“It's about the passion”

Harmonising Australia's Work safety laws:
The big debate

Updated January 2012

Update March 2012: Bad OHS laws canned

The Victorian Premier has said 'NO' to the harmonised OHS laws. The South Australian Liberals have also said 'NO'. Effectively, the harmonised OHS laws are dead. The Gillard government needs to review and fix the laws if it wants an outcome.

 

 

Update February 2012: Not-for-profit and volunteer organisations to be hit

The Gillard government proposes to introduce a new regulatory system for the not-for-profit and volunteer sector. The Bill sets up a commission that will have near-identical powers to question volunteers that it's just removed from unions. The double standard is glaring.

The government is also introducing new tax laws for the not-for-profit sector but exempting unions from those laws.

Update 15 January 2012: Scout volunteers OHS risk

The NSW Scout Association has issued a memo to its volunteer leaders. In part, it says: If you do not follow directives, policies and procedures, you may be fined.

What it doesn't say is that prosecutions are conducted under criminal law, that a volunteer would be denied the right to silence and they could be held responsible even if they didn't have control of the situation. Here's the Scouts Association memo. Ken Phillips' associated Business Spectator article is here. Further commentary from the The Australian here and here and from ABC Radio Newcastle here.

Update January 2012: Work safety bribery

The Gillard government is threatening to withhold money from the states if they do not implement new work safety laws. Judith Sloan from The Australian explains why states are resisting these bad laws.

 

 

Update December 2011: Queensland to join the OHS harmonized traffic jam

Western Australian, South Australia, Victoria and Tasmania have all put the harmonisation of work safety laws on hold. Now the Queensland opposition has condemned the laws, calling them flawed and declaring that it will amend them should it win at the next election. Ken Phillips's articles can be found here and here.

 

 

Update October 2011: Work safety: Why one word---'control'---is so important

Stop work deaths and injuries. We explain why the word 'control' is so important in work safety laws. Federal and State governments have made a big mistake in designing their new harmonised laws. But it's not too late to fix the laws before they are passed. Here's a link to the debate in federal parliament yesterday on this issue.

 

 

Update September 2011: Dangerous work safety laws. Stop them

We have to oppose the rollout of the new work safety laws across Australia. They will damage safe work. The new laws (a) remove the right to silence and protection from self-incrimination (b) enable the regulator to 'seize' businesses without court supervision (c) create confusion over who is responsible for safety. This puts safety at risk.

• Here's an overview of the situation.
Here's our comparison of the model laws with current
Victorian OHS laws
South Australian OHS laws
We'll be doing comparisons with other states soon.
Coverage in The Australian from 9 September.

Update 21 September: the debate advances.
• ABC TV Business Lateline (20 September).
• Business Spectator (21 September) Ken Phillips explains the current state of play.


Update: June 2011

There's been a long debate in Australia over the design of work safety laws. Essentially the debate has been between 2 opposing views that are
  • Employers are always responsible and must always be found guilty. This has been the design of the New South Wales laws (Until May 2011). Australian unions are big supporters and pushers of this law design.
  • Everyone is responsible for safety according to what they 'reasonably and practically control'. This is the design of the laws in Victoria and the all other states.
The NSW laws were found to be unconstitutional by the High Court in 2010. The Victorian style laws are consistent with Australia's international work safety convention obligations.

Since 2008 there has been an attempt by all Australian governments to develop similar (harmonized) work safety (OHS) laws so that every Australian knows their responsibilities to safety at work. The states agreed to new laws in 2009 to be implemented in each state by 2012 (see below).

Harmonized Laws. 2 big flaws

Unfortunately the laws laws have two big flaws that will create serious confusion and harm any improvement in work safety.

If someone said to you that you were responsible for what you "reasonably and practicably" you'd wonder what on earth they were talking about. But if someone said that you were responsible for what you "reasonably and practicably control", then you'd understand. You're responsible for what you control. The new laws have removed the word "control". This is the first problem.

• We have a background article here.
• And a more extensive summarised analysis here.
• The fix is here.

The second problem is the removal of the right to silence. We explained this in early May. Robert Gottliebsen explains why these problems led the model OHS laws to 'fall over' in South Australia. But Queensland has passed the laws and in NSW the proposed legislation passed the Upper House late on the night of Friday 27 May.

