Occupational Health and Safety, Worker Participation and the Mining ...

Occupational Health and Safety, Worker Participation and the Mining Industry in a Changing World of Work Neil Gunningham

Australian National University

Worker participation in occupational health and safety (OHS) generally achieves better outcomes than unilateral management initiatives. But in a ‘cold’ industrial relations climate, meaningful participation is increasingly difficult. This article focuses on the Australian mining industry. It explores how the strength and reach of the unions have been undermined and why OHS law has only limited capacity to mitigate the resulting imbalance of power. It then draws on interview data to provide a profile of the consequences of worker vulnerability. Finally, it examines to what extent other mechanisms can redress the balance or whether, in a changing world of work, increasingly precarious employment and emasculated unions, the prospects for effective worker participation in OHS are bleak.

Keywords: industrial relations, mining, occupational health and safety, regulation, trade unions

Introduction Worker participation in the identification, assessment and control of workplace hazards is fundamental to reducing work-related injury and disease. Workers have the most direct interest in occupational health and safety (hereafter OHS) of any party: it is their lives and limbs that are at risk when things go wrong. Moreover, workers often know more about the hazards associated with their workplace than anyone else, for the obvious reason that they have to live with them, day by day. Worker participation also has a number of other benefits. Not least, those who are genuine partners, and effective participants in, and owners of, OHS solutions, will have the greatest commitment to them.1 Certainly, the large majority of empirical studies in Western Europe, notwithstanding variation in terms of how they measure ‘better Economic and Industrial Democracy © 2008 Department of Economic History, Uppsala University, Sweden, Vol. 29(3): 336–361. DOI: 10.1177/0143831X08092460 www.sagepublications.com

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performance’ and in their general approach, conclude that joint arrangements between workers and management achieve better outcomes than unilateral management initiatives (for overviews, see Walters, 2005, 2006). Similarly, in Australia, a substantial review of workplace consultative arrangements found that: … effective OHSW [occupational health, safety and welfare] workplace consultative and participative arrangements lead to improved OHSW as determined by the cost of workers’ compensation … aggregated WorkCover data indicates that the cost of injuries in workplaces with HSRs [Health and Safety Committees] is lower than those without such arrangements (Blewett, 2001: 4, emphasis in original; see also Biggins et al., 1991; Biggins and Holland, 1995)

There is probably no industry where effective worker engagement with OHS is more crucial than mining. Mining is one of Australia’s most important industries, accounting for some 9 percent of gross domestic product. It is also one of the most dangerous, with a fatality rate over twice the national average (ASCC, 2005). Indeed, in Western Australia, over 25 percent of workplace fatalities occur within the mining industry, despite the fact that the industry employs only about 5 percent of the current workforce (DOCEP, 2006: 8, 10; Ritter, 2004: 45). Overall, notwithstanding an impressive downward trend for fatalities, lost-time injuries and compensation claims (ASCC, 2005), there is widespread agreement that further improvement in the OHS performance of the industry is necessary, and that worker participation can play an important role in achieving it – though employers and unions often differ as to what form it should take (Wran and McClelland, 2005). But how best to achieve effective worker participation is a highly contentious issue. While some would argue that OHS should be kept separate from the ‘war-torn terrain of industrial relations’ (Carson and Henenberg, 1988: 3), in practice it often becomes ensnared within it (see Creighton and Gunningham, 1985). In the mining industry, particularly coal mining, worker participation in OHS has been one strand of a colourful industrial relations history in which the imbalance of power between workers and management has been mitigated by the industrial muscle of the trade unions, and many of the major gains in OHS have been won through negotiation and bargaining rather than by consultation and consensus (McColl, 1982). However, the context in which worker participation and industrial relations take place today (not only in mining but more generally) is a very different one from that which existed some decades ago. At that time, most workers had stable employment and trade unions were a

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powerful presence. Today, stable employment has increasingly given way to precarious work involving contractors, subcontractors, self-employed individuals, on-hire and casual employees rather than the traditional contract of employment. And trade unions that were once dominant have experienced a dwindling membership and a substantial diminution of power. As noted by Leigh (2005: 21), ‘twenty years ago, 50% of all workers were members of a union. Today, the unionisation rate is just 23% … . In an era of casualisation, computerisation and feminisation, deunionisation is probably the most significant change to hit the labour market over the past generation.’ The mining industry not only encapsulates these developments, but also illustrates, in a particularly stark fashion, many of their implications for worker participation in OHS. It is this changing world of work and its ramifications for consultation, negotiation and worker participation in OHS – viewed through the lens of the mining industry – that is the subject of this article. The first section describes the contribution that the mining trade unions have made to worker participation and effective prevention of workrelated injury and disease and explores the relationship between OHS and industrial relations. The second section examines how various legislative interventions and changes in the nature of the employment relationship have served to undermine the power of the unions and speculates as to the likely consequences for OHS. The third section considers the extent to which the law may serve as an effective substitute for trade union power, concluding that even in the event of significant statutory reform, the law has substantial limitations in this regard. The fourth section examines the role of worker participation in a ‘cold’ industrial relations climate, drawing from case studies and broader interview data to provide a profile of the consequences of worker vulnerability in a changing world of work. The final section provides some concluding comments, examining in particular whether or to what extent other mechanisms can fill the void resulting from the emasculation of the trade unions.

Trade Unions and OHS There is considerable evidence that historically trade unions have played an important role in worker participation. For example, an influential study by Reilly et al. (1995) suggests not only that there is an association between participative arrangements and improved health and safety performance, but also that trade unions have assisted this process.


