Institutional Arrangements on Health and Safety Representation in Australia

Richard Johnston and Rebecca LoudounGriffith University, Brisbane

Institutional Arrangements for Health and Safety

Representation in Australia

Richard Johnstone and Rebecca Loudoun

Socio-Legal Research Centre Griffith University, Queensland, Australia

The Regulation of OHS in Australia

٧ Australia is:٧ a federation, with six states (New South Wales, Victoria,

Queensland, South Australia, Western Australia &Tasmania) & two internal territories (Northern Territory & the Australian Capital Territory (ACT)

٧ No express federal power to legislate for OHS:٧ nine general OHS statutes, each with some form of a

‘duty to consult’ workers, & provisions for OHS representation

٧ Broadly speaking four models of representation

1. Northern Territory

٧ Duty in Work Health Act on employer, so far as is practicable, to consult with relevant workers about the development of measures to promote OHS

٧ Provision only for OHS Committees – not for HSRs

٧ 2007 Review recommended introduction of HSR provisions

2. NSW (OHS Act 2000)٧S 13: a general duty on the employer to consult

٧ defined s 14, situations where consultation required outlined in s 15٧Consultation may be undertaken with:

٧ an OHS committee; HSR(s) or in accordance with other agreed arrangements (ss 16 & 17)

٧Details about procedures in the OHS Regulation 2001:٧ requires consultation on type of representation; sets out processes for establishing & implementing arrangements, & for periodic review

٧Minimum requirements for election of HSRs similar to other Australian provisions٧ but where represented by both a HSR & a HSC, the HSC ‘is the principal mechanism for consultation’

٧HSRs & HSCs have exactly the same limited functions & are owed similar duties by employer٧ HSRs & HSC members must undergo OHS training

3. Other OHS statutes: processes to determine work groups (Vic, Qld, SA, WA, Tas; C’wealth & ACT)

٧ In ACT:٧ employers in workplaces with 10 or more employees MUST

begin processes described below – in all other statutes, employee(s) initiate (in Tas only in workplaces with more than 10 employees) & in some statutes employer can initiate (Victoria, WA)

٧ Generally statutes contain:٧ provisions for employees to negotiate with employer to form

(designated) work groups, taking into account a range of factors (number of employees, type of work, nature of risks, overtime or shift work arrangements etc), & most enable the regulator/tribunal to resolve unresolved issues

Processes for the election of HSRs

٧ Each statute outlines:٧ a process for employees in each work group to elect one of the

employees (more than one in Vic) in that group to as HSR (in most statutes, also deputies) for the group

٧ All statutes specify period for which HSR elected ٧ & for disqualification of HSRs for abuse of powers causing harm to

employers (& in SA for negligent underuse of powers)

٧ Union role:٧ Past - ‘2- track’ model in Vic, C’wealth & WA – unions negotiated; if

no union coverage, emp’ees negotiated٧ Now - some statutes require union with coverage to be consulted; or

enable employees to ask union to negotiate for employees (C’wealth, Qld, SA)

Functions & powers of HSRs

٧ Generally to be exercised in relation to work group only

٧ Cover:٧ inspection of workplace; consultation where workplace changes

affect OHS; present at interviews between employee & employer/inspector; accompany inspector on inspection; information affecting OHS of employees; OHS training & facilities; time off work to perform functions; to assistance from OHS experts (not in Qld, WA, Tas or ACT) & to investigate complaints. HSRs can always ask an inspector to visit (in some statutes this is explicitly included as a HSR power)

٧ Generally provide:٧ HSR incurs no liability by virtue of activities as HSR; & that

discrimination against HSR is prohibited

4. Enforcement Powers

٧ Victoria, SA, WA, C’wealth & ACT: ٧ HSRs can issue provisional improvement notices (PINs or

‘default notices’ in SA, ‘written direction’ in Tas) for contraventions. Usually can only do so after consultation with the employer to rectify the contravention. Employer can have notice reviewed by inspector: if confirmed, becomes an improvement notice

٧ Victoria, SA, C’wealth & ACT ٧ provisions for HSR to direct that work causing an

‘immediate risk’ to the OHS of any person cease. Provision part of broader provision outlining processes for dealing with OHS issues; & enable employer to call in inspector

Union Right of Entry for OHS Purposes: NSW٧ Until recently:

