Australia: Cabbage Salad and Safety: Episode 4 - Safety in a disrupted world

Cabbage Salad and Safety is a series of podcasts based around conversations with Siobhan Flores-Walsh, a work health and safety lawyer with Corrs Chambers Westgarth, and Kevin Jones, a workplace safety consultant and editor of the award-winning SafetyAtWorkBlog. Each episode will focus on one or two safety topics.

Episode four discusses disruption (Kevin hates this word!) and asks if we can continue to keep people safe at workplaces that are no longer full of 'employees' but are rather comprised of 'workers', some of whom are employees but many of whom are contractors, labour hires, air-taskers and others. Some of these workers will rarely, if ever, come to a central workplace – and if your workplace does not look like Orwellian vision, then your business is (or will soon) be competing with a business that does. Decisions will be made consciously or by default. The issue cannot be avoided. Can our laws cope? What should safety leaders do?

We welcome enquiries and comments about the Cabbage Salad and Safety podcast, so please send them to Siobhan or Kevin.

These podcasts do not provide legal or other advice. Obtain legal or other professional advice as required.

TEXT VERSION

Podcast – Cabbage Salad and Safety

Episode Four: Safety in a Disrupted World

Conversation between Siobhan Flores-Walsh (Workplace Health & Safety Lawyer) and Kevin Jones (Safety Journalist)

Part 1

SFW: Hi, welcome to episode 4 of Cabbage Salad and Safety with Kevin Jones and Siobhan Flores-Walsh

KJ: Siobhan how are you?

SFW: Hi Kevin how are you?

KJ: I am well, I am well. I have been looking at the Corrs website and noticed that there is a new publication that has come out from Corrs called " The Mid-Year Review". It has got lots of themes in it and lots of interesting stuff not just about work health and safety but the thing that really got me interested straight off was the fair discussion about all this economic change and you know people are talking about disruption and festered work places and all sorts of stuff and I couldn't just see how safety fitted or coped with all of this supposed of disruption.

Given that you had a hand in writing the mid-year review I thought I would ask you to clarify and give me a bit of an idea of what it is all about.

SFW: I would be very happy to. I think the changes in the economy are challenging all of our clients in really significant ways and it is really around the organisation of workplaces, how people are employed and then every time there is a change and how people are employed and how they perform their work there is necessarily a safety issue raised in it. We decided to write our mid-year review in this way and you know steer away from the traditional summary of cases because we wanted to assist our clients in being more competitive so that we are able to identify I suppose the challenges that they are going to have to meet because we think that the primary challenge is the need to be able to adapt on an ongoing basis.

So it occurred to us that there are really five key things that clients need to be on top of. Broadly we look at digital disruption in the workplace and how the future of work is being affected by that and that is important in terms of looking at how companies structure their organisation, how they employ people or whether they decide to get most of their labour through other providers, contractors etc. We look at the infrastructure needs of the economy and how that has a big impact on how all of us live.

We also look at the fact that we are getting a great divestment of services from government in the not for profit sector and interestingly that raises enormous work health and safety challenges for both government and of course the not for profit sector itself and then I guess running through all of these changes is that businesses are really being challenged in terms of looking at their own ethics and their own culture. So the discussion really is around those themes and then how it is going to impact worker.

KJ: That is a very complex picture as a simple safety professional and I was trying to think well how do I manage safety – there are so many fronts that are going to affect safety – how would I choose the strategy that is going to address the hazards that are coming from those and are they old hazards in new ways or are they new hazards – it is pretty complex world picture that you have presented and I am feeling inadequate.

SFW: Well you know let me just confirm that. No – you have to actually look at particular issues because there is not one size fits all to this. So first of all what are the challenges that are thrown up. So we know for example that many organisations are having to compete with – sorry many established organisations that may employ most of their workforce they have got very high labour costs and yet now they are competing with disrupters so organisations which are coming in with much meaner models so their workforce might be comprised of independent contractors, they might be enterprises of labour hire and the issue for us as a society is whether or not our existing employment laws can actually provide the protections to people who are engaged in those alternate models. So there are issues for the health and safety person to look and really come up with solutions.

KJ: Our first port of call is always the Worksafe's and the regulators to try and get guidance on whatever – but almost always their guidance is focused on particular hazards. Very rarely on the context in which those hazards appear – so we have still got manual handling hazards, we still have got psychosocial issues. All of those things are still around but they are being affected by the new economy, by all of these different elements. Other than Safe Work Australia with their natural strategy looks at the big picture – I don't really see any state regulators looking at the big picture in terms of health and safety, and again I am feeling a bit sort of lost in all of this in terms of where do I start, should I look at particular hazards or should I look at the big picture. I suppose it depends on whereabouts I am with clients or within the organisational structure.

