VTHC submission continues.
Part 4 – Consultation, participation and representation
Q21. Is the proposed scope of duty to consult workers appropriate?
The proposed duty to consult is based largely on the current Victorian provisions and will mean that the problems we have had due to the wording of our current provision will be replicated. It is our view that the duty to consult must be with HSRs. Where they do not exist, then the duty must be directly with workers. This is consistent with recommendations by Maxwell who specifically stated that the new duty of an employer to consult with employees was intended to be in addition to the duty to consult with HSRs.
‘The duty to consult imposed on the employer …. should not be subject to practicability. No relevant change to the workplace should be made without consultation with the appropriate HSR (or any deputy) or if there is no HSR, with the employees themselves (967)’
The confusion caused by our provisions repeated at S46(2) by the wording ‘with or without the direct involvement of the workers’ has resulted in
a specific regulation ensuring that HSRs are consulted before workers and following the Stensholt Review of the Administration of the OHS Act
guidance which clarifies what consultation is required in circumstances where there are HSRs and in those where there are no HSRs.
In our view S 46(2) should be amended to remove the words in brackets.
Consequently, as HSRs are the recognised mechanism for consultation there is no need for procedures to be agreed where there are HSRs
s46(3) should be amended as follows:
If workers are not represented by a health and safety representative, the workers and the PCBU may agree procedures for undertaking
consultation under this Section.
We also support Maxwell’s view that consultation should not be subject to reasonably practicability
The VTHC suggests that for the sake of clarity, a provision be added to ensure that workers who are not represented by an elected HSR are
able to authorise a person or organisation to represent them in the negotiations.
Q22. Should the model Act include a procedure to follow if agreement on a consultation procedure cannot be reached?
The VTHC does not believe that a consultation procedure should be in the Act. However there is benefit in providing advice to PCBUs about what would be regarded as compliance for circumstances where there are no HSRs.
Q23. Clause 49 allows work groups to be determined for workers engaged in 2 or more businesses or undertakings. Should such
arrangements be by agreement only, i.e.with no prescribed procedure if negotiations fail?
NOTE: Subdivision 1 here is titled incorrectly. The first part of this section (s48-53) in fact deals with the establishment of work groups not the
election of HSRs. There must be a clear separation of these two provisions. The current draft is not only confusing but is open to the
interpretation that employers have rights in relation to the conduct of elections for HSRs.
The VTHC believes that the provision at s49(4) is insufficient to provide for the determination of work groups at sites where there are multiple
PCBUs in a workplace. This provision appears to apply to only workers engaged in 2 or more business or undertakings – NOT a worksite that
has multiple businesses or undertakings.
During debate on the Model Law the constraints of the single employer/employee relationship has been highlighted. While this has supposedly
been addressed by changes to definitions of PCBUs and workers, S49 does nothing to permit the establishment of work groups across multi-
employer sites.
In fact it is unclear how, let alone who would determine a work group for ‘workers engaged in 2 or more business or undertakings.’ The VTHC considers this a serious omission which needs urgent review. The establishment of work groups is fundamental to the Act and must include clear provisions for the establishment of work groups and therefore the election of HSRs in multi PCBU sites.
The Victorian Act includes provisions for the grouping of employees of multiple employers (s47, 48, 49, 50, 51 and 54) which should form the basis of consideration. There is also an additional provision in Victoria s 44(e) which allows for a HSR to represent independent contractors.
In our view there are other omissions in the determination of work groups which need to be rectified.
1. The Model Regulations propose at Reg 6(1) that parties to an agreement may at any time negotiate a variation of the agreement. It is the view of the VTHC that this provision be in the Act not in the Regulations.
2. The Model Act also must include a provision, similar to that in the Victorian Act which allows for a worker or group of workers to be represented in negotiations of work groups by any person authorised by the worker or group. (s44(5) and 48(5))
3. That the detail of Negotiation of agreement for work groups (Regulation 4) and Matters to be taken into account in negotiations (Regulation 5) of the Model Regulations should be in the Act.
Q24. Negotiations for work groups must be commenced within a ‘reasonable time’. Should a time limit be prescribed e.g. 14, 21 or 28 days?
A set time for the commencement of negotiations for work groups must be specified, and this should be at the ‘shorter’ end of the scale, that is
14 days. This is important as the whole process of the members of the work group then organising and holding an election for their HSR/s (and
deputies) then takes further time and it is not until this is completed that workers are then properly represented. It is difficult to conceive of any
circumstances when it would not be possible for such negotiations NOT to be capable of being commenced within this timeframe. 21 or 28
days is too long a time-frame.
