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CFMEU Construction and General Division Victorian Branch

Submission into the draft Model Act for Occupational Health and Safety.
by Bill Oliver, Secretary CFMEU C&G Div, Victorian Branch and
Tom Watson, Assistant Secretary, CFMEU C&G Div, Victorian Branch.

This submission is made in respect to the proposed model Safe Work Act 2009. The CFMEU supports the concept of occupational health and safety (OHS) harmonisation, but not to the detriment of existing OHS standards and certainly not at the cost of harmonising down to a lower level of OHS standards.

After careful examination and consideration of the draft model Act and the key Administrative Regulations and associated supporting documentation, we commence this submission by once again highlighting that the vast majority of Australian occupational health and safety legislation was first enacted in and around the early to late 1980’s.

Over the past thirty or so years, each jurisdiction has continued in their attempt to refine, cajole and perfect the difficult task of achieving the best and most effective OHS legislation possible. This endless and sometimes thankless task and the efforts of all state and territory jurisdictions in this process, strongly suggests that such an undertaking is not easily achieved.

Three decades later, if this process still cannot claim to have reached its zenith, then how can the current harmonisation process be expected to reach OHS utopia in just over three years?

Yet this is exactly what this draft model Safe Work Act 2009 is proclaiming to have achieved. It is difficult to accept that if six states and two territories have continued to grapple and debate the validity and quality of such a complex and multifaceted undertaking that has continued for over three decades, with hundreds of thousands of hours of research and complex examinations of legislative frameworks and processes and procedures, conducted by hundreds of highly skilled and qualified OHS academics, practitioners and professionals, together with hundreds if not thousands of industry players having input and providing unique insights into the difficulties of the day to day application and interpretation of each of the different pieces that make up what is acknowledged as the jigsaw of OHS legislation in this country, the current model Safe Work Act 2009, prepared in just under three years, cannot possibly be expected to have achieved the best possible model OHS legislation in such an outrageously short period of time.

The model Act is primarily based upon over two hundred and thirty complex and involved recommendations. These recommendations were made by a three member panel; a panel that was selected without any meaningful consultation with or input from the key stakeholders about the makeup and suitability of the panel members required for such an arduous task.

At this point we raise the very pertinent issue of the academic, industry and OHS qualifications and experience and expertise of the panel members themselves.

It is our understanding that the chairperson of the panel, whilst a very esteemed and respected lawyer, has no formal OHS academic qualifications.

Membership of, and so called ‘honorary qualifications’ bestowed upon an individual by a private organisation, an organisation which is neither publically accountable or responsible for either their actions or indeed the prerequisites of their membership, is far different to formally recognised tertiary awarded OHS qualifications.

Importantly, the chair person has a professional history of vigorously campaigning against any changes to the Victorian State OHS legislation that have arguably been proposed to progress and promote the rights of workers to have more direct input and control over their working conditions.

The panel’s chair arguments against such changes have always appeared to be based upon a perception that any increase in worker democracy and egalitarianism at the workplace infringes upon management’s so called exclusive right to manage the workplace as they deem fit; or as it is sometimes referred to – ‘managerial prerogative’.

Any process that the chair has perceived to potentially adversely affect the efficiency and productivity of business and this so called managerial prerogative, has been aggressively and vehemently argued against and vetoed by this particular individual. We also wish to point out, that in all of the chair person’s opposition, he has continually failed to produce any type of empirical data or academic evidence to substantiate and support his arguments and claims throughout this entire process.

And yet, we are led to believe that in the best interests of obtaining the highest levels of OHS in this country, that the particular views, opinions and potential bias of this particular individual have now somehow been put aside in the national interests of obtaining national uniformity and through this process, the ultimate protection of those who we are told, are the most valuable assets of any organisation and business; the workers themselves!

The second member of the panel, whist being a former head of the former National Occupational Health and Safety Commission, has stated in a number of public forums when challenged about the actual negative and adverse affects that many of the recommendations that the panel made would have at the workplace, continues to claim ‘… that that was not the intention of the recommendation…’. Such innocence and naivety cannot take away the many detrimental and devastating effects that much of the model Safe Work Act in its current form, based upon the recommendations, will have at the workplace. And while this individual panel member has acknowledged the difficulties of the panel’s recommendations, the recommendations were not altered or adjusted to reflect the problems that were acknowledged prior to the drafting of the Act.

