Occupational Health and Safety Audit

Occupational Health and Safety Audit of the Workplace

Over the last thirty years, the state of labor relations in Australia has been constantly changing. Where, the effects of globalization would have a dramatic impact upon the country, as it is causing a number of businesses, to focus on increasing their profits as much as possible. Part of the reason for this, is because globalization would force trade barriers and tariffs to be reduced. This would allow many cheaper products and services manufactured in other countries, to flood the Australian market. To adapt to these different changes, many business leaders would urge the government to change the basic nature of the labor relationship in the workplace. At which point, large amounts of deregulation would occur during the 1980's and 1990's. One aspect of this arrangement was, changing the underlying nature of the how businesses would negotiate with employees, about various occupational and safety issues in the workplace. What happened was, many business groups began to openly question the labor arrangements that were in place under the current legal structure. Where, they felt that the contractual understanding between: various groups of employees and unions were hindering their ability to compete. This would lead to drastic changes in the workplace and the way various employment agreements were handled, as there was in shift in labor laws. A good example of this can be seen by looking no further than Work Choices. This is a series of amendments that were backed by the Howard government, as they would change the underlying nature of safety regulations and various employment contracts. Where, power would be taken away from the states and a new watered down federal regulations, would apply to businesses. At the same, various labor arrangements were changed, as each employer was allowed to be able to negotiate contracts individually vs. with a group. This is significant, because it would highlight a fundamental shift that was occurring in occupational and safety regulations. In 2009, there were changes by Labor, to increase the overall amount of regulation and restore more balance to various safety rules. As the Fair Works Act of 2009, would seek to restore this sense of stability. (Michalando, 2009, pp. 118 -- 124) To fully understand the effects of various regulations in the workplace requires, conducting an occupational health and safety audit of BHP Billiton. This will provide the greatest insights, as to what improvements need to be made in the area of occupational safety and health.

An Examination of BHP Billiton

To fully understand, where improvements can be made in the workplace requires looking at an actual employer. This will be accomplished by examining the work environment of BHP Billiton. Currently, company mines various natural resources, from a number of different properties around the world to include: bauxite, aluminum, copper, silver, lead, zinc, nickel, coal, potash, manganese and the exploration of crude oil / natural gas. The occupational health and safety audit that will be conducted, will examine the underlying safety issues that could be affecting a number of employers throughout Australia. Given the fact that BHP Billiton is one of the largest employers, means that the different issues that they are facing, will underscore how businesses are struggling to: maintain a balance between health / safety regulations and the competitive effects of globalization. ("BHP Billiton," 2010)

The Contractor vs. Employee

At the heart, of all labor relationships throughout the commonwealth, is the separation between those individuals that will work on a contractual basis and employees. Where, a contractor has greater flexibility in determining, how they will perform various functions. This is because different legal proceedings have set a precedent, as to what will define the contractual vs. employee relationships. A good example of this can be seen with Zuijs v. Wirth Brother Party Limited. What happened was Zuijs, was a trapeze artist for the circus (which was owned by Wirth Party Limited). During one of the shows, Zuijs would fall off of the high wire, resulting in serious injury. At which point, he would sue his employer under the Workers Compensation Act of 1926. This stated that an individual, who is working for a particular employer, must compensate those employees who are injured on the job. Wirth Brothers claimed that Zuijs was working on a contractual basis, as his skills and natural talent are so specialized, that they require the use of personal judgment (when he was on the high wire). As result, his employer argued that they are not responsible for what happens to him, based upon this relationship. The case would be heard by the High Court of Australia in 1955, where they would side with Zuijs. Commenting about the decision the court said, "Even if one of the circus managers could not interfere with the actual technique of the acrobats and in the character of the act, no reason appears as to why Zuijs should not be subject to his directions in all other aspects. There are countless examples of highly specialized functions in modern life that must be a matter of practical necessity and sometimes even as a matter of law, be performed on the responsibility of persons who possess particular knowledge and skill and who are accordingly qualified. But those engaged to perform the functions may nevertheless work under a contract of service." (Popple, 1996, pg. 302) This is significant, because this case would help establish a foundation between employees and their employers. As the overall nature of the working relationship would change, resulting in various protections for individuals that are injured, during the course of their employment.