SFW: Look I think in a sense we are looking at a slightly different issue so if you are looking at the fact that workers may be engaged in different ways the issue that is thrown up by that different form of engagement is first of all is who is legally responsible for keeping them safe. That is the issue. I don't think that the underlying issue of how you deal with the hazard changes, control mechanisms everything else will remain the same. The question is who is responsible and that is I think what people are trying to get their heads around. How do these new models pose a threat to keeping workers safe.

KJ: I think you are right, there is a fractured workplace and I think in the mid-year review it talks about a festered economy where people are trying to understanding where there are competing issues but also very different approaches to running a business. So if you are running a micro business in a service facility you have to focus on safety but if you haven't got people that you are directly responsible for in terms of workplace safety, well suddenly your whole safety context has changed to your customers of safety or how the safety of the people in terms of the work that you do how it affects them that are not in that work relationship with you and I am just wondering how that can balance up and how we can address that.

SFW: I think you raise an interesting question on an interesting issue. So you are saying okay, you have got large business and you have got micro businesses and you are saying that a micro business is going to perhaps not have the resources to deal with safety in a particular way. I think this is really important in the context of what is happening in our economy because it is not simply the fact that you have a micro business what we are really looking at is where you have a large business outsourcing two chains of micro businesses so if we take you know 20 years ago where you have a large corporate and they employ thousands of people to deliver into that organisation all the services they need, they provide excellent benefits to those people, first class safety but they decide because of cost issues that they are going to outsource to a complex chain of these micro businesses.

It does mean that for everyone who is employed or engaged in those micro businesses there is a question around whether or not they are going to get the same level of protection. That is the issue that is thrown up I think by this economy. So some of the literature talks about the fact that we are going to see the dismantling of employment as we know it so large work places will – the number of them are at least going to be vastly reduced and what you are going to have are these complex supply chains and the smaller each part of that supply chain is the less resources they are going to do everything including keeping people safe.

KJ: One of these as you talk about that structure in the past we would have maybe talked about something similar in terms of contract of safety management where we have got a legal and commercial relationship that is quite formal and now sounds quite old school in terms of what we have got. What you are saying is that we would have a similar health and safety responsibilities through the chain but the links are more varied than they have. The structure of contractor safety is not as linear as it was, so we have to look at a new way or a new value of safety or a new application of safety that can deal with this spread of mix of micro medium size businesses.

SFW: Well I don't know what the solutions are I mean at the moment I think that work health and safety laws are copying adequately with reasonably linear supply chains so where you have got a large corporate subcontracting to another large corporate but I think the real challenge for us as a society is if as some people say we are going to end up having essentially an economy replicated by a lot of air taskers for example – whose wants to be responsible for the safety of the air tasker. Well the air tasker is. So we are looking I guess an extreme but we are almost talking about the re-introduction of the sole trader.

KJ: Yes thousands of sole traders. One of the things that the new economies seems to be built on because it gets all the attention is that we have got increased automation, we have got internet and things and all new ways of communications and establishing relationships with people that are strong contractual relationships which we might not have ever met. How does that complicate the work health and safety relationship because I am not sure that the safety profession is really up to copying up to this sort of challenges and I would be interested in what you think?

SFW: Well you know I think if you take a step back there are two issues here, there is the legal issue and there is reputational issues so if you have for example a very well-known brand that subcontracts down extensively there will come a point in time where that well-known brand up the top does not have a lot of control over what is happening down the bottom so you might say that there might come a point in time in a very long chain that that top brand doesn't really have an effective work health and safety duty to the bottom of the chain.

The only thing that is going to encourage that brand to take an interest in what is happening down the bottom of the chain is reputational damage – so they may need to establish government structures to ensure that all the way down the chain people are getting paid properly and that there are work health and safety controls in place but legally the longer the chain the more different it is for work health and safety laws to reach them to be honest with you so I think they are quite effective the first few layers but the more complex the arrangement would be the more difficult it would be.

Part 2

KJ: Siobhan I have had a drink break and a bit of a think and I was trying to tie in the discussion about the new economy to my established concepts of health and safety. One of the things that seem to me was that there has always been outsourcing of services and work and supplies – outsourcing in the past that had been outsourced for somebody because you want to have somebody else to do the work but you also want somebody else to take the risk and also have somebody else to deal with the safety management staff because you thought it was too complex or whatever else.