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Similarly, Walters and Gourlay (1990) found that safety committees and safety representatives work well where trade union membership is high, unions are well organized and management is committed to both health and safety and employee participation. A more recent investigation by Walters (2005), however, casts some doubt on these conclusions. The purported reasons for such an association are linked with worker empowerment. Workers who have trade union support are more likely to voice their concerns and actively engage with management on OHS issues and, where this proves insufficient, to call in the inspectorate. Trade unions themselves can raise issues directly with the inspectorate, draw their attention to breaches of OHS legislation and (in New South Wales) bring prosecutions. In the words of one senior trade union official: … union members are more likely to speak up, to be watchful and mindful, to pull their co-workers into line, to report problems, to think beyond their own narrow self-interest, to push for training and information, to feel empowered to make decisions and to challenge management, to facilitate the frequency and effectiveness of inspectorate activity – all the elements we now know to be associated with a robust and resilient safety culture. (Maher, 2006)

In the case of mining, organized labour has been particularly influential. Many of the early miners came from the UK and from an industry that had been a traditional stronghold of trade unionism. Unsurprisingly, they sought to impose the same collectivist protections in Australia, including a system of employment based on seniority and family membership that prevented employers from discriminating against trade unionists (McColl, 1982). Their collective initiatives met with considerable success, and in the early 20th century, the trade unions secured benefits for miners ‘which were the envy of their counterparts elsewhere in the industrialised world’ (Creighton, 1997: 109). In terms of OHS, the mining trade unions have been both active and influential in intervening to protect the interests of their members. With its history of disasters, deaths and serious injuries, miners have needed no reminding of the central importance of safety and of how it can be neglected.2 Although they have not been above using it as an industrial relations lever in seeking higher wages or other benefits, or opposing new technology even when a by-product is improved safety (Hargraves et al., 1993), they have also taken safety seriously as a negotiating issue in its own right (Kinnear, 2001; see also Glasbeek and Tucker, 1999: 71–96). Overall, industrial relations in the mining industry have played a key role in protecting workers from some, but far from all, of the hazards of mining.

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There has been little evidence to support the view of those who argue that there is a natural ‘identity of interest’ between management and workers in relation to health and safety, and that not only workers, but also employers, have an interest in reducing work hazards (Robens, 1972). In this view, because both sides have common interests they are likely to discharge their OHS responsibilities voluntarily, and there is little need for negotiation or for trade unions to act as a countervailing force to the power of employers (Robens, 1972: para. 66). Indeed, history suggests that the assumption of common interest is flawed: although employers and workers may agree in principle on the desirability of reducing workplace injury and disease, they often hold very different positions on the best means to achieve this, and the level of time, resources and money that should be devoted to it. Such a divergence of views means that a reliance upon ‘consultation’ is unlikely to bring about the degree of safety that workers require.3 Consequently, mining unions have sought to use whatever bargaining power was available to them to exert pressure on employers to change their behaviour (Gunningham, 1984: Ch. 11). One senior union official interviewed for this study encapsulated the traditional trade union approach to safety as follows: … when unions were strong … . It was the pit that ensured health and safety and the check inspectors just gave it legitimacy … so prior to 1996 the union enforced OHS. They had their eye on OHS and could deal with it industrially – especially under the Coal Tribunal. There was no concern about stoppages over safety and pulling the guys out, they just did it.

At the present time, the lack of common interest between the two sides of industry becomes apparent when it comes to issues such as workplace fatigue (the OHS implications of which are bitterly disputed) and to the question of whether preventive measures should focus on faulty human behaviour (which may degenerate into a ‘blame the worker’ mentality) or on ‘the whole production system and the interaction between technology and organizational factors’ (Walters and Frick, 2000: 53).

Mining Unions in a Changing World of Work The changing world of work in the early 21st century has had profound implications for the capacity of the Australian mining unions to negotiate for worker participation in general and improved OHS outcomes in particular. First, there are the various legislative changes brought about by the conservative federal coalition government in power (at the time of writing)


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since 1996. The Workplace Relations Act 1996 precipitated the decline of collective bargaining, and this was compounded by the Work Choices legislation of 2005. In effect, the federal government replaced a collectivist system of industrial regulation overseen by an independent arbitration commission, with a substantially decollectivized approach with a substantial reduction in the number of minimum standards and abolition of the Arbitration Commission. Not coincidentally, this has weakened the trade union movement. In particular, the introduction of Australian Workplace Agreements (AWAs) – which are statutory-based individual contracts – marked a fundamental shift towards individualized workplace relations and the removal of what employers describe as ‘excessive’ entitlements under arrangements largely imposed unilaterally by employers. As Creighton and Stewart (2000: 174) point out: ‘for the first time in the history of the federal system, it is possible for an employer and an individual employee lawfully to “contract out” of an award on terms which are less favourable than those set out in that award’. Although their proponents suggest that AWAs enable meaningful negotiation between individual employees and employers, in practice, many individual contracts are drawn up by the employer in such a way as to give employees very little room for negotiation. For example, it has been common practice for mining companies to offer standardized contracts en masse to a workforce (at some mine sites, and with some mining companies, entire workforces have been placed on such individual contracts). Although many securities and benefits can be ‘negotiated away’ under AWAs, and such contracts might therefore appear unattractive to workers, companies may overcome worker reluctance through a mixture of pressure and inducements. In practice, the mining industry is ‘relatively well-placed to offer significant financial inducements to entice their employees onto individual contracts, since labour costs are small compared with the capital costs’ (Hearn-Mackinnon, 1997: 70). Responding to such temptations (and to considerable employer resistance to collective agreements), a substantially increased proportion of miners are entering into such contracts. Certainly, there are individual mines where the unionized workforce has resisted individual agreements and management, perhaps mindful of losing skilled workers at a time of full employment, has entered into further collective agreements. But overall, the collective power of the mining unions has been much reduced. In coal mining (which was previously dominated by union membership and collective agreements), 60 percent of the workforce was covered by AWAs by 2004 (OEA, n.d.), with nearly 80 percent of AWA coverage in the less unionized metalliferous sector (AMMA, 2004: 3).

