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Table of Contents

About Master Builders Australia Inc	i
Master Builders OH&S Policies	ii
Employment Profile of the Building and Construction Industry	iii
Blueprint Outcomes 2005-2015	iv
Summary of Recommendations	v
Outcome 1, 2 and 3	1
Outcome 4	11
Outcome 5	15

© Master Builders Australia Inc. - September 2005

This publication is copyright and all rights are reserved.  No part of it may be reproduced, stored, transmitted or other wise distributed, in any form or by any means without the prior written permission of the copyright holder

About Master Builders Australia Inc

Master Builders Australia (Master Builders) is the major Australian building and construction industry association.  Its primary role is to promote the viewpoints and interests of the building and construction industry and to provide services to members in a broad range of areas including training, occupational health and safety (OH&S), legal services, industrial relations, building codes and standards, industry economics and international relations.
	
Master Builders is Australia’s oldest industry association.  Founded in the early 1870s in Melbourne, Sydney and Newcastle, the movement quickly grew with Master Builders Associations being established in each State and Territory of Australia.  It was federated in 1890.

Over the past 114 years, Master Builders has grown to over 28,000 member companies with representation in every State and Territory in Australia.

Today, Master Builders’ membership consists of national, international, local and residential, commercial and industrial builders and civil contractors together with subcontracting firms, suppliers and professional industry advisors.  Membership of the Master Builders’ movement represents 95% of all sectors of the building industry.

Master Builders has offices in all capital cities as well as major regional cities in Australia.  The movement employs over 260 experienced staff with qualifications in a diverse range of disciplines including building, engineering, law, management, economics, marketing, accounting, industrial relations, safety, building surveying, international business and training.

Master Builders Australia is the national body representing the Master Builders movement.  Its members include all nine State and Territory Master Builders Associations.

Master  Builders’ OH&S Policies

Master Builders’ two main policy objectives for OH&S are:

fRecolorFillAsPicture0fUseShapeAnchor0fLayoutInCell1fRecolorFillAsPicture0fUseShapeAnchor0fLayoutInCell1	Painters (Falls from height, especially ladders and stepladders)
	Crane, earthmoving operators (Falls and manual handling of vehicle attachments)
	Bricklayers (Falls from height, predominantly from scaffolding)
	Plasterers (Falls from equipment they stand on while working)
	Tilers, pavers, concreters (Manual materials handling)
	Steelworkers (Falls from height)
	Roof layers (Falls from roof, power tools)
	Plumbers (Falls from height)
	Carpenters (Power tools and falls from height.)
	Electricians (Falls from height, electrical safety)
	Other construction workers (Falls from height, power tools)

The study concluded that the four main injury risk types were falls from heights, exchange of energy (mobile equipment, power tools etc.), overexertion and chemical exposure.

Focus For the Future

The focus for the building and construction industry is to maintain the current trend of reductions in injury and fatality incidence rates. The industry is committed to its part in achieving the goals of the National OH&S Strategy. Master Builders was motivated to make this commitment by a concern to reduce fatalities and serious injuries in the industry and to become part of the improvement process. The National Strategy is centred on the achievement of the following targets:

	Sustain a significant, continual reduction in the incidence of work-related fatalities with a reduction of at least 20 per cent by 30 June 2012 (and with a reduction of 10 per cent being achieved by 30 June 2007); and
	Reduce the incidence of workplace injury by at least 40 per cent by 30 June 2012 (with a reduction of 20 per cent being achieved by 30 June 2007).

Figure 6 below shows the improvement trend required by the building and construction industry to achieve these national targets.

Never losing sight of the fact that one death is one death too many, the statistics should be analysed. Translating the statistical trends into raw data with around 40 fatalities a year currently, the building industry would need to reduce fatalities to around 32 per year by 2012 to achieve a 20% reduction. With claim numbers at 12-13,000 per year currently, a 40% reduction would be needed to reduce this number to about 7,500 by 2012. Of course with the employment growth outlined earlier the target might be better expressed as about 8,000 claims.

The National Strategy is to be achieved by a number of strategic priorities. They are:

	Reduce high incidence/severity risks;
	Develop the capacity of business operators and workers to manage 

Recommendation 1: 
To achieve the national targets and contribute to priority strategies, the building and construction industry will be assisted by more relevant and timely data and evidence about the trends in the industry

The state of play with data and evidence is examined in the NOH&SC report Data on OH&S in Australia. The report uses a three part model to consider the adequacy of data sources.

