Win for NSW Workers On OHS Laws

Unions retain right to prosecute employers in amended workplace safety legislation.

Union pressure has won important amendments to the OHS Amendment Act, passed in the NSW Upper House in early June, which restore the right to unions to prosecute employers for OHS breaches.

The new OHS Act, introduced by the O’Farrell Government, waters down the duties of employers and would have removed the right for unions to request WorkCover to bring a prosecution against an employer for any breaches, despite conclusive evidence that this right had not been abused. However, the amendments – brought in by the Greens and Shooters and Fishers party – restore unions’ right to prosecute and a limited OHS role to the Industrial Relations Commission, which would otherwise have been stripped of its responsibilities.

NSWNA Assistant General Secretary Judith Kiejda said this was an important win for NSW workers.

‘Unfortunately, we have still lost the reverse onus of proof, which would force employers to prove their innocence. But, thanks to lobbying by unions, including the Association, and the cross-benchers who voted for these amendments, the situation is much better for workers in NSW. The fact we have retained the right to prosecute will make workplaces safer.’

Another important change was that duty of care has become ‘as far as is reasonably practicable’ instead of an absolute duty tempered by defences.

The OHS (Amendments) Act commenced as soon as it passed.

Amendments were also won to the Work, Health and Safety (WHS) Act, which passed through Parliament in early June.

The WHS Act aims to create nationally-consistent workplace safety laws and was developed based on the recommendations of the O’Farrell Government’s OHS Legislation Review Panel and public submission process. Much of this Act threatens the high standards governing workplace safety in NSW. It is due to come into effect 1 January 2012.

The WHS Act passed through Parliament with amendments that retain an amended union right to prosecute employers. Unions can prosecute category 3 offences any time, and category 1 and 2 offences in certain circumstances.

The NSWNA understands that the Greens are going to try to achieve the same amendments to the WHS Act in other states and territories.

What NSW won and lost with OHS laws

Negative aspects in comparison with current laws:

  • Loss of absolute obligation of employer to consult with employees.
  • Loss of employer obligation to provide information in other languages.
  • No longer mandatory to have an elected worker as the chairperson of an OHS Committee.
  • Increased ability of employer and regulator to apply for HSR disqualification.
  • Loss of reverse onus.
  • Loss of union ability to apply for moiety after a successful prosecution.

Positive aspects of the amended WHS Act compared with current laws:

  • Stronger rights and powers for Health and Safety Representatives (HSRs).
  • HSRs to have powers to order cease work and to issue Provisional Improvement Notices (PINs).
  • HSRs have to request training, but once they have requested it, the employer must provide it within three months, with the basic training being five days compared with the current four days.
  • Ability to have more than one HSR per workplace.
  • Ability to negotiate for a HSR to represent more than one work site/employer.
  • Deputy HSRs.
  • Union right of entry for consultation on OHS matters as well as to investigate potential breaches.