Unions NSW on OHS 4

Unions NSW submission on the devils in the details continues…
scroll down to see how the right of entry for unions is severely cut back…worse in some respects than WorkChoices!

Q.28 The Fair Work Act 2009 (Cth.) ( Fair Work Act) refers to
ceasing work on the basis of a ‘reasonable concern’ of the
employee about an imminent risk to his or her health and safety,
while the Model Act refers to ‘reasonable grounds’. Should the
terminology in Sections 75 and 76 be aligned with the fair Work
Act?

Q.29 Should a health and safety representative be required to
complete approved training before having the power to direct
that work cease under these provisions?

In response to Q.28, Unions NSW believes that both the Fair Work Act and Model Act
should be consistent in the terminology used in each Act on this issue. Unions NSW
regards ‘concerns’ as consistent with s.19 of the former Act and a worker’s Common
Law rights.

In response to Q.29, Unions NSW believe that once a HSR is elected he/she is vested
with certain powers and functions, irrespective of whether they have been trained or not.
The OH&S rights of any worker (irrespective of their being a HSR or not) are expressed
in the Fair Work Act, i.e. That they have the power to cease work under the same
conditions. To permit the restrictions suggested on HSRs would be inconsistent with
their rights as a worker, or the rights of a person exercising a responsibility on behalf of a
worker or workers.

The maintenance of these rights following the election of a HSR is also an additional
incentive to ensure that the HSR is trained as soon as possible following election.

In addition, the safeguards set out in S.76 (2)-(4) are quite appropriate in the current
context. However, S. 76(5) must be deleted. In addition, in order to ensure consistency
it would be appropriate that S.76 (1) is amended to refer to ‘a worker, or workers in a
workgroup’. The alternative is that the HSR could be required to give each worker
affected a direction, which is obviously impractical.

Q.30 Should a health and safety representative be required to
complete approved training before being able to issue a PIN
under these provisions?

Q.31 A PIN cannot require compliance before 7 days from the
date the PIN is issued. Is this time frame appropriate?

In response to Q. 30, Unions NSW strongly supports HSRs being able to exercise all
their powers following their election. Again, this would be an appropriate incentive for
employers to organize the HSRs training as soon as possible following election.

41

If a PIN is not permitted to be issued by a HSR until the completion of training, some
employers are likely to delay the training for as long as possible, particularly if the Model
Act is to contain a long time frame for HSR training to be conducted. The deletion of S.
80(3) would therefore be appropriate.

It is further noted that all jurisdictions with HSR provisions do not require a HSR to be
trained before they can issue a PIN. For the Model Act to retain such provisions would
be a diminution of existing HSR rights.

Unions NSW proposes amending s.80 (4) by inserting ‘same’ before ‘matter. This would
make the intent of the sub section clearer.

In response to Q.31 Unions NSW does not believe that compliance with a PIN not be
required before 7 days has elapsed. Depending on the circumstances on the issue of
the PIN, this may be quite inappropriate, particularly if there is a threat to the health and
safety of workers. Non-compliance with ALL PINs before 7 days in such circumstances
could:

• unreasonably expose workers and other persons to a serious OH&S risk or,

• cause a HSR (or a Union) to direct a cessation of work or,

• workers to exercise their rights under s.19 of the Fair Work Act, as a means of
quickly resolving an OH&S matter at the workplace.

To insist on a 7 day period for compliance for all PINs in Unions NSW opinion suggests
a misunderstanding on the nature of OH&S hazards and risks in workplaces. Ideally, the
HSR should be able to state the period for compliance in the PIN issued at the time, and
only in the absence of any stated time on the PIN, the employer then be given 7 days (
not 7 working days) to comply.

Part 5: Protection from Discrimination.

Q. 32 Should the Model Act expressly protect person from being
coerced or induced to exercise their powers in a particular way?

Unions NSW, in principle, strongly supports this proposal.

However, we believe the protection for HSRs and other persons afforded under Part 5 of
the Model Act should be applicable if and when they are ‘induced, intimidated, or
otherwise influenced’ to exercise or not exercise their powers in the course of their
duties.

In addition, we also support consistency with the provisions of S.23 of the NSW Act, by:

• Including the provisions of S.23 (1) (a) and S.23 (2) of the NSW Act.

• Deletion of S.99 of the Model Act.

42

The inclusion of S.23 (1) (a) of the NSW Act explicitly gives workers the right to voice a
bona fide OH&S complaint, without fear of retribution, even in the event that the
complaint has no basis in fact.

Replacement of S.99 of the Model Act with S.23 (2) of the NSW Act places a clear onus
on a defendant to prove, beyond reasonable doubt, that any discriminatory action on
their part was for reasons other than based on OH&S. Unions NSW believe that this
requirement is superior to the proposed S.99 of the Model Act.

In addition, we also request the words ‘the dominant’ be deleted from S. 97 (2) of the
Model Act and replaced with the words ‘a substantial’. The latter term has a clearer
legal application than the former term.

Unions NSW also strongly oppose the provisions of S. 104(1) (b). This provision would
either prevent or cause to be withdrawn any workers compensation claim or benefit.

This provision would have significant impact on a worker who has previously suffered
permanent or serious injury as a consequence of a contravention of Part 5, Division 3 of
the Model Act. In practice what would occur in such circumstances is significant
workers’ compensation benefits loss by the injured worker in the event that a
contravention was successful. We strongly support complete deletion of this subsection
of the Model Act.

Part 6: Workplace Entry by OHS Permit Holders.

Q.33 Are the notification requirements appropriate?

Unions NSW do not support the proposed Part 6. We also believe that the notification
requirements are most inappropriate. Any form of support for this most important Part
of the Model Act by Unions NSW will require quite substantial if not complete revision.
The basis and scope for this revision is contained in our proposed amendments to Part 6
of the Model Act, as Part 6.

Together with Cl. 16-18 of the Model Regulation, Part 6 of the Model Act imposes the
most restrictive and unrealistic workplace entry provisions on union officials that could
possibly be imposed, short of total restriction.

It is also noted that the proposed Part 6 falls well below the provisions on workplace
entry contained in existing Australian OH&S legislation, particularly the NSW Act.

In addition, as previously identified, the additional provisions presently contained in
Clauses 16-18 of the Model Regulation, applicable to S.108, 109 and 111 of the Model
Act, when read in conjunction with these Sections, together form what Unions NSW
regards as the most objectionable restrictions we could ever envisage.

If these extraordinary restrictions are retained in the present form, Unions NSW can only
conclude that the intention of the Model Act and Regulation is to ensure that legal

43
disincentives exist to intimidate Union officials from applying for OHS right of entry
permits.

Unions NSW therefore insists in the strongest terms that our comments and proposed
amendments be given the most serious consideration, as part of a future in depth
revision of Part 6 of the Model Act provisions, namely:

• S. 105 –Definitions requires amendment. A definition for OHS Entry Permit Holder
should be included, to read:

“… an elected officer or employee of a relevant union who holds an OHS entry
permit issued to them in accordance with S. 122 of the Act. …”

In addition, the existing definition for ‘relevant worker’ in S.105 (b) be amended to
read:

“… who is a member of that organisation, or eligible to be a member of the
organisation. …”

• The wording of S.106 is unsatisfactory. The term ‘inquiring into a suspected
contravention’ falls short of the current NSW provisions (S. 77), which expresses the
purpose of exercising the right of entry far more emphatically ‘for the purpose of
investigating any suspected breach (contravention)’.

‘Inquire’, does not give a person the right to examine anything involved with a
suspected contravention, whereas, as previously noted, ‘investigate’ means to
inquire and examine. Unions NSW strongly believes that in a practical sense, an
investigation is the only way that an objective decision can be made on whether a
contravention has occurred or not. ‘Inquiring into a suspected contravention’ does
not fulfill this function.

• S. 107 is also unsatisfactory, because the OHS Entry Permit Holder:
o cannot take measurements,
o cannot sketch any part of the workplace,
o cannot take samples,
o cannot photograph, or make a video recording or,
o electronically record any consultation or interview with members, workers or, the
person conducting the business or undertaking or, any other person.
Unions NSW note that in the latter situation, such a person can exercise their right to
remain silent, or not answer some questions. We believe that the inclusion of such
provisions in S. 107 is imperative.

