DPM’s Second rate OHS
There have been heated debates behind the scenes over the DPM’s national OHS ‘harmonisation’ – read lowest common denoninator second rate health and safety changes. This has spilled over into a public union and community campaign next week september 1st (see ACTU campaign), I decided to learn some of the details at a public report. Often the devil is in the detail. I am angry overall at the sell-out of workers’ OHS rights. For over 20 years I have been active in OHS, the Victorian and SA state systems, prevention and compliance, training and the exercise of worker health and safety reps rights and health and safety as a priority before profits and property. I believe with many other OHS activists Australian workers health and safety has to be improved. This is more so with the capitalist crisis and pressure on job security and rising unemployment. I focus only on six details where the DPM’s judgement is faulty and has to be overturned by union and community lobbying.
1. I always recoil at legislative escape-holes for the worst employers such as “reasonably practical” or “reasonably necessary”. To add this to the requirement of employers to consult over OHS is a severe backwards step. The law has been that employers have to consult over OHS, full stop. The strength over many years of the elected worker health and safety representative has to be preserved, not watered down. Unions want to ensure that there is no reduction to the rights, powers and protections of health and safety representatives.
2. For those knowing the real impact at law of the onus of proof (often where the employer the corporation or government has enormous legal resources), the reversing of the traditional rule that the employer who has the responsiblity for a healthy and safe workplace bears the onus again is a retrograde step. The proposed new laws make it harder to prove an employer has failed to provide a healthy and safe workplace. Government agencies or a trade union would have to prove an employer did not take reasonable steps to keep a workplace safe. Compliance has to be strengthened, not weakened.
3. The right of the union to prosecute has been operating to the benefit of workers and OHS standards for 70 years in NSW and ought to be a national right. It is critical that the entitlement to prosecute goes beyond just regulatory authorities.
The Finance Sector Union began prosecuting banks in 2002 for failing to provide appropriate security in the event of an armed hold up. Those prosecutions prompted banks to spend more than $100 million on full height anti-jump barriers, ATM bunkers and digital CCTV with live back to base monitoring.
4. I have never been refused OHS right of entry at any day or night often without notice if appropriate and this ought to be the case. The requirement for union officials to provide 24 hour notice to inspect documents when investigating a breach of workplace safety laws is impractical. Like the 24 hour restrictions in Fair Work, the worst employers get tactical advantage.
5. I prefer ‘welfare’ added to OHS so the scope is clear and to omit this on behalf of employer concerns shows how small-minded the change is.
6. Although fines are increased, there is no opportunity allowed for employers to be gaoled. This is at a time when again Hardies’ directors have inadequate fines imposed and none are behind bars despite thousands of deaths and now as on TV with asbestos dust in felt thousands more. As McQueen’s book on OHS in the building industry ‘Framework of Flesh’ shows employers are still sucessful in ensuing that killing at work for profits is not murder at law.
It is a discrace that as well as at the National level, State Labor leaders are not challenging the watering down of their OHS provisions.
Despite many employers, academics, OHS specialists arguing for stengthened national OHS laws, there is not any indication that the DPM will revise her plan for second rate National OHS. Unless the campaign lobbying all MPs is strong enough…
ACTU fliers are available.
OHS second rate
I too have been involved in OH&S (and welfare) for nearly 20 years.I concur totally with Chris’s comments. It is a total travesty of human rights to water down laws that are already in place and are having some notable positive effects. One would expect a Labor Government to have a social conscience to the point of improving on these existing laws and working to introduce further protective measures.
Perhaps it’s the economic rationalists putting profits ahead of Australian lives in the global market-place, considered in the context of Australia’s various “free”-trade agreements.
Union and public sentiment (we) must prevail in pressuring the DPM to find her social conscience.
Chris F
OHS motion From Hurstbridge AEU Vic sub-branch held on the 28/8/09
The Hurstbridge PS Sub-Branch urges the AEU to do all it can to promote and involve its members in the VTHC campaign to defend the Victorian OHS laws, that are among the World’s best, from being watered down under the harmonizing process. We believe that the federal and state governments should use these laws to raise OHS standards not downgrade them. The proposed changes can only further undermine claims for psychological and physical stress that have their cause in the workplace.
We believe that only by maintaining and strengthening the Victorian Act can we make our workplaces safer.
We support the campaigns objectives of;
1. Maintaining the right to initial and ongoing training paid for by the employer.
2. Maintaining the right to issue a Provisional Improvement Notice (PIN) and direct a cease work if there is immediate risk.
3. Maintaining the right of the OHS representative to seek assistance from anyone to solve a workplace issue, and not to be confused with right of entry of union officials.
4. Maintaining the majority vote of workers to remove a representative or the employer’s seeking of a court order if he believes that there is an intention to cause harm to the business.
5. Maintain the right of the representative to be proactive in the prevention of psychological harm, accidents and deaths.