In an important and hugely positive development, the new NSW O'Farrell Government has effectively repealed the bad NSW OHS laws of 2000. Here are the details of the Bill. Here is a summary article from The Australian.


Targeting standard safety laws

September 2009

On 25 September the Deputy PM, Julia Gillard, released the proposed national work safety laws for public comment. It's a shame the ACTU opposes her initiative. You can  read Ken Phillips's associated articles in Business Spectator and The Australian.

Important Links:

ACTU campaign against safety laws

September 2009

On 14 September, the ACTU launched a radio advertising campaign opposing the Rudd Government's proposed national work safety laws.

The advert (mp3 audio file) is highly misleading by claiming that the Rudd laws will put workers at risk. This is dangerously wrong. The proposed laws will significantly improve work safety.

The union campaign is short on facts, false in its claims and deceptive about the truth of the improvements under the proposed laws. Today, Ken Phillips, Executive Director of Independent Contractors Australia, challenged the ACTU to a public debate on the facts of the proposed work safety laws. "Anywhere, anytime" said Ken. "We've got to stop the union bull on this issue."


State and Federal Ministers agree to principles of new OHS laws

May 2009

The Federal Government has committed to harmonization of Australia's OHS laws.

ICA sees this as a big breakthrough because the proposed laws are of the right type:
(1) The laws reflect the Victorian model.
(2) The definitions of employer and employee are NOT the basis of the laws.

These are very positive outcomes, consistent with the long-argued positions of ICA. We believe safer work will be the outcome.

The two key documents are:
(1) Ministers' joint communique
(2) Details of the principles of the new legislation.

For Business Spectator commentary article by Ken Phillips, click here.
For Ken's 'Counterpoint' interview with Michael Duffy, click here.

In May 2009, national workplace relations ministers signed up to the principles that will form the news laws. The Victorian model has prevailed. ICA strongly supports this outcome. The position taken by the ministers is common sense and will lead to an improved work safety environment for all Australians.

For the full position of the WRMC, click here.

Key points are as follows:
  • The laws are to 'move away from the traditional emphasis on the employment relationship as the determiner of the primary duty (OHS)'
  • 'Application of the primary duty of care to any person conducting a business or undertaking'
  • Volunteers will not have 'inappropriate' duties of care imposed upon them. Note: Volunteers can still be prosecuted under general criminal law.
  • Every person involved in work activities will have statute obligations to act safely. This covers anyone conducting a business, whether as an executive, manager, independent contractor, employee, supplier, designer and so on, even a union. The responsibility applies to the private and public sector alike. No-one is outside the responsibility loop.
  • Everyone is responsible to the extent that is 'reasonable and practicable' for them within the realities of their work. That is, it is a defence for a person charged to argue that they did everything they could that was 'reasonable and practicable'.
  • OHS codes will be developed covering specific practices (eg) electrical. (Many of the codes are already in place but need to be made nationally consistent.)
  • There is a presumption of innocence. The prosecution must prove a case to the 'criminal standard of proof' and 'must bear the onus of proving beyond reasonable doubt...'
  • There are to be 3 levels of offences (a) the most serious where recklessness is involved (b) high level of risk without recklessness (c) lower level where recklessness or high risk was not involved. Note: Normal criminal law applies, for example, with manslaughter etc., beyond the scope of OHS laws.
  • Jail for up to 5 years is possible for the most serious offences.
  • There are no appeals from acquittals. 'Double jeopardy' does not apply. For example, under NSW OHS laws, a person can be tried twice for the same offence---even if they have been found innocent on the first trial.
  • Workers will be able to elect safety representatives who will have wide powers, including the possibility of being able to stop work. The provisions are to be modelled on those already in place in Victoria and recently introduced in Queensland.
  • Elected safety representatives can be disqualified by a court for improper use of their powers.
  • A worker will have the authority to cease work if he or she believes the work to be unsafe.
  • OHS officers will be immune from personal liability in exercising their duties.
  • Unions will have right of entry to worksites consistent with provisions in the Fair Work Act. A union official must be authorized, have training and can have his or her authority removed by a court for inappropriate conduct. Union officials will not be able to 'investigate' but only 'inquire into.'
  • ONLY the departments of public prosecution will be able to prosecute. That is, unions cannot prosecute.
There are some points which ICA believes require further consideration:
  • Allowing OHS inspectors into private homes. The ministers' statement is a little unclear as to whether inspectors are to be allowed only into those parts of a private home where work is conducted or whether they can enter any part of a home. The risk is that private homes could be 'raided' by OHS inspectors without a warrant---giving them greater power than the police. Clarification is needed.
  • The right to silence has been removed. ICA is undertaking some research into this, but on the surface there are concerns. It has been a long-standing principle of criminal justice that every person has the right to silence so as not to incriminate themselves. Police cannot force a person to answer questions in a criminal investigation. The WRMC position seems to give OHS inspectors an authority not available to the police and without any justice safeguards. For example, a person must answer questions even without a warrant being issued or charges laid. Clarification is needed. Note: ICA understands that this is NOT a feature of the Victorian OHS laws.



