470 There was some controversy as to whether labour hire or contractor employees are inherently at greater risk than permanent employees.
471 The evidence of Professor Quinlan (whose evidence is referred to in more detail subsequently) was that studies undertaken by him establish a link between precarious employment and inferior occupational health and safety outcomes.
472 This was supported by an American study by Rebitzer (published in 1995 (J Rebtizer (1995) 'Job safety and contract workers in the petrochemical industry' Industrial Relations, Volume 34, pp 40 - 57)), which found that a higher accident probability amongst contract workers in the petro-chemical industry was partially explained by their being more likely to engage in higher risk tasks.
473 Unions NSW brought evidence in respect of structural change in employment, and the New South Wales and Australian economy from Professor Quinlan, from the School of Industrial Relations and Organisational Behaviour at the University of New South Wales. Professor Quinlan is also currently a member of the Research Advisory Panel of the National Occupational Health and Safety Commission (NOHSC). Professor Quinlan has undertaken substantial research in conjunction with Dr Claire Mayhew, Professor Phillip Bohle, Dr Anne Williamson, Dr David Kennedy, and Professor Richard Johnstone and has funding from the Australian Research Council in the form of a Discovery Grant project.
474 The evidence of Professor Quinlan was that:
Eminent scholars have acknowledged the importance of this research. For example, professor Nicholas Ashford, Massachusetts Institute of Technology (MIT) (in Occupational Medicine: State of the Art Reviews 1999 14/3:485-95) described my work with several colleagues on the OHS effects of precarious employment as 'authoritative'. My work has been cited by researchers in leading international journals such as the American Journal of Industrial Medicine, Journal of Occupational and Environmental Medicine, American Journal of Public Health, Safety Science and Scandinavian Journal of Work Health and Environment .
475 Professor Quinlan deposed that in 2001 he was asked to write a review of research on the occupational health and safety effects of contingent work/precarious employment for the World Health Organisation Global Occupational Health Network Newsletter, which he said provided a good starting point to examine evidence on the occupational health and safety effects of casual/temporary and labour hire work.
476 The evidence of Professor Quinlan was that 88.6 per cent of determinate studies linked precarious employment with inferior occupational health and safety outcomes in terms of higher injury rates, hazard exposures, disease, and work related stress. Professor Quinlan said that 90 per cent of determinate studies linked precarious employment to worse stress outcomes.
477 The evidence of Professor Quinlan was:
At a general level, the research review data set clearly shows there is a rapidly growing and already substantial body of international evidence that job insecurity and contingent work arrangements is associated with a significant and measurable deterioration in worker health, safety and wellbeing. Further, findings from research focusing on contracting out/home-based work and temporary work arrangements are entirely consistent with this overall set of results. Such a decisive set of results is unusual for such a large review of scientific research. It is a result that should give cause for concern given the growing significance of these types of work arrangements. For example, given that over 25 per cent of the Australian workforce are employed as a casual or temporary worker it is fair to say this evidence suggests they face an elevated risk of injury and disease due to their employment status.
and further:
Most studies of temporary workers concentrate on safety outcomes, predominantly in terms of injury. Taken as a whole, this research, undertaken since the 1980s in a range of countries, provides strong if not compelling evidence that temporary workers are at an increased risk of suffering an injury at work in comparison to permanent workers. It also appears that the shorter the contract the greater the risk, something that - if confirmed - would have serious implications for labour leasing and industries/workplaces where there is a rapid 'throughput' of workers.
478 Professor Quinlan observed that a large study of the United States petrochemical industry undertaken by Rebitzer found:
[T]he higher 'accident' probability contract workers compared to direct hires was partially explained by the greater likelihood of contract workers to engage in high-risk tasks, be less experienced, and receive less safety training. Rebitzer found that closer supervisions by the host plant led to lower injury rates among contract workers but that the training and experience of contract workers was "less effective in reducing the risk of accidents than is that of direct-hire workers".
479 Professor Quinlan deposed that a telephone survey of 5,200 workers in Ireland found that temporary workers and those in organisations that had recently undergone restructuring reported more bullying than other categories of workers.