Further, there are many situations in which even the 14 day time-frame is ineffective, for example for large events (eg Grand Prix, etc).
The VTHC would like to see a provision included whereby the regulator could, on request of either workers, their representative/s or PCBUs, reduce the time-frame to accommodate such circumstances.
Q25. Elections for HSRs and possibly deputy HSRs must be conducted ‘as soon as reasonably practicable’ after the relevant work groups are established, or after a request for an election is received if work groups are already established. Should a time limit be prescribed?
No, it is not necessary to prescribe a time limit. However, the provisions in the Act must be clarified so that there is no doubt that the processes for the election and the election itself of HSRs be left to the members of the work group to determine and implement. The VTHC considers the provisions of the current s55 to be contradictory.
S55(1) provides, rightfully, that workers determine how an election is conducted. S55(2) then proposes a mandatory and highly prescriptive process in the Regulations The VTHC does not support the provisions set out in Regulation 7. Our view is that the s55 should provide that:
(1) The workers in a work group may determine how an election of a health and safety representative for the work group is to be conducted
(2) If workers in a work group so determine, the election may be conducted with the assistance of a union or other person
(3) If the workers in a work group cannot reach agreement within a reasonable time, any member may ask the Authority to arrange for an inspector to-
(a) conduct the election; or
(b) if the inspector considers it appropriate, appoint another person to conduct the election.
Q26. The model Act requires that the HSR training must take place within a reasonable time, to accommodate a range of circumstances. For example, it may take longer for HSRs working in rural or remote regions to attend an approved course that may not be available in their area. Should a time limit be specified within which the training must be provided?
The VTHC believes that the intent of establishing a time frame for training to occur ie that HSRs are not delayed in attending is best served, not
by the setting of a time frame, but by the inclusion of provisions from the Victorian Act. These provisions provide:
ï‚· A right for HSRs to attend any course that is approved or conducted by the Authority
ï‚· That the HSR must make a request to attend training at least 14 days before the course is to commence
ï‚· That the course is chosen by the HSR in consultation with their employer
ï‚· The Authority can determine disputes
ï‚· An employer who refuses to allow attendance is guilty of an offence
ï‚· If the HSR represents workers for multiple employers the costs are shared equally.
67. Obligation to train health and safety representatives
(1) An employer must, if requested by a health and safety representative for a designated work group of which employees of the employer are members, allow the representative to attend the following courses—
(a) an initial course of training in occupational health and safety after being elected;
(b) a refresher course at least once in each year, after completing the initial course of training, that he or she holds office
(2) A request to attend a course must not be made less than 14 days before the course is to start.
(3) A course must be—
(a) approved or conducted by the Authority; and
(b) relevant to the work of the members of the designated work group or the role of health and safety representatives; and
(c) subject to sub-section (5), chosen by the health and safety representative in consultation with the employer.
(4) The employer must—
(a) allow each health and safety representative time off work to attend the courses with such pay as he or she would otherwise be entitled to receive from the employer for working during that period; and
(b) pay the costs associated with each health and safety representative’s attendance at the courses.
Note: If the health and safety representative represents a designated work group of the employees of more than one employer, section 68
provides for the apportionment of those costs among the employers.
(5) If an employer refuses to allow a health and safety representative to attend a course or they cannot agree on a particular course, the representative may ask the Authority to determine a specified course that the representative may attend for the purposes of sub-section (1)(a)
or (b).
(6) A determination must be in writing and the Authority must ensure that it is not made less than 14 days before the specified course is to start.
And from s69(d):
Allow a health and safety representative to….
(ii) taking part in any course of training (other than s67) relating to occupational health and safety that is approved or conducted by the Authority and of
which the employer is given at least 14 days notice;
The VTHC considers that the detail of Regulation 8 should be in the Act.
Q27. The model Act requires that a health and safety committee be established within 2 months of the request being made. Six of the current
OHS Acts include such a timeframe, which varies across jurisdictions from 3 weeks to 3 months. Is the proposed time limit of 2 months
appropriate?
The current Victorian Act has a timeframe of 3 months but we have no objection to a timeframe of 2 months
Q28. 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 clauses 75
and 76 be aligned with the Fair Work Act?
Yes. These provisions must be aligned with the Fair Work Act.
Q29. Should a health and safety representative be required to complete approved training before being able to direct that work cease under these provisions?
