Gerard Phillips, a partner in the Middletons law firm, wrote in the 7 August 2008 edition of the Australian Financial Review about the belligerence of the trade union movement in New South Wales in relation to the harmonisation of OHS Laws in Australia.
He addresses two legal barriers to harmonisation that he believes should end. In New South Wales unions have the legislative right to prosecute safety breaches. Gerard argues that harmonisation won’t be achieved without the unions relinquishing this right.
It has been clear for months that New South Wales will have to give up some elements of its OHS legislation in order to allow harmony. If it needs to save face, it would be lobbying now for enough resources at a national level to mount rigorous OHS enforcement.
As the Victorian OHS law is the front runner for a national OHS legal model, unions can take some solace from the extension of Victoria’s right of entry provisions that, prior to 1984, were tipped to generate industrial warfare In Victorian worksites. There were, at the time, many lawyers touting for business by recommending a tightening of paperwork, vetting all credentials before letting “them” on your site and accompanying “them” wherever they go.
Business achieved some important concessions with the registration of ARREOS (Authorised Representatives of Registered Employee Organisations) and a legal comeback if the ARREOS breach their authority, but an ARREO visit can still be daunting as WorkSafe found in February 2008.
WorkSafe advises that
An ARREO may enter a workplace during working hours to enquire into a suspected contravention of the OHS Act or regulations. The suspected contravention must relate to or affect the work being carried out by people who are:
• members of the registered employee organisation;
• subject to a certified agreement which binds the registered employee organisation; or
• eligible to be members of the registered employee organisation and are not subject to a certified agreement.
Gerard Phillips also can’t see why a union should have prosecutorial powers that no one else, other than the OHS regulator, has. Although he acknowledges that for enforcement to work any prosecutor must be “appropriately funded”. If the New South Wales government decided to reduce WorkCover NSW costs by sharing responsibility, I don’t think the economic benefit outweighed the political damage.
Phillips also sees no great difficulty in the onus of proof being held by the prosecutor. This authority is already in the legislation of Victoria and Western Australia with no complaints from the union movement that safety standards have declined as a result. The unions will need to give ground on having the onus rest with the business owner, and the employer groups will dance a gig when they do.
I remember Australia’s Royal Commission into the building industry where employer groups asserted, with little proof, that OHS is used by unions for purposes of industrial action. Terence Cole in his final report illustrated the accusations well.
“….employers have raised concerns about the unions raising industrial concerns under the guise of safety issues, and the adoption of the role of safety policemen by unions to the exclusion of the statutory inspectorates. The issue of safety is a constant source of friction in the workplace, either because it is not being appropriately addressed, monitored, enforced, or is being abused.”
This may or may not be true, however unions in New South Wales risk providing the truth that employer associations have long desired if they continue in holding onto a strong poker hand when the other players have changed to playing whist.
