OHS REPS @ WORK

July 2008 - this is a summary of the ACTU/VTHC submission to the review of OHS laws.  See also the Communiqué from the Australian Trade Union movement.

While Australia’s economy is booming, workers are still being killed, diseased and injured at record rates. Nearly 690,000 workers get injured or sick because of work, up to 8000 are killed each year and up to 1.5 million are exposed to cancer causing substances and processes.

The Federal Government’s review of Australia’s OHS laws must deliver the highest standards of protection for workers.

• Every worker must be better off from this review.
• Employers will gain from this process – by reducing costs through having just one law. Employers can afford to improve standards for workers.
• Adoption of the Victorian OHS model will not deliver the highest possible standards. (Note: the Victorian Government and WorkSafe Victoria are proposing that Victoria be the model of the future national model)
  

Act now: sign the ACTU's Highest Standards for Harmonised OHS Laws Petition and let all your friends and colleagues know about it too. This is the time to act, before it's too late.

In the late 1970s the ACTU developed comprehensive OHS Policy. The four policy principles of prevention, employer responsibility, control of hazards at source and the right of workers to take action remain the guiding principles for good OHS law in the 21^st century.

It's time to deliver

OHS law is:

• About protecting all workers, including the precariously employed, the self employed, those in large and small enterprises, across gender and ethnicity.
• Based on universally recognised democratic principles, including the right of workers to collectively bargain.
• Not about the cost efficiency of government or business.

There are some bad signs about the future of this process. The Intergovernmental Agreement, signed by COAG (Council of Australian Governments) on 3 July, sets out the new national body, due to oversee development and implementation of the model OHS law. It is underfunded, reduces union representation down to two (currently three on the ASCC) and makes decisions by a 2/3 majority (13 votes in total).

Key Issues

1. ABSOLUTE DUTY OF CARE

The burden of proof for any defence must reside with the employer, with the ability to prove that ‘reasonably practicable’ steps were taken. It has worked in the UK for 30 years and it works in NSW and QLD. (This is NOT the case in Victoria)

2. RIGHT OF ENTRY

The ILO highlights the crucial role of unions in securing safer, healthier work environments. The World Bank has supported this. Union right of entry must exist for all work sites and for all OHS matters - not just suspected breaches. Unions must have the powers of a Health and Safety Representative at the place of work, including the ability to issue notices and inspect workplaces, systems and documents. (While Victorian unions DO have a right of entry into workplaces, this is limited to cases where there are suspected breaches. Once in the workplace, the union officer has only do a limited number of things, such as look into the breach.)

3. UNION RIGHT TO PROSECUTE

Unions must have the right to prosecute, particularly where the regulator doesn’t initiate a prosecution. In all industrial law unions have a right to assist and facilitate in the arbitration process. Being able to initiate a prosecution strengthens the effectiveness of the system, closes loopholes and helps bring about organisational and cultural change in an industry.

REPRESENTATION

Workers must have the right to freely elect and consult with representatives without interference, which Victoria has.

Health and Safety Representatives (HSRs) are the worker representatives. They must be consulted. This is a requirement in Victoria, but needs strengthening to ensure that consultation leads to successful outcomes.

HSRs must have strong and detailed rights and powers, but carry no additional duties, as they don’t control the workplace. The Victorian Act reflects this.

Workplace OHS Committees play an important role addressing issues such as developing policies and procedures, planning OHS improvements, engaging consultants etc. (Victoria has)

At least half the OHS Committee must be elected worker representatives (HSRs must be automatically appointed to the OHS Committee). (Victoria has.. except there's some vagueness when there are too many reps to go onto the Committee)

DISCRIMINATION AND VICTIMISATION

Workers, particularly HSRs, must be protected in law against actual and threatened discrimination, bullying, harassment, intimidation and detriment in their employment. (While the Victorian Act has this, it needs strengthening so that it provides real protection, as per the ALP Policy).

Worker representatives must be able to bring these matters before a relevant tribunal for resolution (Victoria needs such a tribunal).

RIGHT TO CEASE UNSAFE WORK

Workers have a common law right to refuse unsafe work (This is the case for most Victorian workers, EXCEPT those working in construction, due to the effect of the ABCC).

HSRs must also have the right to direct workers to cease work when there is an immediate threat, or reasonable cause to believe so (Again, Victorian reps have this right, EXCEPT for HSRs in construction due to the effect of the ABCC).

DUTY HOLDERS

All duty holders will have concurrent and overlapping duties and they must not be able to abrogate or delegate their duties (This is well-covered in the Victorian Act) .

ISSUES RESOLUTION, CONSULTATION AND PARTICIPATION

Issues resolution procedures, which provide for negotiated outcomes, should be included in the laws (These are included in the Victorian Act... but we believe there should be no 'agreed procedures' which could potentially undermine rights of reps)

There must be a mandated duty on the employer to consult (which the Victorian Act has) and to take into account those consultations when making decisions about health and safety (which Victoria doesn’t).