The VTHC strongly opposes this provision. The operation of HSRs in Victoria since 1985 recognises that HSRs on election have rights and
powers which they can exercise regardless of whether they have been trained or not. As the Model Act and the Fair Work Act codifies a
workers right to cease unsafe work it is inconsistent to insist that HSRs have training before they can issue a cease work when a HSR as a worker does not have to undertake training.
In addition, s76 must be re-written to ensure that the HSR can direct ‘workers’ in a work group not just a ‘worker’.
Q30. Should a health and safety representative be required to complete approved training before being able to issue a PIN under these provisions?
The VTHC strongly opposes this provision. This is a significant reduction of rights for Vic where HSRs have been able to issue PINs and
stop works without the need for compulsory training since 1985. The operation of HSRs in Victoria since 1985 recognises that HSRs on
election have rights and powers which they can exercise regardless of whether they have been trained or not.
There is no evidence that HSRs have exercised these rights inappropriately. It is worthwhile noting that some HSRs have issued PINs in order to attend training in circumstances where their employer has sought to unreasonably delay or prevent them from attending such training.
Further, preventing HSRs from issuing PINs until such time as they have attended approved training will almost certainly lead to some
employers seeking to delay attendance, and hazards identified by HSRs not being addressed in a timely manner.
Q31. A PIN cannot require compliance before 7 days from the date the PIN was issued. Is this time frame appropriate?
Yes the timeframe is appropriate. (Our current provisions at s 60(3) require at least 8 days notice after the date on which the PIN was issued and the Model Act also refers to at least 8 days). However the procedures in the Model Act are not acceptable and represent a reduction on our
current provisions and unnecessary delays in the resolution of issues raised by HSRs .
In the Model, If an employer seeks to challenge a PIN they must notify the authority within 7 days of the notice being served. The PIN is stayed
until the inspector has made a decision, even if that does not occur until after the compliance date has passed. The requirement to challenge the notice within 7 day is the same as the Victorian Act. However, an Inspector must attend before the compliance date for the PIN expires.
Therefore there is no need for a stay. They must provide in writing the basis for their decision in relation to the PIN to the HSR.
The Victorian provision works well, and should not change. In the draft law, the possibility that the PIN will be well past its compliance date and
that no action will have been taken as an Inspector has not attended the site, is very real. In Victoria – the compliance date of the PIN provides
some certainty to workers, HSRs and employers that the issues subject to the PIN must be dealt with in one way or another by a fixed timeline.
That an Inspector’s determination of a PIN must set out the basis for the decision should also be a given – how else are employers and HSRs
able to understand the outcome, or decide whether they wish to exercise further rights in relation to an Inspector’s decision?
Part 5 – Protection from Discrimination
Q32. Should the model Act expressly protect persons from being coerced or induced to exercise their powers in a particular way?
Yes, the VTHC believes that HSRs and deputies, who take on this role voluntarily, and with no DUTIES as HSRs and deputies, must be
afforded the highest level of protection, not only when they DO exercise their powers, but also if for any reason they choose not to do so in a
particular way. HSRs/deputies are not professional OHS professionals and cannot be induced or coerced.
Part 6 – Workplace entry by OHS entry permit holders
Q33. Are the notification requirements appropriate?
The VTHC consider that the provisions of Part 6 require substantial re-writing to deliver certainty about the relationship between access for a
suspected contravention under the OHS Act and entry that is provided for under the Fair Work Act. There is a broad range of inconsistencies,
the introduction of unnecessary red tape and the creation of a system that has the potential for an overwhelming number of technical hitches,
reinforced by criminal sanctions. We are of the view that the intent to make the provisions consistent with the Fair Work Act does not mean that
those provisions are duplicated in the OHS Act.
106 Right of entry to inquire into suspected contraventions 106(1) insert Regulations after Act
106(3) is irrelevant here
107 and 109 Rights that may be exercised while at the workplace OK but it is unclear what records are being referred to a sub-section
(2)
The link between 107(3) and 109(b) is unclear. The logic is confusing
if an entry permit holder enters the workplace for a suspected
contravention and requests a document which relates to that
contravention (eg a Safe Work Method Statement or a MSDS) and
those documents are not available at that workplace then the
employer would be breaching their general duties to provide
information etc. Rather than requiring the permit holder to give 24
hours notice to re-enter if the documents is not available the time
limit should apply to the PCBU ie the PCBU has 24 hours to produce
them.
