NSW threatens to torpedo harmonised OHS laws


NSW threatens to torpedo harmonised OHS laws

In a bid to shore up union support before next March’s state election, NSW Premier Kristina Keneally has threatened to scuttle new uniform OHS legislation already agreed to by New South Wales and all other states except Western Australia.


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In a bid to shore up union support before next March’s state election, NSW Premier Kristina Keneally has threatened to scuttle new uniform OHS legislation already agreed to by New South Wales and all other states except Western Australia.
Keneally has written to Prime Minister Julia Gillard saying New South Wales will not support the uniform OHS laws unless they contain provisions that continue the right of unions in New South Wales to launch OHS prosecutions against employers.
As well, she wants the state’s ‘reverse onus of proof’ to remain so that employers have to prove they took all reasonably practicable steps to prevent a workplace accident.
Exemptions for project agreements
Keneally also wants the $6bn Barangaroo project in Sydney exempted from the Fair Work legislation so that a project agreement can be negotiated.
This would enable a deal to be done with New South Wales unions to guarantee the project is built on time and on budget.
In return, the unions would get ‘extras’ such as site and productivity allowances and the ability to ensure subcontractors either pay their workers properly or are not allowed on site.
Construction companies participating in project agreements outside Fair Work rules could find themselves banned from tendering for Commonwealth-funded work.
Easter Sunday holiday
Keneally has also begun proceedings to have Easter Sunday declared a public holiday. This will not affect major retailers, because they are closed, but public servants such as nurses and police, as well as workers employed by hotels, clubs, the security industry, contract cleaners and manufacturers working a seven-day week will be paid double time and a half.
The Premier will give more details on the demands she has placed on Gillard when she address the Unions NSW ‘Dignity & Respect in the Workplace Seminar’ today.
Keneally said she had expressed concerns to Gillard that the right of union prosecutions and the reverse onus of proof are not part of the proposed federal harmonisation of occupational health and safety legislation.
‘The NSW Government supports the reform objectives of the harmonisation of OHS laws, which will cut red tape and create greater consistency and certainty for workers and employers,’ she told Gillard.
‘NSW has participated constructively in the development of the model laws.’
‘However, the NSW Government will only introduce harmonised occupational health and safety laws if OHS standards remain universally high.’
Keneally ‘won’t compromise’
‘NSW has the highest standards of safety in our workplaces and we won’t compromise on that.’
‘The right of unions to initiate prosecutions has been in place in NSW since 1943 and while the number of union-led prosecutions has been relatively low, it has provided workers with an important avenue of redress.’
Keneally said the reverse onus of proof — introduced by Neville Wran’s Government in 1983 — is an established feature of NSW occupational health and safety laws.’
‘The reverse onus of proof is predicated on the fact that much of the material or knowledge of what is or isn’t reasonably practicable resides with the defendant,’ she said.
Controlling risk
‘Modern safety laws focus on employers identifying and controlling the risks in their workplace, recognising that those who work in the industry should know the risks better than anyone.’
‘For this reason, it is entirely fair that the onus should be on them to prove what is and isn’t reasonably practicable.’
Keneally thanked Unions NSW secretary Mark Lennon and unions for their advocacy on this issue.
‘I look forward to working with the Commonwealth to consider how the objectives of OHS harmonisation can be met nationally while still allowing NSW to retain these two important aspects of its legislation,’ she said.
Keneally said project agreements are the NSW Government’s preferred way of doing business on NSW construction projects, providing structure for the management of industrial relations on construction sites.
She said examples of successful project agreements include:
  • The Olympic Games
  • The Lane Cove Tunnel Project
  • The Epping to Chatswood Rail Link
  • Parramatta Railway Station
  • Liverpool Hospital
  • The Cross City Tunnel.
‘Project agreements are an integral part of the workplace safety legislation which has seen NSW experience the lowest rates of workplace injury in more than 20 years,’ Keneally said.
In breach of Fair Work Act
‘Discussions about a project agreement for Barangaroo have commenced but stalled as legal advice shows that any such agreement would be in breach of the Fair Work Act.’
‘I am hopeful that the Prime Minister will understand our desire, and the arguments, that exemptions be created to allow Project Agreements in NSW for major projects like Barangaroo.’
Relations with the unions soured when the Iemma Government attempted to privatise the state’s electricity system in 2008. The Keneally Government is expected to be heavily defeated in the March election, but with the financial and electioneering help of the union movement may save some Labor seats currently under threat.
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