The current provisions of S.81 of the NSW Act, offer significant clarity in relation to
NSW OHS Entry Permit Holders, with the exclusion of a right to take samples,
namely:

Powers available on entry
S. 81 Powers available on entry

44
For the purpose of investigating any suspected breach of the occupational
health and safety legislation, the Coal Mine Health and Safety Act 2002 or the
Mine Health and Safety Act 2004 , an authorised representative who enters
premises under this Division may do any of the following:
(a) make searches and inspections (and take photographs and make video and
audio recordings),
(b) require the occupier of those premises to provide the authorised
representative with such assistance and facilities as is or are reasonably
necessary to enable the representative to exercise his or her functions under
this Division,
(c) require the production of and inspect any documents in or about those
premises that directly affect or directly deal with the occupational health and
safety of employees working at those premises,
(d) take copies of or extracts from any such documents.

• We do note that S. 107(1) (a) allows an OHS Entry Permit Holder to ‘inspect’ a
‘substance. However, not all substances are visible to the naked eye, and any
‘inspection’ of a substance may be insufficient for the purposes of any objective
investigation.

Unions NSW therefore believes that an OHS Entry Permit Holder must be permitted
to take a sample of any substance. Alternatively, if specialised sampling equipment
is needed, a suitably qualified person must be able to take a sample of the
substance on the OHS Entry Permit Holder’s behalf.

Also, S. 107(1) (d) (i) and (ii) do not appear to recognise the fact that in multi-
workplace organisations (and Government agencies), many records and documents
may not be kept at the workplace that is under investigation by an OHS Entry Permit
Holder. In the existing sub-sections, if the records or documents sought at a
particular workplace are not kept there, or cannot be accessed by a computer at that
workplace, the OHS Entry Permit Holder cannot exercise the power in another of the
organisation’s workplaces.

This situation would appear to be the intent of these provisions of the Model Act.
Unions NSW finds such limited provisions unacceptable.

We strongly recommend that the offending sub-section be amended as follows by
retaining the sub-sections (i) and (ii) and adding after (ii), (or insert a new sub-
section) stating:

“… in the event that any record or document directly relevant to the suspected
contravention is kept at or is accessible at another workplace, which is part of
the person’s business or undertaking or, otherwise kept by or, accessible
through any other person:
(i) the person conducting the business and undertaking or, the person in
control of, or responsible for the workplace, must inform the OHS Entry
Permit Holder of the location of the relevant record or document , and the
person responsible for, the relevant record or document, and:
(ii) arrange as soon as possible for the OHS Entry Permit Holder, to inspect
and/or make copies of, any relevant record or document.

45

• S.107 also requires additional sub sections, as there is nothing in the Model Act that
stops an employer refusing or impeding entry to an OHS Entry Permit Holder; and
(other than expressed in sub-section 107(3)) nothing that stops an employer
interfering with, impeding or stopping an OHS Entry Permit Holder exercising ALL
the rights expressed in S.107. As in S.83 of the NSW Act an OHS Entry Permit
Holder must be able to exercise a legal right to request the assistance of an
Inspector, on reasonable grounds. The following additions are strongly
recommended for inclusion in S.107 of the Model Act, or as an additional provision to
Division 7 – Prohibitions, as follows:

“… An OHS Entry Permit Holder may request the assistance of an
Inspector if he/she has reasonable grounds to suspect that the person
conducting the business or undertaking may prevent them exercising their
right of entry, or in carrying out any function, under S. 106 or 107. …”

In addition, Unions NSW supports the inclusion of the following provision in S.107

“…Nothing is this Section prevents an OHS Entry Permit Holder from visiting a
workplace which is, or is part of, a persons business or undertaking on more
than one occasion for the purpose of continuing an investigation into a
suspected contravention of this Act, or exercising any right described in S. 107
for the same purpose. …”

S. 109 of the Model Act, in the present form is quite unacceptable. Unions NSW believe
this to be the case for the following reasons:

• The provision of S. 109 (3) is contradictory and in conflict with the provisions of S.
108 (2).

• The provision pre-supposes that the OHS Entry Permit Holder knows that the
records and documents sought are at the workplace they intend to enter (given the
current provisions of S.107 (1) (d) (i) & (ii)).

• The provision further pre-supposes that the OHS Entry Permit Holder knows what
the nature of the suspected contravention of the Act is, and therefore, what records
or documents he/she would require to inspect or copy. In reality, this is not always
the case, as the OHS Entry Permit Holder may not know what records and
documents he/she may wish to inspect or copy until he/or she exercises other rights
expressed in S. 107.