The “Prevailing Conditions” encompass what are also called drivers of OH&S and include such things as OH&S education, training and legislation.

	The Relationships area considers how such Prevailing Conditions might be linked to or is associated with OH&S outcomes.
	The outcomes are the health-related consequences of work activity, with injury and disease the most commonly described.

The NOH&SC review of OH&S data confirms that ‘outcomes’ is the field where there is most data available, and despite the limitations of claims-based data this will remain the best current source of traditional outcome measures.

The assessment of the data sources for each of the categories is essentially that there is much outcome data (although with various consistency problems) and little or no national level data on prevailing conditions or relationships.  Consequently, it is difficult to separate out the intrinsic level of risk in the building and construction industry and the quality of the management of risk from current data sources. Performance measurement continues to be dominated by “lag” or negative measures.

The NOH&SC report on OH&S Performance in the Construction Industry highlighted “Positive performance” indicators (PPIs) which focus on assessing how successfully a workplace or enterprise is performing by monitoring the processes which should produce good OH&S outcomes.
PPIs can be used to measure relevant OH&S systems, process management and compliance with OH&S practices in the workplace.

The report goes on to construct a range of performance indicators by identifying the factors that influence performance.  Following input from case studies and further elaboration of the model, the report identified 22 positive performance indicators that covered planning and design, risk management, management processes, psycho-social working environment and monitoring.  These are all matters pertinent to the national strategy priorities.

An ongoing series based on these kinds of indicators would provide the industry not only with recognition of the effort being applied to reducing injury and death but also validation that the measures being applied are the most effective.

Master Builders will continue to strive to meet or exceed national targets and it will be assisted by performance measures that track management of risk, application of known and effective risk controls and the increased capability of all in the industry to meet their responsibilities.

Recommendation 2:
The State and Territory OH&S and workers compensation authorities give priority to collecting and disseminating timely and relevant data on building and construction industry Positive Performance Indicators as a matter of urgency

Outcome 4: 	Increased Awareness, Communication and Co-operation on Occupational Health and Safety Amongst Employers, Employees and All Persons in the procurement and building process

(A) 	Safety as a Corporate Aim

Policy Direction
There is a powerful business case for safer workplaces and, over time, achieving a significant and sustained reduction in workplace fatalities, injuries and disease consonant with the national strategy outlined in the discussion of Outcomes 1-3. OH&S management and training should be viewed in the same business context as production, efficiency and cost control as they have a similar impact on the “bottom line”.

To the extent practical, publicly listed companies and large employers should put in place arrangements where executive management and those responsible for corporate governance and legal compliance – including boards of directors – are committed to the priority that is necessary to achieve workplace safety and demonstrate leadership in that regard. Directors and senior executives need to lead by example and ensure that the size of their business and layers of decision making do not diminish accountability or the capacity of staff to provide leadership on workplace safety.

Policies need to be seen and understood as a means to an end – not an end in themselves. Owners, executives and directors do have OH&S responsibilities in the workplace that extend beyond the existence of safety policies or procedures.  Active management of OH&S must occur.  It is not a passive process.  Employees as well as managers must be involved in ensuring that OH&S outcomes are achieved.

Small and medium sized employers are well placed to use the close personal relationships developed in their businesses between owners, managers and employees for regular and two-way communication on risk and hazard identification. At the same time, small and medium sized employers should ensure that the informality of their workplace relations is not a substitute for specific attention to workplace safety issues.

What Needs to be Done?
A safety management system should be developed incorporating the following elements:

	the establishment of a health and safety policy that defines the OH&S roles and responsibilities of workplace parties and sets workplace safety as a high level corporate aim with a view to achieving defined outcomes via, preferably, PPIs
	consideration of the elements of safe design and of work environments, plant and equipment;
	a joint approach that involves employees at the workplace;
	the provision of appropriate information and training;
	risk minimisation including the identification, assessment and control of hazards
	the development of safe work methods; and
	ongoing monitoring, evaluation and review of outcomes including lessons to be learned from incident investigation.

Businesses could also consider incorporating aspects of the goals, strategies, priorities or targets of this Blueprint and the national OH&S Strategy discussed under Outcome1 in their corporate and management planning.
The method of implementing what needs to be done must take into account differing sizes, cultures and capacities of businesses, recognising, however, that all businesses have fundamental responsibilities that cannot be ignored.  The OH&S management system should be developed as a tool to assist in improvement of OH&S outcomes rather than to merely record information that may or may not have a bearing on improved safety outcomes.

