Regulating Work

This chapter examines the regulation of ‘work’: principally the circumstances in which labour is engaged and the conditions attaching to the work relationships which are consequently formed and carried on. Fundamentally, this is the subject area labelled ‘labour law’in modern-day legal, academic, and professional discourse. This chapter also explores how some issues in the regulatory literature impact upon this field. One of the central arguments in this chapter is that instrumental regulation in the field of labour law is not a relatively modern phenomenon. Rather, the reading of the historical literature pertaining to labour under earlier economic and social conditions shows that the instrumental regulation of the labour market by the state and its courts has been the dominant form of law in this field for centuries. Readership: academics working on any area of law or in socio-legal research

The legal concept of work-related injury and disease in Australian OHS and workers' compensation systems

This paper analyses the concept of ‘work-relatedness’ in Australian workers’ compensation and occupational health and safety (OHS) systems. The concept of work-relatedness is important because it is a crucial element circumscribing the limits of the protection afforded to workers under the preventative OHS statutes, and is a threshold element which has to be satisfied before an injured or ill worker can recover statutory compensation. While the preventive and compensatory regimes do draw on some similar concepts of work-relatedness, as this paper will illustrate, there are significant differences both between, and within, these regimes.

Dismantling worker categories: the primary duty of care, and worker consultation, participation and representation, in the model Work Health and Safety Bill 2009

Late in 2009, the Australian Workplace Relations Ministers' Council endorsed the model Work Health and Safety Bill 2009, which is to be adopted by all Australian governments (federal, state and territory) from 01 January 2012. This paper describes and analyses two key sets of provisions in this model legislation. The first establishes a 'primary' duty of care imposed not on 'employers' but on persons conducting a business or undertaking, and owed to all kinds of workers engaged, directed or influenced by the person conducting the business or undertaking. The second encompasses broad duties on all persons conducting a business or undertaking to consult with workers who carry out work for the business or undertaking and who are directly affected by a work health and safety issue, and to facilitate the election of health and safety representatives representing all workers who carry out work for the business or undertaking. These provisions arguably make a significant contribution to solving a problem faced by occupational safety and health regulators around the world – modifying regulation to accommodate all forms of precarious work.

Work health and safety and the criminal law in Australia

This paper analyses recent Australian debates about the use of the criminal law in work health and safety regulation. It argues that these debates have to be seen in the context of the historical development of work health and safety regulation in the United Kingdom and Australia. The first part of the paper shows that, since the late 19th century, contraventions against the Australian work health and safety statutes have not been regarded as 'really criminal', and have largely been addressed by informal measures and, since the 1980s, by administrative sanctions. When prosecutions have taken place, work health and safety issues have been individualised and decontextualised, so that defendants have been able to reduce their culpability in the eyes of the court. Significant legal barriers have undermined the use of the crime of gross negligence manslaughter against corporations and individuals. The second part of the paper analyses recent debates about restructuring gross negligence manslaughter and bolstering the 'criminality' of offences under the work health and safety statutes. It argues that the latter debate has been constrained by the historical forces examined in the first part of the paper, and that the current position, embodied in the recently harmonised Work Health and Safety Acts, favours attempting to recriminalise the work health and safety legislation. The debate about reforming gross negligence manslaughter has stalled.

Take me to your employer: the organisational reach of occupational health and safety regulation

[Conclusion] We have explored two dimensions of the Australian OHS statutes which enable statutory OHS duties to reach more than one employer or self-employed person within a corporate group or network. First, most of the OHS statutes contain provisions extending the reach of employer’s duty beyond the employer’s employees. One legislative technique is to deem contractors and their employees to be employees of the principal contractor. Another imposes duties on employers and self-employed persons to persons who are not employees, so that employers and self-employed persons can be responsible for the OHS of firms, and those they engage, lower in the contractual chain. These duties are non-delegable, meaning that the principal contractor cannot seek to delegate OHS duties to firms lower in the contractual chain. Second, new Victorian ‘shadow officer’ provisions can be applied to remove difficulties and doubt as to the liability of partners in a partnership, officers of unincorporated associations, joint venturers, and holding and subsidiary companies within corporate groups. While the provisions can be argued simply to confirm that a partner who fails to take reasonable care in relation to OHS will be guilty of an offence, we demonstrate that there are very real benefits to having ‘shadow officer’ provisions which remove uncertainties about the liability of unincorporated associations, joint ventures and corporate groups. Perhaps most significantly, the Victorian corporate officer provisions have the potential to extend liability to individuals and other entities within organisational structures, where those individuals and entities make or participate in making decisions that affect the whole or a substantial part of the organisation’s business, and are responsible for an OHS offence having been committed, due to their failure to take reasonable care. We suggest that similar provisions should be included in all OHS statutes, to overcome at least some of the barriers limiting group responsibility for OHS statutory duties.

