OH&S bill passes upper house, but amended

Adam Bennett
May 27, 2011
AAP

The NSW upper house has passed workplace safety laws after the Shooters and Fishers Party added amendments giving unions a limited right to prosecute.

In a blow to the new coalition government, unions' right to prosecute employers in certain cases has been retained under the Shooters' amendments.

The government bill introduced three categories of workplace safety offences and sought to remove unions' right to prosecute for breaches.

The Shooters' amendments will allow unions to prosecute for offences in the lower category and for category one and two offences if WorkCover fails to follow up breaches identified by the Director of Public Prosecutions.

The amendments also restores a limited role to the Industrial Relations Commission, after the government's bill stripped the umpire of all its responsibilities.

The upper house rejected Greens and Labor amendments to retain a reverse onus of proof - which would force employers to prove their innocence - as the Shooters and Christian Democrats supported dumping it.

Workplace ministers from the states and the commonwealth agreed in 2008 to bring workplace safety laws under a consistent national standard.

Greens MP David Shoebridge said the passage of the Shooters' amendments was a win for unions and the Industrial Relations Commission, in the face of the coalition government's attacks.

"This is the first case of a state maintaining the union right to prosecute under the harmonised (occupational health and safety) laws," Mr Shoebridge said.

"We've also seen the coalition's political attack on the industrial court and an unions receive a check.

"The industrial court continues to be a real player in occupational, health and safety, and the unions continue to have a role as prosecutors."

But Finance Minister Greg Pearce described the Shooters' amendments as "minor" changes.

"This is a commonsense approach to work health and safety as agreed by all governments at COAG two years ago," Mr Pearce said.

"This is a win for workers and a win for business."

Shooters and Fishers Party MP Robert Borsak said the success of the amendments proved wrong the predictions that his party would become a "poodles of the government" in the upper house.

"We can think and work our way through these things, and we represent a constituency the cuts across both sides of politics," he said.

"We're very happy, we think it is a fair and equitable outcome for all concerned."

Unions NSW Secretary Mark Lennon said the upper house vote recognised "the legitimate role trade unions play in protecting workplace safety".

However, he was disappointed the reverse onus of proof had been abandoned by the new legislation.

"Retaining these provisions would have been the best outcome for workplace safety," Mr Lennon said.

NSW Minerals Council welcomed the passage of the legislation but lamented the amendments.

"It is unfortunate, though, that we don't have a truly harmonised regulatory framework, after amendments to allow unions the right to prosecute were made to the bill in the Upper House," acting chief executive Sue-Ern Tan.

"This is not in keeping with the national laws."

NSW has been a hurdle to the federal push for nationally harmonised laws, with the former Keneally government having demanded exemptions allowing unions the right to prosecute and retaining the reverse onus of proof.

Labor opposition leader John Robertson claimed credit for retaining unions' right to prosecute.

"Under the changes secured today by Labor, unions will retain the right to prosecute an employer where workplace safety laws have been breached," Mr Robertson said.