• The current provisions of S.109 will likely result in an OHS Entry Permit Holder
demanding every relevant record or document from the employer which is relevant to
OH&S (and not necessarily pertinent to the suspected contravention alone). This will
be the only practical means of dealing with the restrictions imposed by S. 109 before
the commencement of an investigation into a suspected contravention of the Model
Act.

In practice, this will likely cause considerable tension or a dispute between the
employer and the OHS Entry Permit Holder over ‘relevant’ records/documents which

46
could be otherwise be prevented, if the Model Act contained reasonable provisions
on this matter. This is presently not the case.

Unions NSW believes that a far more practical and reasonable provision to replace
S. 109 (3) must be Included, to read along the following lines:

“… The notice must be given to the person conducting the business or
undertaking, or the person who either manages or controls the workplace, as
soon as reasonably practicable after the OHS Entry Permit Holder has entered
the workplace, or; not more than 14 days before any entry. …”

The current 24 hour notice provision would enable some employers to make
arrangements for any relevant record or document to be destroyed , or ‘disappear’ from
the workplace, irrespective of the fact that the destruction/absence of a record or
document on an OH&S matter could, in itself, be reason to suspect that a contravention
of the Act has occurred. However, there is nothing in the Model Act to prevent this
occurring, as it would be impossible to prove. This would be precisely the case if
S.107(1) (d) (i) & (ii) were not amended, as previously proposed.

The replacement sub-section does not preclude the parties negotiating on a time frame
when any record or document can be made available or, give the OHS Entry Permit
Holder the ability to acquire the record or document elsewhere, if the record or document
is kept at another place.

In practice, S. 109 with Cl. 17 of the Model Regulation are overly bureaucratic,
unnecessary and, potentially dangerous as they can be used by an employer to delay
the OHS Entry Permit Holder entering a workplace where workers may be exposed to a
serious risk to their OH&S, as the permit holder is required the satisfy the employer that
he/she has satisfied the provisions of the Model Act/Regulation.

If the OHS permit entry holder has prior knowledge of the records and/or documents
they wish to examine, and their location, the 14 days notice provision can be used.

Unions NSW views S.111 (3) of the Model Act as a possible deterrent in preventing a
contravention of the Act, in the event that workers are in fact exposed to a serious risk to
their OH&S. In practice, some OHS Entry Permit Holders will likely circumvent this
provision in an emergency by using the S.106 provisions. It would be far more sensible,
practical and consistent with good OH&S practice to restrict the notice of entry described
in S. 111 to S.110 (1) provisions alone. See later comments on S. 118.

The objections and concerns that Unions NSW have identified also need to be read in
conjunction with our following comments on Cl. 16-19 of the Model Regulations. Our
reading of the Clauses implies that the OHS entry permit knows, prior to entering the
workplace:

• All the particulars of the suspected contravention. (Cl. 16(a), Cl.17(a))

• The list of records and documents proposed to be inspected. (Cl. 17 (c)

These provisions, in addition to the provisions of S. 108-9, would suggest that prior to
entering the workplace the OHS Entry Permit Holder is in possession of all the details of

47
the alleged contravention, which in practice may not be able to be ascertained until an
initial entry, inspection and discussion with the workers involved. The alternative
scenario anticipated by the Regulation requires the OHS Entry Permit Holder to have
psychic abilities or powers. The same conclusion is also applicable to the Cl. 17(c) of
the Model Regulation requirements.

In addition, for any ‘declaration’ to specifically identify the worker could act as a real
deterrent to any worker who had reasonable grounds to seek the assistance of their
union, irrespective of the provisions of Part 5 of the Model Act.

There are ways and means for OHS Entry Permit Holders to comply with a number of
the declaration provisions, by way of ‘pro formas’, but not the requirements of all
provisions identified. In a practical sense, the requirements imposed on OHS Entry
Permit Holders are nothing more than impositions that will allow an employer to question
(at length) the permit holder’s bona fides and unreasonably delay the person exercising
legitimate rights on behalf of their members.

Unions NSW also objects to the S.114 requirement for ‘photographic identification’. The
OHS Right of Entry Permit should have a photograph of the permit holder attached,
thereby negating any need for separate photographic identification.

S.116 is vague, ambiguous and in practice would be difficult to comply with. The Model
Act is also silent on what constitutes ‘undue disruption’. Therefore, some employers may
regard talking to a line manager or a worker as a form of disruption. In the absence of
clarity, this term would invite unnecessary disputation and even spurious prosecution of
an OHS Right of Entry Permit Holder. Alternatively, the terminology of S.82 of the NSW
Act may be far more suitable, namely:

S.82 Care to be Taken

In the exercise under this Division, an authorised representative must do as little
damage as possible.