Supply chain regulation to protect the occupational health and safety of vulnerable workers

The last two decades have witnessed a fragmentation of previously integrated systems of production and service delivery with the advent of boundary-less, networked and porous organisational forms. This trend has been associated with the growth of outsourcing and increased use of contingent workers. One consequence of these changes is the development of production/service delivery systems based on complex national and international networks of multi-tiered subcontracting increasingly labelled as supply chains. A growing body of research indicates that subcontracting and contingent work arrangements affect design and decision-making processes in ways that can seriously undermine occupational health and safety (OHS). Elaborate supply chains also present a regulatory challenge because legal responsibility for OHS is diffused amongst a wider array of parties, targeting key decision-makers is more difficult, and government agencies encounter greater logistical difficulties trying to safeguard contingent workers. In a number of industries these problems have prompted new forms of regulatory intervention, including mechanisms for sheeting legal responsibility to the top of supply chains, contractual tracking devices and increasing industry, union and community involvement in enforcement. After describing the problems just alluded to this paper examines recent efforts to regulate supply chains to safeguard OHS in the United Kingdom and Australia.

Australian health and safety inspectors’ perceptions and actions in relation to changed work arrangements

Extensive international research points to an association between changed work arrangements, especially those commonly labelled as contingent work, with adverse occupational health and safety (OHS) outcomes. Research also indicates these work arrangements have weakened or bypassed existing OHS and workers’ compensation regulatory regimes. However, there has been little if any research into how OHS inspectors perceive these issues and how they address them during workplace visits or investigations. Between 2003 and 2007 research was undertaken that entailed detailed documentary and statistical analysis, extended interviews with 170 regulatory managers and inspectors, and observational data collected while accompanying inspectors on 118 ‘typical’ workplace visits. Key findings are that inspectors responsible for a range of industries see altered work arrangements as a serious challenge, especially labour hire (agency work) and subcontracting. Though the law imposes clear obligations, inspectors identified misunderstanding/blameshifting and poor compliance amongst parties to these arrangements. The complexity of these work arrangements also posed logistical challenges to inspectorates.

Development of a new regulatory model for occupational health and safety in the New South Wales coal industry: an issues paper for the New South Wales Department of Mineral Resources

This paper addresses the regulatory issues arising in developing a new regulatory model for the New South Wales Coal Industry. As such, it identifies the relevant literature on this subject, the options available for reform, and the experience of Australian and key international bodies responsible for the development of regulatory standards in this area. In particular it: Identifies the main shortcomings in the existing regulatory approach; Identifies the potential roles/main strengths and weaknesses of different types of standards (eg specification, performance, process and systems-based rules) and potential “best practice’ combinations of standards; Examines the appropriateness of the current regulatory regime whereby the general OHS legislation (including the general duty provisions) applies to mining in addition to the large body of regulation which is specific to mining; Identifies the importance of, and possible means of addressing, issues of worker participation within the coal mining industry; Draws on the literature on what motivates companies and individuals for the purpose of recommending key provisions for inclusion in new legislation to provide appropriate personal and organisational incentives; Draws on the literature on major hazards facilities to suggest the appropriate roles for OHS management systems and safety reports or comparable approaches (eg mine safety management plans); Draws on the United Kingdom (UK) and United States of America (USA) experience of coal mine safety and its regulation for comparative purposes, and for insights as to what sort of regulation most effectively reduces work related injury and disease in coal mining; Examines the relevant roles of International Labour Organisation (ILO) Conventions; Examines the extent to which different regulatory regimes would be appropriate to open cut and underground coal mining; and Examines options for reform. This paper is focussed specifically on the issues identified above.

Work and family : the perception of balance among female teachers in northern Malaysia

Women’s participation in paid employment has become a common scenario even in non-western developing countries. For example in Malaysia, the trend is growing although the traditional gender role remains strong in Malaysian society. Even though working, women are still expected to assume major responsibilities at home. Thus, as opposed to men, women in this society face the challenge to satisfactorily balance work and family. This study was carried out to explore how Malaysian women perceive the meaning of a balanced work-family life. Sampling women teachers, the interview findings revealed that work-family balance was mainly perceived in terms of an individual’s ‘ability to fulfill role obligation’ appropriately in both the work and family domains. A few participants also viewed balance in the context of role satisfaction and role interference. Overall, the results support the assumption in the literature that perceptions of work-family experience are not universal, rather, the construct of work-family balance is culture-specific.

