Despite an overall decline in workplace injuries the contentious issue of OSH is back on the agenda due to proposed State Government legislation, as Alison Birrane reports.
PROPOSED changes to WA occupational safety and health laws have attracted criticism from employers and industry bodies, concerned that safety issues in the workplace will become weapons in industrial relations disputes.
Consumer and Employment Protection Minister John Kobelke is proposing a raft of legislative reforms to WA occupational safety and health laws to reduce the number of work place injuries and deaths in WA.
The proposed changes are the result of a review of the State’s Occupational Safety and Health Act 1984 by former Australian Industrial Relations Commissioner, Robert Laing.
The Laing report was presented to the State Government on November 14 2002, with the proposed legislation due to go before parliament in this year’s spring session.
While some of the changes are seen as positive by industry, the proposed legislation is generally believed to contain controversial elements.
Under the proposed reforms, maximum penalties for duty-of-care breaches could more than triple, from $200,000 to $625,000.
If the proposed changes become law, employers or property owners found guilty of gross negligence leading to serious injury or fatalities in the workplace can be imprisoned.
Also planned is the establishment of a Safety and Health Tribunal to operate under the WA Industrial Relations Commission.
Also proposed are increased powers for authorised workplace safety and health representatives regarding breaches of the Occupational Safety and Health Act.
Changes are also planned for the role and composition of the WorkSafe Commission, and the Mines Occupational Safety and Health Advisory Committee format.
However, Mr Kobelke said while he accepted the concerns as valid, he did not see that safety issues would become confused with industrial relations issues under the new legislation.
He said the new Safety and Health Tribunal, which would operate under the WA Industrial Relations Commission, was aimed at providing an expedited process to deal with safety issues.
Mr Kobelke said there were so few cases each year that would go before the Safety and Health Tribunal that it made more sense to establish it under the existing Industrial Relations Tribunal.
Countering concerns regarding the proposed increased responsibility of safety representatives to issue provisional improvement notices, Mr Kobelke said a similar system existing in the eastern States worked well.
Mr Kobelke said the Government was conscious of the fact that adequate training would need to be provided to workplace safety representatives charged with the increased powers.
The Government expects detailed responses to the legislation once it has been drafted.
Freehills consultant Judy Siggins said that while there was no great issue with the Laing report in itself, many employers were concerned that the resulting legislation would confuse the line between safety issues and industrial relations disputes.
“There are quite a few recommendations in the Laing report and the concern is how these [will] translate through to legislation,” Ms Siggins said.
“It remains to be seen what the final legislation will be like. The fear for employers is that it [safety issues] becomes a weapon for industrial relations disputes.
Deacons senior associate workplace relations Leanne Nickels agreed, saying that employer concerns lay with the uncertainty surrounding the proposed legislation and how this would translate into actual legislation.
“Legislation can have some great underlying concepts, but they don’t always get translated,” she said.
Ms Nickels said some employers were concerned with the increased powers of safety representatives because they were often also union delegates.
“The concerns are very much about the scope and the ability of the safety representative to issue PINs [provisional improvement notices],” she said.
“There is uncertainty surrounding whether there would be any limits to these powers and results of failing to comply.
“There is also concern about the increased penalties and also the imprisonment for gross negligence.”
WA Chamber of Commerce and Industry Safety and Health director Anne Bellamy said some of the proposed occupational safety and health reforms were a move away from the positive developments in OSH in previous years, which had resulted in an overall decrease in workplace injuries of about 30 per cent.
Ms Bellamy said safety issues should be based on a consultative process.
“We see the OSH proposals as being draconian,” she said. “The introduction of imprisonment, the larger fines, and increased powers of safety representatives, for example.
“It is a step towards industrial relations by referring safety issues to the industrial relations commission.”
Ms Bellamy said the proposed legislation would push employers towards an attitude of protection rather than prevention.
“Employers will see that they are faced with heavy fines or imprisonment and need to protect themselves,” she said.
“We’re starting to see that in NSW, where there is much earlier legal involvement and employers must protect their own interests rather than engaging in a consultative and supportive process of employer involvement.”
