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1 Regulating Supply Chains Richard Johnstone, Socio-Legal Research Centre, Griffith Law School, Griffith University; and National Research Centre for OHS

Mar 28, 2015

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1 Regulating Supply Chains Richard Johnstone, Socio-Legal Research Centre, Griffith Law School, Griffith University; and National Research Centre for OHS Regulation, Australian National University and Michael Rawling, College of Law, Australian National University Slide 2 2 Supply Chain (an interconnected series of contracts organised for supplying goods or services to organisations at the apex of contractual chains) Effective Business Controller (eg Retailer) Head Contractor Contractor Sub-Contractor Worker (Further) Sub-contractor Slide 3 3 Two approaches to regulation Duty to others in the Australian OHS statutes Apparel, road transport and generic supply chain legislation Slide 4 4 OHS Statutes The courts have given a broad interpretation of the employers duty to employees eg Swan Hunter (UK) Deemed employees covering contractors and their employees see OHSA(Vic) s 21(3), Queen v ACR Roofing (Vic, 2004), Cth, WA, (and SA, NT) OSHA (WA) since 2005 deems employees to include labour hire and other labour arrangements WHSA(Qld) duty owed to workers, defined as a person who does work, other than under a contract for services, for or at the direction of an employer, and includes volunteers. Slide 5 5 Employer/Self-Employed Persons Duty to Others Broadest provisions are in OHSA(Vic) ss 23 and 24 and WHSA(Qld) s 28 ensure persons who are not employees are not exposed to risks to OHS from the conduct of the undertaking (Qld duty imposed on person conducting a business or undertaking; Victorian duty imposed upon employer and self-employed persons similar to HSAWA s 3). R v Associated Octel (UK, 1996) employer free to decide labour arrangements but is under a duty to exercise control over the activity and to ensure that it is done without exposing non-employees to risks. Whittaker v Delmina (Vic, 1998) broad definition of undertaking. Slide 6 6 National OHS Review 2008-9 Recommended that a model Australian OHS Act include a primary general duty, imposed upon a person conducting a business or an undertaking, owed to workers broadly defined and others, to ensure that workers and others are not exposed to a risk to their health and safety arising from the conduct of the undertaking. Slide 7 7 Application to supply chains The importance of the wording of sections 21(3), 23 and 24 of the OHSA(Vic), section 28 of the WHSA(Qld) and the National OHS primary duty becomes most apparent in relation to multi-tiered or pyramidal sub-contracting found in industries like clothing, long-haul transport, construction and franchise arrangements. These provisions impose a hierarchy of overlapping and complementary responsibilities on the different levels of contractors and sub-contractors. Slide 8 8 For example, employers, contractors and subcontractors at each level owe duties to all parties below them in the contractual chain. In short, these provisions in the OHSA(Vic) and WHSA(Qld) have a very broad reach, and ensure that a firms OHS responsibilities extend not only to employees, but to dependent and semi- dependent workers, independent businesses and volunteers who are engaged by the firm in the conduct of the firms undertaking. Slide 9 9 Further issues: Need to flesh out application of these general duties in regulations and codes of practice; Need to integrate OHS issues with measures to ensure adequate remuneration; Inspection and enforcement strategies focusing on supply chains. Slide 10 10 Apparel Supply Chain Legislation Top Down Obligations Mandatory Apparel Retailer Codes Ethical Clothing Trades Extended Responsibility Scheme 2004 (NSW) Fair Work (Clothing Outworker Code of Practice) Regulations 2007 (South Australia (SA)) Expanded Scope of industrial statute definitions of industrial matters : Industrial Relations Act 1996 (NSW) s6(2)(k) Fair Work Act 1994 (SA) s4(1) Outworker Rights of recovery Industrial Relations Act 1996 (NSW), ss129A-129J Fair Work Act 1994 (SA), ss99A to 99J Industrial Relations Act 1999 (Queensland), ss400A-400I Outworker (Improved Protection) Act 2003 (Victoria) Outworker definitions and deeming provisions (extend to outworkers rights and entitlements under industrial legislation) Industrial Relations Act 1996 (NSW), s5, Sch1.1(f) Fair Work Act 1994 (SA), s5, definition of contract of employment s4(1) Industrial Relations Act 1999 (Queensland), ss5(1)(g), 8C, schedule 5 Outworker (Improved Protection) Act 2003 (Victoria) Industrial Relations Act 1984 (Tasmania) s3 Slide 11 11 (a) Mandatory Apparel Retailer Codes Compulsory, standardised, enforceable provisions imported by statute into retailer contracts informing retailers about (a) where apparel is manufactured and (b) under what conditions apparel is produced Where an outworker is to be engaged, retailers must, (before entering into an agreement with a supplier), obtain an