480 Professor Quinlan concluded that employers do not take the same level of interest in training casual/temporary employees, particularly where there is a high rate of staff turnover. Professor Quinlan's evidence was that:
As has been noted elsewhere (Mayhew and Quinlan, 2000), this lack of training and support means that even where temporary workers are not at relatively greater risk of exposure to violence they can be in a more vulnerable position to handle those risks. It should be noted here that casual employment is pervasive in a number of industries where there is a relatively high risk of cash-related crime or customer misbehaviour (Mayhew and Quinlan, 2000). Further, where the job demands an ability to diffuse potentially hostile situations, protect others or where site specific knowledge is vital (such as 'bouncers' at a club or security guards at a hospital) casual positions may make it hard to attract applicants with the requisite skills and training.
481 Professor Quinlan deposed that research into the health effects (including hazardous exposures) of temporary employment is limited, putting in part because health and medical researchers have only recently begun to systematically explore the effects of employment status and in part because it is difficult to undertake longitudinal studies of workers who are changing jobs.
482 Mr Hatcher relied upon an RCSA survey carried out by Dr Brennan which demonstrated that the responsibility for safety can be lost between the host employer and the labour hire company. This survey at p 30 reported that:
[162.2] 22% of host employers rarely or never provide comprehensive safety inductions for employees of labour hire agencies before they commenced work, and a further 22% only did this sometimes [p 34]. This is despite 85.3% saying that they thought it was the host employer's role, not the labour hire agencies role, to provide safety inductions.
483 The survey also revealed that some labour hire companies reported host employer obstacles in conducting pre-placement safety assessments. Approximately 50 per cent of labour hire firms reported that they have identified workplace hazards during pre-placement occupational health and safety assessments that had escaped the notice of the client.
484 The survey also reported that 5 per cent of clients thought that their workplace was less safe as a result of using labour hire and that over 45 per cent of respondent labour hire companies reported that clients had requested that they enter into a "hold harmless" arrangement in the labour hire contract which indemnifies the host employer against any common law claims made by injured labour hire employees.
485 Mr Hatcher relied upon the evidence of Mr Andrew Quirk, an employee of Christies People, a labour hire company, which assigned him to building work, and the evidence of Mr Damian Hassan, a Recruitment Consultant with Christies People. Mr Quirk was placed on assignment to a building job in North Sydney with a firm identified as BMP Refurbishment, working on contract to Bovis Lend Lease. The work involved scraping old paint off a 20 storey building in preparation for a new exterior surface. Mr Quirk's evidence was:
I worked with Christies People up until February 2004. In February 2004, I was sent to work on a large refurbishment job in North Sydney. I was placed with a host employer called BMP Refurbishment. It involved scraping the old paint off a twenty storey building in order to prepare for a new exterior finish. This took place from large climbing platforms fixed to the outside of the building. At the commencement of my shift I was on the climbing platform approaching approximately the 16th floor, when I noticed the smell of burning oil. I pointed this out to the leading hand who was on the platform with me. We inspected one of the engines of the platform and found it was smoking. Whereupon we made the decision to descend. As we descended the engine started to burn out. The leading hand, who I understand was ticketed, could not find the manual controls. I insisted that we bring the platform down as the platform had begun to slip as the brakes were not holding. I was not convinced that the override mechanism was going to work, due to the machine having malfunctioned. When we got to the ground we were directed to go to another platform and ascend another tower. I was very shaken by my experience and objected to this. I complained heatedly to the Bovis Lend Lease management on site, who had not been informed by my host employer of the malfunctioning platform. I also complained to the CFMEU. The Union representative told me not to commence any more work until there was a safety audit of all the towers, including the ticketing of operators. This was also relayed by the Union organiser to the management of Bovis Lend Lease. I went home.
486 Mr Hassan's evidence confirmed that of Mr Quirk. It was established that Christies People accepted assurances from BMP that the equipment was sound; BMP had accepted assurances from the suppliers that the equipment was checked by the maintenance co-ordinator. No one had ensured that any employee was capable of manual operation in the event of failure. Mr Hassan deposed that subsequent to these events a general training course was held for all employees. Mr Quirk was not engaged again.
487 Unions NSW also relied upon the submissions of WorkCover to the New South Wales Government's Labour Hire Task Force which were in the following terms: