Category: law

Likely Process of State OHS Legislation

As part of the COAG meeting in early July 2008 the Ausralain governments have signed an Inter-Governmental Agreement for Regulatory and Operational Reform in Occupational Health and Safety. For those of you interested in how the replacement body for the Australian Safety & Compensation Council will operate and be funded, this is the blueprint.

However, part of the agreement on OHS reform does not sit right with the commitments we have heard from the government over the last 6 months or so.  Perhaps our interpretations and expectations were a little unrealistic.

Part 5 of the inter-governmental agreement says

PART 5 – OCCUPATIONAL HEALTH AND SAFETY REFORM
5.1 Model OHS Legislation
5.1.1 The Parties commit to work cooperatively to harmonise OHS regulation through the adoption and implementation of model OHS legislation.
5.1.2 The Parties support the National Review into Model Occupational Health and Safety Laws, announced by the Commonwealth Minister on 4 April2008.
5.1.3 Model OHS legislation will comprise a model principal Act supported by model OHS regulations and model codes of practice. Model OHS legislation will be developed by [ASCC replacement body] in accordance with the terms of this Agreement.
5.1.4 The development process for model OHS legislation will allow for interested persons to make representations concerning any proposed model legislation. Prior to submitting any proposed model legislation to WRMC, [ASCC replacement body] will give due consideration to any representations duly made to it and make such alterations to the proposed legislation as it sees fit.
5.1.5 The Parties agree that a national compliance and enforcement policy will be developed to ensure a consistent regulatory approach across all jurisdictions.
5.1.6 For the purpose of ensuring that model OHS legislation applies throughout Australia, each Party to this Agreement will, subject to its parliamentary and other law-making processes, take all necessary steps to enact or otherwise give effect to model OHS legislation within its jurisdiction within the timeframes agreed by WRMC.
5.1.7 For the purposes of subclause 5.1.1, the adoption and implementation of model OHS legislation requires each jurisdiction to enact or otherwise give effect to their own laws that mirror the model laws as far as possible having regard to the drafting protocols in each jurisdiction.
5.1.8 The adoption and implementation of model OHS legislation is not intended to prevent jurisdictions from enacting or otherwise giving effect to additional provisions, provided these do not materially affect the operation of the model legislation, for example, by providing for a consultative mechanism within a jurisdiction.
5.1.9 [ASCC replacement body] will make model OHS legislation publicly available on its website when it is agreed by WRMC. [ASCC replacement body] will hold and maintain all original copies of agreed model OHS legislation, including any subsequent amendments.

Clearly, there is not going to be one OHS Act and jurisdiction for Australia.  Many OHS organisations and businesses advocated for a single administrative structure but there was always the Constitution in the way.  The Workplace Relations Ministerial Council (WRMC) has suggested that each State structures its own OHS legislation “subject to its parliamentary and other law-making processes” (5.1.6 above)

Certainly States could not implement something that conflicts with the core obligations and conditions but the quote above clearly allows State politics to affect OHS operations within the State.  However you look at there is clearly room for the States to move.

However this movement will be tempered by having amendments and new legislation “approved” by the WRMC and then have each of the States amend their own OHS legislation to accommodate the other State’s changes, in order to keep close to national uniformity

5.5.2 Any Party that proposes to amend its legislation or introduce new legislation so as to materially affect the operation of model OHS legislation will submit the proposed amendments or new legislation to WRMC for decision. Each Party agrees that it will not progress implementation of any such amendment or such new legislation unless WRMC has endorsed the proposed amendment or new legislation.
5.5.3 Where WRMC approves an amendment to legislation or new legislation that affects the operation of the agreed model OHS legislation, all Parties will (unless otherwise agreed by WRMC) undertake all necessary steps to introduce appropriate changes to their legislation with a view to ensuring that OHS legislation remains nationally consistent.

In no way does any of this diminish the level of political activity related to OHS law making over the next few years.  In fact I would be surprised if the lobbyists are not revising their strategies now.

The structure sounds workable while there is a friendly relationship between State and Federal governments.  If one of the States changed to a conservative government the timelines or processes could vary considerably.  There has already been persistent questioning about New South Wales Premier Morris Iemma’s tenure over the last week.  For the reform process to work, the NSW Labor Party would need to provide a strong leader before the next election so as to avoid a conservative government.  New South Wales has some of the most (according to business groups) draconian OHS legislation.  If a Liberal government came into power, and with a clear mandate, OHS will become a battleground.

Workplace Safety Reforms and “Red-Tape”

As well as the National OHS Review Panel, there are several other reviews and investigations that are occurring that will change how OHS is managed and enforced in Australia. One process is under COAG (Coalition of Australian Governments) which met in early July 2008 and provided an update on its actions.