Chance for safer workplaces,
if laws matched the new attitude



Ken Phillips

The Sydney Morning Herald

Tuesday, March 06, 2007

The NSW Government has launched a new attack on the unacceptably high death and injury rate in the state's workplaces. In 2004-05 there were 125 deaths and 50,000 serious injuries in work-related incidents in NSW.
The new campaign is a multimedia blitz, Homecomings, and is based on a successful Victorian campaign last year, punching the message that work safety is about coming home to your family. If you are injured or killed at work your loved ones and friends bear the emotional and other consequences as much as you suffer.

This psychological tilt at work safety attitudes targets a great weakness: one of the hardest attitudes to create at work is to have everyone thinking about safety every moment of every day. Injuries and deaths too often occur because of inexplicable lapses of safety attitude.

Accident case studies groan with such instances. A big trick in work safety is to achieve a 100 per cent safety focus all day every day. Homecomings says: 'For your families' sake, think safe.'

If work safety is to be improved, state governments need to learn from each other. Best practice needs to be repeated across Australia. But this is where NSW needs to learn a lot more.

The Homecomings campaign in Victoria emerged from a 2004 sea change in Victorian work safety laws. This produced a big shift in the approach of the Victorian WorkCover Authority to how it relates to businesses and workers on safety.

Before 2004 Victoria had experimented with highly aggressive prosecutions against employers. Because work safety is such an emotional issue, often the reaction is to blame someone. This reaction reasons that employers always cause work safety incidents and that tough laws and aggressive prosecutions are needed to scare employers into behaving.

This is the policy approach used in NSW. It's the design feature of NSW work safety legislation and is the force underpinning NSW prosecutions. But after much public debate Victoria rejected this approach. The 2004 Victorian laws are built around the recognition that everyone at work contributes to safety. The laws hold everyone, employers and employees, equally responsible over what they control. Prosecutions target everyone who may have contributed to a safety breach.

Further, the Victorian laws removed legal blockages to the WorkCover Authority's capacity to advise and help business with work safety procedures. Co-operation rather than aggression is seen as the first, essential part of a total package to improving work safety. Out of this new approach the creative Homecomings campaign was born.

But the NSW approach of aggressive, fearsome attacks against business is at odds with Victoria's. So obsessed is NSW with instilling employer fear that natural criminal justice has been stripped from the system. Occupational health and safety criminal prosecutions impose presumption of guilt, apply unachievable criteria for proving innocence and deny full rights to appeal or trial before jury.

This stripping of justice is justified on the grounds of needing to obtain convictions regardless of safety behaviour, to create a culture of employer fear. Academic literature on the topic openly promotes this. But inevitably injustices occur under such a regime.

Many cases have emerged of clearly blameless persons being convicted. Irregularities in prosecution processes have been documented. And the judiciary is concerned. A senior NSW judge recently described one prosecution as 'constituting more than prosecution and amounting to persecution of the defendants', said the prosecutor had acted 'inappropriately', and argued for fixing of the laws and the sacking of the NSW WorkCover Authority as the Government's prosecuting department. Last year the Government seemed to recognise the problem. It tried to reform the laws but NSW unions campaigned against them. The Government backed down and the laws and culture of employer-hate on work safety remain. Co-operation and guidance as the first benchmark for safety are not part of the NSW Occupation Health and Safety system design or practice.

NSW is at a threshold on work safety. The Homecomings campaign is a great initiative. But the Victorian ads are underpinned by a realistic and practical approach to achieving better work safety cultures. NSW does not have this. The NSW campaign may fail because it's marketing spin lacks policy substance.

For work safety's sake, NSW needs to take the next step and fix its laws.