OH&S Rights Under Threat

Your OHS Rights under threat – National Model Laws Recommendations fail to deliver

The government said that there would be no compromise in standards. The government said that it would ensure ”protections are not reduced” (WRMC Communiqué 29 September 2006). But the final report on the National Review into Model OHS Laws, if implemented, would make sure that every worker in every State is worse off.

The Review Panel was asked to do a job. It went beyond its job. The result is a loss of rights for just about everyone.

The Review Panel made 233 Recommendations in its Second Report.

The key areas of concern for workers and unions arising from these recommendations - if they are made into law are:

1. Rights and Powers of OHS Reps
2. Rights of workers
3. Right of Entry
4. Risk Management
5. Tripartism
6. Onus of Proof on Employers
7. Union Right to Prosecute

Rights, protection and powers of OHS Representatives
Every worker has the right to be represented and every OHS Rep has the right to exercise powers in order to fulfil this representative role. However, there are many recommendations that, if implemented, reduce worker and OHS Rep rights.

If workers want to have an OHS Rep, a ‘work group’ must first be established – but there is no time limit within which this must be done!

Employers could run OHS Rep elections! Workers and their union are the only ones who have the right to determine who will represent them and how that will happen.

OHS Reps

  • Would have duties,
  • Must do competency based OHS training,
  • Could be taken to court by an employer or individual worker for “repeatedly neglecting their functions”
  • Would not have the right to call in outside assistance and
  • Are offered only limited protection from civil liability

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An OHS Rep couldn’t represent a member on an OHS issue - until it became a ‘dispute’.

Employers would not be obliged to consult OHS Reps on any OHS issue – only when they consider it “reasonably necessary”, but what is “reasonable” and what is “necessary”? It’s a very loose term.

Employers would also only have to consult those “directly affected” by an issue, but OHS issues affecting one group can affect another area of business. Victorian law also says the employer must consult with the OHS Rep.

Any dispute about a PIN (Provisional Improvement Notice, issued by an OHS Rep) would have to go to a court, when WorkSafe Inspectors have done this job for 24 years.

Ceasing work when there is an immediate threat or risk would be limited to “reasonable grounds”. This is lower even that current common law rights. Additionally, the Victorian OHS Act provides for “immediate threat” or “reasonable cause” to believe the threat is immediate and an Inspector adjudicating any disagreements.

OHS Reps may be asked to do training in their own time and could have no choice of course. The cost must be borne by the employer, done in paid work time and be the course of the OHS Rep’s choice.

OHS Committees would be of equal numbers. Our OHS Act says that OHS Reps will be committee members.

OHS Reps are just that – an elected Representative of a group of their co-workers. The only test for an OHS Rep is being voted in – or voted out! The day the Prime Minister of Australia has to pass competency training in order to be PM is the day it will be OK for OHS Reps. It is not the responsibility of the OHS Rep to make the workplace safe – that is the employer’s responsibility. OHS Reps also have the right to outside assistance, when they choose and whomever they choose.

Rights of workers
Employers would not be obliged to consult workers on an OHS issue- unless the employer deems it both “reasonably necessary” and that a worker is “directly affected”.

A worker would be barred from raising an OHS issue with an OHS Rep -unless it became a dispute with their employer.

Every employee has the right to have their OHS Rep involved in any issue that may affect them. Every employee has the right to raise any OHS issue with their OHS Representative – whenever they choose.

Right of entry
Union officials in Victoria have the right to enter a workplace where there is a suspected breech of OHS law and are required to “not cause work to cease”. New law would make this imprecise with a requirement to ‘cause no undue disruption’. Entry provisions must uniformly improve this valuable role.

Risk Management
Risk management would not be part of new OHS law for employers – but there for OHS Reps and Union officials. The Victorian OHS Act has lower standards than much of the rest of Australia as does not currently explicitly include Risk Assessment.
Risk assessment (‘How bad is it?’) is critical for workplace safety, as inquiries into the Beaconsfield mine collapse have shown and can not just be left to regulation.

Tripartism
Tripartism (where representatives of government, employers and workers jointly work together) is an essential part of any OHS law, and any body that oversees that law. A new Act must include this in it’s ‘objects’, must reflect the international standards of ILO Convention 155 and must establish a proper consultative document in each State.

Onus of proof on employers

The prosecutor of an OHS breach would have to prove that reasonable steps were not taken to avoid breaking the law. However, a defendant is in the best position to know what has been done, so they are the one that should show that what they have done was ‘good enough’.

Union right to prosecute
NSW unions have been able to prosecute for breeches since the 1940s – and have done so about 20 times. Laws have been changed and improved and workers have been made safer (such as banks made safer from robberies) because of this. Unions represent members and the ability to bring a prosecution is part of that representation. It must continue and must be available through out Australia.
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The Review Panel has come up with a long document that has some good recommendations but also many omissions, errors and (perhaps) unintended consequences.

If the Report recommendations were implemented, then Victorian workers would
• Not only lose many rights but also
• See a missed opportunity to enjoy the rights that workers in other states enjoy.

Unions continue to campaign for the highest standards of OHS rights for all workers and OHS Reps.

This is the once in a generation opportunity to get OHS law right!
We call on Government to deliver the highest OHS standards.