109 Notice of entry for requests for information See above comment – delete
110 Entry to consult and advise workers Repeats the Fair Work Act – it is necessary?
111 Notice of entry Relates to 110 – delete
112 Contravening OHS entry permit conditions OK but better located as a penalty at 127
113 OHS entry permit holder must also hold permit under other law Delete. This is unnecessary. S 122 would establish that to be eligible
to hold an entry permit the person holds a permit under the Fair Work
Act plus OHS training. If the permit holder is entering for a suspected
contravention there should be no requirement for other permits to be
produced.
118 Conduct of discussion in a particular room Relates to entry under 110 – delete
122 Application of entry permit 2(b) refers to a fit and proper person test. This should only be
required once ie under the Fair Work Act. Therefore, delete 122(2)(b)
123 Consideration of application What is the purpose of this – delete
124 Eligibility criteria Repeats s122. Should only be one provision
Victorian Trades Hall Council
125 Fit and proper person Delete
126 Issue of a permit Repetitive – delete
130 Revocation of permit It is logical that if the authorising authority is Fair Work Australia then
it appropriately deal with applications for revocation.
Delete (2) (e)
133 Authorising authority to deal with disputes Still considering. The Authorising authority in Victoria is the
Magistrates Court. Disputes about entry are dealt with by the
regulator – as penalties for the refusal, delay of entry, hindering and
obstructing S 136 and 137 are under the OHS Act how will the Fair
Work Act deal with them??
139 Unauthorised use or disclosure of information Is this detail necessary? Are there similar provisions in the Fair Work Act??
141 Union to provide information to the regulator Unsure why this provision is necessary. If the authorising authority has to keep a publicly accessible and up-to date register why do
unions provide this information separately to the regulator and face a penalty if they don’t!
Q34. Should the model Act contain a specific authorisation process for an OHS entry permit or can it rely on authorisation obtained under other Acts such as the Fair Work Act?
The VTHC believes that there should be one authorisation process ie to be given an OHS entry permit, the applicant meets the criteria for the issue of a Fair Work permit + completes the training for OHS permit.
Q35. 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?
We consider it appropriate that sanctions for breaches of draft Part 6 of the Model Act should be the same as sanctions for breaches of Right of Entry under the Fair Work Act.
Q36. 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?
See analysis at Q 33. The provisions have not been drafted to be consistent but repeat the provisions unnecessarily.
Part 7 – The Regulator
Q37. Should guidelines have any other particular legal status under the Act?
It is unclear from the Exposure Draft Discussion Paper what the issue is behind this question. It appears that there may be some
misunderstanding of the purpose of guidelines as proposed and ‘guidance’ more broadly. The VTHC is most familiar with the Victorian
provisions, recommended by Maxwell, that the Authority issue guidelines (now referred to as Worksafe Positions to avoid confusion with other
guidance), about how the Authority interprets specific provisions of the Act. These guidelines are developed with employer and union
stakeholders (in a tripartite process) and are subject to public comment.
Current Victorian Worksafe Positions include:
ï‚· How WorkSafe applies the law in relation to Reasonably Practicable
ï‚· How WorkSafe applies the law in relation to identifying and understanding hazards and risks
ï‚· How WorkSafe applies the law to: Employing or engaging suitably qualified persons to provide health and safety advice
Two further guidelines are subject to public comment currently:
How WorkSafe applies the law in relation to:
ï‚· Discrimination on health and safety grounds and
ï‚· The requirement to answer questions
These documents are important in holding the Authority to account in decisions made by inspectors, in the development of guidance and in
making it clear to duty holders and those to whom duties are owed what the Authority considers is compliance. The Act should therefore have
provisions for similar ‘guidelines’ or ‘positions’ to be made
Part 10 – Review of Decisions
Q38. Is the list of reviewable decisions appropriate?
The VTHC consider that the list of reviewable decisions appear appropriate as the list is taken from those provisions in the Model where the
regulator has a role in making a determination. The major omission is that a representative (as defined) has not been reflected in the list of
eligible persons. For example, the representative may have been a party in Issue Resolution s 73. These representatives are eligible persons
for the review of decisions and should be added to those decisions made or not made by an inspector.
The list of reviewable decisions will require amendment when the Model is finalised to reflect the inclusion of other provisions where we have
suggested that workers have the right to nominate a representative eg determination of work groups or where we have suggested a role for the regulator which is not currently included in the Model Act.
Q39. Are the processes and timeframes prescribed for the internal review of decisions appropriate?
The VTHC has had some difficulty in aligning the review decision process in our current Act with the proposed provisions in the Model.
