Construction, Forestry, Mining and Energy Union
Submission on THE EXPOSURE DRAFT FOR A
MODEL ACT John Sutton National Secretary
PREAMBLE:
For the purposes of this submission:
‘CFMEU’ means the Construction, Forestry, Mining and Energy Union.
‘ACTU’ means Australian Council of Trade Unions.
‘Model Act’ means the Exposure Draft for a Model Occupational Health and Safety Act and shall be referred to as the ‘Model Act’.
‘Model Regulations’ means the Exposure Draft for Stage 1 Model Regulations.
“OHS’ means occupational health & safety.
‘HSR’ means a health and safety representative, except when quoting a section of the Model Act or Regulation with the latter term.
‘‘Review’ refers to the consultative processes that led to the publication of the National Review Reports No.1 & No.2 into Model Occupational Health and Safety (OHS) Laws.
‘WRMC’ means Workplace Relations Ministers’ Council.
Introduction
This submission of the CFMEU is made on behalf of all three divisions of the CFMEU namely the Mining and Energy (M&E) Division, Forestry and Furnishing Products Division (FFPD) and the Construction and General Division (C&G). The CFMEU represents approximately 110,000 members in our industries.
We support the M&E Division in making a more detailed submission with respect to the operation and harmonisation of the existing mining specific OHS laws, under the aegis of the National Mine Safety Framework Steering Group and the submission of the C&G Division Victorian Branch.
Our members work in four of the five most hazardous industries and these industries have fatality rates that are at least twice as high as those applying to the defence forces. Our members and their families have a great deal at stake physically and psychologically in the framing of the Model Act. We consider that the current toll of death, disease and injury in our industries is unacceptable. New measures are needed based on the highest standards of harmonised OHS laws.
We call, therefore, for the Model Act to be based around raising standards for all workers, with best practice provisions applied from all existing jurisdictions’ OHS laws, using a highest common denominator approach and where this is still deficient new provisions should be introduced.
Before responding to the specific questions relating to the Model Act, the following key issues section sets out the arguments in favour of the CFMEU’s view that the Review and the WRMC fell well short in applying the COAG directive that established the harmonisation process and the key terms of reference of the Review itself. Namely the terms of reference for the Review included at (d);
…the observance of the directive of the Council of Australian Governments that in developing harmonised OHS legislation there be no reduction or compromise in standards for legitimate safety concerns.
Additionally the Review scope part (a) was to;
examine the principal OHS legislation of each jurisdiction to identify areas of best practice, common practice and inconsistency;
With regard to ‘best practice’ page 6 of the Review Report No.1 states the following;
We identified areas of best practice, common practice and inconsistency in legislation, and considered how model legislation could be adopted without compromising safety standards, and with the most effective use of resources.
Disappointingly, the following 175 pages of Review Report No.1 do not contain the term ‘best practice’. In addition the 470 pages of Review Report No.2 contained only three references to this term, none in actual reference to provisions that provide best practice occupational health and safety for workers.
Finally the CFMEU draws attention to the Regulatory Impact Statement (“RISâ€) issued with the Exposure Draft. The RIS concluded that;
…there are unlikely to be any significant benefits to workers from the changes proposed under the model Act…it is unlikely to change safety outcomes substantially (our emphasis) and would not be practicable to model.
The CFMEU endorses this analysis and views the Model Act as a missed opportunity to raise standards to bring about a significant reduction in work related death, injury and disease.
SCOPE OF THE SUBMISSION:
The CFMEU fully endorse and adopts as part of its submission the submission of Unions NSW, save for the following additional comments:
1. Key issues commentary on duties of care and onus of proof, explaining the CFMEU’s view that the framing of the Model Act breaches the COAG directive that initiated the OHS harmonisation process and the key terms of reference of the Review.
2. In response to Q.12 on the issue of health monitoring.
3. In response to Q.17 -19 on the issue of the adequacy of penalties and the nature of offences.
4. In response to Q.25 on the issue of HSR elections at temporary workplaces and HSR disqualification.
5. In response to Q.31 on timeframes for Provisional Improvement Notice implementation.
6. In response to Q.33-36 on Union OHS Right of Entry provisions.
Executive Summary
The proposed new ‘harmonised’ laws must raise occupational health and safety standards to world’s best practice. The Model Act must facilitate the prevention of injury, physical and psychological disease and also facilitate improvements in job content, the aim being for the working environment to yield a positive return in the form of job diversity, job satisfaction, social participation and personal development.
As currently formulated, the Model Act will not only fall far short of these objectives, but compromises the higher standards existing in the various jurisdictions, especially those in the Australian Capital Territory, Queensland and New South Wales.
