Guest workers and rural accommodation

There is a debate in Australia at the moment about easing the labour shortage by allowing “guest workers” into the country on temporary visas.  Australia has a bit of history in migrant labour but not as much as those nations who share land boundaries and have not been saddled with the White Australia Policy that Australia held onto for decades.

It is time for Australia to accept its geographical and political position in South East Asia and the Pacific, but how does this relate to workplace safety?

The current debate is about easing the labour shortage in agriculture and, specifically, fruitpicking.  For the guest worker scheme to work, Australia needs to show that guest workers are trteated with respect and are not being used as cheap labour, an accusation that is being bandied about.  Respect means good working conditions as well as a proper salary and part of those conditions with be accommodation.

Greens Senator, Sarah Hanson-Young, emphasised this on 18 August 2008:

Greens Senator, Sarah Hanson-Young
Greens Senator, Sarah Hanson-Young

“While it is pleasing to see the Government provide much needed assistance and training for our Pacific neighbours, especially with the injection of money back into their respective communities, we must ensure that the guest workers are not exploited,” said Senator Hanson-Young.  “Poor housing and contentious pay deductions are two issues that the Greens will be keeping a close eye on.”

The State of Victoria has a strong and large fruitgrowing area which. like most, relies on seasonal workers who reside on the property.  The accommodation needs of farm workers is neatly summed up in the Victorian guidelines for shearing.  Part of the guidelines state

In workplaces where accommodation and amenities are provided by the employer for employees, as is the case with shearers’ quarters on a property and amenities at the shearing shed, the amenities provided are regarded under the OH&S Act as part of the workplace. In this situation the general duty of care of the employer to provide and maintain for employees a working environment that is safe and without risks to health extends to the accommodation and amenities provided and to travel between the quarters and the shearing shed. (WorkSafe’s emphasis)

As has been proven in the past, migrant labour is frequently exploited, which is part of the trade unions’ concern with the scheme.  OHS regulators, farmers and rural employers need to be assessing these facilities now (if it is not too late in the season) so that new employees can begin work confident that they will be well looked after and amply rewarded for their work.  Even if there is no specific amenities compliance code or guidelines for this agricultural sector at the moment, there is plenty of information that indicates the decent way to treat guest workers.

What New South Wales unions need to give up for harmony’s sake

Gerard Phillips, a partner in the Middletons law firm, wrote in the 7 August 2008 edition of the Australian Financial Review about the belligerence of the trade union movement in New South Wales in relation to the harmonisation of OHS Laws in Australia.

He addresses two legal barriers to harmonisation that he believes should end.  In New South Wales unions have the legislative right to prosecute safety breaches.  Gerard argues that harmonisation won’t be achieved without the unions relinquishing this right.

It has been clear for months that New South Wales will have to give up some elements of its OHS legislation in order to allow harmony.  If it needs to save face, it would be lobbying now for enough resources at a national level to mount rigorous OHS enforcement.

As the Victorian OHS law is the front runner for a national OHS legal model, unions can take some solace from the extension of Victoria’s right of entry provisions that, prior to 1984, were tipped to generate industrial warfare In Victorian worksites.  There were, at the time, many lawyers touting for business by recommending a tightening of paperwork, vetting all credentials before letting “them” on your site and accompanying “them” wherever they go.

Business achieved some important concessions with the registration of ARREOS (Authorised Representatives of Registered Employee Organisations) and a legal comeback if the ARREOS breach their authority, but an ARREO visit can still be daunting as WorkSafe found in February 2008.

WorkSafe advises that

An ARREO may enter a workplace during working hours to enquire into a suspected contravention of the OHS Act or regulations. The suspected contravention must relate to or affect the work being carried out by people who are:
• members of the registered employee organisation;
• subject to a certified agreement which binds the registered employee organisation; or
• eligible to be members of the registered employee organisation and are not subject to a certified agreement.

Gerard Phillips also can’t see why a union should have prosecutorial powers that no one else, other than the OHS regulator, has.  Although he acknowledges that for enforcement to work any prosecutor must be “appropriately funded”.  If the New South Wales government decided to reduce WorkCover NSW costs by sharing responsibility, I don’t think the economic benefit outweighed the political damage.

Phillips also sees no great difficulty in the onus of proof being held by the prosecutor.  This authority is already in the legislation of Victoria and Western Australia with no complaints from the union movement that safety standards have declined as a result.  The unions will need to give ground on having the onus rest with the business owner, and the employer groups will dance a gig when they do.

I remember Australia’s Royal Commission into the building industry where employer groups asserted, with little proof, that OHS is used by unions for purposes of industrial action.  Terence Cole in his final report illustrated the accusations well.

“….employers have raised concerns about the unions raising industrial concerns under the guise of safety issues, and the adoption of the role of safety policemen by unions to the exclusion of the statutory inspectorates. The issue of safety is a constant source of friction in the workplace, either because it is not being appropriately addressed, monitored, enforced, or is being abused.”

