Work Safety

The Gillard government’s attempt to harmonise the nation’s work safety laws is, on current evidence, suffering a slow death.

Originally hailed as one of Julia Gillard’s great negotiating triumphs, the legislation is falling over because of fundamental and even dangerous flaws in its core design.

There are two key dangers. One is the startling discovery that the new laws remove every Australians’ right to silence, a primary human right under criminal law.

Occupational health and safety law is criminal law, and the removal of this right will inevitably lead to abuses of the prosecution process.

Such abuse was evident in NSW under that state’s manifestly unjust occupational health and safety laws operating between 2000 and this year.

One NSW judge referred to the abuse of process in a state prosecution of the mining giant Xstrata as persecution rather than prosecution.

It was Xstrata’s individual managers who suffered at the hands of the NSW prosecutor. Expect similar abuses under the harmonised OHS laws.

The other major danger also relates to a legislative structure that will allow abuse of the prosecution process. OHS law in most states has been structured around the internationally accepted principle that everyone is responsible for safety according to what is under their “reasonable and practicable control”.

These words tied together ensure that every person in the work situation is held responsible and liable for safety. That is how it should be.

The NSW abuses of justice occurred because the 2000-11 laws did not have the words “reasonable, practicable control”.

OHS prosecutions and convictions occurred because people who had no control over a work safety incident were tried and convicted.

The harmonised laws have excluded the word “control” so people will be held responsible according to what is “reasonable and practicable”.

Lawyers are in furious disagreement over what this means. The warning signals are glaring, however. It is inevitable that prosecutions will occur against people who will have had no control of a work incident.

Predictably, NSW-style prosecution abuses will be repeated, leading to extensive appeals to discover what the legislation means. Expect this to take at least a decade.

The outcome is that the core structure of the harmonised OHS laws is bad law. It is taking the people and businesses of Australia from certainty and clarity to confusion.

Quite oddly the “big end of town” business associations signed off on the laws and continue to promote them. On any measure they are selling their member businesses and business executives a dangerous “dog”.

Their members will feel the pain not the associations. The Business Council of Australia, for example, is ignoring its own 2007 report and recommendations on OHS, “Making Work Safe”. This called for “reasonable, practicable control” in the laws.

The reasoning for the rush to harmonised laws by the big business organisations seems to be that beneficial regulations have been crafted for many industries.

The business associations have focused on the alleged benefits of the regulations and think they can live with the legislative dangers. At least they think they can make changes later. If this is so, it portrays a flippant disregard for justice principles and practices.

Not all industry associations are aligned with the thinking of the big end of town.

Many of the industry regulations and most of the codes of practice have not yet been written or finished. Some early regulation drafts caused uproar in some sectors for the irrationality contained in the drafts. The housing industry is just one example.

The list of organisations calling for the harmonised laws to be amended is already large. This includes the Housing Industry Association, Master Builders Association, Motor Traders Association, Australian Hotels Association, Civil Contractors Federation, Independent Contractors Australia, Council of Small Business of Australia and Self Insurers of SA and Business SA naming just some.

State parliaments and governments have smelt a problem. This week the South Australian Liberal opposition moved to defer legislative debate until February and won support in the upper house.

The West Australian government has long held concerns and has delayed consideration until well into next year.

The Victorian government has taken the same position as WA and deferred consideration pending the outcome of a Victorian review into the implications of the laws.

The Tasmania parliament seems unlikely to proceed with the laws this year. The Queensland opposition has reserved its right to amend the laws should it win government in next year’s election.

The alleged date for the start of the national harmonised laws, January 1, next year, is now unachievable. The process has ground to a halt. This need not be the case. It is demonstrable that the laws as currently drafted are a backward step from existing laws.

The cause of safer work will go backwards. Most states are concerned, as are a range of businesses. It is time to make amendments so harmonisation of OHS can proceed.

I have to admit to being wrong. In 2009, I declared that the battle over work safety laws was over and that the ‘white hats’ had won (The OHS battle is won, May 20, 2009).

Now I need to advise that the battle continues, but this time for different reasons. It’s to do with the attempt to harmonise Australia’s OHS laws. This directly affects every business, manager and worker in Australia.

Australia’s OHS laws are specific to each state and territory. They generally comply, however, with international principles that state everyone is responsible for safety according to what people ‘reasonably and practicably control’. Those three words, locked together, give each person a clear sense that they must be responsible for safety.

There’s also a good thirty years of legal precedent supporting what reasonable, practicable control means when it comes to OHS prosecutions.

New South Wales was the standout exception. NSW laws held that employers were automatically guilty whether they had control or not, even if they had acted reasonably or practicably. It was this NSW disconnect from the rest of Australia that caused pressure to harmonise the laws across Australia.