Current status and future trends of school counseling in Australia

School counselling in Australia is presently in a state of flux and adaptation. Within this period of change and adjustment, three key points are acknowledged. First structural and organisational change is a constant in the field of school counselling in the Australian context. Second, despite this, the nature of the school counselling role tends to remain the same but with new areas of need being added, such as self harm and cyberbullying. Third, each state and territory in Australia has differing role statements and training requirements for its school counsellors. This paper initially reviews the historical context of school counselling in Australia, including changes and developments in qualifications and training programs. A description is then provided of the current status of school counselling including the differences among the state systems. Issues such as work intensification, uncertainty of tenure, supervision, ethical issues and online counselling are discussed. The scant research into the effectiveness of the profession is outlined, followed by future recommendations.

Food price volatility and hunger alleviation-can Cannes work

Recent years have seen global food prices rise and become more volatile. Price surges in 2008 and 2011 held devastating consequences for hundreds of millions of people and negatively impacted many more. Today one billion people are hungry. The issue is a high priority for many international agencies and national governments. At the Cannes Summit in November 2011, the G20 leaders agreed to implement five objectives aiming to mitigate food price volatility and protect vulnerable persons. To succeed, the global community must now translate these high level policy objectives into practical actions. In this paper, we describe challenges and unresolved dilemmas before the global community in implementing these five objectives. The paper describes recent food price volatility trends and an evaluation of possible causes. Special attention is given to climate change and water scarcity, which have the potential to impact food prices to a much greater extent in coming decades. We conclude the world needs an improved knowledge base and new analytical capabilities, developed in parallel with the implementation of practical policy actions, to manage food price volatility and reduce hunger and malnutrition. This requires major innovations and paradigm shifts by the global community.

The effects of metabolic work rate and ambient environment on physiological tolerance times while wearing explosive and chemical personal protective equipment

This study evaluated the physiological tolerance times when wearing explosive and chemical (>35kg) personal protective equipment (PPE) in simulated environmental extremes across a range of differing work intensities. Twelve healthy males undertook nine trials which involved walking on a treadmill at 2.5, 4 and 5.5 km.h-1 in the following environmental conditions, 21, 30 and 37 °C wet bulb globe temperature (WBGT). Participants exercised for 60 min or until volitional fatigue, core temperature reached 39 °C, or heart rate exceeded 90% of maximum. Tolerance time, core temperature, skin temperature, mean body temperature, heart rate and body mass loss were measured. Exercise time was reduced in the higher WBGT environments (WBGT37work intensities (5.5<4<2.5 km.h-1; P<0.001). The majority of trials (85/108; 78.7%) were terminated due to participant’s heart rate exceeding 90% of their maximum. A total of eight trials (7.4%) lasted the full duration. Only nine (8.3%) trials were terminated due to volitional fatigue and six (5.6%) due to core temperatures in excess of 39 °C. These results demonstrate that physiological tolerance times are influenced by the external environment and workload, and that cardiovascular strain is the limiting factor to work tolerance when wearing this heavy multi layered PPE.

The effect of work-integrated learning in highlighting the complexity of work : a pilot study of work self-efficacy

This pilot study aims to examine the effect of work-integrated learning (WIL) on work self-efficacy (WSE) for undergraduate students from the Queensland University of Technology. A WSE instrument was used to examine the seven subscales of WSE. These were; learning, problem solving, pressure, role expectations, team work, sensitivity and work politics. The results of this pilot study revealed that, overall the WSE scores were highest when the students’ did not participate in the WIL unit (comparison group) in comparison to the WIL group. The current paper suggests that WSE scores were changed as a result of WIL participation. These findings open a new path for future studies allowing them to explore the relationship between WIL and the specific subscales of WSE.

Challenging the myths about flexible work in the ADF

In May 2011, the Minister for Defence requested a review into the treatment of women in the ADF following allegations of inappropriate conduct at the Australian Defence Force Academy. The Australian Human Rights Commission (AHRC) initiated the review under the leadership of the Federal Sex Discrimination Commissioner, Elizabeth Broderick, who challenged the ADF to improve its culture and build a more inclusive environment for its members. The need for flexible work arrangements (FWAs) emerged as a central issue in the review, not least as a mechanism for improving the recruitment and retention of women in the ADF. The review, and its subsequent audit report, concluded that flexibility would strengthen the ADF but that there were cultural and structural obstacles. This article addresses the uptake of formal and informal FWAs in the ADF. The study is part of an Australian Research Council funded project, led by Queensland University of Technology, which addresses how the timing, location and tasks of work are negotiated in exchanges between managers and employees.