The Model WHS Legislation – What does not work and why
by Bernard Corden
A reasonable estimate of economic organization must allow for the fact that, unless industry is to be paralyzed by recurrent revolts on the part of outraged human nature, it must satisfy criteria, which are not purely economic
R H Tawney – Religion and the Rise of Capitalism (1926)
The most fundamental weakness of the Model WHS Act is the ineffectiveness of its object in Division 2, especially Subsection 1, Clauses 3a, 3b, 3c and 3h. This enervates the entire legislative framework and renders the Safe Work Australia strategy, which advocates a responsive and effective regulatory framework, like a house of cards on a flood plain……No matter how beautiful your strategy, you should occasionally look at the results.
Irrespective of their occupation or political persuasion every employee has a fundamental right to a healthy and safe working environment. This allows them to lead successful working lives and 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.
The emasculation of the legislative framework commenced with the relocation of the National Occupational Health and Safety Commission to Canberra in June 2000 and included its subsequent dissolution in January 2006. During the transition, a former BHP executive was appointed as an interim chairman and almost two decades later, harmonisation and national uniformity remains unresolved.
Safe Work Australia, is merely a statutory agency. It requires ministerial council approval of corporate and operational plans and allows the Subiaco besom, our Minister of Jobs and Innovation to veto the appointment of its representatives. The fundamental tenets of independence and tripartite arrangements have been relinquished and you cannot be half pregnant. This neoliberal laissez faire dogma and its shallow commitment is best summarised by the late Harry S. Truman……..Always be sincere, even if you don’t mean it.
Chapter 10 in the Model WHS Regulations allows for mine safety legislation to be incorporated into the legislative framework. However in Queensland, mining and oil and gas legislation comes under the jurisdiction of the Department of Natural Resources, Mines and Energy. It creates a potential conflict of interest and significantly increases the risk of regulatory capture. This was identified in the Cullen report following the Piper Alpha oil rig disaster in 1988 and in the recent Queensland parliament Black Lung White Lies report.
The recent introduction of gross negligence causing death or industrial manslaughter into Queensland health and safety legislation does not apply directly to its mining and resources sector. This has further disrupted and overcomplicated national uniformity and harmonisation. A senior officer can face industrial manslaughter charges following deaths on a construction site but not at a coalmine, metalliferous mine or onshore petroleum and gas drilling rig. Governments are never more vulnerable to committing acts of stupidity than when they are hell bent on showing the electorate and the world they are determined to do something. Its Kafkaesque bureaucracy is now matched by a Camusian Myth of Sisyphus absurdism.
In Queensland there are currently 60 confirmed cases of coal workers’ pneumoconiosis and the Black Lung White Lies report has merely been shelved. Meanwhile, the toll escalates and victims continue to suffer as its state government shuffles deck chairs to reduce its financial impact on the virtual pot of gold, which masquerades as its workers’ compensation scheme…..Show me the money. It appears anything that remotely jeopardises the Adani Carmichael race to the bottom becomes a political hot potato and the doublespeak rhetoric flows incessantly.
A harridan Minister for Jobs and Innovation exerts formidable authority over Safe Work Australia, which is only an agency with superficial independence. It assists with delivery of a workplace relations system amidst an autonomous neoliberal maelstrom. This is reinforced by a unilateral doctrine of laissez faire with a malevolent freedom to harm and abrogation of moral responsibility. The following endogenous and exogenous issues undermine the effectiveness of the Model WHS legislative framework and the current Safe Work Australia strategy:
· Rampant unfettered neoliberalism with its laissez faire doctrine
· Regulatory capture and revolving doors
· Race to the bottom
· The gig economy and franchising
· WHS curriculum
The gig economy is merely indentured servitude or peonage and is exacerbated by franchising, which has an enormous socioeconomic impact and significantly increases psychosocial risks. Recent media investigations provides ample substantive evidence involving Covina Farms, 7-Eleven, Retail Food Group, Domino’s Pizza Enterprises, AeroCare and Tip Top Bakeries.