The third and final member of the panel would appear to have been out of her depth in terms of her knowledge of OHS legislation around the nation and appears to have been largely unaware of the often complex and multifarious applications of many of the state and territory OHS jurisdictions.

There is undoubtedly an enormous burden and perhaps an unrealistic weight of expectation for such a complex and tortuous task to simply fall into the hands of only three individuals; individuals whose professional qualifications and associations, together with their personal bias and ideologies, all appear to have inevitably clouded and influenced many of the recommendations upon which the model Act has been based upon.

We therefore call upon the federal government and the Workplace Relations Minister to immediately:

1) Review the membership of the original panel and change it to a membership of no less than three persons from each state and territory with a balance of appropriate industry, professional and academic knowledge, skill and experience;

2) The key stakeholders and social partners from each state i.e. employers, trade unions and the government shall put forward nominations and agree upon those nominees to fill these positions;

3) In full consultation and consensus between the stakeholders and social partners, the panel shall be appointed to comprehensively review, research and reconfigure all of the original recommendations for a new model OHS Act in a realistic time frame of no less than four years;

4) Panel members must be made publically accountable for all their recommendations;

5) From that point, a panel of no less than seven members elected from the ‘new’ panel (founded upon the true tripartite principles of the ILO convention; to which Australia is a willing party and signature) and with a balance of appropriate industry, professional and academic knowledge, skill and experience, shall make the final recommendations into achieving the highest levels of OHS legislative standards taken from each state or territory. Each of the highest OHS standards shall unambiguously apply;

6) A further two years of deliberation and true tripartite consultation and debate consistent with ILO principles shall follow the drafting of the agreed highest standards of OHS legislation;

7) A public comment period of no less than six months (as opposed to six weeks) shall be allocated to enable full and proper discussion and debate to occur.

In terms of commenting and reviewing the draft Model Safety Act 2009 in its entirety, this submission is based upon the following:
• Comments and suggested recommendations shall not be limited to the stated questions as set out in the Discussion Paper;
• Not every every question as set out in the Discussion Paper will be commented on or answered;
• Where silent on either questions as set out in the discussion paper or clauses pertaining to the draft model Safety Act, this submission supports and endorses the submissions of the ACTU, the Victorian Trades Hall Council and the National Branch of the Construction Forestry Mining and Energy Union;
• This submission will generally follow the sections and clauses as set out in both the Discussion paper and the draft Model Safe Work Act (2009).

Question 1 Best title for the model Act?: Over 40% of workplace fatalities are caused by workers coming into contact with chemicals and other dangerous and hazardous substances; many with an insidious latency period which may or may not reveal itself in later years, thus causing workers extreme distress knowing they have to live with a time bomb of the worst possible consequences . The term health is referred to in the definitions, which would seem to suggest that the term is to be applied; however like much of the model Act, such ambiguity allows a legal minefield to occur at the workplace. Such a situation cannot be allowed to occur. The health, safety and welfare of workers while at work cannot and must not be diluted and belittled by excluding the terms health and welfare from the title. Therefore the title should read ‘…Occupational Health, Safety and Welfare…’

Question 7 Meaning of worker? All persons at the workplace, including those persons gaining work experience must be covered and given full protection under legislation. For this reason work experience persons must be covered and included in the model Act.

Question 8 Meaning of workplace? The definition as given in the model Act potentially limits its application and scope. The words ‘…while at work…’ must be removed if the true intent and scope of the model Act is to be applied. We raise the question of: is a worker covered under the model Act if, while obtaining their tools, but not actually performing work, if he or she is injured at the workplace while collecting those tools?

Objects of the Act The objects of the model Act are confusing, ambiguous and allow personal and professional interpretation and subjective analysis to occur.
Section 3 (1) b. adjectives such as ‘fair and effective’ must be removed to allow objective and quantifiable analysis and application to occur.
(1) c. to encourage participation is not enough. The words ‘…to provide for union and employer organisations …’ must be inserted at this clause.
The process of ‘… eliminating a hazard and risk at its source…’ is conspicuous by its absence. This concept has served the Victorian OHS legislation extremely well over many years. Why has it not been included in the model Act? This must be included if the Act is to provide certainity and consistency in its’ application at the workplace.
(1) f. Why and who is empowered to’… scrutinise and review the powers and functions…’ as set out under the Act. This clause must be removed for fairness and the potential for intimidation of an OHS representative powers and rights under legislation.

