BlueScope Steel's Submission & Response to the Draft Model Occupational Health and Safety Laws - 9 November 2009
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BlueScope Steel’s Submission &
Response to the Draft Model
Occupational Health and Safety Laws
9 November 2009Page 3 About BlueScope Steel BlueScope Steel is an Australian listed company (ASX: BSL) and was demerged from BHP Billiton in 2002. BlueScope Steel manufactures flat steel products for domestic and export customers. The other Australian listed steelmaker – OneSteel – manufactures long products. BlueScope Steel’s customers are in the building and construction, automotive, white goods and general manufacturing sectors. BlueScope Steel’s Australian iron and steelmaking facility is located at Port Kembla (NSW), while a rolling, coating and painting plant operates at Western Port (Vic), along with metal coating and painting plants at Springhill and Erskine Park (NSW). The Company operates in all states and territories and has over 30 BlueScope Lysaght building products manufacturing plants and seven service centres across Australia. It also distributes both long and flat steel products through the BlueScope Distribution business. The Port Kembla Steelworks is an integrated steel plant with an annual production capacity of approximately 5.3 million tonnes. The Steelworks is modern, internationally competitive and is one of the largest employers in the Illawarra region. The economic contribution of the Steelworks to the region is significant, including 12,000 full-time equivalent (FTE) jobs, $2.1 billion in gross regional product, and $0.9 billion in household income. This equates to approximately 14 per cent of gross regional product in the Illawarra, and 10 per cent of household income.1 Approximately 50 per cent of BlueScope Steel’s upstream steel production is converted to products such as COLORBDOND steel and ZINCALUME steel, making it amongst the world’s largest producers of value-added coated and painted steel products as a proportion of production. The other 50 per cent is exported, with the company’s Australian operations being its largest source of exports globally. In 2006/07, BlueScope Steel exported some $1.6 billion of steel products, or approximately 2.3 million tonnes. This places BlueScope Steel in the top one per cent of Australia’s exporters by value.2 Key export destinations for BlueScope Steel include the United States, South Korea, Thailand and Indonesia, and to a lesser extent Europe, Africa and the Caribbean. Over past two decades, BlueScope Steel has established a substantial international footprint including an integrated steelworks in New Zealand, a flat products steel-mill joint venture in the United States (Delta, Ohio), and metal coating and painting facilities in China, Vietnam, Indonesia, Thailand, Malaysia and under construction in India. Building products manufacturing plants are located throughout the Asia– Pacific region, and the company is the leading manufacturer of steel pre-engineered 1 IRIS Research, 2007 2 Australian Bureau of Statistics, ‘Number and Characteristics of Australian Exporters, 2006-07’, Cat No: 5368.0.55.006. According to the ABS, In 2006-07, less than 1% of goods exporters had aggregate exports of $100m or more, but these exporters contributed 79% by value to total goods exports. BlueScope Steel’s response to the National Review into Model OH&S Laws
Page 4
buildings in the USA and China. In 2007, BlueScope Steel acquired the IMSA steel
businesses in North America.
BlueScope Steel has an Australian based direct workforce of approximately 10,000
employees, with a further 11,000 worldwide.
BlueScope Steel’s Approach to Safety
BlueScope Steel has a comprehensive and long-established Safety Management
System, which has contributed to a substantial improvement in the company’s safety
performance. This system applies to all BlueScope Steel’s operations globally, and is
implemented in any new businesses the company established or acquires. The system
has at its apex the Health, Safety, Environment and Community (HSEC) sub-
committee of the Board of Directors. Reporting to the sub-committee is the Central
Safety Committee comprising executives of the company. Below this, each business
and sub-business has its own Central Safety Committee.
A key feature of this system is that BlueScope identifies (at a corporate level and at all
lower levels) its top rated risks. Focus is then given to these risks (via cross business
networks) to reduce the top risks. Each level of the organisation is likewise expected
to know what its top risks are, have plans in place to address these risks, and be
making good progress to mitigate them.
BlueScope Steel recognises that it is not possible to legislate this type of approach. It
asks that any legislative approach should support and reinforce rather than hinder this
approach.