For example, s222 of the Model does not include timeframes for the internal reviewer to advise the applicant rather referring to ‘as soon as
practicable’. The VTHC believes that time frames should be set as per Victorian S128(4).
The VTHC is also concerned about the potential impact of s 221(3) of the Model which proposes that the time frame ceases to run if the reviewer seeks further information. While it is logical that the time taken to provide the information should not be included on the 14 days without any requirements on the applicant to provide the information is it possible that a decision could be delayed indefinitely??
Q40. Are stay arrangements appropriate in relation to the issue of a prohibition or nondisturbance notices, having regard to the purposes of those notices?
The stay arrangements appear appropriate. However the VTHC is unsure of the effect of the location of this provision after the provisions on
External Review. Is this to be taken that only External Review can determine stays of these notices??
Exposure Draft of Key Administrative Regulations
Q41. Should the list of matters to be considered in negotiations for work groups be provided for in a Code of Practice rather than prescribed
in regulation?
No, see comment at Q23. These matters should be in the Act
Do you have any other comments?
Worker right to cease work
The Model Act at s75 proposed that a worker may cease work if he or she has reasonable grounds to believe that to continue to work would expose him or her to a serious risk to his or her health or safety, emanating from an immediate or imminent exposure to a hazard.
This section only gives a worker the right to stop work or to refuse work if they believe that they would expose themselves to serious risk to their health or safety emanating from an immediate or imminent exposure to a hazard. It does not provide protection to other workers or the general public if the work carried may expose them to serious risk or injury.
The VTHC believes that this clause should not be just about a worker being able to protect him or herself but should also be available to protect others who maybe at risk because of an unsafe work practise or situation. It is possible that there are other people in a workplace who are not employees (ie salespeople, residents or patients) and who would not know that they are in an unsafe situation and therefore not able to take
action themselves.
Our view is strengthened by Clauses 27 (b) and 28 (a), (b) which requires that
27 Duties of workers
While at work, a worker must:
(a) take reasonable care for his or her own health and safety; and
(b) take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons; and
(c) co-operate with any reasonable instruction given by the person conducting the business or undertaking to comply with this Act
And
28 Duties of other persons at the workplace
A person at a workplace (other than a person who has another duty under this Part) must—
(a) take reasonable care for his or her own health and safety; and
(b) take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons; and
(c) co-operate with any reasonable instruction given by the person conducting the business or undertaking to comply with this Act.
The VTHC proposes the wording in the Model Act be amended to:
An employee may cease work if he or she has reasonable grounds to believe that as a result of work being carried on at a workplace there is risk of imminent and serious injury to or imminent and serious harm to the health of any person.
Objects
In addition the VTHC believes that the following amendments to the Objects are also necessary:
 Adjectives used in the objects (for example at (1)(b) ‘fair and effective’) be deleted.
ï‚· The order of the objects be amended so that object (1)(e) be placed to follow (1)(c)
o Compliance and enforcement activities MUST take precedence over the provision of advice, information, education and training.
The role of the regulator to ensure compliance and carry out enforcement is a primary one and must not be seen to be relegated or diminished as being less important than an advisory/educative role.
 Object 3(2) – delete ‘should’ and ‘as is reasonably practicable’
Principles
While the draft law does use the term principles, these apply solely to the safety duties themselves, rather than the Victorian approach which is
to have fundamental principles underlying the whole Act –
ï‚· Workers and others be given the highest level of protection. The Model adds ‘should’.
o The introduction of the word “should†weakens the principle.
ï‚· The requirement for employers to be proactive to ensure OHS at work does not appear in the draft.
o It is important to have the principles of responsibility and the obligation to be proactive on the part of those in control in the
principles of the Act.– it is the fundamental concept around which the duties and other matters in the Act are based
ï‚· Workers entitlement to representation does not appear in the draft.
ï‚· The concept of employers and workers exchanging information and ideas does not appear in the draft.
o The second objective in the draft which talks about fair and effective representation and consultation does not adequately
capture the concepts of an entitlement or right to representation, and to have ideas exchanged.
The VTHC recommends that these principles be included in the Model Act.
Application of the Act
The Act must bind the Crown. It must also continue for jurisdictions to provide extra-territorial application (subject to COAG agreement) to
ensure that current arrangements continue.
However, there must also be clarity about what is in effect ‘off-shore’, therefore automatically covered by the OHS legislation and what is ‘extra-territorial’. The point is to ensure that all workers/operators are covered.
What will Brumby do?
Will the Rudd government ignore these arguments?
yraw voting-badge
No comments yet.