٧ union right of entry not expressly dealt with in most Australian OHS statutes – only covered in provisions enabling HSR to call in an OHS expert/consultant to assist

٧ The 1983 NSW OHS Act (ss 76-85 of OHS Act 2000)٧ gives an ‘authorised representative’ of an ‘industrial organisation’

limited powers to investigate a suspected contravention of the Act. NSW Act also empowers secretary of a union registered in NSW to commence proceedings for a contravention (s 106)

٧ Similar provisions in Vic & ACT٧ & complex relationship with C’wealth workplace relations permit

system

Health & Safety Committees

٧ Can be requested by a HSR (or an employee in WA or a majority of employees in Tas but only where more than 20 employees)

٧ Statutes provide that employer representatives must not exceed number of employee rep’s, & generally leave it to committees to determine their processes

٧ Functions generally to assist employer develop, implement & review OHS measures, & to facilitate co-operation between employer & employee in relation to OHS matters; & assist employer disseminate OHS information to employees

Coverage of workers who are not ‘employees’

٧OHS statutes tend to limit participation to ‘employees’ ‘at the workplace’ in relation to their employer. Except: ٧ S 39 of the OHSA(ACT): principal contractors in construction can

request Commissioner to declare that provisions relating to HSRs HSCs apply in relation to the sub-contractor’s employees (similar provision covering HSCs in WHA(NT))

٧ OHS Regulation 2001(NSW) cl 23(2) outlines factors to be taken account of in setting up work groups: include patterns of work of employees; geographic location of workers; the interaction of employees with employees of other employers

٧ OHSA(Vic) 2004 s 44(1)(e) – in negotiating DWGs can negotiate whether HSR is authorised to represent independent contractors ‘engaged’ by the employer their employees; Part 7 Division 2 provides for the negotiation of DWGs of multiple employers (similar provision in WA)

Survey data on experiences of HSRs & HSCs

٧ AWIRS 1995: 66% of workplaces had elected HSRs, 43% had HSCs; 30% had no HSRs or HSCs

٧ ACTU 2004: 30% had not received OHS training in past 2 years; 5% no training at all

٧ ACTU 2004: 55% did have enough time to carry out OHS functions; 33% not enough time

٧ ACTU 2004: 28% say pressured by management to not raise OHS issues٧VTHC 2003, 2005: about 33%; ACTU 2004 & VTHC 2005: 25% bullied or intimidated by mgt because they raised OHS issues

٧Blewett SA 2000: 49% reported difficulty in performing their representation work; 43% reported harassment or bullying because were HSR

٧ ACTU 2004: 41% say employer automatically consults them٧ 40% consulted only when they ask; 13% never consulted ٧ VTHC 2003 2005: 65% employers don’t automatically

consult HSRs/workers

٧ ACTU 2004: 48% automatically informed by employer when injury occurs٧ 35% informed when they asked; 12% never informed

٧ ACTU 2004: 44% automatically included in investigations of OHS incidents ٧ 34% when request it, 17% never included

٧ ACTU 2004: 58% say HSRs or other workers regularly included in employer inspections when take place٧ 31% occasionally do; 8% never

٧ ACTU 2000: 11% said inspector automatically spoke to them; Johnstone Quinlan: inspectors spoke to HSRs in only 37% of workplace visit

٧ ACTU 2004: 11% of HSRs said issued PIN or default notice – 91% of these said it was effective in resolving OHS issue; VTCHC 2003 2005: 25% issued PINs (2003: of the 25% issuing PINs, 45% only issued one)٧ 2007: first successful prosecution in Victoria for

contravention of a PIN

٧ ACTU 2004: 21% of HRSs said they directed that unsafe work cease or stopped work for OHS – 88% said effective in resolving issue

What are the prerequisites for effective worker participation?

٧ A strong legislative steer ٧ effective external inspection & control ٧ demonstrable senior management commitment ٧ competent hazard/risk evaluation & control٧ effective autonomous worker representation at

the workplace ٧ external trade union support

What do unions do?

٧ International research consistently indicates that trade unions:٧ act as source of information for workers on OHS ٧ give employees a ‘voice’ to raise grievances with mgt٧ act as a positive support for workers who suffer ill-health as

a result of working conditions٧ have a positive influence on -

attitudes towards H&S of both workers & mgthealth & safety mgt practicescompliance with H&S legislationthe process used to decide on H&S issues

But all unions are not alike….