That was always a bit of a false strategy or a floor strategy because OHS is still partly your responsibility but it seems to me to be contractor management, now we are dealing with sort of the same sort of thing but in a much more complex structure of supply chain. Am I by tying in the old with the new, am I in the right direction?

SFW: I think you are in the right direction, you know you are right when large organisations started to outsource some of their services I think there was an expectation that they were outsourcing some of the risk associated with the people that were performing those services and in response to that trend model work health and safety laws in fact created a duty holder for the purpose who conducts the business or undertaking that owes a duty not to just the employees who provide services to them but also to any person who provides services whether they be a contractor, a labour hire person or need even a volunteer.

You're right though these organisations that are called disruptors in the economy they are doing outsourcing I think on a far grander scale so they may have many, many independent contractors working for them and you may have far more complex supply chains. So yes work health and safety laws I think do apply to those organisations that are operating these more complex supply chains but I think as we spoke earlier the longer the supply change becomes and the further it is from the top, I guess the degree of control that the top has over the bottom and I suppose the issue around that is typically the further down in the supply chain you get typically not always but typically the smaller and perhaps the less sophisticated the organisation will be.

KJ: I wonder with the new economy and the new structures. I wonder whether the safety management systems that we are obliged to have and the obligations we have for our safe system of work I am just wondering if those things that we have been promoting and we have been building our systems on for 30 odd years I just wonder if the new economy sort of – or if they are even applicable to the new economy? Do they still fit because it seems to be with the distance you have got between the duty holder and the actor or the supplier it is much more vague than it was or much more distant that it was and I am not sure that the safety management systems that we have got can actually stretch that far.

SFW: I think that is a really good point. There is going to be still of course you know our established business models, our established shapes of business if you like but it is changing and I think this is really the fundamental question that we are grappling with across employment law generally not just work health and safety but straight employment or industrial relations these new models, these new ways of working and engaging people, we are trying to swash them or squeeze them into laws that really don't accommodate them and it is going to become a question for society whether or not we still want to give the degree of protection to workers, whether he can give the same degree of protection for workers. You know the Productivity Commission came out with a whole range of recommendations to you know try and modernise how we regulate employment in response to you know changes, for example penalty rates on the weekend.

I am not going to give the view one way or another as to how I think that should play out but certainly we have to recognise that when penalty rates first came into play they were to deal with the fact that the shops closed at 12.00 o'clock and you know so people who were working on Saturday afternoon and Sunday really were the odd people out – we are now in a 24/7 environment and we really are looking at the regulation of work through a 20th century lens.

KJ: One of the things that still applies in work health and safety is – do we still have a duty of care?

SFW: Yes.

KJ: But it seems to me what we have got with this new spread of network of suppliers and service provides that we have a higher expectations for duty of care that are well without the work but outside the work relationship but almost getting into a public health social obligation process and I am just wondering how – should we still be talking about the duty of care in the way we have for 30 hears or is the new economy "redefined duty of care outside of work relations"?

SFW: I am probably getting really legal when I answer that.

KJ:

I will forgive you.

SFW: But I think that there are a couple of things in there. First of all there is the question out there at the moment is whether or not current work health and safety laws are also public safety laws because for the first time businesses have got a duty to not only to ensure the health and safety of their workers but also not put the health and safety of other people at risk so the general public. You know the general public. You know so there is that. I think what you are saying is perhaps a slightly different thing. You are saying that if we impose a duty of care on an organisation that says "I am not going to employ anyone I am just going to have a whole bunch of independent contractors who come in and out when they suits them".

Why should I owe them a duty of care so I think that is kind of a different question but it is a fundamental question because I think you are suggesting that if the duty of care extends that far are we extending it because we just simply think it is a good thing to do? I think it is a slightly different question. The question from a legal prospective is "does that business have so much control over those people that work for it, whether they are labelled independent contractors or whether anything else that they in fact owe a duty to exercise that control in a particular way but that is at the crux of it. If you are not employing people, if you are engaging people in an entirely different way at what point at which should that duty be broken and I just don't know that our work place laws whether there really sufficiently mature or whether the thinking has gone into them to work out how we are going to apply in this new economy which is coming pretty fast.

KJ: One of the things that has always intrigued me with workplace relations, not necessarily health and safety, is the issue of workplace flexibility because there is certainly is a health and safety context to that, quality of life, work life balance and a whole range of things, but that has been fairly well established as a concept, although not necessarily applied, but a concept for twenty odd years.

SFW: Yes.

