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.

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.

Engaging expert contractors: The work health and safety obligations of the business or undertaking

This article examines the legal principles governing the statutory work health and safety general duties of principals who engage expert contractors to carry out work beyond the expertise of the principal. The article examines recent case law in which superior courts accepted the principal’s argument that the engagement of the expert contractor was sufficient to discharge the principal’s statutory work health and safety general duty. It then reframes the debate within the principles of systematic work health and safety management, and key provisions in the harmonised Work Health and Safety Acts—the primary duty of care; the key underpinning principles; the positive and proactive officer’s duty; and the horizontal duty of consultation, cooperation and coordination. It argues that it is likely that courts examining the issue of the principal’s work health and safety obligations under the harmonised Work Health and Safety Acts will require principals to do more to actively manage the work of expert contractors to ensure the health and safety of all workers and others potentially affected by the work.

A work-based research assessment of the impact of 'lean manufacturing' on health and safety education within an SME

Globalisation has had a major impact on the engineering industry as pacific Rim countries undercut manufacturing costs and provide a more cost-effective location for many businesses. Engineering in Nortehrn Ireland has mostly declined owing to increased competition from these countries. Engineering companies are now forced to streamline their production processes and employ cost-reducing practices in order to meet customer demands at reduced prices. This article aims to analyse the effects of one such streamlining endeavour which was first introduced after World War II in Japan- 'lean manufacturing' . 'Lean manufacturing' aims to reduce all wasteful activities within the production process in order to improve productivity, while reducing manufacturing costs. The work-based project under consideration was concerned with the impact 'lean manufacturing' may have on health and safety performance and education within an engineering company. The focus of the project was to determine through work-based research, and quantitative analysis, the employee perception on health and safety: has it changed (either positively or negatively), as a consequence of implementing 'lean manufacturing'.

Management of safety climate and the psychosocial work environment – new challenges for occupational health and safety professionals?

Introduction: The work environment and Occupational Health and Safety (OHS) practice have changed over the last number of years. A holistic OHS approach has been recommended by the authorities in this field (e.g. World Health Organisation (WHO), European Agency for Safety and Health at Work (EU-OSHA) and the International Labour Organisation (ILO)). This involves a unified action engaging elements of the physical and psychosocial workplace with greater focus on prevention and promotion of health and wellbeing. The health and safety practitioner (HSP) has been recognised as one of the main agents for implementation of OHS. Within an organisation they act as a leader of change and a professional who shapes health and safety while safeguarding the wellbeing of individuals at work. Additionally, safety climate (SC) has been developed as an essential concept for OHS of an organisation, its productivity and the wellbeing of its workforce. Scholars and practitioners have recognised the great need for further empirical evidence on the HSP’s role in a changing work environment that increasingly requires the use of preventative measures and the assessment and management of psychosocial work-related risks. This doctoral research brings together the different concepts used in OHS and Public Health including SC, Psychosocial workplace risks, Health Promotion and OHS performance. The associations between these concepts are analysed bearing in mind the WHO Healthy Workplace Framework and three of its main components (physical and psychosocial work environment and health resources). This thesis aims to establish a deeper understanding of the practice and management of OHS in Ireland and the UK, exploring the role of HSPs (employed in diverse sectors of activity) and of SC in the OHS of organisations. Methods: One systematic review and three cross-sectional research studies were performed. The systematic review focussed on the evidence compiled for the association of SC with accidents and injuries at work, clarifying this concept’s definition and its most relevant dimensions. The second article (chapter 3) explored the association of SC with accidents and injuries in a sample of workers (n=367) from a pharmaceutical industry and compared permanent with non-permanent workers. Associations of safety climate with employment status and with self-reported occupational accidents/injuries were studied through logistic regression modelling. The third and fourth papers in this thesis investigated the main tasks performed by HSPs, their perceptions of SC, health climate (HC), psychosocial risk factors and health outcomes as well as work efficacy. Validated questionnaires were applied to a sample of HSPs in Ireland and UK, members of the Institute of Occupational Safety and Health (n=1444). Chi-square analysis and logistic regression were used to assess the association between HSPs work characteristics and their involvement in the management of Psychosocial Risk Factors, Safety Culture and Health Promotion (paper 3). Multiple linear regression analysis was used to determine the association between SC, HC, psychosocial risk factors and health outcomes (general health and mental wellbeing) and self-efficacy. Results: As shown in the systematic review, scientific evidence is unable to establish the widely assumed causal link between SC and accidents and injuries. Nevertheless, the current results suggested that, particularly, the organisational dimensions of SC were associated with accidents and injuries and that SC is linked to health, wellbeing and safety performance in the organisation. According to the present research, contingent workers had lower SC perceptions but showed a lower accident/injury rate than their permanent colleagues. The associations of safety climate with accidents/injuries had opposite directions for the two types of workers as for permanent employees it showed an inverse relationship while for temporary workers, although not significant, a positive association was found. This thesis’ findings showed that HSPs are, to a very small degree, included in activities related to psychosocial risk management and assessment, to a moderate degree, involved in HP activities and, to a large degree, engaged in the management of safety culture in organisations. In the final research study, SC and HC were linked to job demands-control-support (JDCS), health, wellbeing and efficacy. JDCS were also associated with all three outcomes under study. Results also showed the contribution of psychosocial risk factors to the association of SC and HC with all the studied outcomes. These associations had rarely been recorded previously. Discussion & Conclusions: Health and safety climate showed a significant association with health, wellbeing and efficacy - a relationship which affects working conditions and the health and wellbeing of the workforce. This demonstrates the link of both SC and HC with the OHS and the general strength or viability of organisations. A division was noticed between the area of “health” and “safety” in the workplace and in the approach to the physical and psychosocial work environment. These findings highlighted the current challenge in ensuring a holistic and multidisciplinary approach for prevention of hazards and for an integrated OHS management. HSPs have shown to be a pivotal agent in the shaping and development of OHS in organisations. However, as observed in this thesis, the role of these professionals is still far from the recommended involvement in the management of psychosocial risk factors and could have a more complete engagement in other areas of OHS such as health promotion. Additionally, a strong culture of health and safety with supportive management and buy-in from all stakeholders is essential to achieve the ideal unified and prevention-focussed approach to OHS as recommended by the WHO, EU-OSHA and ILO.