When all governments agreed to a harmonised model in 2009, it appeared that the NSW model had been dropped. This is where I declared victory for the white hats. The NSW laws pushed a focus away from prevention and systemically-caused injustices in prosecution.

On the surface, Australia’s governments appeared to agree to embed the principles of ‘reasonable and practicable control’. What’s unfolded, however, in the detail of the new model laws is something different. The laws include ‘reasonable and practicable’ but have removed ‘control’. That is, everyone is to be held responsible for safety according to what they consider reasonable and practicable. It doesn’t make sense, as I detail here. Essentially, no one will be sure if they are responsible for safety or not.

Instead, you will be held responsible if you are a “person conducting a business or undertaking”, or PCBU, and if you ‘influence’ work. This also doesn’t make sense. It’s a new and untested concept both at law and in a practical sense. It’s dangerous because it’s confusing for work safety, particularly prevention.

What will happen is that people will wonder if they are a PCBU and wonder if they are responsible for safety or not. People will wonder if they have influence. This sort of confusion is the reverse of what’s needed in good OHS laws.

This PCBU concept will also require extensive legal testing before clarity is achieved. My bet is that it will take 15 or so years and several High Court rulings before clarity is achieved. This is not a pathway to good work safety laws.

The harmonisation process requires each state to enact the model laws. NSW have done this. It’s an improvement for them because they’ve rid themselves of their prior bad laws.

But as the realisation of the flaws in the model laws have spread, implementation is being delayed in Victoria, South Australia and Western Australia at least, and could possibly not even occur. My analysis comparing Victoria’s current laws to the model laws, and South Australia’s laws to the model laws, shows the stark differences.

In the way the harmonisation process has been handled, there’s a sense of a slight-of-hand con in play. The federal government pushes harmonisation seemingly for harmonisation’s sake, without a full debate over the fundamental new area of law being created. This is not the way work safety laws should be handled.

Further, sitting deep inside the model laws are disturbing aspects not at all discussed. OHS law is criminal law. Yet the model harmonised law takes away basic rights of criminal justice—namely the right to silence and protection from self-incrimination.

There’s more: the harmonised laws allow a work safe authority to seize a business without court supervision. This is not something that exists in current laws.

The Victorian government has said they agree to harmonisation on the condition that the new laws do not damage work safety or businesses. My analysis says that this would be the outcome.

In South Australia, attempts to introduce the harmonised laws were defeated in the Upper House early this year. The government is trying again but the opposition and independents continue to see major flaws.

There’s a simple principle that must be in place. Harmonising of work safety laws should only occur where an improvement in the work safety environment can be demonstrated. Anything less, risks work safety. These new laws put safety at risk.

The full ramifications of yesterday’s news on the ‘Kirk’ High Court decision — which, as Robert Gottliebsen reported yesterday, effectively knocks over New South Wales’ OHS laws — should not be underestimated.

The High Court decision has the potential to have an impact well beyond NSW and OHS to a wide body of law nationally. The interest is in the way the High Court approached their decision to quash Mr Kirk’s criminal OHS conviction and order the NSW WorkCover authority to pay Mr Kirk’s costs.

Mr Kirk was being denied natural justice in part because NSW industrial relations laws prevent appeals against decisions of the NSW Industrial Relations Court.

The High Court seems to have stepped back from the specifics of Mr Kirk’s case and considered a higher order principle of justice. That is, that the common law right to appeal decisions of any court through to the High Court is embedded in the Australian constitution. Further, no government or lower court or tribunal has the constitutional ability to create circumstances that prevent appeals against their decisions.

The High Court appears to have said that it will be the protector of these constitutionally guaranteed common law rights and override tribunals or governments that offend this right to appeal.

The High Court decision is complex in its wording and pathways of legal logic. There’ll be lots of lawyer-hours spent clarifying precisely what the High Court has stated. But if the above, simplified understanding has truth, the implications are potentially jaw dropping.

Take industrial relations. Industrial tribunals are quasi courts. They operate on a manufactured body of rules that don’t neatly fit within a normal person’s understanding of the ‘rule of law’.

For example, the right of individuals to personally control the terms of their own (work) contracts is denied to them and transferred to an industrial tribunal. Most of the decisions about an individual’s employment contract are made by people who are not party to the contract. The individual is made powerless. Decisions are made within an opaque deal-making environment which industrial relations tribunals sanctify.

It’s a strange process, which is why most workers, managers and just about everyone else find industrial relations mystifying. To understand it you need to have intimate knowledge of the inner politics and personalities of the deal-making. The idea of proper law doesn’t fit.

In NSW they took this to an extreme, preventing appeals against the deal-making of the industrial quasi court. They then gave the industrial tribunal the exclusive ability to make decisions over criminal matters under OHS, including the capacity to impose jail sentences. It was this regime of industrial tribunal rules to which Mr Kirk was subjected.

