West reserves right to leave national work safety regime

Patricia Karvelas and Imre Salusinszky May 19, 2009
Article from: The Australian

A NATIONAL system of workplace safety laws with responsibilities for
employers and workers was yesterday endorsed by state and federal
ministers but Western Australia, the only Liberal Government in the
country, reserved the right to "withdraw".

The laws are a slap in the face to NSW and Queensland which voted
against a crucial recommendation yesterday fearing their own laws
would be weakened.

NSW argued its punitive workplace safety regime should be translated
into a national system.

Most importantly, the federal and state ministers have determined those
who operate businesses should have a duty of care to do everything that
is "reasonably practicable" to ensure a safe workplace -- in contrast to
NSW laws, which make the duty of care absolute. Also, the new laws place
the onus of proof on prosecutors, rather than employers.

Unlike the system in NSW, the proposed national system creates duties for
workers to take care for their own safety.

Federal Workplace Relations Minister Julia Gillard is promoting a national
occupational health and safety regime as part of the Rudd Government's
push against red tape, but despite resistance from some states, she managed
to get the laws passed by the majority of the meeting.

West Australian Treasurer Troy Buswell said last night that, while he
remained committed to harmonisation, he was still unhappy with the use
of conciliation to resolve OHS issues, the low standard of proof for workplace
discrimination claims, the level of penalties -- including jail terms of up to
five years -- and union rights of entry.

While union rights of entry are preserved, they specify 24 hours notice for a
union representative to enter a workplace on OHS business and require the
representative to be qualified in OHS.

Ms Gillard said COAG processes meant jurisdictions must "honour their
commitments".

Under NSW's punitive system, which is opposed by business, prosecutions
are dealt with by the state industrial court, with no right of appeal.
Under the proposed national regime, there will be appeals all the way to the
High Court.

NSW Finance Minister Joe Tripodi said last night he was "particularly
disappointed" NSW's system of union-led prosecutions had been rejected,
along with the reverse onus of proof.

However, he welcomed the fact the reforms would remove the incentive for
large companies to move across to the federal workers' compensation scheme,
ComCare.

The proposed laws closely resemble those in Victoria, which were reformed in
2004.

OHS expert Ken Phillips said last night he felt "elated" with the breakthrough.
"The primary point they are making is that they are untying responsibility for
OHS from a technical definition of employer or employee," Mr Phillips said.
"Taking the focus away from that and saying everyone has a responsibility --
that's exactly the principle that OHS should operate on."

However ACTU secretary Jeff Lawrence said: "The recommendations agreed
to by the ministers would significantly undermine protections for many workers".
Ms Gillard has now provided detailed instructions to the Safe Work Australia
Council to enable them to draft the model OHS laws in accordance with the
decisions made yesterday.