In particular the following key provisions of the NSW OHS Act will be abolished or undermined if the Model Act proceeds in its current form:
• The unrestricted duty of employers to consult workers over OHS matters.
• The highest duty of care provisions applying to employers.
• The onus of proof on employers to prove they did all that was reasonably practical in occupational health and safety prosecutions. These provisions do not presume guilt as many employers argue.
• Union right of entry provisions that facilitate immediate access to comprehensively investigate suspected breaches,
• Union rights to prosecute for alleged OHS breaches.
The evidence submitted in relation to these issues, by amongst others, the ACTU, Unions NSW, CFMEU, CPSU-SPSF, and the FSU, to the Review, demonstrated conclusively that these provisions have led to improved standards of occupational health and safety. The CFMEU considers the Model Act as framed falls seriously short in applying the COAG directive that established the harmonisation process and the key terms of reference of the Review itself.
To remedy these deficiencies, the new OHS laws must ensure as a minimum:
Absolute right to OHS consultation
As currently exists for the majority of the Australian workforce, the Model Act should stipulate that workers have the right to be fully and genuinely consulted by their employer and principal contractor over all matters that potentially affect their health and safety and welfare.
The Model Act should ensure that workers have the unfettered right to refuse work they consider unsafe without loss of pay.
Make employers and principal contractors responsible
As currently exists for the majority of the Australian workforce, the Model Act should stipulate an unqualified obligation on employers and principal contractors to provide a safe and healthy workplace and when alleged breaches occur, employers and principal contractors must prove to the ‘reasonably practicable’ standard that they did not break the law. This does not presume guilt as many commentators assert, but is the logical application of the view of the current Commonwealth Attorney-General and the Heads of Workers’ Compensation Authorities.
Election and powers of health and safety representatives
As currently exists for the majority of the Australian workforce, the Model Act should stipulate that only workers can directly elect and dismiss health and safety representatives (HSRs) without management interference.
The Model Act should ensure that HSRs have the highest standards of rights, powers and protections to do their job, including the right to issue provisional improvement notices (PINs).
In addition it should ensure that rectifications demanded by any HSR PIN are not thwarted by employer or regulator appeal processes.
The Model Act should stipulate that all HSR powers are available on election, and HSRs can access the training of their choice on paid time.
The role of unions
As currently exists for nearly one third of the Australian workforce, the Model Act should stipulate that unions have unrestricted right of entry powers to consult workers over OHS issues and inspect suspected breaches.
The Model Act should also stipulate, as also currently exists for nearly one third of the Australian workforce, that authorised union officials have the power to immediately copy all available relevant documents, take photographs and make audio and video recordings of incidents and take samples and witness statements in connection with suspected breaches.
The Model Act should ensure that upon application by a union, OHS right of entry permits are issued in all jurisdictions in a quick and uncomplicated manner.
Enable workers and unions to take court action
As currently exists for nearly one third of the Australian workforce, the Model Act should stipulate that workers and their unions have the right to take court action against employers and principal contractors for breaching health and safety laws.
Also to prevent breaches, the Model Act should ensure the union right to notify OHS disputes to state industrial relations commissions (or where not available other tribunals with OHS powers) for conciliation and if necessary arbitration.
Employer and principal contractor penalties & prosecutions
With regard to penalties for incidents that negligently expose workers, to the risk of (or actual) fatality, serious injury or disease, the Model Act should include the option of lengthy gaol sentences for those in the management and control of a company. The Model Act should ensure corporate fines are based on a significant percentage of turnover or profit, with compulsory victim compensation and corporate rehabilitation orders.
The Model Act’s proposed penalties are substantially lower than those that apply to financial crimes prosecuted by ASIC both in terms of fines and gaol terms.
The CFMEU opposes the introduction of enforceable undertakings in the Model Act on the grounds that these will inevitably lead to fewer occupational health and safety prosecutions thus lowering the deterrent effect of the Model Act.
Transferring Best Practice Aspects of Mining OHS Law into the Model Act
The CFMEU submits that given the statistically confirmed improvements in mining industry OHS performance in New South Wales and Queensland, the Model Act should incorporate the key concepts of mining Industry Safety and Health Representatives (as in Queensland ) and Industry Check Inspectors (as in New South Wales) and the industry specific safety OHS incident data recording and collection requirements of the Queensland mining legislation.
The CFMEU has many more reasoned criticisms of the DPM’s proposed details not reproduced here.
Join the campaign to stop the model OHS being thumped through prior to X-mas. Contact your union official.
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