Work health and safety protections under threat

Joan Lemaire
Senior Vice President

The Council of Australian Governments (COAG) has agreed to “investigate ways in which model Work Health and Safety (WHS) laws could be improved with a particular focus on removing red tape”.

The “red tape” that has been identified by COAG includes the following important protections for workers which are set out in the model Work Health and Safety laws and hence the NSW Work Health and Safety Act 2011.

1. The right of entry of union officials to enter workplaces without notice in order to inquire into a suspected breach of the Work Health and Safety Act, consult with workers and/or the person conducting the business or undertaking (PCBU). The Department is the PCBU for schools. The permit allows union officials the right to inspect documents relevant to any suspected breach.

Federation has only used this power on a limited number of occasions. It provides a valuable tool in terms of ensuring that there is consultation with workers in minimising and controlling risks. This has often resulted in additional support or resources being provided. The fact that the power exists, even if it is not used, has been helpful in resolving health and safety disputes.

2. The powers of Health and Safety Representatives (HSRs) to direct that unsafe work cease, if the HSR believes the worker or workers will be exposed to a serious risk to health and safety from “an immediate or imminent exposure to a hazard”. This power is already limited, in that the HSR must be trained before issuing the direction, and use issue resolution procedures. An HSR risks being disqualified from the position if the powers are found to have been misused.

Federation is not aware of any circumstances where this power has been used by our members who are HSRs. It is, however, important that the power is retained for the rare circumstances where members face an immediate risk of serious injury or illness. The fact that the HSRs have this power provides an incentive for the employer (PCBU) to urgently address the risk.

3. Duties of officers. The Work Health and Safety model laws impose duties on “officers” to exercise “due diligence” to ensure that the PCBU complies with its duty to ensure the health and safety of workers and others in the workplace. COAG has suggested that this is a “burden” and may act as a disincentive for employees to take up officer positions. The Department has defined “officers” as the senior executive of the Department.

The fact that officers have a legal duty to ensure the PCBU complies with its obligations has been very important. Many health and safety risks and hazards in schools and colleges cannot be addressed at a local level because there are insufficient resources or support available. The issue resolution procedure requires schools and colleges to escalate these issues for additional support. If the duty of officers under the Work Health and Safety Act was removed there may be an attempt to devolve all of this responsibility to individual workplaces, and less incentive to take urgent action to address issues.

The union has provided a submission to WorkCover and Safe Work Australia which outlines the benefits of retaining these provisions in ensuring the health and safety of staff and students. Federation will work with other unions to oppose changes to the model Work Health and Safety laws and the NSW Act that would reduce
existing protections.