workplace – Page 37 – 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

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]

Queensland take on Model OHS laws

Cooper Grace Ward is another Australian law firm who has issued a brief alert on the proposed OHS model laws in Australia. As a Queensland-based firm it has a slightly different take on the draft Safe Work Act

Duty of Care

Cooper Grace Ward see the introduction of “reasonably practicable” as a new duty of care for employers, although the concept is well-established in other States. It describes “reasonable practicable” below

“What is reasonably practicable will be determined by taking into account and giving appropriate weight to:

the likelihood of the hazard or risk occurring;

the degree of the harm that might result from the hazard or risk;

what the person concerned knows, or ought reasonably to know about the hazard and the risk and ways of eliminating or minimising the hazard or the risk;

the availability and sustainability of ways to eliminate or minimise the hazard or risk; and

the cost of eliminating or minimising the risk.”

The firm says this may be “a more sensible approach than the current Queensland standard.”

Lawyers tend to like “reasonably practicable” because it is a difficult concept to define in practice and often OHS lawyers are asked for opinion. Employer associations like it because it can provide some larger business operators with the flexibility to minimise safety costs by tweaking the OHS management so that after an incident “what we thought was reasonably practicable, obviously isn’t, and we sincerely apologise” – not a lot of comfort to the grieving widow or widower.

The concept is also contrary to the dominant (if flawed) attitude of the small- to medium-sized business owner who wants simply to know if they comply. Most businesses in this sector just want to avoid the unnecessary complication and cost that a workplace injury would cause or a visit from an OHS inspector could cause. “Reasonably practicable” removes certainty from the business operator and leaves a large grey area of OHS compliance. This can lead to increased OHS costs by needing to go outside to a lawyer or OHS professional where, before, there was enough skill in-house to achieve a safe level of compliance (if such a think ever existed).

Cost to employers

Cooper Grace Ward should be congratulated for thinking ahead to how the new rules will affect businesses rather than just legal opportunities.

Employer’s will have new OHS obligations “for example, imposing a positive obligation on all employers to engage employees in a consultation process when implementing and monitoring any risks within the workplace.”

“Contrary to the Government’s claims this process may result in a decrease in business efficiencies as more time is spent negotiating methods of improving safety than actually doing so, and by reducing employee efficiency as more work time is spent assisting and negotiating the manner in which workplace health and safety systems will be improved instead of conducting their usual duties.

Costs will also be incurred to business as employers will be expected to provide those employee representatives who are acting in safety roles with adequate facilities and external training to adequately perform their role. Whilst employee representatives currently exist in Queensland, the proposed scope of their powers will be increased by the proposed Act.”

Cooper Grace Ward’s article also discusses union right of entry.

The public comment phase is only one week old, with another five to go. The legal fraternity has various approaches to the proposed OHS law that most often reflect their client base. The first law firms discussing the draft laws were those with a National coverage, understandably. Many Victoria-based law firms have come out sounding a little smug as it is largely the Victorian OHS Act which has been used as the skeleton for the National legislations.

Cooper Grace Ward is an example of a smaller, more localised firm that, in some ways, is closer to its clients or, at least, clients in the smaller business sector which, OHS regulators agree, is the sector where OHS incidents can cause greater proportional damage and where the greater business risks are taken.

Kevin Jones

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

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, 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

Tag: workplace

NSW contractor representative talks bluntly about the politics of OHS laws

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Executive resigns over work-related suicides

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Harmonised OHS laws – winners and losers

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