Harmonious fragility or fragile harmony – OHS and politics in Australia

Less than 24 hours after mentioning the fragility of Australia’s OHS harmonisation process, confirmation comes from an unexpected source, Kristina Keneally, Premier of New South Wales (pictured right).  It would seem that Keneally’s decision to change her stance on OHS is more to do with a general package of industrial relations and, union-friendly, reforms, as reported in the Brisbane Times on 14 October 2010  (video available HERE). Yet she has stated that

“”We will not therefore introduce the model OHS legislation as it is currently drafted.”

The media has been quick of highlighting this new tension between State and Federal agendas.  Prime Minister Julia Gillard was asked about Keneally’s statements and responded:

“….I think the Keneally Government should honour the agreement it made. It had an extensive period of time to raise issues of concern – and indeed it did, through its Minister at the Workplace Relations Ministerial Council table. Issues were raised, issues were discussed. When you are reaching uniform laws, it is obvious that states and territories come with different perspectives. They’ve got their own laws. If no-one moves then you never get national uniformity.

So, yes, New South Wales raised issues along the way, but it accepted the outcomes and it signed the deal. We require the deal to be delivered.”

The danger for OHS watchers and professionals is that too much hope is taken from Gillard’s response to a journalist’s suggestion “is one of your options to then move federally”.  She responded “I’m not going to rule any options in or out at this stage. Obviously, this is a problem with New South Wales”.  The current federal government has been too long insisting on harmonisation to do what should have been done in the first place and take the welfare of workers as a national concern.

It may be that, as the transcript of the NSW Premier’s comments is not available, her words have been taken out of context.  It is certainly important to noted that the comments were related to industrial relations.  It could be that Keneally is looking to the future and laying some groundwork for life after losing a State election.  Recently there have been mischievous suggestions that Keneally could move into Federal politics but she jumped on that suggestion.

The major commentators on OHS – employers and unions – have been quick to respond.  The ACTU is cock-a-hoop over Keneally’s comments but Jeff Lawrence’s comments are more about union action on OHS than the safety and welfare of all Australian workers.  Union health & safety representatives have proven themselves to be effective agents of safety but they exist in a minority of Australian workplaces.  A union right to prosecute is important to unionised workplaces but pursuing this political right may jeopardise the larger harmonisation process that may, potentially, possibly improve safety for all workers, although I have argued elsewhere that little improvement in safety is expected with harmonised laws.

Lawrence insists:

“The right for workers to take court action against negligent employers where the workplace safety authorities have failed to prosecute has been in place in NSW for more than half a century, and while rarely used, has resulted in improved and safer working environments”.

It could be argued that if the powers are rarely used, would they be missed?  If the powers are rarely used, doesn’t this imply that OHS regulators and prosecutors are already doing their jobs?

The Australian Chamber of Commerce & Industry (ACCI) is no better in responding to ACTU statements with not one, but two media releases in one day.  For employer associations, OHS harmonisation is about reducing the cost of managing safety with the assumption that this will flow to improving the safety of workers.  Workplace Relations representative David Gregory said:

“Australian employers have been conscientiously involved in the national consultative process to develop a fair national workplace safety system for all parties in the workplace.  However, the unions are today thumbing their nose at the collective efforts of governments and business, by insisting on the ability to launch prosecutions against employers.  This is an attempt by the unions to hijack the national workplace safety agenda.  They are pursuing union power, not safer workplaces.”

Peter Anderson, ACCI’s CEO who clearly has a more federal political bent issued a short statement (not yet available online), even though the second sentence makes no sense:

“The Prime Minister was spot on in her speedy condemnation of the New South Wales Government’s decision to back away from a signed agreement to deliver harmonised national workplace laws and safer workplaces. Employers and small businesses have more to worry about with the NSW OHS laws than the unions combined.”

Dr Nikki Williams of the NSW Minerals Council also said in a media release that ”

“….the idea that the new national laws will lead to a ‘lowest common denominator’ approach to safety is wrong.  “Retaining these draconian laws in the name of better safety outcomes is a falsehood,” she said.  “A national OHS framework is crucial to improving safety in workplaces across the country.  It will eliminate the tangled web of red tape across State borders, particularly for people working in companies that operate in a number of jurisdictions.  The new Model Act will finally allow us to focus solely on safety and health, rather than wrestling with eight different compliance regimes.”