Unions NSW believes that S.117 unnecessarily curtails OHS Right of Entry Permit
Holders, particularly such as building and construction where workers can work in many
different work sites. The Chief Industrial Magistrate stated in Ferguson v Dalzell
(Decision of CIM Case No: 20367862/06, on 21 May 2008):

“an authorised official may become aware that a particular employer in an
industry is using unsafe work practices on a particular site. Knowing that the
employer has a number of other similar sites carrying out similar industrial
pursuits, the authorised union official might take the view that an employer who is
content to disregard their statutory obligations at one site is likely to adopt the
same approach at other sites and might act on that suspicion by carrying out s77
inspections at all of the employer’s sites in the industry. In my view such a
suspicion would be a genuine and reasonable one”.
Such an investigation by WorkCover after the fatality of Joel Exner further reinforces the
needs for Right of Entry Permit Holders to be able to follow up on suspected safety
hazards and contraventions across multiple sites and not be constrained by the limitation
that s117 proposed. Joel Exner was sixteen years old and killed due to the unsafe

48
installation of roofing mesh. Joel Exner fell to his death as a result. In the decision of the
NSW Industrial Relations Commission of WorkCover Authority of New South Wales
(Inspector Dubois) v Australand Holdings Limited [2007] NSWIRComm 156 (5 July
2007), the Court found:

“After the incident, WorkCover conducted many inspections of building sites
around New South Wales. WorkCover found that the deficiencies in the laying of
the safety mesh at the site were indicative of the deficiencies in the laying of the
safety mesh at the other sites. WorkCover published a safety alert about the
installation of safety mesh on its website to direct attention to the problem of
incorrectly installed safety mesh” (at paragraph 49)

The manner in which S.117 is currently drafted would mean that OHS permit holders
would not be able to further investigate a suspected breach across multiple sites if it was
suspected that an indentified hazard posed a much wider risk.

S. 118/9 unnecessarily constrain OHS Entry Permit Holders using their powers and
employers may use these provisions to delay investigations of suspected OHS
contraventions. NSW legislation by comparison has no such restrictions on Right of
Entry Permit Holders in carrying out a bona fide contravention of the NSW Act. It should
be further noted that the current provisions of the NSW Act have not caused any
difficulties between employers and union officials exercising Right of Entry provisions.

Unions NSW do not support the provisions of S. 122-124 that require a fit and proper
person test for an OHS Entry Permit Holder. The grant of a permit by Fair Work
Australia should be sufficient for this purpose.

Therefore, we believe that S. 122(c), S. 124 (c) and S. 125 should be deleted and all
reference to ‘fit and proper person’ in other sections of the Model Act should also be
deleted.

Unions NSW also believes that the provisions of S. 130 (2) (a) are unfair. The grounds
for revocation of a permit should be confined to the conduct of the permit holder in
respect of their OHS Entry Permit only. Matters relating to other legislation should be
dealt with under that legislation. Therefore S. 130 (2) (a) should be deleted.

S. 131 should also be amended. This is a ‘reverse onus’ clause requiring the OHS Entry
Permit Holder to justify why their permit should not be revoked or suspended rather than
the applicant being required to justify a suspension or revocation. Any suspension,
revocation and/or placing of conditions on a permit will have serious consequences for
the permit holder and potentially their employment. Natural justice dictates that it should
be the applicant who is seeking the revocation or suspension of the permit to make their
case out in full. It is important to note that Unions NSW has sought the inclusion of
“reverse onus” throughout the Model Act. This has not been the case, in the current
provisions other than discrimination matters. It would be of great inconsistency to retain
such provisions unless the remainder of the Model Act was amended to include such
“reverse onus”, particularly around OHS prosecutions.

49
S. 132 (1) requires a standard of proof for an authority to be satisfied that there are
grounds to revoke, suspend or impose conditions on a permit on the “balance of
probabilities.” Unions NSW believe that the standard of proof should be, at the very
least the Briginshaw Standard that derives from Briginshaw v Briginshaw [1938] HCA 34;
(1938) 60 CLR (30th June 1938). Both the Australian Industrial Relations Commission
and the Australian Industrial Registry previously accepted this standard in all right of
entry permit applications for revocation and/or suspension. There is no reason to
depart from this legal standard.