The Federal government is currently engaging in a process of harmonizing the states’ OHS laws to create a national set of standards.
While we support nationwide standards we will not tolerate our current state laws being removed while they are better than those proposed. The federal government should be harmonizing and enacting the best and highest standards from each of the states’ laws.
In the case of Victoria the proposed national laws can only restrain the activities of Occupational Health and Safety representatives. The proposed limitations on the current activities of OHS representatives can only endanger the wellbeing of Victorian workers.
The Minister, Julia Gillard, is not hearing the concerns of Victorian Trades Hall Council and individual unions about the proposed changes. The Minister appears to be determined to proceed with her government’s agenda of counter-reforms. We believe that only a coordinated statewide and nationwide campaign of defiance will change the Minister’s view, and determination, to pursue her government’s agenda.
We wish to remind the Minister that the Occupational Health and Safety standards that we defend today in Victoria, and elsewhere, have been achieved by the past and present generations’ work and sacrifice. It has been the peoples’ collective struggle that has helped define the ethos of social equality and rights that are popularly recognised as a ‘fair go!’
We emphasis too, that as teachers, many of us value, and work for, a more equitable society. We know that our conditions of work impact on our home life for better or for worse. We therefore defend the right to define our workplaces and conditions through the democratic structures and processes of consultation, protest, and in the final instance the right to remove our labour when our wellbeing is put at risk.
We wish to remind the Minister of Victorian WorkSafe advertising that encourages everyone to take responsibility for the safety of fellow workers. These ads also make it clear that it is expectation of everyone that we will return home well to our loved ones ‘in one piece’ physically and psychologically.
Every worker’s family have the right to know that loved ones are in a safe workplace. We reiterate that workplaces are made safe, and kept safer, only by our active involvement in determining the best working conditions for our wellbeing and consequently that of our students.
Passed Unanimously
More from Victoria.
OHS REPS @ WORK
OHS National Model Laws – Not Good Enough! – ALL AFFILIATES RALLY
10am, Tuesday, 1st September 2009
ASSEMBLE: 10.00 am – TRADES HALL, LYGON STREET, CARLTON
See meetings in all states.
Margot Hoyte, OHS Campaigns Officer mhoyte@vthc.org.au
Many of the worst aspects of Recommendations from the National Review into Model OHS Laws were not agreed to by the Workplace Relations Ministers Council (WRMC) held in May. However, Victorian workers and our representatives will still be worse off if all of the remaining recommendations end up in the Model Law. Victorian unions continue to be concerned that our OHS Reps in particular will lose rights and functions if the harmonisation of Australia’s OHS laws continue in their current form.
These are the main areas of concern for OHS Reps:
Big losses for Victorian OHS Reps
1. Training
While the WRMC recommendations acknowledge that OHS reps have a right to attend training, they are inconsistent with the OHS Vic Act and would lead to a lessening of our current provisions. OHS Reps have an entitlement to undertake training approved by WorkSafe – 5 days initial training, refresher training at least once per year and additional training if approved by WorkSafe (Reps conference, Union OHS Reps conferences for example).
Payment for training is by the employer and this is consistent with the Victorian OHS Act. However, the WMRC recommendations do not properly address how the proposed OHS Rep training and its timing will be done and leave too much power in the hands of the employer to determine.
Under our Act it is the rep who chooses the training in consultation with their employer – the only proviso is that reps must give their employer 14 days notice. If the employer does not agree then Worksafe makes a determination.
2. Fixing problems
Two important powers OHS reps have to fix problems are the right to issue a PIN and the right to direct a cease-work if there is an immediate risk. Under the WRMC recommendations, they won’t be able to use these powers until after they have been trained. This means problems will drag on. Currently under the Vic OHS Act, OHS reps rights and powers can be exercised as soon as elected, including issuing a PIN or directing that work cease.
3. Asking for assistance
OHS reps’ right to seek the assistance of any person is a right in our current Vic OHS Act. The proposals incorrectly included this right to assistance in their discussion about right of entry assuming that ‘assistance’ is from outside the workplace and only from a union. In many instances the assistance can come from someone inside a workplace – another rep or delegate, worker or supervisor for example. Such an approach would be inconsistent with our current provisions.
4. Disqualification of an elected OHS Rep
The WRMC recommends that a court or tribunal could disqualify a rep under very broad circumstances.
This is inconsistent with our current Vic Act which provides that only a majority of members of the work group can resolve that the rep no longer represents them. An employer can apply to the Magistrates’ Court to disqualify an elected OHS Rep when the rep has intended to cause harm to the employer – these are the only appropriate tests.
OHS Reps are elected workplace representatives. It is workers collectively who decide who represents them in this very important role.