Sadly, most of the media reporting focussed on the issue of water in the Murray-Darling Basin and only a day or two later, a major draft report on climate change was released. OHS didn’t get much of a look-in.

OHS law reform is occurring under regulatory reform intending to reduce business “red tape”. I am not comfortable with this categorisation because there is no cut-off point. When is there too much red tape and when is there the right amount of red tape to ensure compliance or a good safety management scheme?

In brief, the National OHS Review is looking at harmonising the government legislation so that the administrative costs are lessened in those companies that operate across jurisdictional boundaries.

People see red tape as principally unnecessary paperwork and not the big picture of legislative reform. And, if their company operates only within one state, as most companies do, the reforms may seem of little relevance. OHS professionals may be putting emphasis on the review outcomes and processes way beyond what the public cares about.

The COAG processes, the red-tape review, gives OHS a paperwork image, an image where OHS is an unnecessary cost rather than an activity that minimises harm, saves lives and increases productivity and profitability. Marketing strategies or OHS promotions should include elements that counter this growing perception.

What annoys me the most is that the majority of the paperwork associated with OHS has been generated by lawyers and insurers who have advised that everything should be documented. “You don’t comply unless you can show that you comply”. The need for OHS paperwork has been imposed on business by forces outside that business and yet the business has to pay for the cost of preparing the paperwork. I don’t see the lawyers and insurers helping reduce red tape by saying that business needs less documented procedures and compliance.

Paperwork is an unavoidable business cost but we must remember that the decisions of other companies and organisations have generated that cost and are often unwilling to accept for that cost to be passed on to them, or deducted from their fees or premiums.

Business, by and large, in Australia will be unaffected by the various review processes into OHS management and OHS laws. The effect will be felt in the five years after the legal changes when the definition of compliance will change and systems will need to be changed to accommodate this.

Beaconsfield Mine Inquest

An article in today’s Australian newspaper reports on the coroner’s inquest into the death of Larry Knight in the Beaconsfield mine in 2006. It provides the first insight into the OHS report for the Melick investigation.

In October 2005, six months before Larry Knight’s death, the mine was closed after a minor rockfall. It is reported that mine management only allowed workers back into the mine after geotechnical advice.

Professor Michael Quinlan of the University of New South Wales wrote that, from an OHS perspective, this was a poor decision. Whether financial pressures were behind the permission to reenter the mine is under dispute.

Counsel for the mining company, Stephen Russell has

urged the court to exclude Professor Quinlan’s evidence because the University of NSW professor was not expert in geotechnical issues.

Valid point, perhaps, except that the coroners need to investigate deaths from a broad pool of opinion and expertise. I suspect that Michael Quinlan would be the first to admit he is not an expert on geotechnical matters.

It seems from the media report that the counsel for the mine believes that, even though an assessment would involve worker activity in a workplace, occupational health and safety considerations were not necessary at the time.

In an earlier report in the Mercury newspaper, counsel assisting the Coroner, Michael O’Farrell

argued against an earlier move by the mine’s lawyers to confine the inquest to seismic event on the day of the rockfall.
Mr O’Farrell told Launceston’s Supreme Court that attempts to contain the inquiry to a close examination of the geotechnical issues surrounding the collapse did not serve justice, and may lead to error.
He urged Coroner Rod Chandler to consider all types of evidence, “even red herrings”, in order to make the recommendations necessary to prevent similar mine deaths.
The inquest should also focus the mine’s safety processes and risk assessment procedures, as well the capacity of the state government’s workplace standards body, Mr O’Farrell said.

I have stressed elsewhere that I have no problem with companies deciding to do nothing after a risk assessment is undertaken. It is the right of the employer to accept or reject OHS advice. But what I object to is if a company then tries to avoid responsibility for that decision if it turns out to be a poor one.

The mine’s senior counsel, David Neal SC, then asked the Coroner, Rod Chandler, to review the cost-benefit of a detailed investigation into Larry King’s death as the proceedings are costing each party $20,000 per day.

David Neal, also requested 28 witnesses identified by the opposing counsel be excluded. I don’t think that relatives of dead workers would see these costs as an impediment to determining the cause of a loved one’s death. I find it extraordinary that such a suggestion would be made at all.

Independent okay for New Zealand’s sex industry

In 2000, sexworkers advocates in Australia published “A guide to best practice – Occupational health and safety in the Australian sex industry”. They tried for some time to have OHS authorities accept it as an industry-based code applicable to that particular State. As far as I know, they were unsuccessful but many of the elements of the guide have been picked up in various laws and licensing conditions since then. An updated soft version of the guide is available online, along with guidelines from other jurisdictions. (My edition of Safety At Work concerning the sex industry is still available as a free download)

I was reminded of this today when I saw a report from New Zealand about sexworker safety. It was reported that two Women’s Institute members from England have undertaken a world tour of brothel districts to determine the impact of local laws on prostitution. They were very impressed by New Zealand’s sex industry.

