New bill weakens OH&S responsibility for bosses

By Joan Lemaire

Proposed changes to the State Government's Occupational Health and Safety (OH&S) would diminish workers' rights and the responsibilities of bosses.

On May 11, Unions NSW declared its opposition to the Occupational Health and Safety (OH&S) Amendment Bill 2006, and demanded that the Government delay the Bill's introduction into Parliament until there is adequate consultation with unions.

In correspondence to Unions NSW, Federation indicated it was appalled by the contents of the bill and the short time (two weeks) that the Government had allowed for consultation.

Federation and the other unions oppose the Bill because it will diminish workers' rights. The current provisions of the OH&S Act impose an absolute liability on employers to ensure employees' health, safety and welfare at work. The bill amends this obligation so that it is limited by the words "so far as is reasonably practicable".

Another amendment seeks to place a new duty on an employee to "take reasonable care for his or her own safety" while at work. It may appear to be common sense that workers look after themselves. Federation is aware of many incidents where a teacher has intervened in a situation to prevent harm to students, when he or she was aware that this intervention posed a risk of injury to him or her self. Federation raised this issue with Unions NSW, pointing out that no matter how the teacher reacted in a situation like this they would be open to criticism from the employer.

The Bill will make it more difficult for unions to prosecute employers for breaches of the OH&S Act in two ways.

First, inserting the qualification "so far as is reasonably practicable" in terms of the obligation to ensure health, safety and welfare at work will put the onus on the prosecutor to prove there were "reasonably practicable" measures which could have been taken. Currently the onus is on the defendant to prove that there were no "reasonably practicable measures" which could have been taken.

Secondly, a new section is to be inserted into the Act to allow an employer to make an "undertaking" to remedy an alleged breached or breach. If WorkCover accepts the undertaking no prosecution can commence.

The bill does expand the 'right of entry' provisions for unions to discuss OH&S matters and improves the position of outworkers, but these provisions are not sufficient to counter the negative impact of the other amendments.

Unions NSW has sought a meeting with Industrial Relations Minister John Della Bosca to outline the affiliated unions' opposition to the bill and the need to delay its progress in Parliament. Federation has been, and will continue, to be involved in this campaign.

Joan Lemaire is an Industrial Officer.

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