5. Issue Resolution
The functions, rights and powers proposed by the WMRC do not include all OHS reps’ rights and powers now in Victorian OHS legislation, for example, the role of the OHS Rep in issue resolution. The WMRC recommends that ‘issue’ now be defined as something that remains in dispute after consultation between the employers and affected workers. That is OHS reps could only be involved when there is an ‘issue’
This approach is inconsistent with the Vic OHS Act. ‘Issue’ is not defined currently in the Vic OHS Act or the Regulations. The proposed definition could alter the Victorian provisions into a dispute resolution process. This will:
* create unnecessary impediments to the resolution of issues at the workplace
* undermine the rights of reps to be involved in resolving issues
* remove the right of the rep to be consulted about OHS
* remove the rights of workers to report issues to their rep
* remove the rights of workers to anonymity when reporting hazards
* undermine the rights of reps to issue PINs or direct the cessation of work.
The WRMC has agreed in principle to the recommendation on issue resolution with the proviso that there be no restriction on the involvement of OHS reps in the resolution of an issue. This is welcome, however a worker’s right to anonymity remains an outstanding concern.
Next steps for the Model Law
The recommendations accepted by the Ministers now form the basis of ‘drafting instructions’ to the people who are actually going to write the law.
Some areas that are currently covered by Victoria’s OHS Act will end up in a regulation (still legally binding, but of a lower status). These regulations are also currently being developed. Other areas that will be covered by regulations (such as Manual Handling, Asbestos and Hazardous Substances) will be developed separately, at a later date.
The work of developing the new Model OHS Act and regulations is being overseen by Safe Work Australia, a newly formed national OHS body, which has representatives from each state, but only two representatives each from unions and employers. See the Safe Work Australia website for more information. Safe Work Australia meets again 1 September to finalise the Draft Model Act and ‘Administrative Regulations’ and will then send them to the WRMC, which meets on 11 September.
The Model OHS Act and accompanying regulations will then be released for public comment after this WRMC meeting. At this time a ‘Regulatory Impact Statement’ will also be released. This is a detailed Statement of the financial cost of complying with a law compared to the financial benefit that will be gained from having the law in place (e.g. how much it will cost to make workplaces safer compared with the number of lives the law will save and reduced compensation costs). The public comment phase will last for 6 weeks.
After that time, public comment will be assessed and the ‘Model OHS Act’ will be finalised in December 2009.
The Workplace Relations Ministers Council will meet twice more this year, on 11 September and in December.
All jurisdictions have agreed to adopt the Model Law by 2011.
Some Questions…
Many people have questions about the new Model Law. Here is the answer to some of them. If you have other questions, and can’t find the answer on this website, please email Margot Hoyte mhoyte@vthc.org.au and we can add your question and answer.
What is ‘Harmonisation’ and the ‘Model OHS Law’?
All jurisdictions in Australia have agreed to adopt common OHS law by 2011. The ‘jurisdictions’ include each state (e.g. Victoria, New South Wales and Queensland) as well as the Commonwealth Government (as it administers the ‘Comcare’ OHS Act). A ‘Model law’ is currently being developed which will then be put though each Parliament. So, as early as next year, the Victorian Parliament could pass a new OHS law that will cover all workers in Victoria (except those currently covered by Comcare legislation). At this time our current OHS Act 2004 will be replaced by a new OHS Act.
This is truly a ‘once in a lifetime’ opportunity to improve the workplace health and safety rights and entitlements.
When did all this start?
In February 2006 the Council of Australian Governments (COAG) agreed to a new National Reform Agenda. Six priority cross-jurisdictional ‘hot spot’ areas were identified, where “overlapping and inconsistent regulatory regimes are impeding economic activity” (COAG Communiqué).
So, the Model Law is being developed particularly as a ‘cost cutting’ exercise for business.
The Workplace Relations Ministers Council (WRMC) in September 2006 adopted the principle of “ensuring protections are not reduced” (WRMC Communiqué).
A Panel was appointed in April 2008 and delivered its final Report and Recommendations in February 2009. More information: National Review into Model OHS Laws website.
Chris
I would be interested in your views on the Libs attempt to stop the “Safe Work Australia” Bill in the Senate. They had the support of the ACTU, Greens and both inds. to suspend harmonisation, ensure that Safe Work Australia was set up properly, and give more say to workers and worker representatives.
Are you able to (deep breath) make a positive comment about a convervative political party, given that the Libs and the ACTU agreed on the issue?
($10 bucks says you won’t….)
Chris
I would be interested in your views on the Libs attempt to stop the “Safe Work Australia” Bill in the Senate. They had the support of the ACTU, Greens and both inds. to suspend harmonisation, ensure that Safe Work Australia was set up properly, and give more say to workers and worker representatives.
Are you able to (deep breath) make a positive comment about a convervative political party, given that the Libs and the ACTU agreed on the issue?
($10 bucks says you won’t….);. All the best!!
It’s amazing that a spammer made such a great comment. For other (non-spam readers) the spam link as part of this comment was deleted, but the comment kept.
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