Lost Time Injury Frequency Rate Medically Treated Injury Frequency Rate
18 70
16.0
16 60.0
Medically treated injuries per million man-hours worked
60
14.0
Lost time injuries per million man-hours worked
14 52.2
50 47.1
12
10 40
8.0
8 29.1
30
6 22.4 21.9
4.8
20 17.0
4.1
4 3.5 3.5
12.4
2.8
9.4 8.3 9.4
1.8 1.2
10 6.6 6.8 6.5 8.2
2 1.5 5.6
0.9 0.8 0.9 0.8
0.6
0 0
1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009
FY FY
Includes Contractors from 1996 Includes Contractor from 2004
Includes Butler from May 2004 Includes Butler from May 2004
Includes 2007/8 acquisitions Includes 2007/8 acquisitions
Includes acquisitions for FY 07/08 Includes acquisitions for FY 07/08
BlueScope Steel’s response to the National Review into Model OH&S LawsPage 5
General statement:
The Draft Act incorporates a number of important principles, which BlueScope
supports, and that provide employers with the normal rights expected under the justice
system. These include:
The presumption of innocence;
The adoption of a ‘reasonably practicable’ test;
A requirement that only the relevant regulator (e.g. WorkCover) or the
relevant Department of Public Prosecutions can launch prosecutions, not third
parties;
Rights of appeal.
Notwithstanding these important inclusions in the Act, we are very concerned about
potential shortcomings in actually implementing harmonised legislation on a state-by-
state basis. Our experience with the harmonisation of self insurance is that it has been
inconsistent and inadequate. State government departments have resisted the goal of
harmonisation (for example, by deconstructing and reinterpreting the National Audit
Tool) so that, in practice, there has been very little harmonisation. We are concerned
about the potential for the same shortcomings to occur with regard to harmonising
OHS laws. In particular, the large number of clauses that have been left as
Jurisdictional notes (i.e. left to each state to include their own, potentially inconsistent
clause) will make true harmonisation very difficult.
The definition of Due Diligence recommended to the WRMC (January 2009) should
be included in the Act.
The act should prevent Duty holders from self incrimination by work they pro-
actively undertake to identify gaps like:
Internal audit and governance activities they may undertake for the purposes
of complying with the Act.
Internal incident investigation they may undertake
Risk registers they may run
Currently the above systems all provide evidence to prosecutors that the Duty Holder
knew of the risk or system failure/weakness. However it is in everyone’s interest that
the Duty Holder be encouraged to undertake the above activities and continuously
improve their systems.
BlueScope Steel’s response to the National Review into Model OH&S LawsPage 6
Observations regarding specific Clauses
Clause 27 Duties of workers…must:
( c) “co-operate with any reasonable instruction…”.
The clause should read: “must comply with any reasonable instruction”. It should be
cast in the same language as clause 119.
Clause 55 Election of HSR should be organised by the Business undertaking and
conducted by secret ballot. There should only be 1 HSR per work group (Not
everybody can be an HSR).
Clause 65 (2)
“The course of training must be:
… chosen by the HSR in consultation with the person
conducting the business or undertaking.”
What if the person conducting the business or undertaking:
Has set up an on-site school covering all training needs.
Has entered into a bulk contract with a training supplier that covers HSR
training (and has got a good rate as a result or the timing works well).
Is located remotely and wants to bring the trainer to the site (not the other way
around).
Once the regulator has accredited a course as meeting its requirements (and the course
continues to meet these requirements on regular audit by the regulator), then the
Person conducting a business should be free to choose whichever course most closely
meets its needs (e.g. time, cost, quality etc). The objective of getting the training done
in a timely way is compromised by allowing the HSR to choose the training course,
but holding the person with management or control responsible to get it done in a
reasonable timeframe. This is unreasonable.
This clause will seriously distort the market place by separating the person choosing
the course, from the person paying the bill 65(3) (b).
Clause 70 The functions of the OHS committee are:
(b) to formulate, review and disseminate to the workers the standards, rules
and procedures relating to health and safety that are to be carried out or complied with
at the workplace.
This leaves the Duty Holder with nothing to do but enforce the standards, rules and
procedures set by the OHS committee. Does this make the OHS committee
responsible for the outcome? What qualifications do the members of the committee
have to set standards, rule and procedures, particularly in highly technical areas?
BlueScope employs engineers and technical experts to write procedures, standards
and rules and these people are highly trained in their field. OHS committees can
certainly help advise on these and provide feedback, but they should not be given the
job of formulating rules, standards and procedures.