S. 133 requires amendment for the authorizing authority dealing with disputes to make
orders that facilitate an OHS Entry Permit Holder exercising this right. Currently the
authorizing authority is only permitted to deal with revocation, suspension or placing of
conditions on permits.

The S. 135 prohibition that uses words such as “otherwise act in an improper manner” is
vague and ambiguous. The terminology may be applicable under industrial relations
legislation but is inappropriate in addressing OHS at the workplace. The current
terminology may result in an employer using the provision to defeat an OHS Entry
Permit Holder taking action in relation to OHS. If such a prohibition is required it should
simply state:

“… An OHS Entry Permit Holder exercising, or seeking to exercise, rights or
powers in accordance with this Part must not intentionally and unreasonably
delay, hinder or obstruct any person. …”

Further, an additional Section should be included to allow an OHS Right of Entry Permit
Holder to be accompanied by another permit holder from the same organisation. Such
provision may be required when an interview takes place, (one person records the
answer) one OHS Permit Holder may possess particular knowledge or skills on the
matter being investigated, or even for training purposes etc.

“…An OHS Right of Entry Permit Holder, when exercising entry right of entry
provision under this Part may be accompanied by another OHS Entry Permit
Holder from the same organisation….”

When joined with the other issues Unions NSW has identified concerning the Sections of
the Model Act involving OHS Entry Permits , the unrealistic restrictions and requirements
to be met by OHS Entry Permit Holders are completely unacceptable.

It is noted by Unions NSW that there are none of the identified restrictions on OHS Entry
Permit Holders placed on Inspectors in the Model Act when they carry out a statutory
duties.

It should also be pointed out that Unions NSW have never supported that the powers
granted to authorised representatives, under S. 77/81 of the NSW Act, be identical to the
powers granted to Inspectors under S.59 of the NSW Act, which are as follows:

General powers available on entry
S. 59 General powers available on entry

50
For the purposes of this Act or the regulations, an inspector who enters premises
under this Division may do any of the following:
(a) make searches, inspections, examinations and tests (and take photographs
and make video and audio recordings),
(b) take for analysis a sample of any substance or thing which in the inspector’s
opinion may be, or may contain or be contaminated by, a substance (or a
degradation product of a substance) that is a risk to health,
(c) in the case of an inspector who is a medical practitioner, carry out medical
examinations with the consent of the person proposed to be examined,
(d) carry out biological tests in such manner and in such circumstances as may
be prescribed by the regulations,
(e) require any person in or about those premises to answer questions or
otherwise furnish information,
(f) require the occupier of those premises to provide the inspector with such
assistance and facilities as is or are reasonably necessary to enable the inspector
to exercise the inspector’s functions,
(g) require the production of and inspect any documents in or about those
premises,
(h) take copies of or extracts from any such documents,
(i) exercise all other functions that are conferred by, or are reasonably necessary
for the purposes of, this Act or the regulations.

Comparing S.59 with S.81 of the NSW Act, the additional powers for Inspectors,
compared to authorised representatives, relate to ‘examinations and tests’ (S.59 (a) ),
‘analysis of a substance or thing’ (S.59 (b), medical examinations and biological tests
(S.59 (c) & (d)) and carrying out their other functions (S.59 (i)). However, in practice the
only limitation on the powers of authorised representatives which has caused some
difficulty in investigations has been the inability to take samples of substances for
analysis.

The NSW Act recognises that while Inspectors have greater powers than authorised
representatives under the NSW Act, Unions exercising a number of identical powers
under S.81 of this Act have done so responsibly for over 20 years. If this was not the
case, there is no doubt that the NSW State Government would have taken punitive
action by amending the NSW Act to restrict or prohibit the exercise of existing powers.

We have previously detailed our strongest objections on the Model Act’s, exclusion of
provisions allowing Unions to prosecute employers. However we would add that this
decision has been made without prior consultation with Unions NSW.

The Model Act provisions we have identified, and the exclusion of Union prosecution
powers we regard as unacceptable and irresponsible.

Q. 34 Should the Model Act contain a specific authorisation
process for an OHS entry permit or can it rely on authorisation
under other acts such as the Fair Work Act?

