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National OHS Laws Update
OHS National Model Laws - Not Good Enough!
Many of the worst aspects of Recommendations from the National Review into Model OHS Laws were not agreed to by the Workplace Relations Ministers Council (WRMC) held in May. However, Victorian workers and our representatives will still be worse off if all of the remaining recommendations end up in the Model Law. Victorian unions continue to be concerned that our OHS Reps in particular will lose rights and functions if the harmonisation of Australia’s OHS laws continue in their current form.
These are the main areas of concern for OHS Reps:
Big losses for Victorian OHS Reps
While the WRMC recommendations acknowledge that OHS reps have a right to attend training, they are inconsistent with the OHS Vic Act and would lead to a lessening of our current provisions. OHS Reps have an entitlement to undertake training approved by WorkSafe – 5 days initial training, refresher training at least once per year and additional training if approved by WorkSafe (Reps conference, Union OHS Reps conferences for example).
Payment for training is by the employer and this is consistent with the Victorian OHS Act. However, the WMRC recommendations do not properly address how the proposed OHS Rep training and its timing will be done and leave too much power in the hands of the employer to determine.
Under our Act it is the rep who chooses the training in consultation with their employer - the only proviso is that reps must give their employer 14 days notice. If the employer does not agree then Worksafe makes a determination.
2. Fixing problems
Two important powers OHS reps have to fix problems are the right to issue a PIN and the right to direct a cease-work if there is an immediate risk. Under the WRMC recommendations, they won’t be able to use these powers until after they have been trained. This means problems will drag on. Currently under the Vic OHS Act, OHS reps rights and powers can be exercised as soon as elected, including issuing a PIN or directing that work cease.
3. Asking for assistance
OHS reps' right to seek the assistance of any person is a right in our current Vic OHS Act. The proposals incorrectly included this right to assistance in their discussion about right of entry assuming that ‘assistance’ is from outside the workplace and only from a union. In many instances the assistance can come from someone inside a workplace – another rep or delegate, worker or supervisor for example. Such an approach would be inconsistent with our current provisions.
4. Disqualification of an elected OHS Rep
The WRMC recommends that a court or tribunal could disqualify a rep under very broad circumstances.
This is inconsistent with our current Vic Act which provides that only a majority of members of the work group can resolve that the rep no longer represents them. An employer can apply to the Magistrates' Court to disqualify an elected OHS Rep when the rep has intended to cause harm to the employer – these are the only appropriate tests.
OHS Reps are elected workplace representatives. It is workers collectively who decide who represents them in this very important role.
5. Issue Resolution
The functions, rights and powers proposed by the WMRC do not include all OHS reps' rights and powers now in Victorian OHS legislation, for example, the role of the OHS Rep in issue resolution. The WMRC recommends that 'issue' now be defined as something that remains in dispute after consultation between the employers and affected workers. That is OHS reps could only be involved when there is an ‘issue’
This approach is inconsistent with the Vic OHS Act. 'Issue’ is not defined currently in the Vic OHS Act or the Regulations. The proposed definition could alter the Victorian provisions into a dispute resolution process. This will:
- create unnecessary impediments to the resolution of issues at the workplace
- undermine the rights of reps to be involved in resolving issues
- remove the right of the rep to be consulted about OHS
- remove the rights of workers to report issues to their rep
- remove the rights of workers to anonymity when reporting hazards
- undermine the rights of reps to issue PINs or direct the cessation of work.
The WRMC has agreed in principle to the recommendation on issue resolution with the proviso that there be no restriction on the involvement of OHS reps in the resolution of an issue. This is welcome, however a worker’s right to anonymity remains an outstanding concern.
Next steps for the Model Law
The recommendations accepted by the Ministers now form the basis of ‘drafting instructions’ to the people who are actually going to write the law.
Some areas that are currently covered by Victoria’s OHS Act will end up in a regulation (still legally binding, but of a lower status). These regulations are also currently being developed. Other areas that will be covered by regulations (such as Manual Handling, Asbestos and Hazardous Substances) will be developed separately, at a later date.
The work of developing the new Model OHS Act and regulations is being overseen by Safe Work Australia, a newly formed national OHS body, which has representatives from each state, but only two representatives each from unions and employers. See the Safe Work Australia website for more information. Safe Work Australia meets again 1 September to finalise the Draft Model Act and 'Administrative Regulations' and will then send them to the WRMC, which meets on 11 September.
The Model OHS Act and accompanying regulations will then be released for public comment after this WRMC meeting. At this time a ‘Regulatory Impact Statement’ will also be released. This is a detailed Statement of the financial cost of complying with a law compared to the financial benefit that will be gained from having the law in place (e.g. how much it will cost to make workplaces safer compared with the number of lives the law will save and reduced compensation costs). The public comment phase will last for 6 weeks.
After that time, public comment will be assessed and the ‘Model OHS Act’ will be finalised in December 2009.
The Workplace Relations Ministers Council will meet twice more this year, on 11 September and in December.
All jurisdictions have agreed to adopt the Model Law by 2011.
Many people have questions about the new Model Law. Here is the answer to some of them. If you have other questions, and can’t find the answer on this website, please email Margot Hoyte firstname.lastname@example.org and we can add your question and answer.
What is ‘Harmonisation’ and the ‘Model OHS Law’?
All jurisdictions in Australia have agreed to adopt common OHS law by 2011. The ‘jurisdictions’ include each state (e.g. Victoria, New South Wales and Queensland) as well as the Commonwealth Government (as it administers the ‘Comcare’ OHS Act). A ‘Model law’ is currently being developed which will then be put though each Parliament. So, as early as next year, the Victorian Parliament could pass a new OHS law that will cover all workers in Victoria (except those currently covered by Comcare legislation). At this time our current OHS Act 2004 will be replaced by a new OHS Act.
This is truly a ‘once in a lifetime’ opportunity to improve the workplace health and safety rights and entitlements.
When did all this start?
In February 2006 the Council of Australian Governments (COAG) agreed to a new National Reform Agenda. Six priority cross-jurisdictional ‘hot spot’ areas were identified, where “overlapping and inconsistent regulatory regimes are impeding economic activity” (COAG Communiqué).
So, the Model Law is being developed particularly as a ‘cost cutting’ exercise for business.
The Workplace Relations Ministers Council (WRMC) in September 2006 adopted the principle of “ensuring protections are not reduced” (WRMC Communiqué).
IMPROVE PROTECTIONS DON'T REDUCE THEM