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Some of the changes introduced by the Work Choices legislation, in particular, may have a direct effect on unions’ role in OHS. These include, for example, the curtailment of trade unions’ right of entry to the workplace to engage in OHS monitoring, and constraints on OHS union training. Consequently, one commentator has speculated that: ‘the likely adverse effects of Work Choices will be lower wages, more pressure, less job satisfaction and worsening OHS outcomes in terms of injuries, disease, stress, and occupational violence’ (Quinlan, 2006: 1). Individual workers may become increasingly fearful of raising OHS issues for fear of victimization, and will lack training or any capacity to take effective action to protect themselves from the hazards of work. The second major change with implications for OHS involves the substantial reduction in conventional employment, and the commensurate increase in the use of contractors and of various forms of non-standard and precarious employment. In the mining industry, the Workplace Relations Act served to accelerate the use of contractors by neutralizing union resistance and award provisions that had protected traditional forms of employment. As one union official pointed out: … the union can’t control the labour supply and can’t have these restrictions [such as protecting seniority] in awards. There were lots of policy triggers that allowed unions centrally to control the lodges [branches] – because the union controlled labour supply through the retrenched miners list, there was a big incentive to the lodges to comply. So that was an important disciplinary tool – there was no incentive to recruit externally.4 But now [under the Workplace Relations Act] we’ve lost control over labour. So employers bring in contractors and pick the local lodges off in terms of getting concessions.

Today, it is estimated that over one-third of workers are contract employees.5 The competitive pressures these changes have generated (particularly those experienced by subcontractors) can result in corner cutting, work intensification and excessive hours, which in turn result in increased risk of work-related injury and disease. In some jurisdictions (most notably Western Australia), a significant increase in shorter-term employment ‘has contributed to high levels of turnover both within the industry and of those entering and leaving the industry resulting in a significant decrease in experience and competency at all levels of the workforce’ (DOIR, 2004: 16). If this is coupled with an increase in numbers of young and/or inexperienced workers, a lack of training and adequate supervision, and a push for greater productivity (as the unions maintain) then existing risks are likely to be exacerbated (CFMEU, 2005: 8).


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There seems little doubt that this shift towards contingent employment has adverse implications for OHS. For example, Quinlan (2004), from a review of some 180 studies, notes that over 80 percent found a link between precarious employment and inferior OHS outcomes, likely resulting from increased work intensification and pressures to deliver, the transfer of higher risk activities to contractors and increased disorganization at the workplace (partly resulting from lower qualifications, less training and reduced worker participation); all in conjunction with weakened regulatory protection. Small and medium-sized enterprises (SMEs), which have also proliferated in recent years, are less likely to be aware of complex OHS issues, less likely to understand legislative and management requirements and less likely to have the skills or the willingness to take action and spend money to resolve outstanding OHS issues (Blewett and Shaw, 2000: 7–8).

Resorting to Law As we have seen, the once dominant mining trade unions now have substantially weakened negotiating power and a much more limited reach. This is largely a consequence of federal industrial relations legislation and a substantial increase in contingent forms of employment. What implications does this changing world of work have for worker participation in OHS and for OHS outcomes? Perhaps the most obvious change is that from a position of weakness trade unions must now turn increasingly to mechanisms other than collective bargaining and industrial muscle to protect their members. As another trade union official reported: … because the industrial organizations are being disempowered, there is an increasing need to empower the workers on the ground. When unions were strong industrially the check inspectors [on-site union safety representatives] didn’t matter. But now the District Check Inspectors [off-site, more senior union safety officials] come into their own. You suddenly need them, because now you can’t rely on the pit.

Thus, where once OHS disputes were resolved as a matter of industrial relations (the ‘power of the pit’, underpinned by their entitlements to negotiate previously set out in legislation), trade unions and their members must now rely much more on formal mechanisms. Those mechanisms are essentially legal ones (the rights of check inspectors, for example, are provided by statute).

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In broad terms, OHS legislation can serve to protect workers from the hazards of work in two principal ways. First, it can impose duties on employers, manufacturers, contractors and others to ensure the OHS of all who might be impacted by their activities. It has done so, with varying degrees of success, for many decades (Gunningham, 2007; Gunningham and Johnstone, 1999; Johnstone, 2004). Workers need not be passive beneficiaries of this statutory protection but can play significant roles by raising concerns with the relevant inspectorates, making complaints about the failure of duty holders to discharge their responsibilities and drawing attention to other failures of implementation. Second, the law provides workers and their representatives with a much more direct role by providing them with a range of statutory rights, powers and protections. These protections vary somewhat from jurisdiction to jurisdiction and have been explored at length elsewhere (Gunningham, 2007: Ch. 1; Johnstone, 2004: Ch. 8). For present purposes, what is important is not their finer detail but whether or to what extent these powers are adequate, particularly in a changing world of work in which trade unions are either much weaker than before or are absent entirely from the workplace. In essence, statutory provision relating to worker participation might fall into two broad categories. First, there are provisions that emphasize consultation rather than participation in decision-making (Brooks, 2002: 122; Gunningham, 1984: Ch. 10). That is, they require the employer or operator to ‘consult’ with worker representatives, but having consulted there is no obligation to take account of workers’ views in the actual decision-making process. These include: (1) statutory provisions that increase workers’ awareness of hazards, such as the right to accompany an inspector on their tour of the workplace, to receive copies of reports and other information and to monitor the work environment; (2) provisions that facilitate worker participation in the day-to-day implementation of safety policy (e.g. rights to elect safety representatives and to participate in safety committees and through these mechanisms to identify hazards and employers’ compliance with regulation); and (3) provisions that provide for worker participation in systemic approaches to reduce workplace injury and disease, such as involvement in the development and implementation of safety management systems and in hazard identification, risk assessment and control. The three ‘mining states’ (New South Wales, Queensland and Western Australia) now make substantial provision in terms of all of the above (Gunningham, 2007: Ch. 1). This version of worker participation is unlikely to bring about the degree of safety that workers require. Denied any effective decision-making