BlueScope Steel’s response to the National Review into Model OH&S LawsPage 7 Clause 80 A HSR can issue a Provisional Improvement Notice (PIN, this is what is done in Victoria). A PIN should NOT be issued unless the issue has entered the issues resolution process (a process that already been agreed by the workforce and management). The site management should not be made aware of an issue for the first time upon the issuing of a PIN. Otherwise, this defeats the purpose of having an issues resolution process. This contravenes the Objectives of the Act clause 3 (b) Object of the Act. Clause 92 (1) This clause allows an inspector to be called in to review a PIN issued by a Health and Safety Representative. The inspector should first ensure that the agreed issues resolution process was followed, and the process could not resolve the issue. If the issues resolution process has not been used then the PIN should be lifted and the process used (i.e. the objective of the Act (clause 3 (1)(b)) should be pursued first). Clause 99 – This clause creates a reverse onus of proof where there is alleged discrimination. We do not believe this is necessary. Clause 108 Notice of Entry. “An OHS entry permit holder must, as soon as reasonably practicable after entering a workplace under this Division, give notice of the entry…” BlueScope Steel must have knowledge of and control over all persons entering its sites, in order to be able to properly discharge its responsibilities for safety. There are many industries (including the steel industry) that rely, in part, on access control (separating people in time and space from hazards) to discharge their responsibilities for Safety. Clause 119 says that the Permit Holder must comply with any reasonable request …. However, it is not clear how such a request could be made in the first place if the Duty Holder doesn’t know a Permit Holder is on site. This clause would make it impossible for a Person with management control of a workplace (Clause 19) to discharge their safety duty to the Permit Holder. Clause 116-118 should be consistent with Fair Work Act clauses 484 through 493. Clause 176 We see no reason why the Inspectors need the power to take affidavits. Clause 178 We do not believe it is necessary to compel self-incriminatory testimony, whether or not the testimony can then be used as evidence. Clause 236 Allows courts to order compensation without qualification. Compensation should be a matter for the workers compensation system and general law of contract and negligence should not be part of the model OHS Act. BlueScope Steel’s response to the National Review into Model OH&S Laws
Page 8
Summary
In conclusion, the model OHS Act contains a number of improvements on the various
state-based Acts, including incorporating a number of rights available to employers
under the justice system. However, there are two clauses that are particularly
problematic for the reasons outlined above and are not supported by BlueScope:
Clause 70 the Functions of an OHS committee.
Clause 108 the right of a Permit Holder to come on site without notice to the
person with Management Control.
And we remain concerned about how effective the harmonisation will be, given our
experience with the harmonisation of self insurance.
BlueScope Steel’s response to the National Review into Model OH&S LawsPage 9 Public Comment Response Form Exposure Draft for Model Act and Stage 1 Model Regulations You are invited to answer any and all of the questions listed below which have been taken from the Exposure Draft Discussion Paper: Questions Part 1 – Preliminary Matters Q1. What is the best title for the model Act? No view. Q2. Does the definition of ‘officer’ clearly capture those individuals who should have ‘officer’ duties under the model Act? BlueScope Steel would prefer consistency with other Commonwealth Acts, and as such would prefer the definition in the “Corporations Act”. Q3. There is some overlap between the definitions of ‘plant’ and ‘structure’, as many types of plant have structural attributes, and vice versa. Should ‘plant’ and ‘structure’ be defined in a way that removes this overlap? No view. Q4. Are there any other types of activities or undertakings that should be specifically included or excluded from application of the model Act? For example, should residential strata title body corporates be excluded? No view. Q5. Is the scope of the suppliers’ duty appropriate? No view. Q6. Is the scope of the ‘worker’ definition appropriate? Should it cover students gaining work experience? The definition is too broad and as such extends the range of people to be consulted with too far. BlueScope Steel would prefer consistency with other Commonwealth Acts, like the Fair Work Act. Q7. Is the definition of ‘workplace’ appropriate? No. This definition catches too many places. For instance, a worker who has stopped for a coffee and reads some work emails could mean a coffee shop was a ‘workplace’ for the purposes of the model Act. BlueScope Steel’s response to the National Review into Model OH&S Laws
