In 2008, when harmonization of national OH&S laws became a reality, Unions NSW was
fearful that in a worse case scenario, the â€˜harmonizedâ€™ 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
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
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 â€˜harmonization.â€™ How these matters will be
resolved in such a vacuum is a matter of conjecture.