(2). To provide the highest level of protection should not be an option; it must be mandatory if the philosophy and intent of providing true occupational health and safety standards for protection of workers is to apply. We strongly propose that the objects and principles of the Victorian OHS Act 2004 be inserted in their entirety.

The meaning of the term person conducting a business or undertaking is still confusing. It is strongly recommend that this term be revised and or replaced with a simple and unambiguous meaning for those persons who should be reasonably expected to be in control of a workplace.

Part 2 Model Act
For this section and for all others that follow in the model Act, the word ‘safety’ must be replaced with the term ‘Occupational Health and Safety’.

The principles of risk management: Clause 16: For this to have any real effect and meaning under both the Act and in its practical application at the workplace, the entire hierarchy of control must be listed and referred to in their entirety.

Subdivision 2: Clause 17
What is reasonably practicable? The definition of reasonable practicable in the model Act allows ‘… appropriate weight …’ to be given to the five matters as listed. However, by its very nature such appropriateness assumes this is only an inclusive test for such matters, rather than an exhaustive test of all the matters as is currently the case under the Victorian OHS Act (2004). We therefore insist that such an exhaustive consideration and application is applied to the meaning under the model Act.

Clause 18 (4) e: the word ‘health’ must be added in this clause to read ‘…adequate facilities for the health and welfare…’ if the model Act is to apply the highest standards.

Further, the provision to apply OHS information in the appropriate languages as required must be inserted in this clause if workers are not to be discriminated against and provided with the highest level of protection. Such a provision is mandatory under the current Victorian OHS Act 2004. We see no reason why a lowering of such a standard and provision should be accepted under this model Act.

Question 13 Discussion paper: The words ‘access to’ such facilities must be inserted so workers are assured that such facilitates have real application and meaning at all workplaces.

Section 21 Model Act: Throughout this clause and indeed throughout the rest of the Act, where it refers to the proper construction, use or demolition of a structure, the term ‘refurbishment’ must also be inserted if the Act is to give clear and unambiguous direction and application to the construction industry.

Division 4 ; The term ‘…due diligence…’ (Section 26) must be defined under the definitions of the model Act if the term is to be used and applied under the legislation.

Part 3 Division 1 Incident Notification;
By allowing the reporting of incidents by telephone (part 3 Clause 11 Incident notifications Model Safe Work Regulations) this allows the unabated abuse of untruths, mistruths and misrepresentation of information and actual events to be reported to the relevant authorities. Such reporting must be in writing and must occur within 24 hours of the event if industry is to honestly and comprehensively learn the lessons of others misfortunes.

Part 4 Consultation, participation and representation
Section 46 (2): the words in brackets must be removed from this section. The employer must consult with the duly elected OHS representative regardless of the direct involvement of workers or otherwise.
Section 47 (a): Should read ‘… when identifying hazards and assessing the hazards and risks…’. All hazards must be assessed if a true and accurate risk assessment is to be conducted under the legislation.

A clause must also be inserted that enables the OHS rep to be involved in the determining the composition and membership of the OHS committee; as per the current Victorian OHS Act 2004 provisions.

Division 2 Health and safety representatives

Section 48: Request for election of health and safety representative: The election process cannot be restricted or reliant upon an employer’s will or good grace. It is the absolute democratic right of workers to wish for and engage in an election for their elected OHS representative. This must be made absolutely clear in the legislation; without the inference of the employer’s role in such an election.

The employer has no right or role to play in an employee’s election process.

The only role and responsibility of an employer is that they must accept this process and the resulting decision of the election. The model Act is yet to make this statement in its most basic and unambiguous form. We suggest that the clause from the Victorian OHS Act (Section 54 in its entirety) replaces what is currently provided for in the model Act.

The provisions under the draft model Regulations are fundamentally flawed by allowing an employer to play a role in the employee representatives election; which cannot be allowed if a truly democratic election process by employees is to take place ( see for example clause 7 (1)a, Part 2 Consultation under the model Regulation).
Also, why must the election notice be two weeks? If employees determine that they so wish to elect their representative at a particular time, true democratic principles should allowed this process to occur – without the employer’s aspiration for such lengthy notice. It is after all an employee election process – not an employer’s!

Clause 7, (1) c Part 2 Consultation of the model Regulation must be deleted if true and meaningful employee democracy and participation at the workplace is to occur under the model Act.