The culture required at all levels is to move from a punitive focus (punish those responsible for the incident), to a learned and correction focus (fix up the problems created by the incident) and ultimately to a prevention focus (have in place systems that prevent the incident in the first place). That prevention focus should be everyone’s responsibility – outcomes are what count.

B) 	Training and Education 
Policy Direction
Training and education initiatives play a vital role in ensuring that everyone in the workplace is equipped with the necessary OH&S knowledge and skills. The attitudes and behaviour of workplace parties will be influenced by information and training that is directly relevant to them and deals with the environment in which they operate. Information and training programs should therefore be tailored to the needs of the industry or the enterprise. They can help drive cultural change.
harrsid7956900 ;
	targeted workplace assistance; and
	face-to-face advice.

Small business is the growth sector of the Australian economy, yet is the sector with fewest capacities and resources to manage OH&S regulatory obligations or to invest heavily in new plant or equipment.

Regulation must adequately recognise the differing capacities of various employers, especially small and medium businesses. Given the growth of small business in Australia, examination should be made of OH&S regulatory frameworks that are more responsive to business realities in this sector. Innovative approaches to the design of OH&S regulatory frameworks that work in small business should be considered, including a simpler framework for meeting their duty of care and the provision of appropriate guidance material. This could include legal recognition of a safety management system that deals in a more certain way with issues of both employer and employee liability in small business.  The newly appointed Federal Safety Commissioner should be given resources to tailor a safety management system to small business building contractors that may be trialled using Master Builders’ members.

Recommendation 5:
Research on the best way to assist small business should be an urgent priority of all stakeholders in the building and construction industry including work on a simple building and construction industry safety management system- this should be instituted by the newly appointed Federal Safety Commissioner and trialled with Master Builders members

Outcome 5:	Reasonable, Balanced and Practical Occupational Health and Safety Regulation that Contributes to Australia having World Class OH&S Systems and Performance, based upon National Uniform Standards

The Role of Regulators
Just as workplace safety matters, so does the quality of workplace regulation and its framework. Poor regulation or bureaucratic frameworks set by governments, parliaments or regulators can hinder, not help, the delivery of safe workplace outcomes.

Industry is seeking to improve the quality and structure of OH&S regulation, not  the removal of sensible regulation in areas where it is needed.  The capacity of industry to deliver on its commitment to safety relies in part on the practicality of installing and maintaining all the elements of safe systems of work.  Merely prescribing regulation without bearing this issue in mind will have adverse consequences for building industry participants as well as potentially raising construction costs, and in particular the cost of housing.  

To attempt to change a workplace culture by simply introducing more legislation, or to see regulation as a first or ideal response, is inconsistent with modern workplace management and good human resource practices.  It may also have adverse consequences for housing affordability.  With the extent and range of often inconsistent regulation currently in effect, this is a major issue for the industry. This proposition does not mean that builders should be free of regulation or that small business should have the capacity to opt out of the OH&S regulatory environment.

However, the role of governments and regulators is to focus on what is reasonable, practical and achievable and to make the right interventions if and when they are needed. This means a framework that facilitates high level OH&S awareness and culture in workplaces, and not the micro-management of OH&S in workplaces.

For the framework to be effective, it must be consistent with the realities of operating businesses in the modern economy and the mobile labour force that particularly characterises the building and construction industry. Poorly established frameworks detract from the achievement of safer workplaces through the objectives set out in this Blueprint.

Regulators also have an important role as information providers in conjunction with business and employer organisations.  Regulators should not merely introduce and enforce the law but should actively pursue educational aims that guide industry participants, particularly small business operators, in how to comply with the law. As indicated earlier in this Blueprint, promotion of practical means to comply with the law should be a function required of all OH&S regulators.

Recommendation 6:  
Regulators should have a legally defined role that requires them to provide education on how to comply with OH&S laws, not merely act in an enforcement role

The Current Regulatory System
The Australian Government does not have a specific constitutional power to make laws with respect to OH&S (although a combination of other powers could be used). As a consequence, there are nine separate OH&S systems of regulation throughout Australia – one in each of the six States, one in each of the two Territories, and a system of Commonwealth regulation for Commonwealth government employees or employees of companies formerly owned by the Commonwealth (and a maritime industry scheme).

The principal source of law in each of these systems is legislation of the relevant parliament. That legislation is supplemented by regulations, codes of practice, guidance material and by specialist statutes. International instruments, if and when ratified by Australia, can also form part of the body of regulation.