KJ: I'm wondering if the new economy is an extension of what we think about in terms of flexibility. What we're actually giving is a structural flexibility, an extreme flexibility to how we work and that maybe the new economy is something that we should have perhaps anticipated with the change of workplace relations, but also the way that we managed our workers and offered more options and more opportunities and more flexibility.

SFW: I think that's an interesting way to look at it and it's probably the complete opposite to the way I look at it.

KJ: Good, it makes a much better podcast that way.

SFW: Because I think what you're saying is have this new way of engaging people to work with its ultra, the change in structure which gives them ultra-flexibility, I'll turn up when I want to, etc, whether that has come in response to traditional employment arrangements of not giving people the flexibility that they wanted. I would say probably not. I would say some people have at least a secure position to go into this alternate way of working because they want flexibility, but generally speaking I think that they are people that perhaps don't need the security that comes with traditional structures of employment.

The critical issue I think in terms of the change is one structure of engagement, employment, brings with it a whole range of social infrastructure. New economy employment if we call it that, for want of a better expression, the sort of air tasker employment, that brings with it ultra-flexibility but none of the social infrastructure that goes with employment, so the question is, if they are both at extremes, there is no doubt whether we want it or not that established ways of engaging people, our incredibly inflexible employment regulation here in Australia, it's going to have to go because we're simply not going to be able to be competitive on a global stage. It is in its death knell. We're taking too long.

The fact that we can't even deal with penalty rates is an indictment to our decision makers, so that's the only change. The question is whether as a society, we're comfortable and I don't think this is going to happen, but we're comfortable with no providing any of that social infrastructure to people who are working differently. We are going to have think very differently about how we deal with these issues. Current laws just don't fit the models that are emerging.

KJ: Alright. Now the next time we are going to be speaking, we're probably going to be at a safety convention in Sydney in a few weeks' time. My plan is to record a podcast and the discussion there, because it's exactly these sorts of conventions and conferences where these challenging thoughts are meant to be discussed and all sorts of things and I know they've got some really interesting speakers at the next convention. So I'm keen to get up there. You're speaking on a panel.

SFW: Yes.

KJ: So we'll certainly talk about what you were on about and the questions and how it was received. What are the themes that you will talking about at the conference, just so we can give the listeners a bit of an idea of what's coming up in three or four weeks' time.

SFW: Sure. I'm fortunate I'm involved in the free seminars and also the paid conference. So in terms of the paid conference I'm facilitating a panel which is going to be talking about disruptive leadership. So leadership in a disruptive environment. I'm quite excited Andrew Hopkins is on that panel with a number of other interesting people.

KJ: He'll be signing his books again I'm sure.

SFW: I hope he signs mine. So that will be really interesting because I think it will flesh out a lot of the issues that we've touched on tonight. The other panel I will be speaking on and it's an issue you and I have discussed Kevin and I think this topic actually came out of one of our podcasts and I can't recall the specific title, but it's something like around psychological injury and asking whether or not it's being hijacked and whether or not adequate solutions or responses to it are being sabotaged by focusses on things that you and I have discussed before, resilience and colouring in rooms. That panel is going to be really interesting.

We have an inspector from New South Wales Worksafe who actually is appointed to deal with psychosocial risks. So that's what she deals with.

KJ: Is that she was described as a psychosocial inspector.

SFW: Exactly.

KJ: That sounds like a fantastic title.

SFW: I actually want her job. I just think that goes to show that the regulators they do get criticised a lot but there really is an attempt to get in there and deal with the issue. We have someone from the Master Builders Association, David Solomon, who is a great speaker, you know David.

KJ: Yes.

SFW: He's going to talk about this issue in the context of construction where of course we know, they've got really high rates of psychological inland. We have Fiona and I feel terrible, her full name escapes me at the moment, but she's a great speaker. She works for Men's Services.

KJ: Great.

SFW: So it should be a great chat.

KJ: Alright. Tying it back to the Corrs Mid-Year Review that we mentioned at the start of the podcast. Certainly anything that we've mentioned in the podcast will include links to documents on the website that accompanies the podcast, so rather than talking about www's we will include those in the notes. I'm really looking forward to the next podcast. We've talked today about safety in a very very oblique way, but I think it has been very interesting and I'm looking forward to feedback from the listeners through websites and emails or coming up and talking to us at the convention in Sydney, I think it's the first week of September.

SFW: It is, yes.

KJ: Thanks for your thoughts, thanks for your time.

SFW: Thanks Kevin.

KJ: I hope everybody has enjoyed listening to us and we will talk soon.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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