On April 4, 2008, federal workplace minister Julia Gillard announced a review into occupational health and safety (OH&S) laws. The government said the review was aimed at harmonising OH&S laws across Australia.
More than a year later, its clear that the proposals to "harmonise" the laws will actually reduce the rights of workers and unions to stop illness, injury and death at work.
The review's advisory panel has released two reports after receiving hundreds of submissions from unions, employer groups and others. Its latest report, released on February 13, severely limits the ability of unions and workers to defend workplace safety, placing workers at more risk at work.
The federal Labor government undertook the review to make "a key reform for business", according to the February 12 Australian Financial Review.
Workers lose
Rather than "harmonising" the 10 different OH&S laws on the basis of the strongest protection for workers, the review chose to model the new laws on Victoria's weak laws. NSW is generally recognised to have the strongest OH&S laws. NSW unions and workers will be the biggest losers.
The most serious problem with the report is that it recommended the scrapping of the highest standard of employer responsibility for health and safety be scrapped.
Under the existing NSW Occupational Health and Safety Act (2000), employers have a clear responsibility to ensure workers health, safety and welfare at work.
The report proposed new laws where the employers' responsibility will be watered-down to what is "reasonably practicable".
NSW Teachers Federation industrial officer Joan Lemaire argued on the union's website this change will mean "employers will be able to argue that cost, lack of knowledge and difficulty in managing risks means that it is not 'reasonably practicable' to control risk".
The review panel also said that the burden of proof for establishing blame for workplace incidents should be reversed.
Under the NSW law, the employer must prove that they took all possible steps to lessen health and safety risk in the workplace. Under the proposed changes, it's the prosecutor who will have to prove that any workplace incident was caused by employer neglect.
Business off the hook
The report's proposals also ban unions from making OH&S prosecutions. Only inspectors of the proposed federal health and safety body, Safe Work Australia (SWA), will have that right.
Union officials will be able to ask SWA inspectors to investigate breaches of OH&S law. They will also have the right to appeal against decisions — including where the SWA decides to take no action.
But unions will lose the right to take bosses to court for unsafe workplaces themselves. Under NSW law they have this right.
The proposed changes will weaken the rights of unions to protect their members in other ways. Union officials will have to give 24 hours notice before they can enter a workplace to talk to workers about OH&S matters.
The only exception to this is if unions can show in advance there has been a likely breach of the OH&S laws by the boss. Under the NSW legislation, unions have an automatic right to enter workplaces on OH&S grounds without notice.
The limitations argued for by the review panel will also apply to union inspection of employer OH&S records and documents.
Individual workers will have a bigger duty to ensure their own health and safety, while the boss will have less responsibility. The duties of elected OH&S representatives will also be higher.
Workplace representatives may also be forced to pay for their own training. OH&S training will be mandatory under the proposed law. While representatives will be guaranteed paid leave for the training, the cost of the training itself is left in the realm of an "issue". The boss and affected worker will work this "issue" out through "conciliation".
OH&S workplace representatives will be held accountable for their decisions and may be removed or suspended from their positions by a tribunal or court if the boss asks. Workplace representatives could be removed if found to be "acting unreasonably in the performance of their functions and exercise of their powers", the report says.
The NSW Nurses Association website says "these changes will deter employees from being willing to take on the health and safety representative role".
The state governments have been complicit in the review panel's plans to weaken Australia's OH&S laws.
Union opposition
John Sutton, national secretary of the Construction Forestry Mining Energy Union said on February 25 that "the NSW government's submission did not advocate their own OH&S Act and they seemed content to sit back and let the other state Labor governments and the employers cut it to pieces".
Sutton lamented the failure of the review to raise penalties
for bosses who flout OH&S requirements.
The CMFEU has sought to increase maximum fines to $6 million and maximum jail time to 13 years for breaking OH&S laws.
The new laws will contain "maximum fines of three million dollars and jail terms of up to five years for the most extreme cases of recklessness — so corporations can rest assured that whatever they do to kill, maim and contaminate their workforces it will never really impact on their bottom line", Sutton said.
"With the rest of the recommendations on prosecutions the chances of an employer serving any time behind bars is close to zero."
While unions have strong objections to the proposed changes to OH&S laws, the plans for a campaign to protect existing rights are limited.
While Sutton called on workers to "fight these offensive proposals very inch of the way", for instance, he gave no details of any union campaign.
The Nurses Association called on members to sign the petition on the Australian Council of Unions website, phone talk-back radio shows, write letters and talk to politicians.
The Teachers Federation called for members to "continue to pressure both federal and state members of parliament that our right to a safe workplace is worth fighting for".
Unions NSW has produced a postcard to Gillard, calling on her to keep stronger OH&S laws.
As yet the union movement has called no stoppages, no industrial action and has staged no protests about the changes. For such an important issue — literally a matter of life and death — the response is underwhelming.