Militancy or Management – Which delivers the safest workplace?
Guest Post by Mervyn Sher from www.sherassociates.com.au/
I’ve noticed during the last 12 months an alarming trend of increased militant Union action in the name of safety around the country, seemingly centred around the coalfields of NSW/QLD and the construction sites of the mega projects in QLD.
Whilst it should always be remembered that the Unions of yesteryear were the prime motivators for the industrial safety legislation that we all enjoy in our workplaces today, and I take this time to respect the memory of those whose lives were lost and from which tragedies we have learned so much, I cannot but wonder as to why there is still the need for industrial action in the name of safety.
With seven out of nine states covered by the WHS Act which affords the workplaces robust coverage of safety obligations, matched by the respective OSH legislation in Victoria and WA, as well as the relevant mine safety legislation in the mining states & territories, there is commonality of law in spirit, if not in content, that clearly maps the obligations and responsibilities of ALL parties in ALL workplaces in Australia.
Furthermore, under the national model of industrial legislation, the Fair Work Act, Unions have absolute right of entry into all workplaces, where they can and do ensure that their members are working in as safe environment as practicable.
Why then the need for industrial action in the name of safety? There are clear lines of communication, clear paths of reporting under all relevant legislation that allows any individual in the workplace to contact a Regulator, and be protected from discrimination and sanction for making such contact, should there be a perceived breach of the safety Act in the workplace.
Now I’m not so naïve as to think that whistle-blowers are applauded by management. Neither mining nor construction has warm and fuzzy management traits, and I concede that one would be arguing the point from behind the eight ball as a whistle-blower. However, I still maintain that there are ways to uphold the legislation and everyone’s rights under the respective safety legislation.
Unions, whose behaviour is the basis of this comment, have almost unfettered right of entry powers under the current Federal government, and furthermore appears that they are expected to act as the Second Umpire in workplace safety after the Regulators. The problem being that the Unions seem to have all gone on a collective sugar rush, and seem to have usurped the Safety Regulators and taken over as arbiter of safety in the first instance.
In the absence of a Regulator, or where the safety Regulator is particularly lax or incompetent (as is the case in WA) the Unions’ actioned would generally be accepted, if not applauded. In fact, their intervention would be expected.
However, with the exception of WA, this is not the case, is it? The mining states of NSW and QLD have reasonably efficient and interactive safety Regulators, both in mining and general workplaces, and although there is always room for improvement in all aspects of safety management, from both the workplace as well as the Regulator’s perspective, I would suggest that NSW, QLD and even VIC have decent coverage and fair enforcement of safety legislation.
Last week a report from the coalfields of QLD stated that workers at the BMA operated mine of Saraji worked off the job after an altercation between a HSR and a Supervisor, only to be ordered back to work by a Fair Work Order urgently obtained by BMA.
Notwithstanding the industrial dispute side of things, brought about by the HSR being a CFMEU member and who brought the Union in to bat, the situation rapidly degenerated into a typical standoff between the Union and the Management. How can this be a positive factor in good safety management?
I’ve never been a HSR, but I have served for many years as a site safety advisor on mine sites as well as construction projects, and in all the years I have never had a situation develop whereby the workers either called in the Union for a safety breach, or that they walked off the site for safety breaches.
This is not to say that the sites that I have worked on were all perfectly ticketyboo as far as safety was concerned, for that would be economical with the truth. However, as a safety advisor I had the obligation to ensure that the workplace was in fact as free of hazards and safe to operate in as far as reasonably practicable – which obligation I delivered on accordingly.
As you’re all aware, safety advisors have no statutory authority like HSRs, yet we work to the same set of legislation that the HSR does. Safety advisors cannot issue PINs, nor can they insist on any formal reporting or information stream with management. At best they are instructed to carry out a specific task, and generally expected to keep out of management’s way.
Of course this deluded presumption was not applicable in my case, for woe betide any line manager or even senior manager that tried this style of management on! I’ve never needed the weight of a statutory authority of position to get my point across, or to ensure that management bends to my will – and over the years please be assured that I’ve had some epic stoushes with Neanderthal construction and production managers, all of whom at the end of a colourful exchange of opinion all accepted that safely is the only way to work and adjusted accordingly.
What I’ve never lost is a work crew because of safety concerns. In fact I’ve never lost a work crew even to industrial dissatisfaction. I’ve always managed to get all the parties to find commonality and respect for each other, even if it only a temporary truce whilst on site.
HSRs have to undergo a short (intensive) training course as part of their position, and during this training there is no doubt that they are made absolutely aware of their rights, their authority, their powers under the relevant Act.
Why then do these HSRs not exercise such rights, such authority, such powers? I mean, it’s right there in the Act, Management are fully aware of what the HSR can do under the Act, Management are also quite aware of what their own obligations are to assist and interact with the HSR under the Act. So where is the system failing?
Is the quality of the HSR so poor that they simply cannot cope with such responsibility? Or does this issue run far deeper into the cultural morass of the Workers versus the Management, where there is an almost fatalistic acceptance or expectation that Management will always screw the Worker?
Or are the safety Regulators to blame? Are the Regulators not attending to calls from HSRs for support? Whilst I’m sure that there have been times when a Regulator simply cannot or did not attend a call or an issue, I’m sure that this would be the absolute exception and not the rule. Do Regulators actively support HSRs under the Act? I would think so.
Maybe I’m looking in the wrong place for answers, maybe I should be looking at Management instead. In the case of BMA, which is essentially a BHP Billiton operation, are we to believe that a company with such industry tenure, which spends tens of millions of dollars per year on delivering optimum safety management to their global operations, whose graduate and post graduate education packages all have robust OHS modules in them, are we to believe that such a company is blindly unaware of its obligations under the relevant Act?
BHPB employ more legal counsel than the full compliment of the A-G’s Departments in NSW and QLD collectively, so I would think that it would be fair to say that BHPB are fully aware of not only their obligations under the Act, but that of the HSR as well.
Or are companies such as BMA so arrogant and self-assured of their superior might as against the Regulator that they adopt such unconscionable management attitudes? I’ve worked on BHPB sites and can attest to the arrogance, the superiority and the indifference of management – however I’ve never seen or heard any Manager on a BHPB site wilfully breach the safety Act, or allow a breach to remain unattended once it is brought to their attention.
So we’re back to our original position without any answers – which begs the question – are the Unions able to deliver a safer workplace through militant intervention and industrial action than management ought to under law?
Do you have any thoughts? Please share them below