.  The risk with this basis for identity is always when the demand for the profession declines, one needs to redefine and this is not easy.

Sage finds a psychoanalyst who says that his patients feel isolated at work and have no support mechanisms.

A suicide prevention expert says that often a problem at home is the suicide trigger with someone who is feeling stressed at work.

Sage provides a potted history of the privatisation of France Telecome and speaks to a current employee bemoans the loss of camaraderie.

What is surprising about this article is that it seems France, and particularly France Telecome, are way behind other Western nations in having control measures in place for employee support programs and change management.

It is not as if France is ignorant of workplace stress issues or that workplace suicides have only occurred at France Telecome.  A major reason for its experiment with the 35-hour week was to

“…to take advantage of improvements in productivity of modern society to give workers some more personal time to enhance quality of life.”

In January 2008 (well before the current financial crises), the Institute for Economic and Social Research published “Workplace suicides highlight issue of rising stress levels at work “.  After some suicides at Renault and Peugeot it assessed the issues, acknowledged the trade union assertion that

“…excessive isolation of workers due to high workloads and fierce competition leads to a malaise in companies and thus call for a reflection on choices of work organisation.”

The article also reported

“The French Democratic Confederation of Labour (Confédération française démocratique du travail, CFDT) welcomed the ‘recognition of psychological factors being the cause of an occupational accident’ as it ‘opens the way to taking into account a form of suffering and malaise that, until now, has been minimised by companies’.”

A longer-lasting improvement will only come if this recognition is built on by all social structures in France.  Perhaps it should look across the channel at how the Health & Safety Executive and the corporate sector have responded to the report by Dame Carol Black – “Working for Health” – calling for an integrated approach to health management involving work, public health, health promotion and other elements of social capital.

France Telecome held an extraordinary Board meeting on 15 September concerning its suicide rate.  It made the following commitments:

  • “The national health, safety and working conditions committee (CNSHSCT) will be meeting on Thursday next week in the presence of Jean-Denis Combrexelle, the Ministry’s Director General for Employment.
  • To stop the phenomenon from spreading, it has been decided to immediately put in place a freephone number to promote dialogue. Psychologists from outside the company will be available to listen to and talk with any employees who may be having difficulties.
  • The first meeting for the negotiations on stress will be taking place on Friday September 18. On this occasion, the employee representatives will appoint an external consultancy to conduct an audit of the situation within France Telecom.
  • These negotiations will focus on the prevention of stress and psychosocial risks in the event of geographical or professional mobility among staff. To address this issue, a forward-looking employment and skills management (GPEC) system will be set-up with a view to offering employees and their direct managers visibility over their professional development and support.”

Didier Lombard, France Telecom’s Chairman and Chief Executive Officer, has set a tight timeframe for improvement.  On 15 September 2009 Lombard said

“December’s France Telecom will not be the France Telecom of today.”

Kevin Jones

UPDATE 30 SEPTEMBER 2009

Agence France Presse has reported a 24th suicide associated with France Telecom.  According to the report the 51-year-old male jumped to his death from an overpass onto a busy highway.  His suicide note to his wife expressly referred to the work environment as a reason for his action.

 

Deacons are first with harmonised OHS law comments

Michael Tooma speaking at the Safety Conference in Sydney in 2008
Michael Tooma speaking at the Safety Conference in Sydney in 2008

Michael Tooma, of the Australian law firm Deacons, is often the first labour lawyer to comment on Australia OHS Law matters and this week was no different.  While many of us are continuing to digest the draft OHS Act, Tooma has identified several issues of interest.  Some are discussed below.

[Tooma’s full legal update is available  HERE]

An expanded duty of care that may extend beyond workplace safety and OHS

The duty of care will include

  • “providing and maintaining a safe and healthy work environment;
  • providing and maintaining safe plant and structures;
  • providing and maintaining safe systems of work;
  • ensuring safe use, handling, storage and transport of plant, structures and substances;
  • providing adequate facilities for the welfare of workers carrying out work for the business or undertaking;
  • providing any information, training, instruction or supervision that is necessary; and
  • ensuring the health of workers and conditions at the workplace are monitored for the purpose of preventing illness or injury of workers.”

Most of these will be familiar to Australian OHS professionals and there is little that is controversial here but Tooma says

“This expanded duty has the capacity to broaden the existing duties significantly, extending their reach to any activities that may impact health and safety.   The extent of the duty as drafted in the model provisions arguably includes public safety matters…..  In addition to public safety, arguably the provisions are capable of applying to product safety matters.”

Tooma expands on this slightly in an article in SmartCompany in terms of an alternative to public liability.

“Tooma says this means duty of care will now extend to issues of public safety, including visitors, passers by and even trespassers, which could open businesses up to civil litigation claims from people who aren’t even employees of a business.

Tooma says the laws allow a member of the public to sue a workplace based on a breach of statutory duty, rather than a negligence claim, which often carries a higher penalty and is more difficult to defend in court.”

The extension of workplace safety obligations to include the impact of work processes on those outside the worksite has existed for some time but the draft legislation has the capacity to highlight this “opportunity” to some.  The integration of work and non-work exposures has some logic to it when one considers the growing push for integration of work health and public health management such as reducing cardio-vascular health risks through work-based initiatives.  It also broadens the social integration of OHS  and environmental management which larger companies are already managed through an integrated structure.

Union Right of Entry

There have been some frightful cases of union intervention, particularly in the construction industry, over the last few years.  Depending on one’s politics the union reps or organisers are either doing the right thing by their members or disrupting the workplace for their own secret agenda.  This situation does not reflect the vast majority of workplace consultations on OHS matters.

Prior to the introduction of the Victorian OHS Act which established an authorisation process for union organisers, SafetyAtWorkBlog remembers one prominent OHS lawyer, warning that “the sky will fall” over this issue.  It never did in Victoria and there is no reason to suspect that new right-of-entry provisions will be controversial in any workplaces other than those that already have fractious relationships between unions and management, and often on matters unrelated to safety.

However, Tooma says that

“The union right of entry provisions contained within the Model OHS Laws involve a far greater expansion of the rights of unions than those which exist in current OHS legislation throughout the jurisdictions, particularly in New South Wales, South Australia, Tasmania and the Commonwealth.  The Model OHS Laws give unions not only the power to investigate incidents but also to advise workers in relation to OHS matters.”

There was always going to be some changes in some jurisdictions due to the harmonisation process following the Victorian OHS Act 2004.  SafetyAtWorkBlog has faith in the authorities implementing sufficient safeguards that union right-of-entry will not be the hotbed of anxiety that some are suggesting.

More legal commentary on the draft OHS Law documents is likely to be released over the next few weeks as the drafts get digested and the six-week public comment phase kicks in.  It is sure to be the hot talking point as Australia moves into a bunch of OHS activities, conferences and awards events in October 2009 leading to Safe Work Australia Week.

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.”

Pages from Discussionpaper_ExposureDraft_ModelActforOHS_PDFThe 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

© Workplace Safety Services P/L (ABN: 68091088621) and SafetyAtWorkBlog, 2008-2024. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Kevin Jones and SafetyAtWorkBlog with appropriate and specific direction to the original content.

Concatenate Web Development
© Designed and developed by Concatenate Aust Pty Ltd