Unions NSW submission continues. See the conclusion below.
NSW Premier Rees would be well-advised to follow this submission and convince COAG that it is prudent that the DPM spends another two years going over these details and improving the position to ‘best practice’ and not to sell-out and send backwards workers’ OHS rights.
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.
Exposure Draft of Key Administrative Regulations.
Q. 41 Should the list of matters to be considered in negotiations
be provided for in a Code of Practice rather than prescribed in
Regulation?
Unions NSW strongly support the inclusion of such matters by way of Regulation. A
Code of Practice does not have the same legal status as an Act or Regulation.
We further note that S.245 contains no provisions which give effect to the WRMC
recommendation 228 that the Model Act provides for Codes of Practice to be developed
through a tripartite mechanism, with expert involvement, for approval by the relevant
Minister. Is there a reason for this?
56
UNIONS NSW SUMMARY ON THE MODEL ACT AND REGULATION
As indicated in our Introduction, Unions NSW have previously given full support to the
harmonisation of current State/Territory/Commonwealth OH&S laws.
Unions NSW do not reconcile from this support, but will not under any circumstances
support or promote legislation which does not meet the standards imposed by the
current NSW Act and Regulation.
This Act and Regulation continues to provide a high level of protection to all NSW
workers, including the 600,000 members of our affiliated Unions.
NSW is the most populous State in Australia and also has had the benefit of modern
OH&S legislation since 1983. Other States, Territories and the Commonwealth cannot
lay claim to 25 years of modern OH&S legislation.
What is equally important was that the 1983 legislation and subsequent 2000 legislation
was developed using tripartite mechanisms, which consulted at length on the scope and
content of the legislation. The result has been effective OH&S legislation that has
enjoyed the support of the NSW Government, employer groups, and the NSW Trade
Union movement.
Following the introduction of the 1983 legislation, the then Act was amended by the
NSW Government allowing a Union Secretary to initiate a prosecution against an
employer. As previously stated, this power has only been exercised to any extent since
1997, following further amendments to the 1983 Act. The same provisions were carried
over to the 2000 Act without opposition by employer groups or amendment by the NSW
Government.
Currently, in NSW union prosecutions amount to approximately 1% of the total
prosecutions initiated. While the number of actual prosecutions has been small, the
actual prosecutions have been effective in terms of precedents set, as well as forcing
change to employer behaviour and attitudes to OH&S.
On a practical basis only those NSW Unions with sufficient human and financial
resources are likely to initiate prosecutions, on account of the significant investigation,
legal and associated costs involved. Also, the NSW Industrial Commission needs to be
satisfied that monetary penalties awarded to the union are used to benefit the union
membership. In the event of an unsuccessful prosecution, the union is required to meet
a defendant’s legal costs in addition to their own.
Unions NSW has therefore always supported the legal right for a NSW Union to
prosecute an employer for a contravention of the NSW Act on behalf of a member,
irrespective of the number of prosecutions initiated. We shall continue to support this
basic union right.
The Model Act incorporates a large number of provisions which Unions NSW cannot
accept in their present form, for example.
The definitions of ‘officer’ and ‘worker’. The present provisions will cause unnecessary
legal confusion in determining duty of care and other responsibilities in the Model Act.
Other definitions, on what constitutes for example ‘substance’, ‘workplace’, ‘serious
incident’ lack sufficient clarity or content for the purposes of the Model Act. We have
added further comment in our responses to the questions in the Discussion Paper on
similar matters.
The onerous and unreasonable use of ‘as far as reasonable practicable’ provisions in a
very large number of provisions identified in our response to the questions posed in the
Discussion Paper effectively gives employers a legal escape route to evade a range of
duties and responsibilities.
However, other than the issue of Union prosecutions, our most serious objections relate
to the both HSR and OH&S Committee provisions, and the OHS Right of Entry
provisions.
