Chris White Online

MODEL OCCUPATIONAL HEALTH AND SAFETY LEGISLATION
SUBMISSION OF AUSTRALIAN COUNCIL OF TRADE UNIONS NOVEMBER 2009
“Let this be a warning to all in corporate Australia – that when it comes to your
responsibilities for the safety of your workers, nothing, nothing should ever allow that to occupy a second place. It should be the first responsibility of every company. Companies cannot ignore their duty of care to their workers. The Government that I lead … will do everything within our physical power to ensure that that is the case in the future.”
Prime Minister Kevin Rudd, 7 November 2009
But read on, as our PM’s claim is false and deceptive spin…although I wish what he says was his government’s commitment, rather than the OHS sell-out coming at COAG in December. Read the summary.

Introduction and Executive Summary
Workplace related deaths and injuries are a scourge upon Australian society and cause untold misery, suffering and hardship to hundreds of thousands in our community; not to mention the damage done to our economy and productivity.

The COAG decision to proceed with the harmonisation of the nation’s OHS laws presents us with an historic opportunity.

OHS harmonization is not just about macroeconomic reform; it impacts upon the lives of real people – our sons, daughters, partners, neighbors and loved ones. That’s why Australian unions are so passionate that we do not miss the opportunity to enact the highest possible
standards of workplace rights and protections that our nation deserves.

All of us – legislators, regulators and social partners – have at this point in time a very special obligation to the memory of those working Australians who have died or who have been maimed, and to those who will be in future, to ensure that we have decided wisely and compassionately to minimize the possibility of others being subjected to avoidable tragedy.

The Australian Council of Trade Unions (ACTU) is the peak representative body for Australian trade unions. It represents forty-seven affiliated trade unions and represents some two million working Australians and their families.

The ACTU has in good faith fully participated in the processes that have lead to the development of the Model Occupational Health and Safety Legislation. The ACTU is represented on Safe Work Australia. The ACTU is also represented on the Significant Issues Group – OHS, the Safe Work Australia sub-committee that has developed the draft model act and key administrative regulations.

The ACTU supports the establishment of harmonised national OHS laws. However, we do not resile from our stated position that the establishment of national OHS laws should not result in a compromise or reduction of protections or standards for workers in any existing jurisdiction.

We note and believe we are entitled to rely upon the integrity of repeated assurances that COAG meetings dating back to 2006 have given in this regard.

Having carefully considered the exposure drafts for the Model Act and key Administrative Regulations and the associated supporting documents – the Discussion Paper and the Consultation Regulatory Impact Statement – it is our position that, in a number of areas, they fall short of what the Australian community is entitled to expect.

Our primary concerns relate to six key areas:
The obligation for employers to consult with their workers regarding OHS
The draft Model Act will oblige employers to consult with workers about OHS matters “as far as is reasonably practicable”.
An employer’s obligation to consult about OHS matters should be
unconditional (paragraphs 4.1 – 4.3).
Further, the hierarchy of controls and risk assessment should be prescribed in the principle Act, not in regulation. These concepts – that duties imposed on a person to ensure health and safety requires the person to identify and eliminate hazards, to assess risks and then control and monitor those risks are fundamental principles to manage safety. These basic concepts should not be pushed down the legislative hierarchy (paragraph 2.1).

The role, function and powers of democratically elected workplace Health and Safety Representatives

The importance of having effective, democratically elected, Health and Safety Representatives
(HSRs) must not be underestimated. HSRs play a critical role in improving OHS outcomes and the model Act must operate to support their role. The draft Model Act places a range of barriers, some of which are undemocratic, in the way of HSRs effectively performing their role. Parts 4 and 5 of the ACTU submission deal with these issues in detail.

Victims’ ability to initiate litigation

Unions believe that private prosecutions provide a safeguard where the regulator is either conflicted or fails to investigate or enforce penalties for clear and persistent breaches of OHS laws. Our experience is that Australian OHS regulators do not prosecute “near misses” or breaches that result in non-catastrophic injuries. The draft Model Laws say that the power to prosecute breaches of the law rests solely with the regulator. This is not only inconsistent with the current provisions in NSW and the ACT, which provide expressly for union prosecutions, it is also inconsistent with the criminal law in most jurisdictions where citizens can prosecute criminal offences and with the role that unions play in bringing proceedings for breaches under workplace laws.

The experience in jurisdictions where such a capacity exists is that it is used very sparingly, has
always been successful – and has often resulted in nationwide improvements in safety standards.
Unions believe that, where the regulator has failed to prosecute, and has confirmed that they do not intend to prosecute within a reasonable period that private prosecutions should be available (paragraph 11.3).

Burden of proof
Unions remain concerned that the model laws place the onus on the prosecutor to prove that a duty holder did not, as far as reasonably practicable, provide a safe workplace. Our preference is that the prosecutor show that the duty holder – at least where the duty holder is a corporation and not a natural person – failed to provide a safe workplace, leaving the defendant to rely on a defence of reasonable practicability. This is consistent with the approach both in discrimination law, and the Fair Work Act General Protections, in which it is acknowledged that the operator of a business has better access to information about the operational needs of the business (paragraph 11.3).

Respect for the role of unions

Unions play a crucial role in securing safer, healthier workplaces. Yet the proposed regime for Right of Entry under the Model OHS Laws is overly complicated and heavily process driven, which will undermine the capacity for permit holders to address OHS concerns in a timely fashion and in high- risk industries this will undoubtedly cost lives.

Part 6 of the ACTU submission addresses issues relating to Right of Entry in detail.

Adequate and equitable opportunity for independent input from employers and employees

There has been more than three decades worldwide experience that demonstrates that the best OHS outcomes for workers are achieved through an approach that genuinely involves representatives of employers and workers, and is independent of the bureaucracy. Unions welcome the draft Objects that “encourage unions and employers organisations to take a constructive role in promoting improvements in OHS standards and achieve healthier and safer workplaces”. However unions believe that, to be consistent with the Safe Work Australia legislation and ensure Australia’s compliance with ILO Convention 155, the objects should also include involvement by unions and employers in setting standards, monitoring the effectiveness of the laws and so forth (paragraphs 1.3 and 1.5).

This submission elaborates upon these areas, as well as others where the ACTU is concerned that the operation of the model OHS laws will not deliver working Australians the highest possible OHS standards that they deserve.

Our submission is segmented into the Parts of the Model Act and the Administrative Regulations, and we respond to each question of the Discussion Paper in its relevant Part. Comments regarding sections of the Model Act not directly related to a question in the Discussion Paper are then raised in sequence to align with the Model Act.

The ACTU also refers to and supports the submissions of the peak union bodies in the States/Territories and the submissions of our affiliated unions that should be considered in conjunction with this submission.

There are 22 pages of detailed criticisms of the inadequate draft Bill..

This submission does not seem to be on the ACTU website, but the full submission
is available on the Safe Work Australia website.

http://www.safeworkaustralia.gov.au/swa/ModelLegislation/Public+Comment/ExposureDraftoftheModelOHSActandKeyAdministrativeRegulations.htm

Labour Law