Statutory authorities, government agencies and government inspectorates administer these systems. The courts have a continuing role. As with other statute-made law, the parliaments make the law but the courts interpret and enforce it.

The legislative design adopted in most Australian systems is known as ‘performance based’ legislation. It is a model where a primary statute exists which imposes general and specific duties on employers, employees and some third parties. The primary duty is the duty of care. In theory at least, this model does not specifically direct employers and employees on how they should meet their duty of care but requires management in each workplace to undertake active prevention activities, risk assessments and training in conjunction with employees.

The primary legislative objects of all of the systems are based around prevention of injuries and the identification and elimination of risks. The underlying philosophy is to impose an active responsibility on employers, managers, supervisors and employees to maintain a safe and healthy workplace. Put simply, OH&S laws require managers and employees in workplaces to treat OH&S as a core business issue. It is not possible to contract out of statutory OH&S obligations, although employment contracts can impose additional duties.

Beyond specific statutory OH&S systems, other laws also impact on the rights and obligations of employers and employees. Workers’ compensation laws impose duties associated with the management and compensation of injuries. The common law tort of negligence also establishes a basis for litigation, although statutory workers’ compensation schemes have limited (and in some cases) wholly excluded employee-based negligence actions (but generally not third party actions against employers).

Further, employment and workplace relations law also add to rights and obligations, whether through binding workplace agreements made during enterprise or industry bargaining, or through orders and decisions of industrial tribunals in industry-wide or company specific awards, where such provisions are allowable.

Other laws that bind employers can also affect OH&S policy  but not always in a consistent manner. For example, some laws limit the capacity of employers to control conduct in their businesses or take action against employees or other parties that put the health and safety of others at risk, such as unfair dismissal laws, privacy laws and some discrimination laws.

What is Required from OH&S Regulation?

Regulation, including OH&S regulation, should not be an end in itself. Regulation must be a step to a broader end objective. To justify regulating activity between private individuals and private businesses, strong underlying public interest considerations must exist. Whilst the prevention of workplace injury and fatality is obviously in the public interest, regulatory objectives can be achieved in many different ways.

The emphasis of regulatory frameworks must be on encouraging the development of a culture of mutual responsibility in the workplace and open and active communication.  This culture must extend to employees taking responsibility for their own OH&S.  Rather than rely upon a paternalistic legal framework where their responsibilities are minimal, employees should be trained in OH&S so that it becomes a natural component of the way they work.

An effective OH&S regulatory framework will over time, help improve OH&S awareness and behaviour. The principal focus needs to be outcome oriented – by encouraging safe design of workplaces, plant and equipment in the first instance and then by due diligence, effective risk management and injury prevention. Scope must exist for enterprises and their employees to establish business specific commitments and approaches.

To be effective, OH&S regulation must focus on injury prevention and the practical and achievable management of foreseeable risks. The concept of reasonableness that underpins so much of our law and the notion of ‘a fair go’ has traditionally applied to the regulation of workplace safety. 

This requires the application of a statutory, general OH&S ‘duty of care’ pitched at:

	reasonable care;
	identification of foreseeable hazards; and
	implementation of reasonably practicable measures to eliminate/control hazards/risks.

These are not novel propositions, nor are they outside of well established international approaches.  Yet, too often, the Australian experience of legislative and judicial approaches to regulation does not evidence this character. The concepts of ‘reasonably practicable’ ‘foreseeable’ and ‘control’ have been significantly distorted in several Australian jurisdictions, to the point where they no longer reflect what is reasonable, practical or achievable.

The regulatory framework must recognise that no matter how committed employers and employees are to workplace safety or what level of resources are directed to OH&S, neither an employer nor an employee can predict or control every activity or event around them. The framework cannot mandate that employers guarantee safety. The standard set should be the requirement to take all reasonable steps to prevent the foreseeable risk of injury.

Recommendation 7:  
Obligations of all participants should be clearly defined and legal recognition must be given to the development of practical and effective safety systems

Unless legal duties are realistic and fair in their application, then the regulatory system becomes unworkable.

Regulation should also recognise the differing capacities of employers. Improvements in OH&S performance must be underpinned by recognition of the needs for differing interpretation and implementation of, for example,, codes of practice.  Guidance materials should be drafted so as to suit the needs of the specific business.