Page 10 Part 2 – Safety Duties Q8. Do the principles that apply to the duties of care give clear guidance on what is expected? Yes. Q9. Is the definition of ‘reasonably practicable’ appropriate in this context? Yes. Q10. Should the definition of ‘reasonably practicable’ be exhaustive i.e. so only matters listed may be considered in determining compliance with the duty? No. We are comfortable with the definition of ‘reasonably practicable’ as determined by current case law and use in jurisdictions that already use the term. Q11. Is the proposed scope of the primary duty appropriate? No. Welfare should be defined. We suggest adoption of the wording from the relevant NSW regulations, clause 18. Q12. The model Act requires the provision of, so far as is reasonably practicable, any information, training and instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work (Clause 18(4)(f)). Should this requirement expressly require that the information etc. be provided in an appropriate language or languages, or provided at a level that can be understood by the workers? This is too prescriptive. It is only necessary that the person understands the information that is necessary to protect their health and safety. How this is best provided may be done by a variety of means and this should not be prescribed by the model Act. Q13. The model Act requires, so far as is reasonably practicable, the provision of adequate facilities for the welfare of workers at work (Clause 18(4)(e)). Should this provision be drafted to require ‘access to’ such facilities (e.g. to take account of requirements for mobile workplaces)? No. Welfare should be defined. We suggest adoption of the wording as per the NSW regulations clause 18. Q14. Is the scope of the duties related to specific activities appropriate? Yes. BlueScope Steel’s response to the National Review into Model OH&S Laws
Page 11 Q15. In determining whether a worker failed to take reasonable care, should regard be had to what the worker knew about the relevant circumstances? In determining what is reasonable (in all uses of the word reasonable) consideration must be given both to what is actually known about the circumstances at the time and to what should reasonably have been known. Q16. Is the treatment of volunteers under the model Act appropriate? No view. Q17. Are the range and levels of penalties proposed above appropriate, taking account of the levels set for breaches of duties of care by the WRMC? Yes. Q18. What should the maximum penalty be for a contravention of the model regulations? No view. Q19. The intention is that all contraventions of the model Act be criminal offences. Is this appropriate or should some non-duty of care offences be subject to civil sanctions e.g. failure to display a list of HSRs at the workplace, offences relating to right of entry? Yes. Low-level offences should be quickly dealt with by the Regulator as a civil matter. Part 3 – Other Obligations Q20. Is the list of notifiable incidents sufficiently clear and objective, so duty holders easily understand their obligations? No view. Part 4 – Consultation, participation and representation Q21. Is the proposed scope of duty to consult workers appropriate? The definition of a worker is too broad, which will result in the requirement to consult being too broad. The definition needs to be narrowed in proportion to the extent of the OHS risk exposure. Q22. Should the model Act include a procedure to follow if agreement on a consultation procedure cannot be reached? The same mechanism as used in the Fair Work Australia Act should be used in order to gain consistency and to stop disputes about which Act applies in any given circumstance. BlueScope Steel’s response to the National Review into Model OH&S Laws
Page 12
Q23. Clause 49 allows work groups to be determined for workers engaged in 2 or
more businesses or undertakings. Should such arrangements be by agreement only,
i.e. with no prescribed procedure if negotiations fail?
No. There should be a prescribed procedure if negotiations fail.
Q24. Negotiations for work groups must be commenced within a ‘reasonable time’.
Should a time limit be prescribed e.g. 14, 21 or 28 days?
There should be no time limit prescribed. There are many work arrangements (e.g.
“fly in fly out”) that may result in long periods of negotiations as members come
together infrequently. A time limit assumes an old style employer/employee
relationship, and would be unnecessarily inflexible.
Q25. Elections for HSRs and possibly deputy HSRs must be conducted ‘as soon as
reasonably practicable’ after the relevant work groups are established, or after a
request for an election is received if work groups are already established. Should a
time limit be prescribed?
No time limit should be prescribed. As above, there are many work arrangements
(“fly in fly out”) that may result in long periods of negotiations as members come
together infrequently. A time limit assumes an old style employer/employee
relationship, and would be unnecessarily inflexible.
Q26. The model Act requires that the HSR training must take place within a
reasonable time, to accommodate a range of circumstances. For example, it may
take longer for HSRs working in rural or remote regions to attend an approved course
that may not be available in their area. Should a time limit be specified within which
the training must be provided?
No time limit should be imposed, as determining how much time is reasonable will
depend on many factors, including factors outside the control of the Duty Holder,
such as the specific course requested by the HSR.
This problem arises as part of the larger set of problems created by giving the HSR
the right to choose the course.
What if the person conducting the business or undertaking:
Has set up an on-site school covering all training needs.
Has entered into a bulk contract with a training supplier that covers HSR
training (and has got a good rate as a result or the timing works well).
Is located remotely and wants to bring the trainer to the site (not the other
way around).
Once the regulator has accredited a course as meeting its requirements (and the
course continues to meet these requirements on regular audit by the regulator) then
the Person conducting a business or undertaking should be free to choose whichever
course most closely meets its needs (e.g. time, cost, quality, etc) having regard to
any specific training needs of the HSR.