I am very impressed that an institution like the Women’s Institute undertook this activity. The realist approach to an activity that will never go away speaks volumes for how an organisation unfairly stereotyped is establishing a contemporary relevance.

Disclaimer: I treasure the WI Cookbook I purchased in the Lake District on my honeymoon over 20 years ago. It’s much better than some of the modern books that rely on manufactured ingredients.

The need for broad and open consultation on OHS law

Bill Calcutt makes some excellent points about the consultative strategy used by the Australian government in its recent 2020 summit.  The summit showed that this government had differentiated itself from the previous conservative one through “transparent evidence-based decision making” and a wide consultative base, even though the guests were selected. Sadly, I am not sure…

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The Crucial OHS Review Role of John Della Bosca

The New South Wales Industrial Relations Minister, John Della Bosca is a linchpin in the move for harmonisation of OHS law in Australia.

All attention is on New South Wales as it is said to have OHS laws that are the most onerous on employers.  Employer groups are calling for a greater preventative focus and more cooperation on improving workplace safety, specifically those areas of conflict that employer groups have in New South Wales.

Della Bosca supports the New South Wales OHS regime, at least lately he does, in reaction to the employer groups wanting, according to the Minister, a “version of harmonisation…aimed at reducing safety standards and eliminating the strong NSW laws.”

The NSW Minerals Council, reported in the Australian Financial Review on 13 June 2008 (page 19 sorry, there is no online reference), has concerns over the New South Wales operation of duty of care, double jeopardy, and appeal rights. 

The wobbly element in the NSW argy-bargy is the political future of John Della Bosca.  He has been stood down from his portfolio due to events relating to an alleged altercation in a restaurant that involves his wife, Belinda Neal, who is a member of the Federal Parliament. (Any internet search on “Della Bosca” is sure to turn up articles on this as the story has been running for almost two weeks).  Della Bosca is one of the strongest performers in New South Wales politics and has held the IR portfolio for a long time.  Political analysts are saying he will weather the storm but that his wife has little parliamentary future. 

In the mean time, Della Bosca’s strong position on OHS is absent in the political discussion and this will have ramifications in the harmonisation process.  The Treasurer, Michael Costa, the only other strong NSW performer, could take on the role but the longer Della Bosca’s absent, the more ground the government and its strong trade union support loses to the employers.

In a roundabout fashion, this also puts pressure on the recently-appointed Secretary of the Australian Council of Trade Unions, Jeff Lawrence.  Some unions are less than impressed with his political performance.  In Della Bosca’s absence, Lawrence needs to step up his lobbying and maybe continue it even when the Minister returns.

Two avoidable electrical fatalities

In February 2000, McDonald’s Australia Limited was fined $120,000 in the Industrial Relations Commission in Sydney and the lessor of the Wollongong restaurant, McDonald’s Properties (Australia) Pty. Ltd, was fined $150,000. Lyndhurst Trading Co Pty. Ltd, leased the restaurant and owned and operated the clamshell grills which electrocuted 19-year old, and was fined $40,000. 

According to a report by Jennie Mansfield, senior associate with Blake Dawson Waldron in October 2000

Michael Johnston was a 19 year old employee of Lyndhurst Pty Limited (the employer), a franchisee operating a McDonald’s restaurant in Wollongong on the South Coast of New South Wales. Johnston … was fatally electrocuted while cleaning behind a clamshell grill – standard equipment in McDonald’s restaurants.

Since installation, the grill had been pulled away from the wall every night for cleaning, and over time the cable attaching it to the power outlet contractors and fast food had become abraded. There was no accessible isolation switch in place and Johnston was electrocuted when he touched the exposed inner core of the cable while the power was still connected.

I was reminded of Michael Johnston’s death when I was told of a successful prosecution in New South Wales on 2 June 2008.

A Salamander Bay resort hotel has been fined $150,000 and its three directors $12,000 each following the electrocution of a 13-year-old boy at the hotel’s pool in December 2002.

The local boy and a friend were playing in the Salamander Shores Hotel pool without the permission of the staff when a tennis ball was thrown outside the pool fence.

The 13-year-old received an electric shock when climbing back over the pool fence to retrieve the ball, and died later of his injuries.

A WorkCover investigation concluded that the boy had stood on a corroded section of pipe carrying electrical wiring, which collapsed and cut through the insulation. 

Both situations involve a lack of adequate maintenance and equipment checking. Two deaths because of the invisible, but foreseeable, hazard of electricity and inadequate management.

Michael Johnstone had been a McDonald’s employee for 2 weeks. The 13-year-old was simply playing with a mate.

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