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power beyond the right to be ‘consulted’, their contribution to workplace safety must inevitably be limited, particularly where, as argued earlier, the interests of workers and employers do not coincide. Those employers who are unwilling to improve OHS voluntarily may simply turn consultation into an empty process, sidestepping any substantive change. However, to some extent the powerlessness of workers under this approach is mitigated by the rights extended to them under a second category, which recognizes the imbalance of bargaining power between workers and management and seeks to compensate for it to some extent by providing rights to act as a countervailing force where employers and workers do not agree about what is necessary to protect workers’ health and safety. Such rights include refusing to do dangerous work, the issuing of provisional improvement notices by safety representatives (requiring a person, usually the employer, to remedy the contravention or likely contravention of the law, or have the matter reviewed by an inspector6) or broader ‘stop work’ notices where there is danger of imminent harm. Under current OHS legislation, such rights are uneven, but they are nevertheless significant (Gunningham, 2007: Ch. 1). Current legislative protection is also uneven in a number of other respects. For example, rights are largely confined to relationships between employers and employees and are ill-suited to an age of contingent employment, small enterprises and substantially diminished trade union membership (see further Johnstone et al., 2004: 28). Representatives in most jurisdictions lack full access to workplaces and workers (e.g. even if they are on-site, they will not be automatically entitled to visit the site of an incident, or workers in another part of the site) and it is doubtful how far current provisions extend to representing workers’ interests on issues of work intensity, work organization and working time, all of which can increase the risk of ill health (see further Johnstone et al., 2004). There is no provision for the introduction of roving safety representatives (Knowles, 2006) as a mechanism to provide representation as regards small, dispersed and/or intermittent mines, notwithstanding that such a mechanism has been demonstrably successful in some European countries, as an instrument for providing trade union support and stimulating greater interest in OHS (Frick and Walters, 1998).7 Finally, with the exception of New South Wales, little attempt has been made to impose greater statutory responsibilities on employers as regards consultation processes at multi-employer worksites where substantial numbers of contractors and/or labour hire workers are engaged as well as employees.8

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OHS in a Cold Industrial Relations Climate In principle, the increased vulnerabilities of individual workers and the lack of trade union countervailing power in a ‘cold’ industrial relations climate can be mitigated both by the existing statutory provisions for worker participation summarized in the preceding section and by further statutory reform (Johnstone et al., 2004). However, whether the law can ensure effective worker participation in the absence of effective trade union involvement remains a matter for debate. When unions are strong, they have far less need of law, although it still provides an important underpinning to many of their activities (Creighton and Stewart, 2005: Ch. 1). It is when they are weak that legal protections become most important. But ironically, it is precisely when trade unions are weak, or where workers are not unionized at all, that the statutory rights and protections are least likely to be invoked. Workers’ power comes ultimately from their organization. Indeed, as Kahn-Freund argued forcefully many years ago (supporting his argument with various historical examples), the law cannot, on its own, guarantee satisfactory working conditions: As a power countervailing management the trade unions are much more effective than the law has ever been or can ever be … . Everywhere the effectiveness of the law depends on the unions far more than the unions depend on the effectiveness of law. (Kahn-Freund, 1977: 10)

But the actual impact of a cold industrial relations climate on the effectiveness of participatory provisions has not so far been the subject of empirical study in Australia, although such limited international evidence as is available suggests that union involvement is critical to the willingness of workers to raise OHS issues (Haynes et al., 2005a, 2005b). So how does worker participation play out where unions are weak or non-existent? The remainder of this section draws both on case studies and on extensive interviews with a broad range of industry stakeholders to provide at least provisional answers to these questions.

Case Studies In May 2004, three deaths occurred at facilities owned and/or operated by BHP Billiton Iron Ore Pty Ltd and Boodaree Iron (collectively referred to as BHPBIO). A ministerial inquiry was conducted (Ritter, 2004). The inquiry found that BHP Billiton, at least at a corporate level, had placed


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a considerable focus on OHS, and put in place a number of important and potentially far-reaching measures to reduce their level of work-related injury and disease, including a sophisticated OHS management system. However, as will be apparent from the two case studies described here, there was a substantial gap between how things played out at corporate and site level, which had important OHS implications. In the first study, management at local level took advantage of a cold industrial relations climate and the vulnerability of trade unions under federal government legislation, to break down union power. Specifically, it sought to regain management prerogatives that had been taken away by the industrial regimes of the past, and to wind back the involvement of trade unions so that they could manage their business without union interference. Part of this strategy involved seeking to place all workers on individual employment contracts and, by doing so, destroying collective bargaining. In the second case, an increasing use of contractors and subcontractors at some BHPBIO sites resulted in a variety of dangerous practices and suggested that there may be substantial risks to OHS in this approach. Case study 1 – breaking trade union power At site level at BHPBIO facilities in the Pilbara, there was an unarticulated and often unresolved tension between the company’s approach to OHS and their approach to industrial relations, which had important and detrimental consequences for workers’ health and safety. Specifically, genuine worker participation at BHPBIO was made very difficult, and perhaps impossible, by a simmering and long-term battle between BHPBIO and the relevant trade unions over the use of non-union labour. Approximately 80 percent of BHPBIO’s workforce in the Pilbara were engaged under individual contracts (workplace agreements), with the remaining 20 percent then employed under union collective arrangements. The unions were strongly opposed to the introduction of workplace agreements and had campaigned against them. BHPBIO, in turn, was strongly opposed to the trade union awards and preferred to negotiate individual workplace agreements. And all this took place against the backdrop of a long history of industrial conflict and antagonism between the company and the workforce in the Pilbara (Ellem, 2005). As a result, consultation and communication procedures for OHS were fraught with difficulty. It was alleged that BHPBIO: failed to effectively communicate and consult with award employees, or with their elected representatives on OHS; failed to involve appropriate people in accident investigation processes; failed to allow elected OHS representatives the

