Outsourcing risk -the regulation of occupational health and safety where subcontractors are employed

The subcontracting out of production tasks and services is not a new phenomenon, but from the late 1970s, and more especially over the last 15years, the practice-now frequently referred to as outsourcing-has grown substantially across a range of industries in most industrialized countries.Recent surveys undertaken in the United States,Europe,and Australia have all identified a rapid increase in outsourcing/subcontracting, especially amongst large private and public sector organizations. The Second Australian Workplace Industrial Relations Survey found that the number of contractors, agency workers, outworkers, and volunteers had increased by almost 40% in the last 5 years to 1997 with contracting out more common in the public sector than the private sector. Outsourcing has become a major tool by which large organizations have sought to increase competitiveness/cut costs, bypass regulatory controls, and secure more flexible employment arrangements.

Statutory occupational health and safety workplace arrangements for the modern labour market

Over the past 20 years there has been a significant refashioning of the labour market within Australia and other industrialised countries. This paper examines the implications of the growth of more flexible work arrangements for mechanisms designed to facilitate worker involvement in occupational health and safety at the workplace—a pivotal feature of post-Robens OHS legislation in Australia. It is argued that the growth of subcontracting, casual and home-based work has undermined both coverage and the effectiveness of these provisions, especially in a context where union membership and influence has also been declining. Looking at international experience, the paper examines a number of ways of remedying these deficiencies.

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.

The implications of de‐collectivist industrial relations laws and associated developments for worker health and safety in Australia, 1996–2007

The institutional and regulatory interlinkages between industrial relations (IR) and occupational health and safety (OHS) are seldom explored in the IR literature. This article begins to address this gap by examining regulatory initiatives in Australia during a period of neoliberal government. It examines the laws enacted by the federal government during this period and events and cases arising from these laws that go some way to illustrating their effects. Evidence is also drawn from detailed research on a number of state OHS inspectorates between 2004 and 2006. It is argued that de-collectivist changes to IR laws exacerbated problems posed by the growth of flexible work arrangements and a drop in union density, weakening participatory provisions in OHS laws and promoting work arrangements that undermined OHS standards. The study provides evidence of the implications of a divergence in the trajectory of IR and OHS laws and the importance of better integrating worker protection laws.

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.

The court and the factory the legal construction of occupational health and safety offences in Victoria

This thesis reports on an empirically based study of the manner in which Victorian Magistrates Courts constructed occupational health and safety (OHS) issues when hearing prosecutions for offences under the Industrial Safety, Health and Welfare Act 1981 (the ISHWA) and the Occupational Health and Safety Act 1985 (OHSA) from 1983 to 1991. These statutes established OHS standards for employers and other relevant parties. The State government enforced these standards through an OHS inspectorate which had a range of enforcement powers, including prosecution. After outlining the historical development of Victoria’s OHS legislation, the magistracy’s historical role in its enforcement, and the development of an enforcement culture in which inspectors viewed prosecution as a last resort, the study shows how the key provisions of the ISHWA and OHSA required occupiers of workplaces and employers to provide and maintain safe systems of work, including the guarding of dangerous machinery. Using a wide range of empirical research methods and legal materials, it shows how the enforcement policies, procedures and practices of the inspectorate heavily slanted inspectors workplace investigations and hence prosecutions towards a restricted and often superficial, analysis of incidents (or “events”) most of which involved injuries on machinery. There was evidence, however, that after the establishment of the Central Investigation Unit in 1989 cases were more thoroughly investigated and prosecuted. From 1990 the majority of prosecutions were taken under the employer’s general duty provisions, and by 1991 there was evidence that prosecutions were focusing on matters other than machinery guarding.

Microtubules and cadherins : a neglected partnership

Classical cadherins are fundamental determinants of tissue organization both in health and disease. It has long been recognized that cadherins function in close cooperation with the cytoskeleton, particularly with actin. Less appreciated is the capacity for cadherins to also interact functionally and biochemically with microtubules and their associated proteins. In this review, we aim to highlight the potential for cooperativity between cadherins and microtubules. Cadherins can regulate the organization and dynamics of microtubules through mechanisms such as anchorage of minus ends and cortical capture of plus ends. Such cadherin-induced reorganization of microtubules may then affect cadherin biology by diverse processes that include directed vesicular traffic by microtubule-based motors and regulation of cortical signaling and organization. Ultimately, we hope this will stimulate fresh interest and research to understand a neglected partnership.

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.

