OHS update

Labor’s Second Rate OHS
Campaign update at ANU meeting 28th October 2009.
With other OHS union activists, I led campaigning for SA’s OHS laws some 30 years ago.

We designed them and the State Labor government implemented the new OHS institutions (with new Workers Compensation and Rehabilitation, WorkCover as well).

All States passed OHS laws for prevention and legislated for the rights of elected worker health and safety representatives HSRs to have power in determining OHS improvement at work.

Rights were for consultation, the power to issue PIN Provisional Improvement Notices against employers in breach and to direct the stopping of work in imminent danger.

These State OHS laws have stood the test of time, worked well, supported by reasonable employers and used by unions and OHS professionals. State Liberal governments have not had the political ability to water them down.

The UTLC of SA, and I was assistant secretary and then secretary, put into practice the extensive training of worker health and safety reps for prevention and compliance. The principle was ‘health and safety as a priority before profits, and property’.

Now we have a ‘harmonisation’ decision, a national Model OHS Act.

This ‘harmonisation’ of the Australia’s State based OHS laws was started by the Howard government whose reason was to cut red tape for national corporations, but not to develop an improved OHS framework to protect workers.

‘Harmonisation’ was the lowest common denominator second-rate health and safety changes.

DPM Gillard had a Report on ‘harmonisation’ and processes with unions and employers participating.

When the report came out, the ACTU was alarmed at the watering down.

The ACTU repeats that unions do not resile from the 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.

Yet this is what is happening.

The corporate lobbyists and employers are winning their original objective. They are getting PM Rudd and DPM Gillard to water down OHS standards.

Submissions were due Monday 9th November on the draft Model SafeWork Act Bill and regulations.

The States’ Workplace Relations Ministers meeting planned for December 4 2009 is to recommend the Model Act.

Then the Commonwealth and States at COAG sign off on 18 December 2009.

This is to be a sell-out…unless it can be stopped.

The proposals are so bad, reducing existing rights for workers that a vote No
push is urgent.

Stop what is happening. We stay with what we have.

We can have real processes with unions in 2010 in agreement.

Unionists are entitled to rely upon the integrity of repeated assurances of COAG meetings of no watering down dating back to 2006.

The ACTU campaign has been going for a year – see the ACTU website, submissions, fact sheets, campaign case studies and posters to be downloaded and for the public union and community campaign, e.g. September 1st. 2009 See http://www.rightsatwork.com.au/ohscampaign

I listened to Unions NSW http://www.unionsnsw.org.au/ criticise the details of the draft Model and I recount some of their concerns. This was at a public meeting at Old Parliament House chaired by Kim Sattler Unions ACT, with unionists, OHS delegates, OHS Inspectors, ACT government Ministers attending and speaking, but no MP from the Australian Parliament close by up the hill.

See also OHS reports VTHC http://www.vthc.org.au/; Unions SA http://www.saunions.org.au/; QCU http://www.qcu.asn.au/; Unions WA http://www.unionswa.com.au/; Unions ACT http://www.unionsact.org.au/; http://www.unionsnt.com.au/ Unions Tasmania http://www.unionstas.com.au/ and your own union.

Often the devil is in the detail. All these details identified by unions mean the sell-out of workers’ OHS rights. I am angry, with many other OHS activists, that the health and safety of Australian workers is to be weakened and not improved by Labor.

Stronger OHS laws are needed the more so with the capitalist crisis and its pressure on job security and causing rising unemployment.

The Victorian Trades Hall Council has recently released survey results that show the global crisis is affecting safety in Victorian workplaces.

77% of survey respondents said that the global crisis has been causing deterioration in OHS standards in their workplace.

Companies are taking short cuts in order to reduce costs. They are skimping on health and safety generally. Workers report being scared to raise problems because they are scared to lose their jobs.

In the capital accumulation upturn, the drive for the exploitation of workers’ capacities will increase in the pursuit of profit recovery. Workers’ health and safety is severely compromised.

Strong OHS laws assist in the struggle against poor OHS practice by corporates and governments and the worst employers.

I focus only on some of the problems in the Model Act where the DPM and Labor Minister’s judgement is unfair to workers. These 8 failings together with others have to be overturned by union and community lobbying.