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opportunity to accompany the employee inspector on inspections; and that there was a lack of consultation on safety policy prior to its introduction (Ritter, 2004: Appendix 4). Indeed, the key trade union involved, the Construction, Forestry, Mining and Energy Union (CFMEU), maintained that ‘BHP’s anti-unionist and anti-collectivist industrial relations agenda is driving and shaping its approach to safety’ (Ritter, 2004: Appendix 4). The company, in turn, rejected this view, asserting, among other things, its commitment to flexibility as distinct from an opposition to collectivism. While it is difficult to make a judgement on the merits of the various conflicting views expressed by BHPBIO and the relevant trade union (the CFMEU), what is clear is that there were important and unresolved industrial relations issues at BHPBIO sites in the Pilbara, which had the potential to seriously undermine the integrity of BHPBIO’s approach to safety management (see, for example, Ritter, 2004: 57). Moreover, BHPBIO provided very little evidence that it had made efforts to overcome these antagonisms, or to find ways of quarantining OHS from the broader and adversarial industrial relations context. Thus, the inquiry pointed out not only that ‘strikingly absent from the [BHPBIO submission to the inquiry] is any serious examination of the role of trade unions, or the impact of industrial relations issues on employee involvement’ (Ritter, 2004: Appendix 4), but also that ‘there does not appear to be any indication of a clear plan to steer the way towards the successful implementation of health and safety systems and practices with a workforce of whom a significant number had strong opposition to a key management strategy’ (Ritter, 2004: 125). Finally, and related to the above, the inquiry found that there was ‘a real issue about fear of recriminations if occupational health and safety issues are raised. The recriminations may not be demonstrative, but there is a concern at the very least about subtle repercussions – possibly affecting future employment or payments made under contracts of employment’ (Ritter, 2004: 290). While there are dangers in generalizing from the story of how industrial relations and OHS played out at BHPBIO sites in the Pilbara, it should at least alert us to the extent to which relations between workers and management are likely to be soured (at least in the short term) by the sort of strategies that the company invoked to rid itself of trade unions, and how these strategies may directly damage OHS outcomes. Indeed, in this case, there seems little doubt that the strategy at site level served inadvertently to detract attention from, and had a detrimental impact on, workplace safety. There is also evidence that such a strategy will increase feelings of job insecurity and in so doing ‘will almost certainly hamper well intentioned intervention and any effort to achieve improved safety’ (MCA, 1999: 36).


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Case study 2 – using contractors As indicated earlier, one important aspect of the changing world of work, not unrelated to the industrial relations changes of the last 10 years, is the increasing use of contractors in the mining industry. Contractors are associated with more than their fair share of OHS problems. While accounting for about a third of all workers in the mining industry, contractors are involved in far more than that proportion of work-related injury, disease and death. For example, at the time of writing, the last five fatalities in the New South Wales coal industry had all involved contractors. Among the reasons for the high incidence of injury and death may be that: contractors experience a higher turnover of their workforce (which may be prejudicial to safety); contractors are often required to engage in more risky and dangerous tasks; and subcontractors, labour hire workers and others whose employment is precarious are reluctant to express concerns about OHS for fear of losing that employment. Some of the problems involved with the use of contractors are illustrated by another case study of BHPBIO’s operations in the Pilbara. BHPBIO made substantial use of subcontractors, with some of their most dangerous operations undertaken by such subcontractors. But the evidence given to the inquiry (Ritter, 2004) suggested that there were serious problems in ensuring subcontractors achieved acceptable levels of OHS, and that mixed messages were given to such contractors concerning safety issues. For example, witnesses suggested that BHPBIO did not allow sufficient time for contractors to do work safely and meet contractual conditions, and that contractors were not willing to disclose OHS issues to BHPBIO safety management for fear that it would slow down the job and put them in breach of their contractual commitments. There was also evidence that contractors were singled out for minor safety breaches: ‘the attitude discourages the reporting of near miss accidents or injuries. Incidents are not being reported because of the reactions of these managerial staff’ (Ritter, 2004: 224). Similarly, concern was also expressed that key performance indicators are time based and that this could create an economic disincentive to perform a job steadily and safely. Indeed, ‘some contractors commented that key performance safety indicators are seen as being a numbers and economic exercise rather than being used to assist in achieving positive safety behaviour and culture’ (Ritter, 2004: 224). This led the inquiry to conclude that exhortations to contractors to work safely are ‘hollow if the economic and supervisory relationship between [BHPBIO] and contractors is counter productive to the effective resolution of OHS issues’ (Ritter, 2004: 229).

