OHS Regulation and the Modern Labour Market

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OHS Regulation and the Modern Labour Market

• Richard Johnstone
• Socio-Legal Research Centre, Griffith Law School

SLRC and Griffith Law School
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Outline

• The traditional labour law paradigm
• The application of the general duties in the OHS
  statutes to work relationships other than
  employer-employee
• Officers provisions
• Workplace Arrangements and workers other than
  employees
• OHS Agency Strategies

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The Traditional labour law paradigm

• permanent, full-time employment
• labour law was a regulator of employment
  relationships, with the contract of employment as
  the pivot
• a single entity employer, with considerable
  freedom to determine the limits of its
  boundaries, responsible only under the principles
  of agency and vicarious liability.

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Contemporary labour market

• In the last 20 years there has been a significant
  fragmentation of work,, with increased incidence
  of networked organisations - growth of
• Casual/temporary workers
• Short-term fixed contract workers
• Labour-hire workers
• Part-time work
• Self-employed contractors
• Home-based work
• Teleworking and telecall centre workers
• Franchise arrangements
• And, of course, members of the public are
  exposed to risks

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Flexibility of the Employers Duty to Employees

• The courts have given a broad interpretation of
  the employers duty to employees eg Swan Hunter
  (UK), Drake (NSW, 1999) and Fielders Steel
  Roofing (SA, 2003/4),
• Deemed employees covering contractors and their
  employees see OHSA(Vic) s 21(3), Queen v ACR
  Roofing (Vic, 2004), Cth, WA, (and SA, NT)
• OSHA (WA) since 2005 deems employees to include
  labour hire and other labour arrangements

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Employer/Self-Employed Persons Duty to Others

• Broadest provisions are in OHSA(Vic) ss 23 and 24
  and WHSA(Qld) s 28, 29 and 29A ensure persons
  who are not employees are not exposed to risks
  to OHS from the conduct of the undertaking
• R v Associated Octel (UK, 1996) employer free
  to decide labour arrangements but is under a duty
  to exercise control over the activity and to
  ensure that it is done without exposing
  non-employees to risks.
• Whittaker v Delmina (Vic, 1998) broad
  definition of undertaking

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• NSW, ACT, Commonwealth Act similar, but limited
  to people at (NSW) or near the workplace (ie
  dont cover home-based work, labour hire agency,
  truck drivers affected by consignment conditions
  etc where worker not an employee)
• SA, WA, Tas and NT avoid adversely affecting
  OHS of others through an act or omission at work
  etc
• Note OHSA(NSW) s 10 (occupiers,and franchise
  arrangements McDonalds case (1999))
• Note, too, that the duties are non-delegable

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Officers Liability

• The OHSA(Vic) 2004 takes a new approach to
  officer liability. It picks up the definition of
  officer in the Corporations Act , as including
  a person
• (I) who makes, or participates in making,
  decisions that affect the whole, or a substantial
  part, of the business of the corporation or
• (ii) who has the capacity to affect significantly
  the corporations financial standing or
• (iii) in accordance with whose instructions or
  wishes directors of the corporation are
  accustomed to act
• Appears to include officers in holding companies,
  franchisors

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Section 144 of the OHSA (Vic)

• imposes liability on an officer where a body
  corporate contravenes the Act and the
  contravention is attributable to an officer of
  the body corporate failing to take reasonable
  care to prevent the organisation from
  contravening the Act.
• So members of a holding company can come within
  the definition of an officer and be liable for
  a contravention committed by a subsidiary
  company
• Quaere whether officers in a franchisor can be
  liable for contraventions by the franchisee?

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Workplace Arrangements

• Limitations in current structures for HSRs and
  HSCs
• OHS statutes tend to limit participation to
  employees at the workplace in relation to
  their employer, and many are built around
  designated work groups
• Some provisions only operate if there is a
  threshold number of employees in the workplace
  eg before HSR can be elected or HSC established
  (eg Tas and ACT with thresholds of 10/20
  employees)

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• Some exceptions
• S 39 of the OHSA(ACT) principal contractors in
  construction can request Commissioner to declare
  that provisions relating to negotiation of work
  groups, selection and powers of HSRs and HSCs
  apply in relation to the sub-contractors
  employees (similar provision covering HSCs in
  WHA(NT) s 44A)
• 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
  (including seasonal, part-time, and short-term
  employees) geographic location of workers
  (including working at home) and the interaction
  of employees with employees of other employers
  (eg contractors and labour hire workers). See
  also OHS Consultation Code of Practice 2001 2.4.2
• OHSA(Vic) 2004 s 44(1)(e) in negotiating DWGs
  can negotiate whether HSR is authorised to
  represent independent contractors and their
  employees

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Need for Reform

• Standard Setting
• Ensure general duties DO cover all kinds of
  workers and members of the public (Vic/Qld
  model?), and that legislation provides
  examples/illustrations
• Provisions to make holding companies, franchisors
  and other influential parties in corporate
  networks accountable for OHS
• Greater coverage in regulations and codes of
  practice?
• Clearer guidance material?

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• Workplace Arrangements
• Ensure workplace arrangements (i) are effective
  and (ii) cover all types of workers eg define
  participants as all members of the workforce,
  remove requirement for DWG and make process more
  flexible etc, adopt ACT/NT deeming provisions,
  remove size restrictions etc
• Give HSRs greater access to workplaces, powers
  to intervene, time off work, involvement in risk
  assessment etc
• Regional/roving representatives to represent
  workers in SMEs
• Enforcement
• Understand duties, target non-employee
  situations, monitor compliance with workplace
  arrangements, consult HSRs and workers, etc