As a result, various standards have been created to define this relationship. Where, there are a number of tests that are used to decide if a contractual relationship exists these would include: the control test, the risk test, the delegation test and contracts for tasks vs. contracts for labor. The control test is determined based upon, if an employee is involved in a controlled relationship with their employer. As a number of relevant factors, would highlight this relationship to include the employer controlling: employee hours, work, how an individual will perform the work and places of work. The risk test is when you are looking at the financial risk to an individual. Where, if an individual is bearing a great deal of the monetary risk, they are considered to be a contractor. The delegation test is when you are looking, at the ability of a person to subcontract out any work. Those people, who are prevented from doing so, would be considered employees, as this relationship is under the control of a particular employer. Contracts for tasks vs. contracts for labor, is when you are determining, if a particular arrangement is being conducted on contractual basis, for various tasks or for a stated amount of wages. Those agreements that involve: the individual selling their labor, a single written agreement, are focused on the long-term and do not involve a specific task; would be considered to be a contract of labor. This is when an individual is working for a company as an independent contractor. Where, the various tasks and overall scope of the labor relationship is limited. ("Are You a Contractor or Employee," 2007) This is significant, because it shows how the labor relationship is based upon, if an employer has larger amounts of control of the individuals' actions. In workplace occupational safety, Zuijs v. Wirth Brother Party Limited along with a host of other cases would establish a basic foundation, for various work safety rules throughout the commonwealth. Where, those employees, who were under the direct control of their employers, would be able to seek compensation for injuries that they receive on the job. As they have a legal obligation, to ensure that the workplace is safe for everyone, who is under their direct employment.

The Changing Relationship of the Employer and the Employee / Contractor

Like what was stated previously, globalization has been having a profound impact upon the labor relationship that exists. Where, the nature of this association, is forcing changes in how the two different parties are interacting with each other. As globalization, has been forcing the government to begin to enacting, various laws that are changing how someone is defined, as an employee vs. A contractor. What happened was: a series of regulations and amendments, were enacted in the mid-1990's / early 2000's that would change this relationship. Where, the Workplace Relations Act of 1996 would be one of many changes that were implemented. This is law would dramatically change the relationship between: employers and employees. As it would introduce, a number of dramatic transformations to include: formalized agreements between employers / individual employees (Australia Workplace Agreements), a change in the way collective bargaining agreements are utilized, a reduction in the number of federal labor awards, the banning of closed shops and limitations on union activities. (Workplace Relations Act of 1996, 2010) This would establish a new foundation, in various work regulations throughout the commonwealth for nine years. At which point, the Howard government would begin to pass a series of amendments to the Workplace Relations Act of 1996 (Work Choices). This would change the relationship between employers and employees once more. Where, a number of new regulations were implemented to include: the formation of federal system of regulations, the creation of the Australian Fair Pay Commission (to set minimum wage standards), increasing the life of various labor contracts from a maximum of three to five years, the creation of five minimum workplace conditions, exemptions for companies with less than 101 employees from unfair dismissal laws and increased restrictions on what union activities were allowed in workplace. ("Work Choices Legislation," 2006) This is important, because it highlights a shift that is taking place, in the labor relationship between employers and employees. As far as occupational health and safety is concerned, this would change how employees would be defined in a controlled labor relationship. Where, the employer would have greater flexibility in how they would classify everyone. As far as health and safety is concerned, this is huge advantage that many businesses would have, as they could systematically avoid the various legal precedents and their roles / responsibilities for different safety related issues.

In 2009, after the Howard government was defeated by Labor, they began to reverse the changes that took place. This is because of the concerns that both regulations went too far, in giving employers an unfair advantage over employees from: the Workplace Relations Act of 1996 and Work Choices. Where, individuals were slowly loosing the various protections that they were awarded, under various case law precedents.