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Beyond this, there was considerable evidence provided to the inquiry to suggest that the OHS performance of some contractors left much to be desired, notwithstanding the very considerable efforts and extensive procedures both of head office and of BHPBIO to ensure contractor safety standards generally, and that ‘contractors have the same type of systems that mesh with our systems’. Three examples will suffice. The first involved an incident where a union worker refused to work on a CAT loader because the fire suppression equipment was not operational. The contract firm operating the site then demanded that a non-union worker do the job, a move that angered ‘at least part of the workforce because it undermined the safety procedures at the mine in relation to a hazard which has serious risks’ (Ritter, 2004: 176). Second, the inquiry received a large body of evidence to suggest that the same contractor failed to follow up on hazard reports, as graphically illustrated by the following statement from one witness: … you only have to look at the minutes of the safety committee to see the same things repeated over the years … we have no way of enforcing anything without the drastic step of informing the Department and nobody wants to be responsible for that, the fallout would not be worth it. The behaviour of our senior staff has left few people in doubt that production at all costs is the real agenda here … the minutes of our Safety Committee meetings are too brief and ‘sanitised’ so they appear better in print. When pursued it is hard to know what happened. (Ritter, 2004: 189)

Third, there were reports that ‘the way to get on at [the same operation] is to not raise health and safety issues. If you speak your mind on these issues then you do not get promoted. It was said that some leading hands would humiliate people who raise safety issues’ (Ritter, 2004: 190). While the inquiry could not determine the accuracy of such opinions, it concluded that they were genuinely held and ‘at the very least point to a need by [the contractor] to continue to try to improve the communication and understanding of its safety systems by the workforce’ (Ritter, 2004: 190). It needs to be recognized, of course, that not all contractors behave in the manner described above, that not all contractors are operating entire mines and that many operate under company mine management. Of these, some are larger, perhaps having responsibility for a discrete component of the operation, while others are very small operations involving two or three people working alongside company workers. It is also important to acknowledge that considerable efforts have been made by large companies in recent years to improve their contractor selection, induction and management practices with a view to improving contractor safety performance, and that relatively sophisticated mechanisms have been developed for aligning contractor OHS with that of the company.


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Nevertheless, there appear to be considerable difficulties in achieving improved contractor OHS performance, at least in some circumstances. The particular pressures that contract workers are under, and the precarious nature of their employment, are just two factors that make them particularly vulnerable. The fact that check inspectors and safety representatives report that they are being increasingly used as a conduit by contract workers who are unwilling to raise safety issues directly with management suggests that these are structural matters that might at best be mitigated, but are unlikely to be overcome. The Broader Picture There are, of course, limits to the insights that case studies can provide and dangers of generalization. However, the narrower and deeper focus provided by the case studies can to some extent be balanced by the broader, albeit less detailed picture that can be built up from the interview data. The latter is broadly consistent with the evidence provided by the case studies, but also emphasizes a range of matters that the case studies did not bring into focus. Most of the evidence gleaned from the interview data (and supplemented by evidence from other sources where possible) suggests that in the absence of trade union support, most statutory rights of worker participation are more honoured in the breach. For example, when it comes to consultation in relation to risk management and systemic health and safety requirements, the gap between legal rights and actual practice appears to be a large one. Trade union or worker interviewees variously suggested that: ‘consultation via risk assessment means picking people out to consult – those who won’t say no’, that some employers engaged in ‘stacking risk assessments’, or ‘if the SSE [senior site executive] didn’t like the outcome – he picked a different group and put that in place’. One experienced union OHS official suggested that union participation in risk assessment and systems was ‘poor and patchy’ and that ‘sometimes management try to use it an as opportunity to co-opt workers, rewarding compliant workers by taking them out of the pit for a week away’. Union sources also maintained that check inspectors needed much more training concerning their rights under OHS law, especially as regards their rights of entry and to investigate suspected breaches. For example, according to one official in New South Wales: … when OHS legislation first came in people thought – that’s nice but it’s out there somewhere. But then people stood up and took notice, and became more

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knowledgeable, but not till last year did those in OHS roles go to training, they had no grasp of their powers in the legislation – the right to inspect, consultation … the biggest issue for the union is training and member awareness of what the legislation means.

Similarly, in Western Australia, a 2004 government inquiry found that: … there is reason to believe that safety and health representatives have not to date made as valuable a contribution as they potentially might. [There is] a need to develop a strategy to promote the role of safety and health representatives across the [mining] industry, and programs for the implementation by the industry to improve the effectiveness of safety and health representatives in mines. (Ritter, 2004: Appendix 4, 89)

Research by Johnstone et al. (2004) comes to a similar conclusion. A related concern is that miners themselves seem to have surprisingly little knowledge about safety rules and regulations and, as a result, are generally not in a position, either directly or through their representatives, to assert their rights in relation to them. While this issue emerged from the interviews, it has been more systematically demonstrated by a 2005 Australian survey (Laurence, 2005: 44) that found that: The workforce did not demonstrate any meaningful awareness of the concepts of duty of care, risk assessment, safety management systems, or any of the promulgated legislation, which embodies these concepts. The research has therefore shown that the developments in occupational health and safety legislation that have taken place in Australia since the Robens Report of 1974 [sic], have failed to engage those who are most at risk in the workplace.