1. I always recoil at legislative escape-holes for the worst employers such as “reasonably practical”.

To add such qualifications to the requirement of employers to consult over OHS is a severe backwards step.

The duty to consult workers and elected Health and Safety representatives HSRs must be an absolute obligation on employers.

This must really involve workers and HSRs on all OHS matters. The deletion of the term ‘so far as it is reasonably practicable’ is essential to ensure that consultation actually occurs in practice.

Unions know that there is no evidence or argument to support any situation where consultation on OHS matters should not take place.

The ‘reasonably practicable’ provision in this instance would be taken by a large number of the worst employers, who regard consultation with their workers as an irritation, or as an escape route, from their duty to consult.

If ‘so far as it is reasonably practicable’ is deleted not only does it ensure that all employers have equal obligations to consult their workers, it will also act as a deterrent to employers who would otherwise evade their responsibilities.

2. Unions want to ensure that there is no reduction to the rights, powers and protections of elected worker health and safety representatives.

One example is the SA OHS law, which allows 15 days for OHS training with no loss of pay. This is to be reduced to 5 days and employers to decide when and what are reasonable expenses.

Also, only HSRs should be elected to represent workers on an OH&S Committee and that there must be a requirement to train the Committee members, like the training requirements for HSRs.

Unions are concerned how it is that the proposed non-HSR members of an OH&S Committee will function.

The Model Act attempts to establish a two-tiered approach to workplace OH&S, with no clear legislative or operational nexus between each tier.

One tier allows for a systematic approach utilising HSRs, with sufficient training to carry out their function, whilst the other tier may or may not involve HSRs, but will involve workers (and management representatives) who have had no OHS training and are required to undertake an important role in managing the business’s OHS.

Unions NSW argued to take such an approach is nonsensical and that persons who have little understanding of OHS management and practical consultation have drafted these two sets of provisions on HRS representatives and OHS Committees.

The provisions allow an employer to take unilateral action and select whomever he/she wishes to serve on an OHS Committee. Under these circumstances a coercive employer could easily use the existence of an OHS Committee as a means of intimidating his/her workers not to request the formation of workgroups and the election of HSRs, on the basis that the OHS Committee has the responsibility for OHS in the particular workplace.

3. The right of the union to prosecute has been operating to the benefit of workers and OHS standards for 70 years in NSW. It ought to be a national right.

In the ACT OHS Act, there is reference to ‘third parties’ that includes the unions’ ability to prosecute. It is critical that the entitlement to prosecute goes beyond just regulatory authorities.

Recently, at a public OHS meeting in Canberra at the Old Parliament House, the Finance Sector Union NSW gave details of its campaign to improve safety of bank tellers in robberies. The NSW government was not prepared to take on the banks. So, under the NSW OHS law, the Finance Sector Union began prosecuting banks in 2002 for failing to provide security in the event of an armed hold-up. Those successful prosecutions led banks to spend more than $100 million on full height anti-jump barriers, ATM bunkers and digital CCTV with live back to base monitoring.

This union’s right to prosecute is to be removed nationally.

4. I have never been refused OHS right of entry at any time day or night often without notice if appropriate and this ought to be lawful.

The requirement for union officials to provide 24-hour notice to inspect documents when investigating a breach of workplace safety laws is impractical.

The proposal falls well below the provisions on workplace entry contained in existing Australian OHS legislation, particularly the NSW Act. Like under the 24-hour restrictions in Fair Work, the worst employers get tactical advantage.

The Model Act contains restrictions that makes it all but impossible for an ‘OHS entry permit holder’ to effectively exercise any rights and powers on behalf of their union members and workers generally.

One section gives the employer the right to potentially defeat the intent of any entry to the workplace.

The sub section implies that the OHS entry permit holder will be escorted for the period he/she is present in the workplace by the employer or his representative as soon as the OHS entry holder gives notice of his or her presence, or the employer becomes aware of their presence, when utilising a right of entry.

The subsection, in a practical sense, could also be used by an employer to impede or stop an OHS entry permit holder entering a part of the workplace, and frustrate or intimidate any discussions a worker may wish to have with an OHS entry permit holder, and be present when the OHS entry permit holder is exercising rights. The sub-section has great potential to seriously impinge on the exercise of OHS entry rights.