Following the great financial crisis, hardly a week elapses without an exclusive expose of malfeasance, turpitude or noncompliance with good governance and the principles of corporate social responsibility. The miasma is evident across countless commercial and industrial sectors including aged care, energy markets, financial services, franchising, mining and mineral resources, retail, telecommunications, transport and waste recycling.
The industrial safety discipline is currently renowned for its excessive Kafkaesque bureaucracy and brutal gotcha culture. It is underpinned by puerile binary oppositional logic with an emphasis on regulations and compliance to the letter of the law. This places an inordinate focus on objects or insignificant hazards and diverts attention from subjects or operational risk. A dearth of critical thinking or discernment is evident, which destroys creativity, learning and innovation. It eventually depersonalises and disparages humans who are ultimately treated like automatons or extensions of machines.
The legislative framework advocates a performance based, preventive, systematic and consultative risk management approach. It is somewhat constrained by an immature and anachronistic safety curriculum. This teleological schema is merely a cultural reproduction process that signifies its trajectory, projects its future and preserves the interests of the powerful. Political motives are deceptively disguised and invariably support establishments that regurgitate its content to justify our actions within those institutions.
The current safety curriculum adopts a mechanistic and reductionist perspective that is infatuated by adversarial legislation and accident theory apothegms, which place an extraordinary emphasis on reactive performance metrics. After several decades industrial safety remains preoccupied by the absence of harm, which has propagated an entrenched culture of risk aversion. It is alienated by a climate of compliance and enforcement that cultivates blame, fear and retribution. The way the curriculum is presented significantly influences learning and it has a profound impact on industrial safety. This is frequently referred to as incidental learning or the hidden curriculum, which is more often caught rather than taught. It regards students as receptacles for data and confuses metrics with learning and requires methodological and ontological change using a transdisciplinary approach…………..All in all you’re just another brick in the wall.
In 1992-3, the cost of work related injury and disease in Australia exceeded $20 billion and it was uniformly distributed between employers (40%), employees (30%) and the community (30%). The allocation of cost to specific agents is quite complex and extremely dependent on the outcome severity. It significantly increases for individuals, their dependents and the community if the consequences involve traumatic fatalities or serious injuries.
More recent estimates put the cost at $62 billion per year with a staggering redistribution amongst employers (5%), employees (77%) and the community (18%). The allocation of costs endured by employees has increased by a staggering 157% with a corresponding decrease of 88% for employers.
This unhealthy alliance of state and corporate interests is a moral abrogation of responsibility and may also be a significant contributory factor in the resurgence of coal workers’ pneumoconiosis. Even our Minister for Jobs and Innovation could do the math on her infamous white board and establish who the beneficiaries are in this callous casino capitalism winner takes all environment….One of the necessary accompaniments of capitalism in a democracy is political corruption.
This variation, despite a steady decrease in fatalities and serious injuries, is partly attributed to significant increases in average weekly earnings. However, descriptive statistics often conceal more than they reveal and correlation does not imply causation. Additional exogenous factors, which include rampant neoliberalism with its laissez faire doctrine, the gig economy and an unabashed worship of profit may be significant weapons in Abaddon’s arsenal.
Much of this malaise can be traced back to the 1970s when dozens of think tanks were established throughout the western world and provided with billions of dollars to promote an economic model of deregulation, diminution and privatisation. This corporate call to arms was instigated by Lewis Powell and Bryce Harlow in the United States to reform the egalitarian clemencies of the 1960s. It involved the merger of corporate and state interests and an enormous redistribution of power. Its impact has destroyed many of the social reforms of democratic governments, including workplace health and safety…..Quis custodiet ipsos custodes?
Many of these issues cannot be resolved using traditional accident theory supplemented by myopic black box psychology of behaviour based safety. It is a wicked problem and requires a transdisciplinary approach that integrates risk theory with the fundamental principles of social psychology. The conundrum is neatly summarised by Einstein……Objective knowledge provides us with powerful instruments for the achievements of certain ends but the ultimate goal itself and the longing to reach it must come from another source.
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