Section 55: Procedures for election of health and safety representatives: It is the democratic right of any employee, not simply the majority of employees that if they wish to have their trade union which they belong to, represent them and assist them in the election of their OHS representative, they should be entitled to do so. Section 33 (3) should reflect this principle and should therefore read ‘… If one worker in a group so determines…’ to allow all workers their democratic right to be represented at the workplace.

Section 59 Disqualification of health and safety representatives: Only workers must be allowed to dismiss their OHS representative that they have voted for. Any process that allows for any other third party to do this ignores the fundamental principles and philosophies of democratic freedom and the fundamental doctrine upon which our democracy is founded upon.

If there is to be a provision for any type of disqualification of an OHS representative, then the provisions as applied under the Victorian OHS Act (2004) are more than sufficient and have been proven to be adequate. Anything more onerous cannot and will not be accepted or tolerated.

Section 60: Immunity of health and safety representatives: The words ‘…in good faith…’ are subjective, ambiguous and open to a vast array of meanings and interpretations. This entire section must be replaced by the Victorian OHS Act 2004 Section 58 (3) to avoid such confusion and potential litigious action against a duly elected OHS representative.

Subdivision 2 Functions of health and safety representatives: This is a new provision for OHS representatives in Victoria, one which has never applied previously and one which the CFMEU reject in the strongest possible terms. Under Victorian OHS legislation, OHS representatives only have rights and powers – not functions and legal responsibilities. Theirs is and always has been a voluntary role, one that they take on for the benefit and overall health and safety well being of their constituents; they cannot and should not be expected to perform or have bestowed upon them in this voluntary but extremely responsible position, the title of ‘functions’. The term function allows a variable feast of unfair and unreasonable expectations and potential claims against the OHS rep by others, who may well have ulterior motives for any complaints against or resulting from the actions of the OHS rep.

An employer has legal obligations and functions; the OHS representative is simply a conduit of knowledge and skill transfer to assist, but certainly not replace the legal obligations of any employer. The entire model Safety Act 2009 must immediately delete this term ‘function’ and replace it with the words ‘rights and powers’ throughout the entire piece of legislation.

In light of this we strongly recommend that the rights and powers of the OHS representative as set out under Section 58 of the Victorian OHS Act (2004) be inserted in the model Act in their entirety.

We oppose in the strongest possible terms the restrictions on any OHS representative to carry out their rights and powers until they have been provided the appropriate training.

Nowhere else in a democratic election process is the successful nominee limited in carrying out and implementing their rights and powers until they have undergone training.

Why is this provision in the model Act? No such onerous provisions apply to employers and their managers at the workplace or indeed within their organisation.

Not only would such a provision be an unfair and unscrupulous mechanism that restricts the valuable role of an OHS representative has in protecting the interests of their constituents, but it is also inconsistent with the current Victorian OHS Act (2004).

Further, all OHS representatives must have the unambiguous right to ‘SEEK any assistance…’ in their role and not be beholden to the approval of their employer and ‘…request assistance…’, if such assistance is in the opinion of the OHS representative required. The wording in the model Act must reflect this.

Subdivision 3 64 General obligations of persons conducting business or undertaking:

Recommend in the strongest possible terms that part (1) 3 the words ‘… if that is necessary to enable assistance to be provided” is deleted immediately. This clause allows for the employer to make the determination of what is or is not necessary for the OHS rep to seek assistance. The OHS rep has a democratic right to seek whatever assistance they deem is necessary. No one else has the right to determine what the OHS rep considers necessary. We therefore strongly suggest that the clause from the Victorian OHS Act (2004) Section 58 (1) f and Section 70 (1) be clearly established and inserted in the Model Act.

Section 65: Obligation to train health and safety representatives:

There must be an absolute obligation for an employer to offer training to elected OHS representatives if OHS representatives are to be expected to carry out and implement their rights and powers sufficiently under OHS legislation. Failure to do this is a failure on behalf of millions of workers and their representatives.

Such training must also have a definitive time frame set upon it if the training is to have any positive affect at the workplace. Further, all costs, as opposed to the current model Acts’ wording of ‘…reasonable costs…’ must be paid for by the employer. There is far too much academic and expert opinion and argument that clearly proves that OHS reps increase the productivity and safety of an organisation and the workplace; the employer therefore has a clear and unambiguous responsibility to pay all costs associated with a system and process that clearly benefits the employers’ business.

Division 3 Health and Safety Committees: Section 69 (1): The health and safety committee MUST be allowed to take part and participate in their own constitution. Failure to do this will otherwise sentence the committee to fail in its operations from the beginning and clearly fails in the absolute right of workers and their representatives to be consulted in any meaningful and effective manner over the operations of the committee itself.

