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From the Desk of the Executive Director

Ken Phillips is co-founder and Executive Director of Independent Contractors of Australia. He is a published authority on independent contractor issues and directs research on related commercial and trade practices issues. Through his numerous articles in newspapers and think-tank and academic journals, Ken is known for approaching issues from outside normal perspectives and is frequently sought out for media comment.

The OHS battle is won

Wednesday, May 20, 2009

Work safety laws have been a major policy and political battle ground for a long time. That battle finally appears to be over. Late on Monday the state and federal workplace relations ministers released the details of an agreement to harmonise occupational health and safety laws across the country.

The stakes have been high. At one level there has been inconsistency across the country in the design and style of OHS laws. This has entrenched high level of complexity in work safety compliance for businesses operating nationally.

More importantly, the laws have had two distinctly opposing approaches to OHS best represented by the Victorian model as compared to the New South Wales model where breaches of OHS laws involve criminal prosecutions.

The Victorian model conforms to internationally accepted principles of OHS law. This holds that everyone involved in the workplace has shared responsibilities for work safety consistent with what is reasonable and practicable. Presumption of innocence applies as do normal protections of criminal justice.

The NSW laws are a perversion of the international principles and criminal justice. Double standards apply. Employers are presumed guilty. Employees are presumed innocent. Prosecutions are in the NSW Industrial Relations Court not criminal courts. Trial before jury is denied and appeals prevented. Unions have the right to prosecute, and do. They can also (and have) receive up to half of the fines imposed. NSW lawyers accept that effective defence is impractical. People can be prosecuted for the same offence twice even if found innocent on an initial prosecution.

There is a long list of NSW people who have suffered injustice. In the most high profile case a mining company and managers were found guilty after the deaths of several miners when an underground mine flooded. The flooding occurred because they drilled into a disused water filled mine. The mines department had given the company incorrect maps. The department was not prosecuted. Several of the miners were employed by a union-owned labour hire company. Under the act the company should have been prosecuted. It was not. In a dissenting decision, one judge referred to the prosecution as "persecution". (For a report and short video clip on the case click here.)

It is well recognised that the NSW laws have badly affected business in NSW without any comparative safety benefits. Queensland OHS laws are a mix of NSW and Victorian design principles but lean closer to Victoria. All the other states and the Commonwealth are close to the Victorian model.

There was a significant push in the harmonisation process driven by Unions NSW and others demanding the NSW laws go national. The risk was high that complex, internal labour movement factionalism would produce this outcome. In fact the challenge to the Rudd government was significant. The ALP state governments had refused to cooperate with the Howard government to achieve work safety reform. They played unacceptable party politics with safety policy.

The risk for the Rudd government was that tensions between the states and ALP factions could explode. In Labor, OHS has deep ideological meaning for some. Many argue that the legal and managerial status of 'employers' means employers will always put profit above safety. Hence oppressive anti-employer laws (as per NSW) are needed to enforce safety. The Victorian ALP purged this view from their ranks during the Bracks period and has found their OHS laws provide improved safety and a competitive business advantage. Victoria would not give this away.

The outcome is a win for common sense and a new and improved era in work safety. Monday's agreement by all state, territory and federal ministers, including NSW, commits to national OHS laws consistent with international principles and that of the Victorian act.

Everyone is to be held responsible for safety within what is reasonable and practicable. Only state prosecution authorities can prosecute. Criminal justice is mostly protected. Unions will have entry rights but only with permits which can be revoked and only to "inquire into" not "investigate" safety issues.

This is an impressive outcome particularly given the political difficulties. Australian safety practices should improve under this regime.

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