The High Court has said no to this. Mr Kirk is entitled to the normal process of law. When the High Court applied proper law to Mr Kirk they found he was not guilty, that the WorkCover prosecutors had breached the Evidence Act and that the Industrial Court of NSW had possibly misused or misunderstood its authority.

No other industrial relations jurisdiction in Australia prevents appeals, so the Kirk decision may be limited to NSW. But what other areas of industrial relations rules offend normal law? Could these potentially be constitutionally invalid under the Kirk principles?

There are also other areas of regulatory administrative practice where tribunals may be misinterpreting the limits of their powers. Environmental courts sometimes have features that reflect the NSW industrial relations system. Is the theft of farmers’ property rights through the denial of land clearing by environmental laws and tribunals now potentially appealable? Could Cape York indigenous communities challenge the Queensland government’s Wild River legislation on the basis of the theft of their property rights?

At the moment this is speculation. The High Court decision is only one day old. The extent to which it could apply beyond NSW OHS laws will be the subject of much legal study.

One thing is clear. Mr Kirk is a brave man to whom Australians owe thanks. The High Court stated that Mr Kirk had suffered much under the oppression of the NSW industrial relations system. When parliaments create laws and institutions that subvert the rules of legal justice, the pain is felt by isolated individuals. Many individuals in NSW have suffered.

Mr Kirk stood up to and defied the institutional might of the NSW industrial relations machine created and made possible through a contortion of law. We can thank Mr Kirk and the High Court for the return of the rule of law.

Work safety laws have been a major policy and political battle ground for a long time. That battle finally appears to be over. Late on Monday the state and federal workplace relations ministers released the details of an agreement to harmonise occupational health and safety laws across the country.

The stakes have been high. At one level there has been inconsistency across the country in the design and style of OHS laws. This has entrenched high level of complexity in work safety compliance for businesses operating nationally.

More importantly, the laws have had two distinctly opposing approaches to OHS best represented by the Victorian model as compared to the New South Wales model where breaches of OHS laws involve criminal prosecutions.

The Victorian model conforms to internationally accepted principles of OHS law. This holds that everyone involved in the workplace has shared responsibilities for work safety consistent with what is reasonable and practicable. Presumption of innocence applies as do normal protections of criminal justice.

The NSW laws are a perversion of the international principles and criminal justice. Double standards apply. Employers are presumed guilty. Employees are presumed innocent. Prosecutions are in the NSW Industrial Relations Court not criminal courts. Trial before jury is denied and appeals prevented. Unions have the right to prosecute, and do. They can also (and have) receive up to half of the fines imposed. NSW lawyers accept that effective defence is impractical. People can be prosecuted for the same offence twice even if found innocent on an initial prosecution.

There is a long list of NSW people who have suffered injustice. In the most high profile case a mining company and managers were found guilty after the deaths of several miners when an underground mine flooded. The flooding occurred because they drilled into a disused water filled mine. The mines department had given the company incorrect maps. The department was not prosecuted. Several of the miners were employed by a union-owned labour hire company. Under the act the company should have been prosecuted. It was not. In a dissenting decision, one judge referred to the prosecution as “persecution”. (For a report and short video clip on the case click here.)

It is well recognised that the NSW laws have badly affected business in NSW without any comparative safety benefits. Queensland OHS laws are a
mix of NSW and Victorian design principles but lean closer to Victoria. All the other states and the Commonwealth are close to the Victorian model.

There was a significant push in the harmonisation process driven by Unions NSW and others demanding the NSW laws go national. The risk was high that complex, internal labour movement factionalism would produce this outcome. In fact the challenge to the Rudd government was significant. The ALP state governments had refused to cooperate with the Howard government to achieve work safety reform. They played unacceptable party politics with safety policy.

The risk for the Rudd government was that tensions between the states and ALP factions could explode. In Labor, OHS has deep ideological meaning for some. Many argue that the legal and managerial status of ’employers’ means employers will always put profit above safety. Hence oppressive anti-employer laws (as per NSW) are needed to enforce safety. The Victorian ALP purged this view from their ranks during the Bracks period and has found their OHS laws provide improved safety and a competitive business advantage. Victoria would not give this away.

The outcome is a win for common sense and a new and improved era in work safety. Monday’s agreement by all state, territory and federal ministers, including NSW, commits to national OHS laws consistent with international principles and that of the Victorian act.

Everyone is to be held responsible for safety within what is reasonable and practicable. Only state prosecution authorities can prosecute. Criminal justice is mostly protected. Unions will have entry rights but only with permits which can be revoked and only to “inquire into” not “investigate” safety issues.

This is an impressive outcome particularly given the political difficulties. Australian safety practices should improve under this regime.