Section 70 Functions of committee: To this section must be added the Victorian OHS Act 2004 Section 72 (5) to ensure that the OHS committees are not simple consigned to the day to day operations of a workplace and ignored and marginalised over potential and strategic OHS matters both at a workplace, but also at an organisational level; where often only at this level where real change can be positively affected and implemented.

Division 5 Section 75 Right of worker to cease unsafe work: this clause places an extremely onerous test if the words reasonable grounds are applied. A more efficient and realistic test word be allowed for if the words ‘… if a worker felt or believed …’ are used.

Section 74 of the Victorian OHS Act (2004) has worked and been applied since 1985 without any difficulties or general disputation in terms of legal action and dispute. It is for this compelling evidence that we recommend and urge that this section of the Victorian OHS Act be applied in its entirety to the model OHS Act Section 76.

Under the Victorian OHS Act (2004) an inspector or field office may determine if payment of normal wages is to apply under any stop work scenarios. This submission strongly recommends a similar clause or provision be allowed for in the Model OHS Act.

Division 6 Provisional improvement notices: Section 80 (4). An OHS representative must be able to reserve the right to issue a PIN notice even if the authority has already issued a notice in respect to the matter, because the authority notice may not adequately address the original concern of the OHS rep.

Section 84 and Section 86 : Minor changes to provisional improvement notice and Cancellation of notice by health and safety representative: These sections must be deleted in their entirety because it simple allows for an OHS representative to be intimidated and coerced into altering or cancelling their PIN notice under undue pressure by another party. If the philosophies and motivation behind any types of anti coercion and intimidation laws are to be believed and implemented effectively, a process that allows for such actions to unduly and covertly occur does the entire OHS legislation a grave disservice.

Part 5 Discrimination against workers or prospective workers
Section 100 (a): Order for damages or reinstatement: The term “… such compensation …” is far too restrictive in the literal meaning of the word. In maintaining highest standards of OHS, we therefore recommend the words “ such compensation…” are replaced with the words ‘…such damages…’ to allow a full and proper payment if discrimination is so proved.

Part 6: Workplace entry by OHS entry permit holders

The role of trade unions must not be allowed to be restricted or subverted by those with an ideological agenda steadfast in a right wing conservative philosophy based upon the so called freedom of choice of individuals. There is far too much international and local academic literature and empirical evidence about the positive and influential role that a trade unionized workplace has on increased levels of OHS that puts paid to such unproven and conservative rambling.

Trade unions and their members must not be dictated to by an employer about where discussions over OHS issues can take place, or the route that they must take to investigate suspected breaches of OHS.

Indeed, the entire Section 118 of the Model Act must be removed and deleted from the legislation if freedom of association is to have any real affect and meaning. Further, trade unions must be allowed unrestricted right of entry powers and access to a workplace to democratically and effectively service and assist their members.

Any process that allows an employer to challenge the trade unions right of access based simply upon the technical administrative process of fulfilling such legislative requirements (i.e. right of entry suspected contravention forms and not to rectify the suspected OHS contravention itself) simply allows a restriction rather than the provision of facilitation of right of entry of authorized trade unions officials and appointed officers.

The contravention or breach of OHS legislation and unsafe work practices may well continue while the argument of technical details of a notice persists; the ultimate consequences of such a technicality could easily prove disastrous. It is for these reasons that we strongly recommend and fully support the NSW OHS Act Right of Entry provisions being adopted under the model Act.

Conclusion
In conclusion, the CFMEU C&G Division Victorian Branch finds the draft Model Safety Act 2009 fundamentally flawed in its drafting and its potential application at the workplace.

For these reasons and all of the above reasons as highlighted in this submission, we call on the federal government to immediately cease this apparent confrontational and arguably impetuous approach to OHS harmonization and recommence the process in a realistic and agreed format and timeframe; with real and meaningful input from all stakeholders and social partners from the beginning of the process.

The application of the current draft model Safety Act (2009) will inevitably see standards of occupational health and safety at all workplaces decline; all in the name of efficiency and so called productivity.

There is a legal, ethical and moral obligation to ensure that this does not occur. Failure to do this, will banish this Labor Government to the annals of history as failing the very people who elected them to power and subsequently trusted them to provide protection for them at the workplace; protection that the model Safety Act (2009) in its current format simply does not provide.