OH&S standards at risk

By

Joan Lemaire

A national occupational health and safety review may reduce standards.

On November 30 a Federal Government-appointed advisory panel to conduct a national review of occupational health and safety (OH&S) legislation issued its first report. The panel's role is to consider OH&S legislation in each state and territory, and develop recommendations for a model OH&S Act which could be adopted by the Commonwealth, states and territories, thus "harmonising" OH&S laws.

Underpinning the review process is a view by the Council of Australian Governments (COAG) that harmonisation must "cut red tape, boost business efficiency". One of the guiding principles is an agreement that there will be no reduction "in standards for legitimate safety concerns [our emphasis]". If workers have got to prove that a higher standard is legitimate rather than that a lower standard is not satisfactory then this does not bode well for workers.

The first report of the panel contains a number of recommendations which would reduce the OH&S standards available to workers in NSW.

Under the NSW Occupational Health and Safety Act "an employer must ensure the health, safety and welfare at work of all the employees". If the employer breaches this obligation, either WorkCover or the relevant union can prosecute the employer. During the prosecution the employer can argue in defence that they took all reasonably practicable measures to control, minimise or eliminate the risk. This places the onus on the employer to prove their case.

The recommendations of the review panel undermine this standard. Rather than requiring the employer to ensure health and safety the report recommends that the employer need only do what is "reasonably practicable" to ensure safety. The suggested definition of "reasonably practicable" will take into account what the duty holder knows or ought to know about the hazard and how it can be eliminated or controlled. In terms of hazards associated with violent behaviour this may mean that additional staffing and resources may not be considered "reasonably practicable" and teachers will continue to be injured.

Rather than the employer proving that they took all reasonably practicable measures the recommendations require that the prosecution will have to prove "beyond reasonable doubt" that the employer failed to take these measures to eliminate or control the risk. If the prosecutor is not successful they have to pay the legal costs for the defendant (employer) which can be hundreds of thousands of dollars.

It seems likely that there will be less prosecutions if these recommendations are implemented.

A second report will be released on January 30, 2009, which will make further recommendations concerning the scope and coverage of the model Act, definitions, provisions for consultation, enforcement and compliance and the role of the regulators (for example, WorkCover).

NSW unions, including Federation, have met to consider the first report and plan a further submission to the panel concerning the matters to be dealt with in the second report. It is clear that unions will need to lobby and pressure both the NSW Government and the Federal Government to reject the recommendations which lower standards of health and safety for workers.

Following the release of the second report the Federation will produce pro forma letters and other materials to campaign to retain our rights to a safe and healthy workplace.

Joan Lemaire is Industrial Officer.

For further information

December 2008 contents