Model Occupational Health and Safety Legislation
10 November, 2009 | Submission
The ACTU supports the establishment of harmonised national OHS laws. However, we do not resile from our
stated position that the establishment of national OHS laws should not result in a compromise or reduction of protections or standards for workers in any existing jurisdiction. We note and believe we are entitled to rely upon the integrity of repeated assurances that COAG meetings dating back to 2006 have given in this regard.
Having carefully considered the exposure drafts for the Model Act and key Administrative Regulations and the associated supporting documents - the Discussion Paper and the Consultation Regulatory Impact Statement - it is our position that, in a number of areas, they fall short of what the Australian community is entitled to expect.
Our primary concerns relate to six key areas:
1. The obligation for employers to consult with their workers regarding OHS
The draft Model Act will oblige employers to consult with workers about OHS matters “as far as is
reasonably practicable”. An employer’s obligation to consult about OHS matters should be
unconditional (paragraphs 4.1 – 4.3). Further, the hierarchy of controls and risk assessment should
be prescribed in the principle Act, not in regulation. These concepts – that duties imposed on a
person to ensure health and safety requires the person to identify and eliminate hazards, to assess
risks and then control and monitor those risks are fundamental principles to manage safety. These
basic concepts should not be pushed down the legislative hierarchy (paragraph 2.1).
2. The role, function and powers of democratically elected workplace Health and Safety Representatives
The importance of having effective, democratically elected, Health and Safety Representatives
(HSRs) must not be underestimated. HSRs play a critical role in improving OHS outcomes and the
model Act must operate to support their role. The draft Model Act places a range of barriers, some of
which are undemocratic, in the way of HSRs effectively performing their role. Parts 4 and 5 of the
ACTU submission deal with these issues in detail.
3. Victims’ ability to initiate litigation
Unions believe that private prosecutions provide a safeguard where the regulator is either conflicted or
fails to investigate or enforce penalties for clear and persistent breaches of OHS laws. Our
experience is that Australian OHS regulators do not prosecute “near misses” or breaches that result in
non-catastrophic injuries. The draft Model Laws say that the power to prosecute breaches of the law
rests solely with the regulator. This is not only inconsistent with the current provisions in NSW and the
ACT, which provide expressly for union prosecutions, it is also inconsistent with the criminal law in
most jurisdictions where citizens can prosecute criminal offences and with the role that unions play in
bringing proceedings for breaches under workplace laws.
The experience in jurisdictions where such a capacity exists is that it is used very sparingly, has
always been successful – and has often resulted in nationwide improvements in safety standards.
Unions believe that, where the regulator has failed to prosecute, and has confirmed that they do not
intend to prosecute within a reasonable period that private prosecutions should be available
(paragraph 11.3).
4. Burden of proof
Unions remain concerned that the model laws place the onus on the prosecutor to prove that a duty
holder did not, as far as reasonably practicable, provide a safe workplace. Our preference is that the
prosecutor show that the duty holder – at least where the duty holder is a corporation and not a
natural person - failed to provide a safe workplace, leaving the defendant to rely on a defence of
reasonable practicability. This is consistent with the approach both in discrimination law, and the Fair
Work Act General Protections, in which it is acknowledged that the operator of a business has better
access to information about the operational needs of the business (paragraph 11.3).
5. Respect for the role of unions
Unions play a crucial role in securing safer, healthier workplaces. Yet the proposed regime for Right
of Entry under the Model OHS Laws is overly complicated and heavily process driven, which will
undermine the capacity for permit holders to address OHS concerns in a timely fashion and in highrisk
industries this will undoubtedly cost lives. Part 6 of the ACTU submission addresses issues
relating to Right of Entry in detail.
6. Adequate and equitable opportunity for independent input from employers and employees
There has been more than three decades worldwide experience that demonstrates that the best OHS
outcomes for workers are achieved through an approach that genuinely involves representatives of
employers and workers, and is independent of the bureaucracy. Unions welcome the draft Objects
that “encourage unions and employers organisations to take a constructive role in promoting
improvements in OHS standards and achieve healthier and safer workplaces”. However unions
believe that, to be consistent with the Safe Work Australia legislation and ensure Australia’s
compliance with ILO Convention 155, the objects should also include involvement by unions and
employers in setting standards, monitoring the effectiveness of the laws and so forth (paragraphs 1.3
and 1.5).
This submission elaborates upon these areas, as well as others where the ACTU is concerned that the
operation of the model OHS laws will not deliver working Australians the highest possible OHS standards that they deserve.
Download the full submission below.
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