The Model Act has established a process which will generate unnecessary and bitter disputes between Unions and some employers over the exercise of Union OHS right of entry where the OHS of workers is considered, in effect, secondary to the exercise of excessive managerial prerogative.

In addition, if an OHS entry permit holder is able to gather sufficient evidence to warrant a prosecution under the Act, there is no avenue to deal with the matter. A Regulator need not take any action in response to evidence provided in support of a prosecution, or, give any reasons for not taking any action.

These deficiencies are extraordinary and unacceptable, particularly for Unions NSW affiliates, who have had the right to prosecute employers prior to 1983.

The Model Act denies unions acting on behalf of their members access to an Industrial Tribunal to resolve OHS disputes.

In reality this has resulted in an unrealistic approach being taken in dispute resolution.

This approach, plus Union exclusion, is likely to result in more stoppages and disputes on OHS that occurred prior to ‘harmonization.’ The lack of any future role for Industrial Tribunals or third party intervention (except for a Regulator) will be in practice, a major retrograde step.

Also, there is no recognition given to the power relationships that employers can and will exercise over unprotected workers, including union members who are excluded by law from getting reasonable assistance from their union.

Alternatively, the Model Act does support the philosophy that employers should enjoy unfettered power in managing their workers and OHS. Seriously, under these circumstances, who would want to be a HSR?

5. Although fines are increased, there is no strategy for employers to be gaoled.

This is at a time when Matt Peacock’s excellent book Killer Company James Hardie Exposed (ABC Books) where Hardies’ directors have inadequate fines imposed and none are behind bars, despite thousands of preventable deaths.

As Humphrey McQueen’s book on OHS in the building industry ‘Framework of Flesh’, shows, employers are still successful in ensuing that ‘killing at work for profits’ is not murder or manslaughter at law. See www.frameworkofflesh.org

Despite the DPM meeting the widows and children of workers killed at work, she does not get tough action on gaoling the worst employers.

6. The impact at law of the onus of proof proposed favours the employer, the corporation or government, which has enormous legal resources.

The reversing of the traditional rule that the employer who has the responsibility for a healthy and safe workplace bears the onus is a retrograde step.

The proposal makes it harder to prove an employer has failed to provide a healthy and safe workplace. It would have to be proven that an employer did not take reasonable steps to keep a workplace safe. Compliance against employers in breach has to be strengthened, not weakened.

7. It is important a modern OHS law provides appropriate coverage for all the issues involved in the modern workplace, especially health issues. The title as the Safe Work Act is limiting, and should be “Occupational Health, Safety and Welfare”.

Health has to be central and covers much bullying and white-collar and professional occupations.

‘Welfare’ added to OHS keeps the scope necessarily wide.

To omit this ‘welfare’ provision to pander to employer concerns shows how small-minded the change is.

Conclusion

The Model Act could be described as the OHS ‘spin’ version of WorkChoices in some respects.

It completely removes the long held rights for union officials to protect the OHS interests of their members.

Unions condemn the removal of their prosecution rights of employers found guilty of contraventions.

This Model Act does not attempt to strike a balance between an employer’s and worker’s rights and obligations.

This proposed OHS National law does not provide or protect workers’ rights.

It is a clear example of labour law which destroys any form of balance in favour of favouring even championing employer rights to the detriment of maintaining or improving good workplace OHS.

It is a disgrace that as well as PM Rudd and DPM Gillard accepting 2nd rate OHS at the National level, State Labor leaders are not challenging the watering down of their own State OHS provisions.

I found out the reason at the Canberra meeting.

In response to a question from the floor, Minister Simon Corbell said he was still pushing the new ACT OHS legislation, but like State Labor Ministers he was being threatened financially, i.e. the States would not get Federal funds unless they complied.

Despite many employers, academics, and OHS specialists supporting the unions case for strengthened national OHS laws, there is little indication that the DPM will revise her plan for second rate National OHS. The worst performing OHS corporates win out.

The union political campaign lobbying the Labor governments and all MPs on OHS is strong and continues into 2010.

Part of a Socialist Alliance Forum ANU Canberra 28th October 2009.

More reports soon.