I would argue that worker safety indeed needs a national strategy but this is different from a “National OHS framework” that muddies OHS compliance and creates further need for lawyers.

The passion generated by Keneally’s comments today are, perhaps, best illustrated by a series of tweets from the NSW Mineral Council:

“Not even murderers, child sex offenders or Guantanamo Bay detainees have to prove their innocence. #OHS laws”

“People who wilfully or negligently breach safety legislation should feel the full weight of the law”

“But the current #OHS laws in #NSW deprive accused persons and defendants of basic legal and human right”

Even the clichés are becoming muddy.

Kevin Jones

reservoir, victoria, australia

7 thoughts on “Harmonious fragility or fragile harmony – OHS and politics in Australia”

  1. \”A broken arm is a broken arm and if it is broken at work there is a cost to fix it and get the person back to work.\” No-one would argue with that, as long as the broken arm actually was sustained at work, and then not through the employees own negligence. The present WorkCover system would be laughable if it wasn\’t so serious for employers who have been held to ransom by suspect employees and greedy litigation lawyers and an onus of proof always on the employer.

  2. This could be a somewhat worrying stance that the NSW government is taking, but only if it results in other states or the incoming NSW government uses it as an opportunity to backslide on the nationally harmonised laws. Otherwise the worst case scenario is that the introduction of the laws is delayed in NSW by a few months, as the fall of the Keneally government in the March 2011 election is the shortest-priced certainty in history.

    Opposition Leader Barry O\’Farrell\’s submission to the national harmonisation process support Victorian-style OHS regulation which is largely what the harmonised act delivers, so hopefully they will introduce the harmonised laws if the Keneally government doesn\’t.

    Basically this is a last-ditch effort by the NSW ALP to shore up some union support, and probably more about funding than actual electoral support.

  3. So it looks like we are back to 7 piles of rubbish law and enforcement again.

    A broken arm is a broken arm and if it is broken at work there is a cost to fix it and get the person back to work. The issue seems to now relate to actuarial considerations and how much it is costing to get the job done and argument over productivity gains/losses which will keep the statistics Wallah\’s more than happy.

    In the mean time focus on injury prevention is lost

  4. Kevin I suspect you are probably right in that the laws may still receive some tweaks to satisy some of the colonies.

    I have been dissapointed that the Commonwealth has not sought to cover the field in taking over OHS regulation from the States given the relative successes in the WorkChoices and later Optus High Court cases.

    Still, you can\’t really knock progress can you?

  5. The Australian newspaper has given OHS a front page slot on 15 October 2010 with an article describing the political dispute as a \”war\”. Editorial hyperbole in this newspaper is not surprising but the discussion stems around a letter from the NSW Premier to the Prime Minister to which the PM has agreed to respond in writing. Keneally mentioned the substance of the letter, the PM responded and all the usually IR lobbyists and stakeholders jumped on the comments.

    The fact that this is being reported as a war shows that this week has been a slow political news week. The regional outrage on a draft report on water conservation has been colourful lively and important but of little direct relevance to city dwellers. But workplace safety is relevant particular when high profile politicians join in.

    The overnight comments from the PM confirm the motivation behind harmonisation. Gillard questions Keneally\’s actions on the basis of denying workers and the country the economic benefits of OHS law reform!! Gillard argues that the laws will increase efficiency and productivity!!

    There is a backlash in some sectors of the OHS profession against this argument that the core purpose for OHS is to increase productivity. Nonsense. OHS is about saving lives and safety management can achieve this and, if done well, benefit productivity as well.

    Not surprisingly, the Australian reports Ken Phillips\’ comments against the NSW OHS laws. Phillips can always be relied on for the colourful soundbite.

    The question that must be asked is \”if harmonisation fails, will the remain laws be workable?\” I suspect we will end up with a legal regime that is fundamentally unchanged but has been given a bit of a polish.

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