Safety laws to go national

AUSTRALIA will move to a national occupational health and safety system after state and territory governments recently agreed to “harmonise” their laws. But the trade unions are condemning the change as a death sentence for safety in the mining industry.
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Claire Svircas

The Workplace Relations Ministerial Council this month voted on a national workplace safety regime to replace the current one, in which each state runs its own OHS scheme. The majority of the recommendations were accepted.

The move has been hailed as historic by most; others say it will come at a cost.

Australian Industry Group chief executive officer Heather Ridout said the decision paved the way for a genuinely national OHS system that would ensure bosses had to do what was reasonably practicable to provide a safe workplace.

“Safety is too important to have the rules rewritten in every state,” she said.

“It makes compliance a costly and diverting nightmare.

“While business will continue to have difficulties with some of the recommendations, we need to move forward on this and the sooner we see the draft legislation to create a national OHS system, the better.”

Ridout outlined two important recommendations: provisions that qualify an employer’s duty of care to do what is "reasonably practicable" to provide a safe workplace; and the appropriate application of criminal law so a person accused in an OHS case is innocent until proven guilty.

Under the proposed regime, there will be appeals all the way to the High Court.

The proposed laws closely resemble those in Victoria, which were reformed in 2004.

While most states welcomed the move, New South Wales argued for stronger laws to be used as a basis for the new model, claiming safety protections will be weakened as unions will no longer be able to prosecute for breaches.

The recommendation for the employer’s duty of care to do everything that is "reasonably practicable" to ensure a safe workplace is in contrast to NSW laws, which make the duty of care absolute.

In addition, the new laws place the onus of proof on prosecutors, rather than employers, as in NSW.

Western Australia and Queensland also expressed concerns over the proposed law.

Western Australian Treasurer Troy Buswell said he remained committed to harmonisation, but was unhappy with the use of conciliation to resolve OHS issues, the low standard of proof for workplace discrimination claims, the level of penalties – including jail terms of up to five years – and union rights of entry.

While union rights of entry are preserved, they specify 24 hours notice for a union representative to enter a workplace on OHS business and require the representative to be qualified in OHS.

The Queensland branch of the Construction Forestry Mining Energy Union said the implications of the new regime would be “disastrous”.

“Any move to change mining industry-specific safety laws may cost lives,” senior district vice-president of CFMEU Stuart Vaccaneo said.

“The word harmonisation, in this case, means less safety for workers in one of the most dangerous industries in the world … an industry that would be rendered less safe under new laws.”

Vaccaneo said the union would fight any move to reduce safety at minesites and would be lobbying ministers to highlight the concerns.

The Australian Council of Trade Unions also believes a national OHS system will undermine standards and put workers at risk.

“As the proposals stand, thousands of workers in the states and territories are at risk of losing important health and safety prosecutions and that's just not good enough,” ACTU president Sharan Burrow said.

"It's unacceptable that health and safety standards would go backwards."

However, the Minerals Council of Australia said the reform would provide the same rights, protections and responsibilities for every worker in Australia and was fundamental to improving safety outcomes.

“OHS regulation in the minerals industry is currently based on 10 separate state and territory legislative regimes with varying degrees of prescription that results in inefficiency, complexity and uncertainty, and above all suboptimal safety and health performance,” chief executive officer Mitchell Hooke said.

Federal Workplace Relations Minister Julia Gillard is promoting the national regime and has provided detailed instructions to the Safe Work Australia Council to enable them to draft the model OHS laws in accordance with the decisions made this month.

Safe Work Australia Council will now develop the proposed new laws to be introduced in parliaments throughout Australia.

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