Health & Safety Report to AMIEU National Council 2010

Occupational Health and Safety

It is workers who die, are injured or made ill when workplaces aren’t safe.

The people who bear the burden of costs of work related injury and illness are workers. Financial costs are borne by workers and the community, not employers:

  • nearly 7,000 workers die each year as a result of work exposures;
  • employers bear only 3% of the costs of the disease and injury burden (43% of costs are borne by workers themselves and 47% by the community);
  • a survey by Safe Work Australia shows that for the majority of hazards the top 3 preventative measures are an over-reliance on administrative controls, particularly Personal Protective Equipment or 'nothing'.

In April 2008 the Minister for Workplace Relations, Julia Gillard, appointed an advisory panel to conduct a National Review into Model Occupational Health and Safety Laws. The terms of reference included harmonisation, including better health and safety, greater regulatory efficiency and effectiveness, more certainty for duty holders and the elimination of unnecessary regulatory compliance burdens.

At our last Council we accepted that it makes sense to have national OHS standards only if they provide the highest level of protection.

In January 2009 the Advisory Committee made their final report. Despite Union participation in the process in a productive way, that is ‘playing by the rules’ the proposed laws reduce the protection of workers.

The Draft Model Law was put out for public comment in the second half of 2009. I prepared a response that was lodged by Brian Crawford on behalf of the AMIEU. Copies were emailed to all branches. If any of you didn’t see it you can find it on amieuvic.net and meatiesohs.org.

December 2009 the Workplace Relations Ministerial Council adopted the Model Law.

The laws in all jurisdictions will reduce protection for workers

Jurisdiction Number of Positive  aspects in comparison with current laws Number of Negative  aspects in comparison with current laws
ACT 4 6
Commonwealth Employees 5 5
NSW 6 10
Northern Territory 1 8
Queensland 4 10
South Australia 2 9
Tasmania 2 7
Victoria 1 10
Western Australia 3 3
Overall 28 68

Some of these reductions are:
NSW          Union right to prosecute
Qld/NSW    Reverse onus of proof
NSW          Consultation with workers
SA             OHS Reps Training
Vic/ACT      OHS Reps Rights - limitations on PIN/Cease Work/Assistance
                 /Choice of trainer etc
Qld            Risk Management - ID; Assess; Hierarchy of Control
NSW          Union Right of Entry

More detailed Comparison between current OHS laws and the Model WHS Act June 2010

The InterGovernmental Agreement for Regulatory and Operational Reform in Occupational Health and Safety required that there was a two thirds majority of members of the WRMC (ie 6/9), for provisions in the Model WHS Act. For example:

  • Queensland currently has provisions for Workplace Safety Officers. There was no support form any other jurisdiction.
  • The Victorian Act and regulations do not have mandatory risk management requirements. Although the majority of other jurisdictions have such a provision, there was support for the Victorian approach.   

A brief summary of the positives and negatives, for each state jurisdiction, in comparison with the Model Work Health and Safety Law May 2010 and the regulations (which we currently do not know much about).

Also note that election of HSRs and their training rights is not covered as we do not have the Admin Regs as yet (19/05/2010)

For all jurisdictions, except Qld, there is the change of obligations being on the employer to the Persons Conducting the Business or Undertaking.

For all jurisdictions , the PCBU is the entitiy responsbile for consultaion
and representation rights for workers. 

The effect of the two above changes is unclear.
 
Australian Capital Territory:  Work Safety Act 2008

Positive  aspects in comparison with current laws

  • Role for union in HSR election and negotiation of work groups process
  • Increased functions for HSRs
  • Improved issue resolution through HSRs
  • Union right of entry for consultation on OHS issues, rights consistent with FWA

Negative aspects in comparison with current laws

  • Loss of employer obligations for systematic risk management
  • Loss of employer obligation to keep records
  • HSRs rights re PINs and cease work restricted to after being trained
  • Increased obligations on workers
  • If directed by HSR to cease work each individual worker is required to notify the PCBU that they have ceased work
  • Increased ability of employer and regulator to apply for HSR disqualification

Commonwealth  OHS Act 1991 (Amended 2006)

Positive  aspects in comparison with current laws

  • Ability unions to be more directly involved in negotiation of Work Groups
  • Election process of HSRs clearer role for unions
  • Able to negotitation for HSR represent more than one work site/employer
  • Union right of entry for suspected breaches OHS concerns.
  • Union right of entry for consultation on OHS consistent with FWA

Negative aspects in comparison with current laws

  • Loss of employer obligation to provide information in other languages
  • Loss of employer obligation to keep records
  • HSRs rights re PINs and cease work restricted to after being trained
  • Increased obligations on workers
  • If directed by HSR to cease work each individual worker is required to notify the PCBU that they have ceased work
  • Increased ability of employer and regulator to apply for HSR disqualification

Queensland: WH&S ACT 1995.