Health and guardianship law : guardianship and administration application in the matter of MDC [2014] QCAT 338

The recent decision of the Queensland Civil and Administrative Tribunal (QCAT) in Guardianship and administration application in the matter of MDC [2014] QCAT 338, provides an important ruling on the limits of who can be appointed as an enduring power of attorney under the Powers of Attorney Act 1998 (Qld). In particular, the tribunal adopted a broad interpretation of the term "health provider" when considering the limits on who can be appointed as an enduring power of attorney under the legislation...

Competitive advantage through safety compliance : smaller firm responses to changes in the Australian occupational health and safety regulatory context

Smaller firms are often viewed as resistant to regulation due to cost burdens. However, evidence indicates that for some compliance is beneficial under certain conditions. Drawing on data on attitudes and responses of smaller firm owner-managers to changes in Australia’s harmonising work health and safety context we report on smaller firms’ responses to these changes. Despite uncertainty due to incomplete harmonisation, many owner-managers viewed safety compliance as important and necessary to do business. Those with negative views still linked positive safety performance to business outcomes. We categorise smaller firms’ responses and in this sample most are Positive Responders. We suggest ways forward for policy-makers to support smaller firms in complying with occupational health and safety regulation.

Promiscuity, pheromones and pathogenicity : why all Enterococci are not created equal

Enterococcus faecalis is a Gram-positive, coccus shaped, lactic acid bacterium, with demonstrated ubiquity across multiple anatomical sites. Enterococcus faecalis isolates have been isolated from clinical samples as the etiological agent in patients with overt infections, and from body sites previously thought to be sterile but absent of signs and symptoms of infection. E. faecalis is implicated in both human health and disease, recognized as a commensal, a probiotic and an opportunistic multiply resistant pathogen. E. faecalis has emerged as a key pathogen in nosocomial infections. E. faecalis is well equipped to avert recognition by host cell immune mediators. Antigenic cell wall components including lipotechoic acids are concealed from immune detection by capsular polysaccharides produced by some strains. Thereby preventing complement activation, the pro-inflammatory response, opsonisation and phagocytosis. E. faecalis also produces a suite of enzymes including gelatinase and cytolysin, which aid in both virulence and host immune evasion. The ability of enterococci to form biofilms in vivo further increases virulence, whilst simultaneously preventing detection by host cells. E. faecalis exhibits high levels of both intrinsic and acquired antimicrobial resistance. The mobility of the E. faecalis genome is a significant contributor to antimicrobial resistance, with this species also transferring resistance to other Gram-positive bacteria. Whilst E. faecalis is of increasing concern in nosocomial infections, its role as a member of the endogenous microbiota cannot be underestimated. As a commensal and probiotic, E. faecalis plays an integral role in modulating the immune response, and in providing endogenous antimicrobial activity to enhance exclusion or inhibition of opportunistic pathogens in certain anatomical niches. In this chapter we will review possible mediators of enterococcal transition from commensal microbe to opportunistic pathogen, considering isolates obtained from patients diagnosed with pathogenic infections and those obtained from asymptomatic patients.

Adolescent peer aggression and its association with mental health and substance use in an Australian cohort

Prospective longitudinal birth cohort data was used to examine the association between peer aggression at 14 years and mental health and substance use at 17 years. A sample of 1590 participants from the Western Australian Pregnancy Cohort (Raine) study were divided into mutually exclusive categories (victims, perpetrators, victim-perpetrators and uninvolved). Involvement in any type of peer aggression as a victim (10.1%), perpetrator (21.4%), or a victim-perpetrator (8.7%) was reported by 40.2% of participants. After adjusting for confounding factors, those who were a victim of peer aggression had increased odds of later depression and internalising symptoms whilst perpetrators of peer aggression were found to be at increased risk of depression and harmful alcohol use. Victim-perpetrators of peer aggression were more likely to have externalising behaviours at 17 years. These results show an independent temporal relationship between peer aggression and later mental health and substance use problems in adolescence.

‘Ngulluck Katitj Wah Koorl Koorliny/ Us mob going along learning to research together’ : drawing on action research to develop a literature review on Indigenous gendered health and wellbeing

This paper describes the collaborative work practices of the Health and Wellbeing Node within the National Indigenous Research and Knowledges Network (NIRAKN). The authors reflect on the processes they used to research and develop a literature review. As a newly established research team, the Health and Wellbeing Node members developed a collaborative approach that was informed by Action Research practices and underpinned by Indigenous ways of working. The authors identify strong links between Action Research and Indigenous processes. They suggest that, through ongoing cycles of research and review, the NIRAKN Health and Wellbeing Node developed a culturally safe, respectful and trulycollaborative way of working together and forming the identity of their work group. In this paper, they describe their developing work processes and explain the way that pictorial conceptual models contributed to their emerging ideas.