The above issue will be of particular concern where trade unions, which have often proved to be an effective and credible source of training and information, are no longer in a position to fulfil these roles. There was also evidence that workers on the ground may be subject to particular pressures, not least to put production before safety (although they may also be willing participants, particularly where productivityrelated bonuses are high). This makes it difficult to report a lost-time injury let alone to exercise the power to halt production and stop dangerous work (Ritter, 2004: Appendix 4). For example, it was common during interviews to hear claims from union officials to the effect that worker representatives ‘are reluctant to report unsafe practices, in case they get a hard time’, or that workers (both unionized and non-unionized) are increasingly fearful of making complaints about OHS issues for fear of reprisals by management. It was also suggested that workers ‘don’t contact the Department because the inspectorate will name the individual [to the company] … now non-union blokes


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ring me up’. Others maintained that at many mines ‘there’s a culture of fear’. Similarly, the mining unions argue that the working of excessive hours (which they are now too weak to prevent) is causing severe risks ‘in one of the most dangerous industries in the country where alertness and performance are critical to safety’ (CFMEU, 2005: 39). Such findings, albeit from a partial source, are consistent with other, more independent studies. Workers are widely reported to be more apprehensive about job security and increasingly unwilling to raise OHS issues (or indeed industrial relations issues in general) with their employers for fear of jeopardising their jobs (Occupational Health News, 2007: 1). Independent research also suggests that effective communication between workers and management is hardly a priority in AWAs (Mitchell and Fetter, 2002), and under such arrangements, workers are widely reported to be more apprehensive about job security (Occupational Health News, 2007: 1). Finally, it cannot be assumed that management will consult adequately in the absence of external pressure to do so. Certainly, some large companies have initiated ambitious OHS programmes that include substantial workforce involvement, but this is far from the case across the board. Although hard evidence is in short supply, trade union officials allege that (notwithstanding legislative obligations to consult with the workforce) in some enterprises and at some mines, workers are not consulted. Or they suggest that such consultation as takes place amounts to little more than tokenism, that risk assessments are fudged rather than undertaken in a collaborative manner and that workers who disagree with management approaches are intimidated from taking action (CFMEU, 2005: 210). And even if workers are genuinely included, they are not able to make a useful contribution unless they have had a sufficient degree of training on what are relatively complex matters, which, as indicated earlier, is usually not the case.

Concluding Comments: Protecting a Vulnerable Workforce The argument of this article has been that the decline in collective trade union power, coupled with the rise in contingent employment, has had serious implications for worker participation in OHS, which includes the possibility of adverse OHS outcomes. While there are a range of statutory rights and powers for worker participation in OHS, these are primarily rights to be consulted rather than to negotiate, although a minority of provisions do provide for more extensive powers. Although the existing

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statutory regime could certainly be improved upon, it is doubtful whether this alone would make a substantial difference, given the increased vulnerability of workers to reprisals from employers, including dismissal. All of this leaves workers in a seemingly bleak situation: largely bereft of the protection of trade unions, and for the most part unwilling or unable to invoke their statutory protections as individuals. However much one might deplore or support the Australian industrial relations legislation, and the wider trend towards contingent employment that has in substantial part brought about this situation, it is connected to broader shifts within neoliberalism (Quinlan, 1999) and is unlikely to change dramatically in the short term. Accordingly, there is value in considering how worker rights might best be protected, and worker participation nurtured, in such an environment. First, the state, in the form of the mines inspectorates, might take a more active role. OHS legislation, from its origins in the English Factory Acts, has developed in substantial part because workers were (and are) vulnerable to exploitation at the hands of powerful employers. In addition to the direct enforcement of OHS legislation (the effectiveness of which is a story for another day – see generally Gunningham, 2007), the inspectorates could give much greater consideration directly to consultation. In part this involves ensuring that employers and other duty holders comply with their obligations under the consultation provisions imposed by legislation (a task that, for the most part, the inspectorates have neglected). But it also involves inspectors making direct contact with worker representatives during mine site visits. Worker representatives interviewed for this study had often not been consulted by inspectors, and although inspectoral practice was not uniform, it was clear that such consultation was generally regarded as a low priority. The failure of the inspectorate to engage directly with the most vulnerable members of the workforce, such as subcontractors and labour hire workers, is particularly unfortunate (Gunningham, 2007: Ch. 4) when it is coupled with evidence that non-organized workers (especially contingent workers) were reluctant to contact the inspectorate for fear that they might subsequently be identified and penalized.9 The importance of consultation might be reinforced not only during inspectoral training but also by mandating consultation with worker representatives during mine site visits and requiring worker representatives to be involved directly in inspections. Such provisions are generally lacking in current mine safety legislation.1 0 Second, consideration should be given to mechanisms enabling workers to exercise their rights in non-union workplaces. In the US (where only some 8 percent of the private sector workforce is unionized),


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some consideration has already been given to this question. Weil, for example, views the challenge of engaging workers in non-unionized workplaces as a collective action problem (where individual workers face high costs and low individual benefits if they speak out, resulting in a lower than optimal exercise of workplace rights if they are left to the individual choice of workers) (Weil, 2006). From this it follows that one should seek out possible institutions or intermediaries other than unions potentially capable of addressing such collective action problems. These might include legal service organizations, third party non-profits, alternative dispute resolution systems or certain employee committee arrangements, although none of these have been subject to systematic evaluation (see generally Hersch, 2005). Third, there is empirical evidence that some worker representatives are more effective than others in gaining substantive changes in working conditions. Hall et al. (2006: 415) describe the more effective group as ‘knowledge activists … characterized by their persistent self-training and wide-ranging sources of information, their active efforts to legitimate and act on workers’ indigenous knowledge of unsafe or unhealthy conditions, the scale and importance of the issues they addressed, their focus on underlying causes, and their willingness to present managers with solutions’. As a matter of policy, there is clearly value in facilitating and empowering such activists through information-based strategies. Such an approach would be consistent with the broader literature on worker participation that suggests that training, management responsiveness and communication are particularly important to effective participatory initiatives.1 1 Whether, as these authors acknowledge, knowledge activism can flourish in workplaces where workers lack trade union protections or employment security is unknown. On the one hand, participatory mechanisms such as OHS committees and representatives have been in place in many Australian mines for many years, so that the basic institutions capable of facilitating knowledge activism already exist. On the other hand, the actual level of knowledge of OHS law and rights to participation is extremely low, as indicated earlier. Finally, one must take seriously the possibility that consultation will take place at the initiative of employers, even when there is little or limited legal obligation to do so. While seasoned industrial relations practitioners might be sceptical of such a possibility, it should be pointed out that in the mining industry at least, there has been a considerable shift in attitudes and perceptions among leading mining companies. Senior management in many of the largest enterprises now regard high OHS performance as a priority, for which, in managerial jargon,

