Neoliberalism and emasculation of safety
by Bernard Corden
Everybody knows that the boat is leaking, everybody knows that the captain lied
Leonard Cohen 1
In June 2000, the Australian federal government announced its intention to transfer the National Occupational Health and Safety Commission from Sydney to Canberra. Many of its experienced employees resigned and did not relocate. Its budget was slashed by almost $4 million and it remains parsimonious as federal and state governments persist with this sustained political and economic destabilisation campaign. 2 3 4
The ratification of International Labour Organization Convention C155 was fundamental to the harmonisation of safety legislation and national uniformity. Nonetheless, despite Industry Commission recommendations, the federal government stonewalled its endorsement. 5 6 This raised increasing reservations over Australia’s compliance with other fundamental conventions and its international obligations and it was begrudgingly ratified in March 2004. However, in January 2006 the federal government, with control in the senate, dissolved the National Occupational Health and Safety Commission. It was replaced by an administrative and advisory body, the Australian Safety and Compensation Council. 7 8 9 10 11
In November 2009, the federal labour government cautiously redressed the situation and established a statutory agency, SafeWork Australia. 12 13 14 This is merely a hybrid structure with a significant and unnecessary amount of ministerial control or discretion. It allows the minister to veto appointments of employer or employee representatives and requires ministerial council approval of corporate and operational plans. This compromises the fundamental principles of safety, which include tripartite arrangements and independence and you cannot be half pregnant. 15 16 17 18 Irrespective of their occupation every employee has a fundamental right to a healthy and safe working environment, which allows them to lead productive working lives. This is consistent with the United Nations Universal Declaration of Human Rights. It also aligns with the object of harmonised legislation, which is to provide a balanced and nationally consistent framework and secure the health and safety of people at work. However, national uniformity has been systematically obstructed by federal and several state governments. 19 20 21 22
This political and economic destabilisation process commenced with the emasculation of the National Occupational Health and Safety Commission in June 2000 and its subsequent dissolution in January 2006. Almost two decades later, national uniformity remains unresolved. This crusade has continued relentlessly and the following fundamental action areas of the SafeWork Australia strategy have been significantly compromised: 23 24 25
1) Government
2) Responsive and effective regulatory framework
3) Research and evaluation
Governments exert formidable authority over occupational health and safety and SafeWork Australia’s independence has been sacrificed by excessive ministerial control. The current strategy is like a house of cards built on a flood plain and it has been sabotaged by rampant unfettered neoliberalism, which is an alliance of government, corporate and commercial interests. 26 27 28 29 This has besmirched the safety profession and symptoms of regulatory capture are evident throughout several federal and state statutory authorities. 30 31 32 33
The embryonic gig economy and its byzantine contingent employment arrangements has circumvented the legislative framework and obfuscated duty of care. 34 35 36 Sponsorship and funding for major research and educational establishments has been brutally slashed, which enervates other interdependent action areas and it ruins strategic outcomes. 37 38 39 It has created an indirect renaissance of atavistic accident theory with an inordinate focus on individual responsibility and unsafe acts. This generates spontaneous negative symptoms with many social encumbrances, which include blame, fear and retribution and a bad system will eventually beat a good person. The bungling ineptitude is exquisitely encapsulated by W. Edwards Deming with his analogy of making toast………You burn and I’ll scrape. 40 41 42
This prolonged political and economic campaign has systematically undermined the occupational health and safety framework, including SafeWork Australia’s strategy. It has also compromised its legitimacy and integrity. Moreover, the significant social and economic costs of injury and disease are increasingly borne by employees, their families and the broader community. This is reflected in the recent Queensland parliamentary inquiry into the resurgence of coal workers’ pneumoconiosis. 43 44
Regulatory capture
Quis custodiet ipsos custodes? – Juvenal 45
Regulatory capture has coincided with the emergence of rampant neoliberalism and a renaissance of accident theory. 46 47 48 It includes financial and cognitive leverage and occurs when statutory officials develop convivial relationships with administrated industries. A perception transpires whereby the regulated entity receives benefits or preferences at the expense of the regulatory authority or public interest and the liaison appears unethical. 49 50 This risk increases when statutory officials adopt conciliatory and cooperative approaches using persuasion and negotiation in preference to adversarial and punitive enforcement. 51 52 Conflict of interest also arises if the inspectorate belongs to a government department, which has principal responsibility for ensuring the productivity and economic success of the regulated industry. The Alberta occupational health and safety regime in Canada exhibits classic regulatory capture symptoms. 53 54 55 56 57
Financial capture is accomplished via employer funding of regulatory activity, which provides preferential access to policy making. Cognitive or cultural capture is achieved using propaganda, whereby the regulator and employers promulgate a narrative of culpability, advocating the careless worker myth. 58 59 60 61 Irreverent and Pecksniffian media safety campaigns regularly feature distraught dependents with an excessive focus on reactive injury management and rehabilitation. The impact is ephemeral and it subliminally transfers duty of care onto victims to disguise or absolve employer negligence. 62 63 64 65 It has resurrected atavistic accident theory, promoted zero harm and created a sinister revival of behavioural safety programs. A recent federal parliament inquiry identified regulatory capture as a significant contributory factory in the resurgence of coal workers’ pneumoconiosis. 66 67
The dilemma of responsive regulation and whether to punish or reward is reviewed by Kolieb, who advocates a compliance and aspirational approach and more contemporary developments include behavioural economics nudge theory. 68 69 70 71 However, left unfettered it can degenerate into laissez faire and subsequent deregulation. 72 73 74 75 76 An extensive review of regulatory capture is provided by Croley, the Administrative Conference of the United States and the Australian National Audit Office. 77 78 79
The gig economy
Work keeps away those three great evils: boredom, vice and poverty
Voltaire 80
Over recent years traditional employment relationships have changed considerably, with a dramatic increase in contingent or precarious arrangements, using contract labour through hiring agencies. 81 82 The embryonic gig economy is noticeable across Australia and overseas, 83 84 especially in the aviation, construction, resources, retail and horticultural sectors 85 86 87 88 and it shows no signs of abating. 89 90 Arrangements usually consist of an impassive and loose tripartite agreement between the host employer, the labour hiring agency and the employee, who is effectively a ragged trousered philanthropist. 91
Responsibilities become fragmented and confusion abounds as to whether arrangements are a contract of service or a contract for service. 92 93 This generates legal and organisational uncertainty. Labour hire networks are quite intricate and the courts adopt a multi factorial approach to confirm precise contractual relationships, which evaluates the degree of control, level of integration and the totality of interdependence. 94 95 96 97 98
Labour hiring agencies experience extreme difficulty in the supervision of its employees, especially across multiple sites, with host organisations more than willing to relay or transfer the associated risks. It becomes increasingly complex to synchronise activities, manage risks and coordinate decisions. Agency employees are often unfamiliar with the host site and its workforce, which significantly increases occupational health and safety risks. 99 100 101 Labour hire arrangements also compromise consultation mechanisms through the deliberate or inadvertent exclusion of agency employees from the host health and safety committee meetings. 102 103 104 105 It is a fertile environment for reactive accident theory. Many of its Dickensian symptoms, such as blame, fear and retribution evolve and flourish accordingly.
The legal complexities and organisational uncertainties generated by the gig economy are somewhat antagonistic and create negative behaviour patterns, which results in increased injury rates, psychosocial risks and chronic health problems. 106 107 108 109 This may be a significant contributory factor in the resurgence of coal workers’ pneumoconiosis throughout Appalachia in the United States and across the Bowen basin in Queensland, Australia. 110 111
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