Two weeks ago, NSW Labor Premier Kristina Keneally sparked controversy when she declared that NSW would not honour its commitment to the national occupational health and safety (OH&S) harmonisation process.
The October 18 Australian said PM Julia Gillard had threatened the NSW government by withholding a $144 million reform incentive if it did not continue with the process, as agreed by all states except Western Australia in December last year.
OH&S harmonisation aims to standardise OH&S regulation nationally. Currently, safety standards differ from state to state. The government’s main aim, however, was to help businesses working across state borders improve “efficiency”.
The initial review of OH&S laws, which led to the harmonisation proposal, took place in 2008, under Gillard's term as federal workplace minister.
NSW is generally regarded as the state with the most stringent OH&S laws. Ideally, standardised national OH&S legislation would bring all the other states up to the standard in NSW. But the harmonisation process will water down OH&S to meet the lower standards of other states.
In a letter to Keneally, Gillard said the changes would save business $179 million a year, the October 20 Australian said.
There are two provisions in the NSW system that would be lost in the harmonisation process, that Keneally is demanding be retained: the “onus of proof” being on the employer and the right of third parties (for example, unions) to prosecute for safety breaches.
In NSW, the onus of proof in cases of safety breaches is on the employer. The employer is presumed to be guilty — it is up to them to prove they have done everything possible to ensure safety.
The national laws would reverse this provision: prosecutors will have to prove there has been a safety breach, encouraging bosses to cover up accidents and stall investigations.
In NSW, unions are able to initiate prosecutions against employers. Under the proposed harmonisation, unions would lose this ability. That right would be given only to Safe Work Australia (SWA), the federal body set up to deal with OH&S nationally.
Unions could ask SWA inspectors to investigate breaches of OH&S law, or appeal to the Director of Public Prosecutions against decisions, including where SWA takes no action. This greatly diminishes unions’ ability to ensure workplace safety.
Tim Gooden, secretary of the Geelong and Region Trade and Labour Council, said: “During Victorian Work Safe week, October 25 to 29, would be a good time for the Victorian government to come out and support the NSW premier’s in-principled stance on maintaining the best safety laws in the country.
“All safety laws should [be] the best of the best for everyone.
“The federal government is attempting to weaken the safety laws under the illusion of creating common standards around Australia. We believe in the principle of equality and all workers should be treated the same, so why not just provide the best laws for all Australians?
"I call on Victorian Premier John Brumby to toughen up, like his NSW counterpart, and stand up for Victorian workers in demanding the best laws from the federal government – not second rate.”
While Keneally's move is positive, the motivation may be somewhat cynical. Labor is generally tipped to lose the NSW government, so traditional union support is crucial to at least cushion a possible loss.
The Greens have supported Keneally's stand. On October 19, ABC Online quoted new federal Greens MP Adam Bandt as saying: "I would hope that it could be fixed before it comes to parliament. If it can't, both in the Lower House and in the Senate we'll move amendments to try and make the legislation better and improve the protection for employees to try and ensure that they don't lose out."
The March state elections would seem to be the determining factor. Philip Coorey's opinion piece in the October 18 Sydney Morning Herald predicted: "In reality, Gillard will wait Keneally out and when [opposition leader] Barry O'Farrell wins, rely on him to honour the OH&S agreement."