The former provisions have the scope to create a two tier OH&S consultation
arrangement in workplaces, which to all extent and purposes has the potential to
marginalize the role of a HSR. Also, while the HSR is subject to a range of provisions,
the OH&S Committee provisions are minimal, and further subject to minimal external
review.
The latter provisions are specifically designed to impose unreasonable and almost
impossible barriers and restrictions for Union officials to overcome in attempting to gain
entry to workplaces for legitimate OH&S purposes.
The Model Act in dealing with workplace consultation and right of entry provisions seems
to take the approach that all OH&S matters, including disputes, should be able to be
resolved at workplace level. This approach we believe shows a fundamental lack of
understanding of workplace relationships and the resolution of OH&S matters.
Unions NSW has noted with grave concern that the WRMC has approved, in principle,
the Model Act that this organisation has been invited to provide comment. Given these
circumstances, Unions NSW could reasonably conclude that any serious consideration
of our responses to the Discussion Paper, and other matters relevant to the Model Act
and Model Regulation may well be disregarded. Our final comments in this summary
are based on this conclusion.
To add to these concerns we have noted that Work Cover NSW is commencing briefings
to the public in the coming month on contents of the Model Act, which from our
experience with Work Cover NSW would suggest that only minimal ( if any) changes to
the Model Act are anticipated by this organisation.
While acknowledging the risk of this occurring, we sincerely believe that future Australian
and NSW OH&S legislation is far to important a matter for Unions NSW to ignore,
particularly given that the content of the Model Act and Model Regulation, for all intents
and purposes, will become NSW’s future OH&S legislation, unless it is rigorously
opposed in its present form.
In 2008, when harmonization of national OH&S laws became a reality, Unions NSW was
fearful that in a worse case scenario, the ‘harmonized’ Act would be based on a lowest
common denominator approach. However, as NSW was recognised at the time as
having the most powerful OH&S legislation in Australia, there was some optimism that
the harmonized Act would reflect some of the more important and powerful NSW
provisions, and in particular retain the provisions giving NSW Unions the power, and
right, to prosecute employers for contraventions of our OH&S Act utilising our right of
entry provisions.
Now Unions NSW worst fears were realized on reading the recommendations in
response to the 2008 Discussion paper and now been fully realized as a result of our
examination of the Model Act and Model Regulation. The most important provisions of
the NSW Act have been totally ignored.
As a consequence we now strongly believe that this legislation if it is enacted will,
regrettably, do nothing to advance, improve, or secure the OH&S and welfare of workers
in NSW, or the rest of Australia.
We make no apology for these observations as the Model Act completely removes the
long held rights for NSW union officials to protect the OH&S interests of their members.
Furthermore, the Model Act will allow most employers sufficient means to evade future
prosecutions and other mandatory duties which have been part and parcel of the NSW
Act.
In particular, 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 appears to enshrine the principle that employers should
enjoy unfettered power in managing their workers (and OH&S) and exclude Unions
attempting to safeguard the OH&S of members.
We recognize that the Model Act goes to extraordinary lengths to deny unions acting on
behalf of their members access to an Industrial Tribunal to resolve OH&S disputes. This
will only result in an unrealistic approach being taken in dispute resolution. This
approach, plus Union exclusion, we predict likely to result in more stoppages and
disputes on OH&S that occurred prior to ‘harmonization.’ How these matters will be
resolved in such a vacuum is a matter of conjecture.
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.
While the law may well be harmonized, the end result will be disharmony in many
workplaces. Unions NSW has no doubt that this will be the case if the Model Act and
Regulation becomes law.
Ideally, OH&S legislation should attempt to strike a balance between an employer’s and
worker’s rights and obligations and, ensuring that the law is powerful enough to protect
workers OH&S. Unions NSW believes the Model Act and Regulation is legislation which
ignores this balance in favour of championing employer rights to the detriment of
maintaining or improving good workplace OH&S.
Chris White concludes: As has been stated, the State’s Premiers are being pressured to submit to the draft Bill at COAG.
Union and community concern and lobbying has to be stepped up.
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