Correct procedures and cutting corners: a qualitative study of women's occupational health and safety in a beauty therapy industry

Objective: To examine the context of occupational health and safety related to blood-borne communicable diseases practice. Methods: A case study approach using qualitative semi-structured interviews with five key informants who represented different sectors of the beauty therapy industry in South Australia. Results: Four main themes were identified: (i) exposure to blood and blood-borne communicable diseases; (ii) prevention in practice; (iii) OH&S problems; and (iv) industry needs. Conclusion: Key OH&S issues in the beauty therapy industry include: power relationships between employers and employees, equipment costs, the need for more continuing education, and monitoring of practitioners. Implications: Economic constraints, continuing education, and government regulation of the beauty therapy industry are highlighted as significant areas for further consideration in addressing the OH&S needs of practitioners and their clients.

Hepatitis C in the workplace : a survey of women’s occupational health and safety in the beauty therapy industry

Objective: To examine current knowledge and practice of occupational health and safety (OH&S) regarding hepatitis C in beauty therapy practice. Methods: A questionnaire was sent to all beauty therapy practices identified through the Telstra Yellow Pages and distributed via beauty therapy product agencies. Results: 119 questionnaires were completed by employers and employees in 99 beauty therapy practices in metropolitan Adelaide. Beauty therapists reported carrying out many practices that had exposed them to blood in the past. More than 80% of the procedures carried out by beauty therapists in the previous week were reported to have led to exposure to blood. 39.5% of respondents had not received information about OH&S practices related to blood spills and 77.5% of respondents had received no OH&S information about hepatitis C. Knowledge of hepatitis C and its transmission was poor, with 62% of respondents incorrectly identifying the prevalence of hepatitis C and respondents incorrectly identifying sneezing (28%), kissing (46%) and sharing coffee cups (42%) as a modes of transmission. 80% of beauty therapy practices had no OH&S representative. Conclusion: Beauty therapy practice can expose both operator and client to blood and is therefore a potential site for the transmission of blood-borne diseases including hepatitis C. OH&S information is inadequate in this industry and knowledge of hepatitis C is poor.

Health and safety for clean-up and recovery workers

This paper will identify and discuss the major occupational health and safety (OHS) hazards and risks for clean-up and recovery workers. The lessons learned from previous disasters including; the Exxon Valdez oil spill, World Trade Centre (WTC) terrorist attack, Hurricane Katrina and the Deepwater Horizon Gulf of Mexico oil spill will be discussed. The case for an increased level of preparation and planning to mitigate the health risks for clean-up and recovery workers will be presented, based on recurring themes identified in the peer reviewed literature. There are a number of important issues pertaining to the occupational health and safety of workers who are engaged in clean-up and recovery operations following natural and technological disasters. These workers are often exposed to a wide range of occupational health and safety hazards, some of which may be unknown at the time. It is well established that clean-up and recovery operations involve risks of physical injury, for example, from manual handling, mechanical equipment, extreme temperatures, slips, trips and falls. In addition to these well established physical injury risks there are now an increasing number of studies which highlight the risks of longer term or chronic health effects arising from clean-up and recovery work. In particular, follow up studies from the Exxon Valdez oil spill, Hurricane Katrina and the World Trade Centre (WTC) terrorism attack have documented the longer term health consequences of these events. These health effects include respiratory symptoms and musculoskeletal disorders, as well as post traumatic stress disorder (PTSD). In large scale operations many of those workers and supervisors involved have not had any specific occupational health and safety (OHS) training and may not have access to the necessary instruction, personal protective equipment or other appropriate equipment, this is especially true when volunteers are used to form part of the clean-up and recovery workforce. In general, first responders are better equipped and trained than clean-up and recovery workers and some of the training approaches used for the traditional first responders would be relevant for clean-up and recovery workers.

Small firms and health and safety harmonisation : potential regulatory effects of a dominant narrative

Small firms are popularly viewed as resistant to complying with regulation. Harmonisation of Australia’s state-based work health and safety regimes is a significant regulatory change. In this article, we consider the likely responses of small firms to work health and safety harmonisation and argue that a range of choices are open to small firm owner-managers. These choices are shaped by individuals’ world views and are influenced by elements in the firms’ context. A significant element is the public narrative of work health and safety harmonisation, which can be understood by using discourse and sense-making concepts. Our analysis of small firm owner-manager choices takes into account small firms’ embeddedness in their regulatory context and the influence on organisational decision-making of the narrative of work health and safety harmonisation. The dominant narrative is arguably silent on the benefits of the work health and safety regulatory change and therefore the response of small firms is likely to be avoidance or minimalism. Non-compliance could be the result due to poor awareness of opportunities arising from this regulatory change.

Regulating Occupational Health and Safety in a Changing Labour Market

The traditional boundaries of labour law are becoming outmoded in a modern world in which active labour market participants vastly outnumber “employees”, and the world of work extends way beyond the workplace gate. There is convergence with labour market regulation. The contract of employment remains central but is no longer the sole object of study.