Kevin Jones
Safety in numbers
Occupational health and safety is the little brother of industrial relations. It is there when the discussion is about “pay and conditions”, as a subset of conditions. And even here it can get overwhelmed by leave entitlements, such as maternity leave. Part of the reason for OHS having so small a visible presence is that there are no strong public advocates and those that do talk OHS also talk about leave and IR.
Over the last few years, the Australian union movement has been focused very intensely on industrial relations – initially, on ousting John Howard and the WorkChoices legislation, and now on industry and job retention. But behind all of this has been a major review of Australia’s OHS laws.
In the wake of the release of the final report of the review into national OHS model law, I asked Geoff Fary, assistant secretary of the Australian Trade Union Council, about whether IR and OHS reform can run in parallel or whether one will retard the progress of the other. Fary says that this is unlikely as he thinks that the IR reforms could be "up and running before all of the OHS changes".
Industrial relations negotiations rarely run smoothly, particularly when there is a very tight timeframe for reform. The government wants the OHS legislation operational by 2011 and it has already missed one deadline for the establishment of Safe Work Australia, as federal Industrial Relations Minister Julia Gillard pulled the Safe Work Australia Bill from the Senate.
The government contends that the harmonisation of OHS legislation throughout Australia will provide substantial cost savings to business through the efficiencies of managing safety to a uniform set of Australian legislation. Currently, each state legislates its own OHS requirements and there can be variations between states, which means safety for a national company needs to operate to varying levels of compliance.
Fary says that the ACTU is still assessing the recommendations of the final review panel report, but that the OHS harmonisation process "should not result in a reduction in protection of workers' entitlements or the rights of any group of workers."
The ACTU has several concerns, says Fary: "One of the key things we are concerned about in the recommendation of the second report is that if it was adopted, it would no longer be open for unions to initiate prosecutions when regulators fail to do so."
The OHS review panel recommended an alternative strategy (Recommendation 224) that keeps the right to prosecute within the authority of the OHS regulators, but with conditions: "...a person may request in writing that the regulator bring a prosecution for the breach [of OHS law] and, if no prosecution is to be brought, have the decision of the regulator reviewed by the DPP [Director of Public Prosecutions]."
The DPP may then choose to instigate proceedings.
The ACTU submission says that there are several major benefits of the union’s right-to-prosecute. It allows for the "efficient use of [expert] resources...calculated to bring about organisational and cultural change", it motivates trade unions to be active in OHS and it "has the potential to encourage employers to actively involve trade unions in the management of occupational health and safety concerns".
Fary points out that prosecutorial action by unions in New South Wales have almost always been successful and have led to legislative change. These prosecutions have involved notable wins involving OHS issues such as bank security for tellers, musculo-skeletal injuries in stevedoring, and burns to a worker from the spraying of hot cement.
Commenting on the NSW OHS legislation in a recent media report, Professor Michael Quinlan of the University of New South Wales and James Schluter, a senior associate with Holding Redlich said that the union influence on OHS in NSW has "historically been a positive force".
In the same report, Quinlan said: "Unions are not using this power frivolously, as has been suggested. Historically, they have launched fewer than 20 cases and have won virtually every case they have run. One of the reasons we have security barriers for tellers in banks today is a result of a case pursued by the Finance Sector Union."
Perhaps the most obvious overlap of OHS law and IR law comes from the union right-of-entry in the IR legislation. Frequently, this right is exercised on the basis of investigating a workplace incident, injury, or fatality. This ties into the OHS legislative obligation to consult, investigate and control hazards and risks. The inherent advantage in OHS is that there is a strong moral reason for the legislation – the right of everyone to not be harmed while working.
Employer groups, mostly, will not argue against this moral position and the unions are active ambassadors for safety. The argy-bargy comes from the balancing of safety and productivity, personal risk and profitability, expenditure on safety equipment and executive salary levels, the socialist and the capitalist.
This dichotomy will not be resolved before the (increasingly flexible) 2011 deadline for OHS laws, regulations, and supporting documentation. The government has yet to report on the review panel recommendations. The deadline for the establishment of an organisation to oversee the development and implementation of national OHS legislation has not been met and an alternative strategy for Safe Work Australia is being sought directly with the states through the COAG process.
The global financial crisis has also extended its effect. OHS has always been perceived by business as a necessary cost burden. Now the implementation of OHS law reform must compete with increasing the economic pressure on businesses to remain viable and the increasing costs on business of environmental compliance. There has never been a greater need for the presentation of a business case for the importance of OHS legislation and yet there is no sign of anyone stepping up to the plate.
Kevin Jones has worked in safety-related areas for over 15 years. He is an OHS consultant, freelance writer, commentator, and blogger.
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