Statutory OHS workplace arrangements for the modern labour market

Abstract

Conclusion: During the past three decades there has been a significant transformation of work arrangements in countries like Australia, characterized by a relative decline in permanent/secure full-time employees and a commensurate growth in short-term contract, casual and other contingent work arrangements. This shift poses a significant challenge for OHS legislation that was designed on a presumption of employment relationships and a level of unionization that are now no longer the norm. In particular, these changes undermine the mechanisms for worker involvement that were a critical component of post-Robens legislative reform in Australia and many other countries and which have been shown to be important in achieving tangible improvement in health and safety outcomes. This paper has highlighted the extent of these deficiencies, including the virtual exclusion of subcontractors, the self-employed and leased workers, from participatory mechanisms (notably workplace health and safety committees and being represented by HSRs). There is also evidence that the involvement of temporary employees and home-based workers (who are employees) in workplace committees is problematic even though they are not formally excluded by legislation. Further, it was noted that declines in union membership had weakened the logistical infrastructure for effective worker involvement, especially in industries and workplaces were insecure or contingent work arrangements are pervasive. The paper then explored a number of ways of remedying these deficiencies, including revising general duty and participation provisions and associated codes and regulations; and developing new forms of representation. It has argued that new and more embracing responsibilities on consultation should be aimed at employers in multi-employer worksites and it suggests that the WorkCover NSW OHS Consultation Code may be a good example of one step in this direction. It points out that while the original measures on worker representation and consultation established a useful floor of rights, they were based on assumptions about the structure and organization of work as well as about the power of trade unions which no longer apply in the changed world of work we describe in the early part of the paper. As these changes appear to have negative consequences for both the health and safety and the representation of the increasing number of workers that experience them, we argue that measures on representation and consultation are in need of revision. We suggest for example that existing Australian measures on 'deeming' and qualifications in relation to 'designated work groups' may be both limiting and inadequate in addressing the realities of supporting representation on health and safety in a changed world of work. Moreover, we note that issues of representation on health and safety for workers in small enterprises strongly overlap with those in the other increasingly fragmented and precarious employment situations that we have described. Importantly, we have derived several further observations from this. First that there is some evidence that representing workers' interests in small enterprises through the use of mobile representatives from outside the enterprises such as is the case in a number of European countries does lead to improved health and safety arrangements in the enterprises concerned. Second that legislative support for such representation is one of the factors that enhances both its coverage and effectiveness of workers as can be demonstrated in countries such as Sweden and Italy where such provisions exist and can be inferred from the limited and partial nature of both coverage and effectiveness of voluntary measures in countries in which they are the norm. Conversely, measures that exempt small enterprises from legislative provisions on health and safety and/or worker representation do nothing to support the improved health and safety outcomes in these firms. Furthermore there is a strong argument to suggest that such measures are in fact discriminatory and promote inequality at work. Suggestions about the need for new and innovative regulatory approaches to address the unfavourable situations that are a product of the new structure and organization of work does not imply that existing measures have been entirely successful in dealing with the situations for which they were intended. We have noted that on some issues such as for example, training, issuing notices, risk assessment and consultation in advance of change there is still some way to go before such measures can be claimed to be fully operational — even in traditional workplaces. We have suggested that discussion of regulatory reform needs to take this observation into account alongside those we have made concerning the new situations of work. This account has been specifically focused on regulatory reforms that could address current weaknesses in the Australian situation. However, it should be clear that there are similar challenges in most advanced market economies. This means there is much more to be learned from international comparative analysis of both regulatory and non-regulatory strategies in this field.