BlueScope Steel’s response to the National Review into Model OH&S LawsPage 13 The objective of getting the training done in a timely way is compromised by allowing the HSR to choose the training course, but holding the person with management or control responsible to get the training done in a reasonable timeframe. This is unreasonable, compromises the objective of timeliness, and risks distorting the market place by separating the person choosing the course, from the person paying the bill 65(3) (b). Q27. The model Act requires that a health and safety committee be established within 2 months of the request being made. Six of the current OHS Acts include such a timeframe, which varies across jurisdictions from 3 weeks to 3 months. Is the proposed time limit of 2 months appropriate? No time limit should be prescribed. There are many work arrangements (“fly in fly out”) that may result in long periods of negotiations as members come together infrequently. A time limit assumes an old style employer/employee relationship. Q28. The Fair Work Act 2009 (Cth) (Fair Work Act) refers to ceasing work on the basis of a ‘reasonable concern’ of the employee about an imminent risk to his or her health and safety, while the model Act refers to ‘reasonable grounds’. Should the terminology in clauses 75 and 76 be aligned with the Fair Work Act? No, OK as is. Q29. Should a health and safety representative be required to complete approved training before being able to direct that work cease under these provisions? Anyone should be able to cease work if it is unsafe, trained or not. HSR should be able to direct that work cease before they are trained. Q30. Should a health and safety representative be required to complete approved training before being able to issue a PIN under these provisions? Yes. Q31. A PIN cannot require compliance before 7 days from the date the PIN was issued. Is this time frame appropriate? Yes. A PIN should not be issued unless the person with management control has been consulted on the issue and the issue has gone into the issues resolution process (already agreed). Part 5 – Protection from Discrimination Q32. Should the model Act expressly protect persons from being coerced or induced to exercise their powers in a particular way? Part 5 around “discrimination” in relation to workers with respect to their OHS role or function is sufficient. BlueScope Steel’s response to the National Review into Model OH&S Laws
Page 14 Part 6 – Workplace entry by OHS entry permit holders Q33. Are the notification requirements appropriate? No. A permit holder should not be able to enter a site without notifying the person who has management or control of the site. It is not reasonable to hold a person who has management or control of a site responsible for the safety of a person they don’t know is on the workplace or for whom they cannot “… control entering and exiting…” (clause 19 (2) The unexpected presence of a person on site can also place others at that site at risk. The same comment applies in relation to section 62(2)(a)(ii), which permits entry following an incident or in any situation involving imminent risk. The need for an HSR to gain timely access to the workplace needs to be balanced against the duty of care owed by the Duty Holder, both to the HSR and to others on site whose safety could be affected if an HSR entered a site in an unsupervised manner. Q34. Should the model Act contain a specific authorisation process for an OHS entry permit or can it rely on authorisation obtained under other Acts such as the Fair Work Act? In order to align with the Fair Work Act, entry should be by both an OHS Permit and a Fair Work Permit. This will reduce confusion as to which Act they are entering under. Q35. Should contraventions of this Part attract criminal or civil sanctions? If civil sanctions are considered appropriate, should penalty levels reflect those that apply under the Fair Work Act? In order to be consistent they should be civil sanctions with penalty levels the same as the Fair Work Act. Q36. The right of entry provisions have been drafted to be generally consistent with the Fair Work Act. Do these provisions appropriately apply to the role of a union representative when entering the workplace in relation to OHS, rather than in relation to workplace relations? No view. Part 7 – The Regulator Q37. Should guidelines have any other particular legal status under the Act? No, guidelines should only be guidelines. Part 10 – Review of Decisions Q38. Is the list of reviewable decisions appropriate? Yes. BlueScope Steel’s response to the National Review into Model OH&S Laws
Page 15
Q39. Are the processes and timeframes prescribed for the internal review of
decisions appropriate?
Yes.
Q40. Are stay arrangements appropriate in relation to the issue of a prohibition or
nondisturbance notices, having regard to the purposes of those notices?
This should be dealt with in guidelines.
Exposure Draft of Key Administrative Regulations
Q41. Should the list of matters to be considered in negotiations for work groups be
provided for in a Code of Practice rather than prescribed in regulation?
In a Code of Practice.
Do you have any other comments?
Please see:
General Statement on Page 5,
Observations regarding specific Clauses on Page 6, and
Summary on Page 8.
BlueScope Steel’s response to the National Review into Model OH&S LawsYou can also read