It is noted that the Model Act’s OH&S right of entry provisions generally impose greater
regulation around this matter than was the case under the former Work Choices

51
legislation. The Model Act and Fair Work Act require multiple permits, which is over
regulation to the extreme and Unions NSW regards as a deliberate attack on legitimate
Union rights. Ideally, if the harmonized Act was finally agreed to by Unions NSW, all
OH&S entry permits should be issued by the State Industrial Relations Commission or
their equivalent.

Unions NSW accept in principle the requirement that OHS Entry Permit Holders receive
appropriate training, but we strongly believe that training may be self-defeating for the
following reasons:

• It is noted that the Act in this Part and elsewhere is silent on what rights a Union has
in regard to pursuing any outcome following an investigation. For example, unlike
the NSW Act the outcome of an investigation may result in a Union prosecuting an
alleged offender (see s.106 (d)).
• Alternatively there is no provision in the Model Act, in the absence of provisions
similar to the NSW Act, which then gives a Union the right to present the outcomes
of an investigation and evidence, in support of a prosecution. to a Regulator for
further action. The Model Act is also silent on whether a Union has the right to
request the involvement of the Regulator following a preliminary investigation.

In the past there have been several instances where NSW Unions have conducted
an investigation into a contravention, then followed with representations to Work
Cover NSW who have successfully prosecuted the defendant. These matters have
been detailed earlier in this document.

• The Act is also silent on whether the outcome of any OH&S investigation can be
pursued in the appropriate State/Federal Tribunal.

These deficiencies are also quite unacceptable to Unions NSW. We support the
retention and application of the NSW OHS Right of Entry regime, which has existed for
many years and applied successfully with little problems.

Unions NSW will comment further on these legislative shortcomings in our summary of
the Discussion Paper.

Q.35 Should contraventions of this Part attract criminal or civil
sanctions? If civil sanctions are considered appropriate should
penalty levels reflect those that apply under the Fair Work Act?

Q.36 The right of entry provisions have been drafted to be
generally consistent with the Fair Work Act. Do these
provisions appropriately apply to the role of a union
representative when entering the workplace in relation to OHS,
rather than in relation to workplace relations?

52
In relation to Q.35, Unions NSW support, where appropriate, consistent sanctions for
both the Fair Work Act and the Model Act as appropriate. Although it is our submission
that the appropriate provisions for Right of Entry are those set out in the NSW Act.

In relation to Q. 36, Unions NSW does not believe that the rights of entry provisions are
even close to being consistent with the Fair Work Act. However, we reiterate our
preferred position as stated in our response to Q.34 and those above.

We believe that we have canvassed some of our concerns at length in response to
Q.33-34; however a number of the provisions of Division 4- Requirements for OHS Entry
Permit Holders are equally objectionable, namely:

• Note our previous comments in response to Q.34 on the number of entry permits
required.

• S. 118 (b) gives the employer the right to potentially defeat the intent or purpose of
any entry to the workplace under this Division. 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, soon as the OHS entry holder gives notice of
their presence, or the employer becomes aware of their presence when an OHS right
of entry is used under Division 3.

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 under
S.110 (1). In effect, the sub-section has great potential to seriously impinge on the
exercise of OHS entry rights.

It would appear that the OHS Right of Entry provisions of the Model Act and
Regulation will generate unnecessary and bitter disputes between Unions and some
employers where and when the exercise of Union OHS right of entry is attempted.
The Model Act in effect makes the OH&S of workers secondary to the exercise of
excessive and almost exclusive managerial prerogative.

• S. 121 should be amended, by removing ‘ who is a member of the relevant
union.’ and replaced with:

“…who the OHS Entry Permit Holder represents. …”

• S. 122 (2) (a) and S.124 ( a) must be amended to read:

“…is an official or employee of the union…”

It is noted that the Model Regulation (Cl. 13) sets out training requirements for OHS
Entry Permit Holders. It is further noted that the Model Act is silent on this issue. Is
there an explanation for this?

53
Unions NSW are, in principle, not opposed to any OHS training for union officials and for
applicant OHS Entry Permit Holders, but we must point out that the present
unreasonable impositions and restrictions placed on applicant OHS Entry Permit Holders
would in practice act as a deterrent to any union official wishing to obtain a permit.

Further, Unions NSW submits that there should be no financial penalties on a permit
holder or their organisation.

Part 7: The Regulator

Q. 37 Should guidelines have any other particular legal status
under the Act?

Unions NSW does not believe that guidelines be given any legal status under the Act.