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there is a compelling ‘business case’ (HSE, 2005). Mining injuries can cause serious disruption of the production process, escalate already high worker compensation costs, increase staff absences, increase reputation risk and threaten the company’s licence to operate (see Gunningham et al., 2004). The need for mining companies to go ‘beyond compliance’ to protect their ‘social licence’ is especially important, since community expectations of corporate OHS performance are much higher than they were even a decade ago. Today, there is almost a ‘groupthink’ at senior executive level as to the importance of achieving high standards of OHS (Di Maggio and Powell, 1983: 147–60). Even though there is still a substantial gap between aspiration and outcomes, mining industry leaders are substantially more motivated to improve OHS than the leaders of most other industry sectors (Yakoleva, 2005). To the extent that differences exist between companies and unions, they may be more a question of means rather than ends. However, large mining companies are complex organizations and often have competing priorities, making constructive consultation with the workforce possible but far from automatic. At some mines studied (with or without a union presence), there were high levels of worker participation that were regarded by both sides as making a substantial contribution to improved workplace safety. However, at others, worker participation may conflict with broader industrial relations and ideological goals (as was evident in case study 1); or management may seek to marginalize union officials to the extent possible, and at the same time attempt to win over the workforce through direct communication; or there may be a shift to the use of contractors and other forms of contingent employment (as in case study 2). At present, we find ourselves in somewhat of a policy dilemma. We know that genuine worker participation is an essential component of effective OHS practices in the mining industry (and elsewhere); however, the traditional vehicle through which this has been pursued, namely trade union representation, is increasingly dysfunctional in a cold industrial relations climate. Although there have been some encouraging developments in many mining companies employing voluntary management initiatives to engage with the workforce on OHS issues, the success of these initiatives is uneven across mines (even for those mines within the same company). At a deeper level, they may be in some instances conflict with other pragmatic or ideological corporate goals. As such, it would be a high-risk strategy to rely on unilateral corporate action in isolation, although welcome, to achieve appropriate levels of worker participation in the OHS sphere. This article has identified some possible/promising


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areas of reform. These too, however, are not without their dilemmas: while there is clearly the potential for the state to expand its role, this seems an unlikely scenario under neoliberalism; the alternative of using third parties to address collective action is appealing, but light on implementation detail; and encouraging ‘knowledge activists’ among the workforce may be handicapped by cultural resistance and unfamiliarity with OHS policy. This strongly suggests that there is some considerable way to go, both in terms of policies and practices, in achieving greater levels of worker participation in the OHS arena in the changing world of work in the 21st century.

Notes The work on which this article is based was supported by an Australian Research Council Linkage Grant. 1. The 1997 ‘Review of Mine Safety in NSW’ also recognized the importance of worker participation, Recommendation 12 being that: ‘Companies re-evaluate their approach to involving workers in safety management with a view to achieving greater worker participation particularly in terms of the assessment and management of core risks’ (ACIL Tasman, 1997: 47). 2. For example, up until the end of the Second World War, companies did not provide any protective clothing and miners normally wore soft hats that afforded only minimal protection. 3. For critiques of the ‘common interest’ view, see for example, Berman (1978), Carson (1981), Gunningham (1984: Ch. 11) and Nichols and Armstrong (1973). 4. For example, provisions in awards protecting seniority (‘last in, first out’) are being removed. 5. See NSW Mine Safety Review (Wran and McClelland, 2005). 6. In Victoria, where such a provision has been in place for some time, it has been demonstrably effective in empowering worker representatives and is ‘an important part of the compliance function performed by HSRs’ (Maxwell, 2004: 211). The Maxwell Report in Victoria recommended such provision be retained and streamlined (Maxwell, 2004: 211–14). 7. There is evidence that this mechanism, underpinned by legislation, can be markedly effective in improving work conditions for such enterprises (Johnstone et al., 2004: 29), but, for it to do so, legislation must provide rights of access, inspection and investigation similar to those provided to conventional safety representatives. 8. Such is already the case in New South Wales by virtue of clause 23(2) of the New South Wales Occupational Health and Safety Regulation 2001 and section 2.4.2 of the New South Wales OHS Consultation Code of Practice – the Duty to Consult, Facilitation of Consultation Provisions – which deal with the coordination of worker participation where contractors are involved. Similar provisions should be enacted in other jurisdictions. 9. Ongoing research by Johnstone and Quinlan suggests that the above findings, far from being atypical, are representative of OHS inspectorates across Australia, and perhaps elsewhere.

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10. Only in New South Wales, where section 69 of the Ocupational Health and Safety Act empowers an employees’ representative to accompany an inspector, is provision for consultation mandated. 11. Research in the UK suggests that crucial features promoting effective worker participation are channels for dialogue with management on important OHS issues, adequate training and information, and opportunities to investigate and communicate with other workers (Ecotec, 2005; Walters and Frick, 2000).

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Neil Gunningham is a lawyer and interdisciplinary social scientist who specializes in occupational health and safety law, policy and regulation. He is director of the National Research Centre for Occupational Health and Safety at the Australian National University. His books include Mine Safety: Law, Regulation, Policy (Federation Press, 2007), Shades of Green: Business, Regulation and Environment (with Kagan and Thornton; Stanford University Press, 2003), Regulating Workplace Safety (with Johnstone; Oxford University Press, 1999) and Smart Regulation: Designing Environmental Policy (with Grabosky; Oxford University Press, 1998).