This would lead to the passage of the Fair Works Act of 2009.This would was based off of the various changes that were imposed from: the Workplace Relations Act of 1996 and Work Choices. What happened was these two laws, would change the way various businesses and employers would interact with one another. Given the fact that federal standards applied throughout the commonwealth, meant that a similar law must be enacted that will follow the same basic model, but will provide increased amounts of protections for employees. To achieve this objective, the act calls for the establishment of Fair Works Australia. This office would work in conjunction with, the Office of Fair Work Ombudsman, where the two agencies would regulate the national system of workplace regulations (by replacing seven different departments throughout the government). As a result, Fairs Work Australia has taken on a number of different responsibilities to include: determining awards, the power to regulate minimum wages / good faith bargaining / industrial action, deciding unfair claims and approving agreements. This is in response to the different provisions of the act that are seeking to address, the unfair advantages that many employers had under: the Workplace Relations Act of 1996 and Work Choices. As the new law, would establish ten different national employment standards to include: maximum weekly working hours, annual leave, parental leave / entitlements, the right to request flexible working arrangements, public holidays, long service leaves, community service leaves, personal / compassionate leaves, notice of termination / redundancy pay and providing employees with a Fair Work Information Sheet (this details the rights / entitlements of employees along with telling them how to seek out the proper advice). At the same time, the various rules for collective bargaining were streamlined, as both businesses and employees could negotiate in good faith efforts, without having to utilize formal channels ("Fair Work Act 2009," 2010). This is significant, because it shows how the overall nature of work relations has changed, because of globalization. Where, the existing work rules and the lack of federal standards would cause Australia, to face a number of different challenges in remaining competitive. This would lead to the passage of the Workplace Relations Act of 1996 and Work Choices. Where, both would give more of an advantage to employers over employees. As far as health and safety is concerned, this would allow employers to be able to circumvent the various case law precedents and previous regulations. The problem was that many of the different protections for employees were being slowly taken away. To mitigate these effects, the Fair Works Act of 2009 would seek to address these imbalances, by working within the federal framework, while improving the overall amounts of protections that employees would have. As it outlines, ten different areas that would increase, the number safeguards for employees.

What this shows, is a shift that occurred in the way various employer and employee relations are conducted. As the pendulum would swing to one extreme and then back to the middle. The big issue going forward is: how these different changes will impact previous case law precedent and the nature of this relationship. As far as employee health and safety is concerned, this will change the roles / responsibilities of both parties, because the regulations have evolved to the point that previous court rulings as well as case law precedent may no longer be necessary. At which point, this relationship will change, to reflect the realities of what are occurring in the economy and the business.

How the New Regulations have Changed Occupational Health and Safety?

Like what stated previously, we will be examining BHP Billiton, to see the true effects that the new laws are having on: the issue of employee occupational health and safety. Currently, the entire mining industry is regulated throughout the commonwealth under: the Mine and Safety Inspection Act of 1994. This would define various occupational health and safety standards for mines in Western Australia. Under the act, there are three different provisions that are covered to include: duties, inspections and penalties. Duties are the various responsibilities that the employer and employees will have in a work environment. With the act stating, "It is the employer's duty to provide and maintain at a mine, a working environment, in which employees are not exposed to hazards." At the same time, the act states that employees must, "Take reasonable care, to ensure his or her, own safety and health at work." (Spear, 2010) This is important, because it defines the roles and responsibilities of both parties in the mining industry.

Inspections are when the act is creating, numerous inspectors on a number of different levels such as: district as well as special inspectors (to examine the safety of the plant / mine). At the same time, there is also the employee inspector. These are regulators who will investigate and prosecute anyone who is found to be in violation of the act. This is important, because it establishes a basic foundation, for how various mines will be inspected and how those who violate the provisions of the law will be prosecuted. (Spear, 2010)

The different penalties for those who are in violation of the law are: $200.00 per day for employees and $2,000.00 day for corporations. This is important, because it establishes a mechanism for punishing those, who knowingly violate the law. With it applying to the actions of both: employers and employees in a work environment. (Spear, 2010)

This is significant, because it shows how various provisions of mining safety laws, must applied equally within the work environment. Where, both employers and employees have a responsibility to maintain high mining safety standards. As a result, this law would establish a foundation as to how mining companies and their employees should be addressing the issue of mine safety.