Positive aspects in comparison with current laws

  • Ability of HSR to issue cease work
  • Clearer on the ability to have more than one HSR per workplace
  • Able to negotitation for HSR represent more than one work site/employer
  • Deputy HSRs

Negative aspects in comparison with current laws

  • Loss of risk management in the Act (section 27A)
  • Loss of Work Safety Officers
  • Loss of  Reverse Onus
  • Loss of Employer obligation to keep records on OHS
  • Loss of Employer obligation to provide information in other languages
  • No explicit role for Principal contractors
  • Increased restrictions on union role in election HSRs
  • Increased ability of employer and regulator to apply for HSR disqualification
  • Detrimental change on workers obligations
  • Unions no role in negotiation of HSR training

NSW:  OH&S ACT 2000 & Regulation 2001

Positive  aspects in comparison with current laws

  • Good rights and powers for HSRs
  • HSRs to have powers of cease work and PINs
  • Ability to have more than one HSR per workplace
  • Able to negotiation for HSR represent more than one work site/employer
  • Deputy HSRs
  • Union right of entry for consultation on OHS matters

Negative  aspects in comparison with current laws

  • Loss of obligation on employer re systematic risk management
  • Loss of absolute obligation of employer to consult with employees
  • Loss of Employer obligation to keep records on OHS
  • Loss of Employer obligation to provide information in other languages
  • Loss of obligations on employers re risk management
  • Loss of workers as Chairperson for H&S Committee
  • Increased obligations on workers
  • Increased ability of employer and regulator to apply for HSR disqualification
  • Loss of Reverse Onus
  • Loss of Union right to prosecute

Northern Territory (WHSA 2007)

Positive  aspects in comparison with current laws

  • Provides Deputy HSRs with powers

Negative  aspects in comparison with current laws

  • Loss of Employer obligation to systematic approach to Risk management in the Act
  • Loss of Employer obligation to keep records on OHS
  • Loss of Employer obligation to provide information in other languages
  • HSRs rights re PINs and cease work restricted to after being trained
  • Increased ability of employer and regulator to apply for HSR disqualification
  • Increased obligations on workers
  • If directed by HSR to cease work each individual worker is required to notify the PCBU that they have ceased work
  • Unions no role in negotiation of HSR training

South Australia:  H&SW ACT 1986 & Regulations 1995.

Positive  aspects in comparison with current laws

  • Slightly changed obligations on workers (removal of reference to Drugs and alcohol but increased overall obligations)
  • Able to negotitation for HSR represent more than one work site/employer

Negative  aspects in comparison with current laws

  • Loss of obligation on employer re systematic risk management
  • Loss of Employer obligation to keep records on OHS
  • Loss of Employer obligation to provide information in other languages
  • HSRs rights re PINs and cease work restricted to after being trained
  • If directed by HSR to cease work each individual worker is required to notify the PCBU that they have ceased work
  • Increased ability of employer and regulator to apply for HSR disqualification
  • Decreased number of training days for HSRs
  • Fewer functions for H&S Committee, including right of union to be consulted about composition of committee and no ability for H&S committee to be active re retrun to work of injured workers
  • Slightly changed obligations on workers (removal of reference to Drugs and alcohol but increased overall obligations)

Tasmania: Workplace H&S Act 1995 & Regulations 1998.

Positive  aspects in comparison with current laws

  • Ability to have more than one HSR per workplace
  • Union right of entry for consultation on OHS consistent with FWA

Negative aspects in comparison with current laws

  • Loss of Employer obligation to designate  suitably trained persons to provide advice/be employer contact point on H&S
  • Loss of employer oblilgation to provide information in other languages
  • Loss of employer obligation to keep records
  • HSRs rights re PINs and cease work restricted to after being trained
  • Increased obligations on workers
  • Increased ability of employer and regulator to apply for HSR disqualification
  • Loss of direct ability for union to sit on H&S Committee

Victoria:  OH&S Act 2004

Positive  aspects in comparison with current laws

  • Union right of entry for consultation on OHS consistent with FWA

Negative  aspects in comparison with current laws

  • Loss of employer to employ/engage suitably qualified persons to provide advice
  • Loss of employer oblilgation to provide information in other languages
  • Loss of employer obligation to keep records
  • HSRs easy access to training limited ie HSR now has to wait up to 3 months to get access to training, cf current 2 weeks after a request has been made.
  • HSRs rights re PINs and cease work restricted to after being trained
  • Increased obligations on workers
  • Increased ability of employer and regulator to apply for HSR disqualification
  • If directed by HSR to cease work each individual worker is required to notify the PCBU that they have ceased work
  • Loss of obligation on inspector to provide written report of visit to HSR
  • Less worker rights under issue resolution

WA: Occupational Safety and Health Act 1984

Positive  aspects in comparison with current laws

  • HSR right to issue cease work, after attending training
  • Union right of entry for suspected OHS contraventions
  • Union right of entry for consultation on OHS consistent with FWA

Negative aspects in comparison with current laws

  • Loss of employer obligation to keep records
  • Increased obligations on workers
  • Increased ability of employer and regulator to apply for HSR disqualification

Regulations and Codes
Now Safe Work Australia is working on consolidated regulations and all impressions are that Deregulation is the focus of this process.

For example the drafting from the Parliamentary Counsel on the Regulations has removed assessment from the regulations and the hierarchy of control from the controls.

The draft regulations will be released for comment in November 2010.

Can anything be done?
The WRMC timetable means that the States have to pass legislation in 2011 and it all comes into place in January 2012. We now have a hung parliament with a Labor Government. There are several State elections before that so there is still a chance to put pressure on politicians if we are clear and united about demanding that national harmonisation of OHS laws must not reduce protections and rights for workers.