New OHS law threatens NSW employees

A new OHS Bill proposed by the NSW Government would downgrade OHS laws and reduce protections for NSW employees.

The Bill was developed to bring NSW OHS laws in line with the OHS laws of other states and Territories in Australia. This follows a threat by the federal government that it would nationalise OHS legislation unless OHS laws are adapted so they are consistent across the states.

The Government recently released a draft of the OHS Bill for public comment, following a period of consultation with the NSWNA and other unions on the NSW OHS Act 2000 and the NSW OHS Regulation 2001.

According to NSWNA General Secretary Brett Holmes, the Association has strong concerns with the draft Bill. ‘The OHS Bill as it stands threatens to seriously reduce protections for employees and makes it much harder to prosecute employers.’

The NSWNA, with Unions NSW and other unions, met with the NSW Minister for Industrial Relations John Della Bosca to discuss union concerns that the OHS Bill undermines NSW workers’ health and safety.

Mr Della Bosca explained the federal government had threatened to nationalise OHS legislation if the states did not ‘harmonise’ their OHS laws. This resulted in pressure on NSW to downgrade its OHS laws to bring them in line with other states.

‘The NSW Government has attempted to “harmonise” NSW OHS laws but in a downward direction, rather than other states raising the bar to the standards already in place in NSW,’ said Brett.

NSW OHS laws have been proven to improve safety in NSW workplaces, particularly in regard to their provision for absolute duty of care on employers. This is evidenced by the clear downward trend in injuries and fatalities in NSW workplaces. In 2005, the fatality rate was the lowest in 18 years. Why would we go back on this achievement? said Brett

‘The Bill has not picked up any features from the other states that would improve the lot of workers, such as the statutory right to refuse to do unsafe work.

‘Effectively, the federal government is trying to get the Labor State Governments to do their dirty work for them by starting a race to the bottom in relation to OHS standards,’ he said.

‘If the federal government wants to reduce the so called “burden of legislation” on employers and erode the rights of workers and unions, then they need to do their own dirty work and not do it by stealth through the States,’ he said.

A full copy of the NSWNA’s submission will be soon available on the NSWNA website. The NSWNA also encourages members and branches to prepare submissions on the OHS Bill. The Bill and associated documentation can be found on the WorkCover website

NSWNA concerns with new OHS Bill

  • Weaker duty of care and onus of proof.

The changes will make it much harder to prosecute employers and employers will not have the responsibility of demonstrating due diligence and having to justify their management decisions with respect to OHS.

  • Employees responsible for their own health and safety.

While employees have some responsibility for looking after their own health and safety, it should be limited to the current scope of cooperation with the employer and reporting hazards and injuries. Employees do not have control over the workplace and its management, and should not be held responsible for their own safety where they do not have control. The proposed change could encourage a culture of ‘blame the employee’ and reliance on behavioural safety programs rather than more effective risk control strategies from higher in the hierarchy of controls.

  • Insertion of provision for enforce-able undertakings.

This proposed change will mean an organisation can ‘do a deal’ with WorkCover in order to escape prosecution. The ‘deal’ is enforceable once agreed by WorkCover and will prevent prosecution by a union for the breach of the OHS legislation.

  • Prosecution of union officers for doing their job.

The Bill proposes fines of up to $11,000 on individual authorised union officers who deliberately hinder or obstruct the workplace. It does not provide for any reasonable excuse for hindering or obstructing work. So, in effect, a union official could be fined up to $11,000 for trying to prevent a fatality or serious injury in a situation where there is grave imminent risk to employees.

NSWNA supports the following additions to the Bill

  • Resolving unresolved matters concerning consultation
  • Reinstatement of employees who have been unlawfully dismissed.