The model OHS laws must protect worker consultation, participation and representation rights. That means employers cannot:

• Choose whom they will or will not consult with (Victoria needs to be firmer), run HSR elections or select HSRs (Vic needs to explicitly take employer out of election process)
• Unilaterally determine the makeup of designated work groups (if applicable) (The Victorian Act requires this to be done by negotiation)
• Determine the worker representatives on OHS Committees (Victoria's Act is not explicit)

These issues are to be determined by the HSRs and workers, in conjunction with their relevant union if they choose.

SCOPE OF THE LAW

• There must be no ‘shield of the Crown’. (The Victorian Act binds the Crown)
• There must not be a complete takeover of all other industry specific health and safety laws, such as electrical and mining legislation. Such an approach would fail to reflect the effectiveness of existing laws. The harmonisation processes is already occurring in those industries. General laws could have a negative impact on safety outcomes in those industries.
• Work is defined without reference to where that work occurs. The definition of worker must embrace all persons performing work regardless of “employment relationship”, industry or sector. (Victoria defines 'workplace' but does not define 'worker')

NOTIFICATION OF INCIDENTS AND REPORTING

Substantial improvements in the type of data collected are needed including broadening and improving data sources (Victoria is not reporting on what it’s doing with respect to the national strategy or the work-relatedness of the national health priorities e.g carcinogenic substances).

EMPLOYER DUTIES

The primary duty to ensure worker health and safety is protected to the highest level (While this is the case in Victoria, it is qualified by ‘reasonably practicable’).

Employers control the budget, give directions and allocate resources, so are most able to control health and safety at work.

WORKER DUTIES

Worker duties should be limited to:

• Taking reasonable care for themselves and not knowingly endangering others (or themselves) (This is the case in Victoria)
• Following a reasonable instruction given for the purposes of complying with obligations under the OHS Act ( This is the case in Victoria )

RISK MANAGEMENT

A risk management clause, reflecting the ‘hierarchy of control’, must be included in OHS laws and must be legally enforceable to ensure it is activated (Section 20 (1) in the Victorian Act specifies the ‘concept of ensuring OHS’).

REGULATOR FUNCTIONS

Regulator functions must remain within each jurisdiction and increased resources must be provided to enable proactive enforcement of the model OHS laws (WorkSafe Victoria was criticised in the Stensholt Review (2007) in some areas as not being proactive and needing further resources e.g. prosecutions. Also WorkSafe has only 150 (out of 250) Inspectors actively out in the field).

The focus of an inspector’s duties must be enforcement of the Act and Regulations (We believe Victoria is wavering on this).

TRIPARTITE MECHANISMS

Each jurisdiction should have an independent statutory tripartite body tasked with delivering the objectives of the OHS Act and the model regulatory system. This body should report to the relevant Minister. (Victoria says it has one – but in fact, it doesn’t. WorkSafe does not want a body which can direct the regulator – which Victoria had with VOHSC, pre the Kennett Liberal government).

ENFORCEMENT, PROSECUTIONS AND TRIBUNALS

• Duties should apply concurrently and overlap and laws should allow multiple prosecutions against different duty holders (Which is the case in Victoria).
• The model OHS law must be easy to enforce. The law must include a hierarchy of enforcement approaches that provide a broad range of options, not limiting particular outcomes to particular sanctions (The Victorian Act covers this quite well)
• Prosecutions and matters of a criminal nature must be heard in the appropriate superior court of record in each jurisdiction.
• A conciliation and arbitration Tribunal to assist in the resolution of some workplace health and safety issues is recommended. The Tribunal should be made up of persons knowledgeable in OHS in each jurisdiction. Worker representatives must be able to bring matters before the tribunal for resolution (Victoria needs such a tribunal. Currently these go to VCAT, which is not appropriate in skills or current scope. Other states do better).
• The Tribunal must have the ability to hear grouped/industry wide claims and make industry wide rulings. It must also have the ability to hear bullying claims, one of the fastest the growing hazards in Australian workplaces (See above).
• The highest sanctions for breaches of any corporation related law should be available under the model OHS laws. Penalties for serious and/or permanent injury, both physical and psychological, and workplace fatalities should include the option of levying portions of the corporation’s revenue.
• The criminal offence of industrial manslaughter, or equivalent, is the appropriate charge where grossly negligent behaviour of Directors and Corporate Officers leads to the death or serious injury of a worker (Section 32 of the Victorian Act, 'reckless endangerment', has not worked, as it is necessary to establish that the person actually made the decision to do or not do something, rather than it being an omission to act. The concept of “gross negligence” more relevant to industrial setting)

Read more:

• July 15: Communiqué from the Australian Council of Trade Unions and the Labour Councils of Qld, NSW, ACT, Tasmania, Victoria, South Australia, Western Australia and the Northern Territory.
• Full text of the ACTU submission to the Review [pdf document]
  
• The National Review website; and public submissions page.