How is O.H.S. affected in the new national I.R. system? Alyson Warnock looks at how changes will impact on the Occupational Health and Safety of small and medium businesses around the country.
The Workplace Relations Amendment (WorkChoices) Act 2005 became law on March 27, 2006. This legislation was designed to create a single national IR system using the corporations’ power to take over state industrial relations systems.
WorkChoices only applies to constitutional corporations-trading companies-but this encompasses about 85 percent of Australian businesses. Non-constitutional corporations remain under state law for industrial relations purposes.
Although primarily aimed at wages and conditions matters, OHS is addressed to some degree in the new legislation. The OHS-related provisions are outlined in this article.
Dismissal and Discrimination
An employer will still be prohibited from dismissing an employee due to the employee holding a position as a health and safety representative or being involved with a health and safety complaint or investigation.
In assessing whether an employee’s dismissal was harsh, unjust or unreasonable, the Australian Industrial Relations Commission (AIRC) will need to consider whether the employee’s capacity or conduct may have put at risk the safety or welfare of other employees.
Anti-discrimination laws will continue to protect workers against discrimination and harassment in the workplace.
Freedom of association laws will continue to ensure that an employer cannot dismiss, or otherwise victimise, an employee because he or she is, or is not, a member of a union.
Right of Entry
Union right of entry under state and territory law will continue, but will be subject to the requirements imposed by the proposed Part IX of the WorkChoices legislation.
Right of entry provisions will still allow a union permit-holder entry for OHS purposes under state legislation where the union official has a federal right of entry permit and the official has complied with all requirements of the relevant state OHS legislation.
The proposed right of entry regime would impose additional conditions upon the exercise of certain rights of entry provided under OHS legislation, within constitutional limitations.
A permit-holder would not be authorised to enter or remain on premises if the permit-holder fails to comply with a request by an occupier or affected employer to observe OHS requirements that apply to the premises, provided the request is reasonable.
The revocation or suspension of an entry permit will be mandatory if the holder of the permit is engaged in unlawful conduct while exercising a right of entry under OHS law.
Inspection of Employment Records
On entering premises, there will be conditions on any rights that a permit-holder may have under an OHS law to inspect employment records. This includes that the permit-holder would need to provide reasons why the inspection of the employment records is relevant to the performance of the permit-holder’s function under the state OHS law.
Industrial Action
The Federal Government will be able to terminate industrial action where it threatens life, personal safety, health or welfare of the population, or is likely to cause significant damage to the economy. Industrial action will not include action by an employee based on a reasonable concern by the employee about an imminent risk to health and safety. However, an employee seeking to rely on the health and safety exception bears the burden of proving that they had a reasonable concern.
An employee who is party to a dispute resolution process will be required to continue to work in accordance with their contract of employment, unless the employee has a reasonable concern about an imminent risk to their health or safety. The employee would be required to comply with any reasonable direction given by his or her employer to perform other available work, either at the same workplace or at another workplace (the employer’s direction must have regard to state or territory OHS laws that apply and whether the proposed work is appropriate for the employee to perform).
A.I.R.C. Duties
The AIRC is no longer able to request that the Secretary of the Department arrange for an inspector to investigate a matter affecting the safety of employees (this is consistent with the redefined role of the AIRC as a dispute settling body).
The AIRC must take into account the provisions of any state or territory law relating to the safety, health and welfare of employees, when conducting its duties.
The States and Territories
OHS and workers compensation changes in the states and territories since WorkChoices commenced have focused on July 1, 2006 as a commencement date. Below is a summary of these July 1 changes:
ACT
Legislation commenced entitling family day-care and in-home carers to the same entitlements under workers compensation law. It also makes amendments to pre-incapacity weekly earnings; injured worker rehabilitation treatment, and ensuring equal access for women up until the age of 65.
A revised ACT first aid code of practice, which aligns workplace classifications with those in NSW, came into effect, as did an increased management regime for asbestos handlers and occupations that handle asbestos. The ACT’s Office of Regulatory Services, responsible for a broad range of regulation including those performed by ACT WorkCover, also commenced.
New South Wales
From June 30, NSW workers compensation premium rates fell from 2.44 percent of wages to 2.17 percent. Employers that are related entities with combined wages of more than $600,000 are grouped for workers compensation purposes.
Queensland
The final stage of Queensland’s tobacco laws came into effect, with a total ban on smoking in all indoor areas of licensed premises and commercial outdoor eating or drinking areas.
New workplace laws to protect young workers commenced. These laws are designed to regulate what kind of work children can perform and the hours they work. An adjoining OHS code of practice also came into effect.
Lower workers compensation premiums took effect on July 1, with the average workers compensation premium rate falling from $1.43 for every $100 in wages paid to $1.20.
Amendments to the Workplace Health and Safety Regulation 1997 affecting asbestos licensing and certificates for prescribed occupations were implemented.
A new Queensland health watchdog, responsible for investigating complaints from the state’s health staff and the public, was also introduced.
South Australia
SA WorkCover introduced new contracts for rehabilitation providers, aimed at improving recovery and earlier return to work.
Tasmania and Northern Territory
No noteworthy OHS legislation commenced in Tasmania and Northern Territory on July 1. However, a total smoking ban in Tasmanian bars and hotels came into effect January 1, 2006. Check your state department for more information.
Victoria
Victoria’s workers compensation average premium rate fell to 1.62 percent of wages.
Legislation commenced that increased weekly payments for all workers with part incapacity and who are past the first 13 weeks from 60 percent to 75 percent of pre-injury earnings.
New legal requirements were introduced for architects, engineers, building designers, draughters and designer-builders of workplaces to make sure the design does not pose a risk to those using it.
A new independent rail, bus and marine safety investigation unit was established to further enhance public transport and marine safety across the state.
Western Australia
WA’s average workers compensation premium rates fell from 2.13 percent of wages to 2.117 percent.
The Occupational Safety and Health Amendment Regulations, which detail changes in various fees including certificate of competency, asbestos licences, and registration of plant design came into effect.
Of note, WA tobacco control laws came into effect on July 31, with smoking banned inside all pubs and clubs.
Future OHS Changes
Radical changes to the NSW OHS legislation have been proposed by the state government.
The measures follow an extensive 10-month review of the state’s Occupational Health and Safety Act 2000 which drew vigorous submissions from employers and unions. Employers and unions will each welcome some of the changes and be critical of others, but the outcome appears to be a reasonable compromise between the interests of both sides.
Employees will be required to take reasonable care for their own safety. The ‘assumption of guilt’ for any workplace accident has also been softened by stating that it is expected of employers that they must only do what is ‘reasonably practical’ to ensure health and safety in the workplace.
The right of employees to take action over OHS issues has been enhanced by enabling employees to be reinstated if dismissed over OHS matters. OHS committees will also have enhanced powers to issue safety recommendation notices to employers, which will be reviewed by WorkCover. Employers who ignored such notices would have their legal position seriously destabilised if there was a subsequent accident.
Other key changes: the inclusion of legally binding agreements between employers and WorkCover; new fraud offences for making false representations or obtaining a financial advantage by deception; adding an advisory role to the statutory functions of WorkCover, reflecting a new approach to place a greater emphasis on the provision of advice, assistance and education; and right of entry for authorised officers to discuss occupational health and safety with workers.
Although the draft Occupational Health and Safety Amendment Bill 2006 has not been introduced yet, it is understood the government intends to bring the new legislation into effect this year. It is expected that a large part of the proposed legislation will commence.