There are well established principles, endorsed by the Council of Australian Governments (COAG) and the Commonwealth Office of Regulation Review (ORR) that provide guidance to policy makers and regulators on the nature of regulatory systems, where regulation is necessary.

The ORR checklist for assessing regulatory quality covers the design, implementation and enforcement of regulation. According to the checklist, regulation should be:

	the minimum necessary to achieve objectives;
the employer duty of care has been progressively distorted from its initial statutory purpose through interpretation and re-interpretation; and
	in some jurisdictions the duty of care remains based on a test of reasonableness and foreseeability, whereas in other an absolute duty has been interpreted – one hostile to the common law intent and to common sense.

Unbalanced Enforcement: The selective and unbalanced enforcement of regulation
	enforcement through a judicious mix of eduction, training and – where necessary – prosecution and penalty requires balance and judgement;
	balance and judgement in prosecutorial discretion amongst regulators has been inconsistent – often reflecting underlying and differing government objectives;
	independence of decision makers on enforcement is open to compromise – by governments, unions or interest groups;
	penalties and concepts of deterrence have been differently applied by the courts; and
	union campaigns for new and extreme policy, such as offences of industrial manslaughter outside of accepted criminal or industrial norms, risk distorting the objectives of safer workplaces and substitute reason with poor policy.  Master Builders is opposed to the diversion of resources into criminal prosecutions under industrial manslaughter legislation. 

Recommendation 11:  
Nationally consistent enforcement measures be introduced as an urgent priority and that separate criminal prosecution mechanisms not be adopted by the States and Territories

Distortion by Other Agendas: The undermining of objectives in OH&S regulation by non OH&S laws

The increasingly absolute interpretation of the employer duty of care necessarily requires employers to have full control over the conduct of all staff, contractors and third parties on or within their businesses. However, employment law, discrimination law and privacy law is increasingly encroaching upon and denying employers that right of control. Laws which prevent employers from dismissing or disciplining staff for OH&S breaches or inadequate attention to safe work practices and laws or guidelines that shield employees from employer scrutiny under the guise of privacy (such as property searches, information technology control or drug and alcohol testing in appropriate circumstances) are counterproductive and contrary to OH&S objectives. 

Regulating Right of Entry

Master Builders believes that a federal permit system should be extended to regulate rights of entry under State and Territory OH&S law.  

Master Builders proposes that if OH&S is used as a ground for entry to premises, then an appropriate permit should be held by the official or employee of the union with appropriate disciplines regulating their conduct. The application of a permit system should only be applicable where State and Territory Governments have currently seen fit to provide for union rights of entry based upon OH&S grounds.   In addition, the employer should be notified that the union is entering the premises (which may be an immediate entry given the gravity of an alleged safety issue).  However, a permit holder should then be required to justify intervention on a building site on the basis of the alleged OH&S issue and should not be permitted to pursue other union aims, particularly industrial relations objectives, once on site after having gained entry by falsely alleging an OH&S concern. 

The process of using OH&S as a “smokescreen” for other issues denigrates its importance on building sites and shows gross disrespect to those who are genuinely seeking to improve OH&S performance.  Safety should not be relegated to a device to obtain industrial relations outcomes.  It is not our intention to denigrate the role of unions in OH&S.  It is also not our intention to label all of their interventions as an abuse of power.  However, in too many instances, alleged OH&S disputes become elevated into industrial disputes or are used as a mask for the application of different agendas.  Master Builders policy is that the Federal Government should establish a new permit system for the regulation of right of entry into workplaces, including building sites, and that those permits must be issued to union officials for the purpose of entering premises to deal with OH&S matters.

In the alternative, union representatives’ right of entry under State or Territory legislation (where that right currently exists) should be restricted to union representatives accredited by the relevant OH&S regulator with power to enter premises solely for OH&S purposes.  There should be no dual right of entry under workplace relations and OH&S laws.

Recommendation 12:  
That there be an urgent Commonwealth Government review of rights of entry under State and Territory based OH&S laws and that consideration be given to extending a revamped right of entry permit system to cover right of entry under OH&S laws

Acknowledgements

Master Builders is a member of the Australian Chamber of Commerce and Industry (ACCI) and fully supports ACCI’s publication Modern Workplace: Safer Workplace, An Australian Industry Blueprint for Improving Occupational Health and Safety 2005-2015.  This blueprint is specific to the building and construction industry and builds upon the foundations set out in the ACCI blueprint.  

Please note the OH&S statistical analysis presented under Outcome 3 incorporates a report by Bryan Bottomley and Associates.