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Late last Friday (25 September), Deputy Prime Minister Julia Gillard released an exposure draft of the proposed national work safety laws. The proposal has been signed off by the states with some predictable hedging by New South Wales.
Robert Gottliebsen and myself have written extensively on the work safety law harmonisation process and the two stark choices available. Robert describes it as a choice between the French system of criminal justice (presumption of guilt) and the English system (presumption of innocence). The Australian comparison is between the NSW model (French) and the Victorian model (English).
Gillard’s national work safety law closely resembles the Victorian OHS Act. But Gillard’s model faces union opposition. They want the NSW way.
The ACTU has launched radio ads against Gillard's proposals (you can listen to the ad here) and has run opinion pieces in the media. In the best of ACTU class warfare spin they’re not directly attacking Gillard but painting images of some underhand big business conspiracy against powerless workers. I’ve challenged them to a public debate on the facts but I’m not anticipating much of a reply.
Predictably unions will do what they did with the Fair Work Act and are doing with the design of the construction industry reforms. They’ll lobby Labor caucus to modify the laws in their direction and fight to the last five minutes of debate in the Senate.
It's important to understand what they want. NSW laws are constructed very much from a class conscious perspective. Employers, but only employers, are deemed to be guilty simply by virtue of a safety incident occurring. Individual corporate managers can be and are convicted. Unions can conduct prosecutions and receive half of the fines. NSW unions’ revenue from this since 2002 is in the many hundreds of thousands of dollars. Prosecution takes place in industrial relations courts, not criminal courts, with no appeals.
But consider the double standards.
Since 2000 at least five NSW businesses have been hit by more than $600,000 in OHS fines following armed hold-ups. The armed violent robbers have access to full criminal justice rights if prosecuted. Yet the victims of the hold ups, the business managers, are denied those same justice rights when they faced NSW OHS criminal prosecutions.
And the laws are applied selectively. The NSW Workcover authority has a history of failing to prosecute NSW government authorities. A NSW union-owned labour hire company was not even investigated following the deaths of three of its employees in an underground coal mining disaster (see my 2006 report).
One dissenting judge in NSW described one prosecution as “… constituting more than prosecution and amounting to persecution of the defendants…” The judge said “…if the prosecution of offences is taken in an arbitrary, capricious and irresponsible fashion, the laws themselves are brought into disrepute.”
The ACTU is campaigning to apply the NSW laws nationally. Gillard proposes to sweep the NSW laws away by ensuring criminal justice principles are enshrined in OHS laws within a strong legislative framework that targets safe work.
Gillard’s model OHS laws most closely resemble those in Victoria. But Western Australia, South Australia, Tasmania, Northern Territory, ACT and federal OHS laws are all aligned on the core principles, if not all of the specifics. Queensland will require some modification. For all of Australia, except NSW, Gillard’s laws represent real progress towards stronger and more successful work safety laws that has been developing for some 20 years.
The model laws requires everyone at work to be responsible and liable for safety in accordance with the factors each individual is reasonably and practicably able to influence in the workplace. A worker who fails to mop up spilt grease can be held liable. A corporate director or manager who tolerates an unguarded machine will be liable.
Workers will be protected if they refuse to do unsafe work. Authorised worker safety representatives will have powers to require unsafe work to be stopped. Trained, ticketed, OHS authorised union representatives will have entry rights but can have their authorisation removed on application by businesses where abuse occurs. Prosecuting authorities will have strong powers of investigation and prosecution. For most states, except NSW, this represents consolidation of their existing laws. For NSW it represents a removal of the justice abuses which they have embedded in their laws.
The real key, however, is cooperation. By ensuring that everyone is responsible and liable based on practical work realities, safe work cultures through cooperation are triggered and encouraged. This is the fastest path to safer work. Gillard’s national OHS model however, is threatened by the ACTU’s campaign.
Ken Phillips is executive director of Independent Contractors Australia and author of Independence and the Death of Employment.
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3 Comments
Robert Soutter, CAD draftsperson wrote:
On the subject of direct path to safer workplace.
In my profession we have been subject to dramatic technology changes over the past 25 years.
In the mid 80s most draftspersons worked on a drawing board. Since that time computer aided design has crept in to such an extent that it is almost the only totally accepted method of drafting. Almost without exception since the change started, no thought has been given to the workplace design for these CAD operators.
When we have had experts around to look at our workstation set-ups, they model the station on the set up of a clerical set-up. So in our industry we need better understanding of what is required to perform our tasks without the risk of the neck and back injuries caused by bad posture. In 2004 when the OH&S Act (Vic) was introduced, company management started to look at things with regard to what they had to do to avoid individual and company prosecution, very little has been done to look at what can cause injuries in an office environment.
That is until I recently, in July 2009, read a paper written by the Department of Health and Ageing titled "Experience Works" The Mature Age Employment Challenge.
It touches on problems within the workplace due to substandard workstation design, but I think it can go deeper. Let's not look at assuming the employer is guilty, let's look at ways we can work together to achieve a safer work environment. Let's try to avoid all these massive injuries as the mature age worker enters their retirement phase. We want our workers that have helped reshape this nation, to live in as healthy and happy lifestyle as we can provide.
28 Sep 2009 10:12 AM
John Davidson wrote:
I have run a mine safety department, worked in operations management in a number of states as well as being a member of a group preparing safety rules for a major mining and construction company that works in all states of Australia. Moving from state to state is a problem because the difference in OH&S laws is often hidden in the fine detail. I am a strong supporter of a federal system but do think that there should still be scope for state innovation as long as the additional/tighter rules are clearly listed as such.
There are clear dilemmas with the concept of criminal provisions. On one hand, there are cowboys out there who deserve to be punished and banned from supervisory positions. On the other hand, the threat of criminal prosecution inhibits accident investigations and reduces the chance that the real problems will be found, fixed and communicated to others who might have the same problem.
The criminal approach also encourages companies to protect themselves by having complicated rules in place so that they can blame the victim. Sometimes it is more effective to concentrate on a limited number of principles instead of having too many complicated rules to remember. The growing legal threat is a good reason for competent people to consider avoiding management positions in which they can be prosecuted for the shortfalls of others. (See The direct path to a safer workplace, September 28.)
28 Sep 2009 12:50 PM
Terry Kesby wrote:
It's good to see you feel so strongly about justice, but does your justice only apply one way? (See The direct path to a safer workplace, September 28.)
Building workers have no justice from the ABCC. Terrorists and murders have more legal rights than building workers. Is it justice for all or only justice for those you have a vested interest? At least the employers are not jailed for refusing to answer questions that may or not incriminate them. Cooperation is fine but profits and production come before safety. Justice for some is no justice at all.
28 Sep 2009 6:44 PM
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