In stating this, Unions NSW believes that there should be no impediment stopping a
defendant tendering evidence of the use of guidelines in defence against a
contravention. In the same vein, a prosecutor may well use as evidence the fact that a
defendant failed to use available guidelines which may have resulted in the
contravention. In such instances, a Court should be left to determine the relevance of
any guidelines.

In effect, Unions NSW believes that giving guidelines legal status similar to a regulatory
provision, would defeat the purpose of OH&S legislation.

Unions NSW also wishes to address several provisions contained in Part 8-
Enforcement Powers contained in the Model Act, namely:

• Unions NSW note with great interest, that the provisions of S. 109(3) and S. 118 (1)
do not apply to an Inspector exercising powers under S. 157. For that matter,
Inspectors are also not subject to the provisions such as those described in Cl.16-19
of the Regulation. Is there an explanation for this?

It is assumed that the absence of these provisions recognises that they would act as
a barrier to the exercise of a statutory duty by an Inspector. By inference, is it legal
to stop or frustrate an OHS Entry Permit Holder exercising a right of entry for the
much the same purpose?

• S. 163 (3) should include provisions allowing a person to be represented legally, or
have another person (including a Union representative) present in any interview,
and; be given a copy of a transcript of any interview.

• In relation to Division 8 of this Part, it is noted that an OHS undertaking can be made
as a consequence of a Category 2 contravention. Unions NSW strongly opposes
such a provision, as in effect it will reduce a maximum Category 2 offence to
$250,000. Unions NSW strongly believe that an enforceable undertaking in the
event of a work related death or serious injury, does not promote in workplaces and

54
the community at large, the importance of OH&S, as well as their being an effective
means of preventing work related death, injury and ill health.

There may well be a role for enforceable undertakings in certain circumstances, but
Unions NSW will not accept a system where enforceable undertakings are used
instead of penalties, particularly when a work place fatality, serious injury or work
related illness is involved. In any event, under no circumstances would Unions
NSW accept that enforceable undertakings alone apply to repeat offenders.

Part 10: Review of Decisions

Q.38 Is the list of reviewable decisions appropriate?

Q.39 Are the processes and timeframes for the internal review of
decisions appropriate?

Unions NSW believes that the list of reviewable decisions should be extended to include
S.74 decisions in the event that referral of a S.74 decision to an industrial Tribunal is
disallowed (see p.23 Para 3 – Discussion Paper). Also, the range of reviewable matters
in relation to OH&S Committees must be expanded to include such matters as
appointment, membership, employer representation, in addition to constitution.

The remaining matters identified are appropriate at this point of time.

We strongly support that the definition of an ‘eligible person’ be extended to include a
Union or representative nominated by a HSR or worker whose interests are affected by
a decision.

Unions NSW believe that such representation while relevant to workplace issues is also
particularly relevant to S. 211 and 216 decisions.

Q. 40 Are stay arrangements appropriate in relation to the issue
of a prohibition or non-disturbance notice, having regard to the
purposes of those notices?

In response to this question, irrespective of what Unions NSW believes about the
appropriateness concerning the issue of a prohibition or non-disturbance notice, the
purpose of the notice would appear to be defeated by the provisions of S. 200 (2).

Is this a correct interpretation of this sub-section of the Model Act?

If it is so, Unions NSW cannot accept the stay arrangements as appropriate, given the
overriding provisions of S.200 (2), given that it applies to all notices.

55
In relation to Part 11: Legal Proceedings, Unions NSW do not support a Director of
Public Prosecutions (DPP) review for Category 1 and 2 offences, given our previous
representations made via the ACTU on third party prosecutions.

Unions NSW also notes that the NSW DPP is currently greatly understaffed and under
funded to carry out its present role, let alone the additional role as the prosecuting
agency for OH&S contraventions committed in NSW. In addition, the existing legal staff
of this Agency has no experience in this field of work.

It is therefore a matter of conjecture whether the NSW DPP has the capacity in the
future to take on and effectively execute this responsibility, given the previous
arrangements that have existed in NSW since the first NSW OH&S legislation was
enacted in 1983.

Other Matters to be Considered
Unions NSW and affiliates submit that Unions must have the right to notify a dispute to
the relevant tribunal (in NSW – to the IRC of NSW) at anytime without having to wait for
the regulator to deal with the dispute.

More coming…