This may or may not be true, however unions in New South Wales risk providing the truth that employer associations have long desired if they continue in holding onto a strong poker hand when the other players have changed to playing whist.

Is there anything worn under your PPE?

Associated Press has reported on an initiative by a US postal worker to have a kilt as an option for his work uniform.  According to media reports, Dean Peterson has lobbied his union colleagues to push for the clothing option because

“Unbifurcated Garments are far more comfortable and suitable to male anatomy than trousers or shorts because they don’t confine the legs or cramp the male genitals the way that trousers or shorts do.”

This is not the first time that kilts have been seriously proposed as workwear. Workplace kilts are already on sale and I remember an Australian building worker wearing one some years ago. Utilikilts is probably the best known supplier of this garb.

Whether I would wear one after over 40 years of long trousers I am not sure but with increasing hazards of working outdoors in summer, I think the kilt should be seriously considered. However I would be interested in hearing of any reasons to not permit this option on the workplace safety grounds.

Beaconsfield Coronial Inquest Walkout

On 22 July 2008 the Tasmanian Coroner continued with his inquest into the death of Larry Knight at the Beaconsfield mine on 25 April 2006. Shortly after the start the legal team representing the mine walked out. Newspaper, radio and TV have covered this extraordinary development. Other reports in SafetyAtWorkBlog told of the lawyers’ attempts…

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OHS Law Review and the International Labour Organisation

Several submissions, from those currently publicly available, to Australia’s National OHS Law Review have referenced OHS conventions of the International Labour Organisation (ILO). It is early days in the process of assessing submissions and one would expect more details on ILO Conventions to come from submissions of the ACTU and ACCI, both members of the…

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Australian employer group at the ILO

On 9 June 2008, Peter Anderson, CEO of the Australian Chamber of Commerce and Industry (ACCI), addressed the 2008 International Labour Conference. The ACCI is an employer association that under the previous CEO, Peter Hendy, was seen by some as a business and economic mouthpiece for the then conservative government of Prime Minister John Howard. Whether this was true or not, it is interesting that Peter Hendy is now a political adviser to the Opposition Leader, Brendan Nelson.

Anderson spoke at the ILO conference about how the ACCI needs modernising whilst maintaining its core values. The only major change in Australia over the last 12 months has been the replacement of a conservative government with a labor government representing a substantial cultural and political switch. The ACCI has realised that it was too closely linked to the conservative political parties and, although business is strongly capitalist, to better represent its constituents, it needed to reflect the values of a broader range of its constituents.

These values, Anderson reiterates, are commitments to

  • an open market;
  • private sector entrepreneurship; and
  • employment as a social motivator.

Anderson states that

“we must do things differently, and not fall back to old prejudices or failed economic prescriptions when things go tight.”

He urges the ILO to provide social policy with a higher profile and advises the government to use public funds to enable a private investment framework. He emphasise that the ACCI can work well with unions and specifically addresses contemporary OHS matters.

“We can now show leadership to industry in this regard [working with trade unions], as there is common work to be undertaken – health and safety, work and family and workforce skills but a few examples.”

Peter Anderson emphasises, perhaps too much, Australia’s position in the Asia-Pacific region. He describes the region as “the powerhouse of globalisation”. This is riding on the coat-tails of China and India and applies Asia-Pacific in a very broad sense.

The ACCI speech at the ILO conference was carefully balanced to maintain its position as an employer delegate and to flag to its members that its approach will change. It outlines a changed approach which should be interesting in the upcoming hard negotiations necessary on industrial relations and workplace safety.

The Challenge for Australia’s OHS Law Review

Everyone is eagerly anticipating the issues paper of Australia’s review into model OHS law but talking with many people at the SIA08 conference this week, it seems that people are anticipating more from the review than the review was established. The review will be looking at OHS law and law establishes the parameters for managing workplace safety. However, OHS law is what underpins safety management and it is easy to focus on the law to the detriment of managing safety in workplaces.

Employers don’t need to be familiar with the intricacies of OHS law. They need to understand their legal obligations. Legal advice is usually sought if something goes wrong. So how will the current OHS law review change how we manage safety? I asked Tracey Browne of the Australian Industry Group for her opinion. Tracey said the review “has the potential to be revolutionary but everyone needs to realise that changing the law is not going to change anything on its own.”

To progress OHS law many of the issues that have come to dominate discussion over the last 30 years will need to be put aside. Of all the participants in the review process, Tracy believes that the OHS regulators may have the hardest time in achieving this position.
Cathy Butcher of the Victorian Trades Hall agrees that there are considerable agreements on OHS law but she identified some substantial sticking points. In a panel discussion at the Safety In Action Conference she listed the following big differences:

  • The removal of “reasonably practicable”
  • The union right to prosecute
  • The reintroduction of “risk assessment” into the Victorian regulations and OHS Act
  • Compliance Codes to “go the way of the dodo”

Whether this is an ambit claim will be seen soon through the OHS Law Review process.