When you apply these different laws and the new changes to BHP Billiton, it is clear that they are using various loopholes to be able to circumvent them. What is happening, the recent regulations that were enacted have given employers greater flexibility, in who they consider to be contractual workers and actual employees. Where, the different regulations have made it easier for employers; to call employees "contractors," even though a control relationship exists. This problematic, because it means that many employees have less protections. Despite the fact that the Fair Works Act of 2009, was seeking restore some kind of balance between protecting need of employers; while ensuring that the proper amounts of safeguards are in place for employees. A good example of this can be seen, by looking at information from the Australian Bureau of Statistics. Where, they found that 41% of laborers were without paid leave entitlements. This is despite the fact that Fair Works Act of 2009 was supposed to address these issues. Commenting about these different figures, Sydney University Social and Political Scientist, Professor Salvatore Babones said, "Australia has long been thought of as a classless society but the rise in casual employment indicates the emergence of class dominance. Employer organizations benefit and the working people suffer. The Labor Government does not encourage casual employment but they don't challenge it either." (Phillips, 2010) This is significant, because it highlights a shift that is occurring in the overall amount of protections that employees have. As far as health and safety is concerned, the ability to more easily call employees "contractors" is one area that improvements could be made.

When you apply this standard to BHP Billiton, it is clear they have been changing who they are defining as employees. Where, they will often utilize the loopholes in regulations, to redefine the underlying labor agreements, at various mines across the commonwealth. Evidence of this can be seen, by comparing how BHP Billiton classifies their employees in comparison with their largest competitor RIO Tinto. Where, BHP has been known to use a number of different contractors that would normally be qualified as employees. While RIO Tinto does not make such distinctions, as they have the majority of people working for them classified as: employees. ("BHP Billiton Back Flips," 2010) As far as the issue of safety is concerned; this troubling, because BHP Billiton is using these distinctions to circumvent various: mining laws and regulations. A good example of this can be seen with the Pilbara mining region in Western Australia. What happening is, the company has terrible track record for employee safety in region. As a number of accidents that have been reported increased, at the mines they owned. This would force the company to reclassify individuals that were "contractors' back to employees. Where, BHP was seeking to limit their liabilities (with the original classification). Then, after a trend began to emerge, on the lack of focus on various safety regulations, is when they would switch the status of 7,000 workers back to employees. This is significant, because it shows how BHP Billiton, is using various legal distinctions, to reduce their labor costs and the overall responsibilities that they will have (despite previous case law as well as existing regulations that are in place). As a result, once could argue that the changes in various workplace regulations have caused the underlying safety standards to become worse. Where, a variety of employers are using the way they classify employees and contractors, as tool to go around various safety regulations that are in place.

Publically, BHP Billiton has been admitting that they have been dealing with various safety problems at a number of different mines. A good example of this can be seen with the company stating that they need to improve their workplace safety record. With the BHP saying that they would close or cease operations, at any mine that is deemed to be unsafe. Commenting about these views, the Head of the Iron Ore for the company (Ian Ashby) said, "We're looking for systems to eliminate these tragic events. There hasn't been any epiphany but we need to increase the intentionality and focus. Risks that required more attention included traffic management and fatigue management, to prevent excessive working hours. There is an element that I don't like to dwell on, but there is complacency, generally in the Australian workforce and a bit of arrogance. I think some of that is quite manifest in the Pilbara." ("BHP Iron Ore Chief Admits Safety Record Abysmal," 2010) This is significant, because it shows the company's strategy for improving safety standards is: to admit a certain amount of liability and then blame everyone else. In this case, the company is admitting that they need to improve their work safety standards. Yet, they also turn around and call employees arrogant, by blaming them for safety problems in their mines. However, when you look beneath this statement, it is clear that the company has been knowingly ignoring mine safety regulations. Evidence of this can be seen by looking no further than, at the Olympic Dam copper and uranium mine. Where, a hoist fell hundreds of meters, closing the mine down for several days. Even though no one was hurt, the fact that this accident occurred, is a sign that the company is not applying, adequate safety standards at a variety of mines. ("BHP Billiton Back Flip," 2010) The fact that a hoist could fall in such a manner; is an indication of this attitude among management, where they are refusing to accept responsibility and rectify the situation. As a result, this has caused the underlying safety standards to become worse, as the company is using these new regulations to knowingly circumvent various laws.