undertaking from the supplier that: The supplier and its contractors will engage outworkers under lawful work conditions The addresses where apparel production is to be performed will be disclosed. The retailer must also obtain information from the supplier (and suppliers are required to provide this information) including the name and address of each party in the supply chain and the number and type of apparel products to be made under the agreement Slide 12 12 Mandatory Apparel Retailer Codes (cont) Commercial Sanctions It is mandatory for a retailer to not enter into an agreement with a supplier who does not provide an undertaking The retailer must inform the supplier that a breach of an undertaking by the supplier or one of its contractors is a breach of the agreement and grounds for the agreements termination Record Keeping Apparel Retailers must keep records of contracts with suppliers and the names and addresses of suppliers, suppliers contractors and addresses where work is performed and details about the clothing products to be supplied Suppliers and their contractors must assist retailers to maintain these records Slide 13 13 Mandatory Apparel Retailer Codes (cont) Proactive and Reactive Disclosure Obligations Retailers must proactively report at regular intervals (at least every 6 months) to the relevant trade union and state enforcement agency full and accurate details of the records the retailer is required keep about clothing supply contracts, production locations etc A retailer must, upon request, provide to the relevant trade union or state enforcement agency any record the retailer is required to keep under the Mandatory Code for the purpose of allowing the (routine or otherwise) investigation of possible contraventions of the relevant award The retailer must also report to the relevant trade union and state enforcement agency when a supplier or suppliers contractor engages (or intends to engage) an outworker on less favourable terms and conditions than prescribed under the relevant award or industrial instrument These provisions permit the relevant trade union to oversee entire clothing supply chains to effect compliance with OHS, workers compensation & industrial relations obligations. Slide 14 14 Scope of industrial statute allows for regulation of entire supply chains involving outwork Eg. under South Australian industrial statute industrial matter includes: (i) the giving out of work or (ii) the regulation of any person who gives out work, or (iii) the creation of 1 or more contracts (including a series of contracts) that deal with outwork (see definition of industrial matter, Fair Work Act 1994 (SA), s4(1) ) Under NSW industrial statute industrial matter includes: The mode, terms and conditions under which work is given out, whether directly or indirectly to be performed by clothing outworkers (see definition of industrial matter, Industrial Relations Act 1996 (NSW), s6(2)(k) Slide 15 15 Outworker rights of recovery Example of the right under South Australian Statute An outworker may initiate a claim for unpaid remuneration against any person in the supply chain (apart from the retailer) who the outworker believes to be a responsible contractor The responsible contractor nominated in the claim is then liable for the claim unless that contractor refers the claim on to another party who actually pays, or the responsible contractor deducts or sets-off the amount from moneys owed to a person who has a closer contractual relationship with the outworker. Reverse Onus of Proof In recovery proceedings, the onus of proof is on the responsible contractor (not the outworker) Slide 16 16 Road Transport Industry Supply Chain Regulation regarding OHS 1. Long haul truck driver fatigue regulation Occupational Health and Safety Amendment (Long Distance Truck Driver Fatigue) Regulation 2005 (NSW) 2. Regulation by binding industrial tribunal decisions Re Transport Industry Mutual Responsibility for Road Safety (State) Award and Contract Determination [2006] NSWIRComm 328 Transport Industry - Mutual Responsibility for Road Safety (State) Award (2006) Transport Industry - Mutual Responsibility for Road Safety (State) Contract Determination (2006) Slide 17 17 1. Long Haul Truck Driver Fatigue Regulation An extension of/elaboration on OHS statutory general duties which makes these duties specific to certain parties at the apex (and throughout) road transport supply chains. Application of Regulation Applies in relation to both owner drivers and employee drivers who are engaged to transport freight by means of a journey or series of journeys totalling more than 500 kilometres under a contract (or series of contracts) Obligations owed by consignors who receive delivery of freight and consignees for whom freight is delivered (eg retailers), apply if the consignor or consignee employs, either directly or by labour hire, 200 workers Slide 18 18 Obligations under the Regulation: risk assessment and control Consignors, consignees and head carriers must not enter into a contract with a self-employed carrier for the long haul