٧ Draw on 2 larger studies to investigate what unions do to support HSR’s in the UK & Australia٧ what does a good union look like for HSR’s٧ what do they see as the challenges for HSR’s in the

modern workplace?٧ what are the challenges for unions in providing this

support?

Australian study

٧ Horizontal study designAim - To gather a representative sample of unions in QldRandom selection state-based unions with members

covered by the Qld WH&S Act 1995 & registered with the Qld Ind Relation Commission

٧ Interviews conducted with officials in Brisbane & in 2 regional locations (where union had regional offices or officials)

٧ Face-to-face interviews conducted between Mar & Dec 05 using a semi-structured schedule

Final mix of unions

٧ Represented workers in most of the key sectors of Queensland industry

٧ Included a balance of large, medium & small unions, representing workers in a mixture of strongly & weakly unionised workplaces, & with members who were both white collar & blue collar workers

٧ Included a blend of unions with members in privately & publicly owned workplaces but the latter were over-represented in the sample

UK study

٧ Vertical study design ٧ Aim - to gain indepth knowledge of OHS activity in small

number of unions

٧ Interviews conducted with officials from 4 unions & from key actors in union OHS activity (TUC, OHS trainers & authors of union OHS publications & manuals)

٧ Face-to-face interviews conducted between July & Dec 06 using a semi-structured schedule

The modern approach٧What do unions do“(aim) to raise awareness & support for HSR's so that they are not

working in a silo. It is about people getting actively involved in the workplace …. It is another arm, another eye”

“We don’t generally solve H&S problem for members. We aim to arm them with the information or tools to do it themselves through collective action. We help them to build a team. By doing this an encouraging them to work together they know that if they stay together they can solve their problems”

٧And what don’t they do..“Looking at the resources that unions put into OHS they don’t have

paid offices in the regions (nor does the TUC) that are dedicated to OHS. Without this support & skills people skirt around issues they don’t feel comfortable with or they don’t have somewhere to turn”

Challenges for supporting HSR’s

٧ Getting people to stick together & recognise that issues are collective not individual problems

“people [generally] know that they can turn to the HSC in the short term or for a specific issue so this presents a non-union approach to remedying it. In the long term though this rarely works as they need a collective effort to change the culture (ie. The machine guard might go back on but it will soon back off if they put production over safety”

“often when a H&S issue crops up that an employer doesn’t want to deal with, members will suddenly become distracted by talk of a wage rise or some other improvement in their conditions. It’s a cheap approach, but effective”

Psychosocial issues problematic

٧Wider definition of H&S presents new challenges“Often H&S is seen as an individual issue & sometimes change

requires a collective effort, especially when it relates to less tangible risks like stress & things that relate to the culture of the workplace. Unions need to raise this collective spirit. HSR's can’t do it alone.”

“Stress is often difficult…because people say ‘we are all under stress. Why is that person special & going off sick?’ The challenge is to unpack the individual stress claim & get to the underlying, collective issues”

“ [H&S] is difficult when the issue is open to interpretation. Unless there is a clear right or wrong people don’t like to complain. They try to settle it themselves without contacting the union or going through formal channels”

HSR’s cannot work alone٧ Efforts in OHS as well as IR avenues are often needed

to fix OHS problems so HSR’s & union delegates need to work together

“There are so many redundancies [in this industry] but the work still needs to get done so they have a lot of pressure, work intensification & bullying. Sometimes we deal with this through the H&S avenues & sometimes through industrial avenues”

“H&S usually gets caught up in other issues. An example of this is the long-hours campaign. H&S was a good reason to reduce the hours but it wasn’t the only reason”

“looking for the underlying issues is difficult & there are usually IR issues involved. To solve them we need to work together & sometimes they can’t be solved in one arena alone. Eg work intensification, long hours & stress need a two-pronged approach”

Comparing the UK & Australia

٧ UK more proactive than Qld unions٧ Qld unions more likely to be hamstrung by what

they saw as complexity of H&S ٧ May reflect and contribute to the lack of resources

they invested in OHS training, education & promotion٧ Emerging and growing issues (eg. stress, bullying &

employment equity) largely seen as individual issues to be dealt with in OHS issues in Qld

٧ Why?٧ Qld legislation falls short of union appointed HSR’s٧ Regional issues