OHS & Workers’ Compensation Developments Industrial Officers’ Conference 2006

1. OHS & Workers’ Compensation Developments Industrial Officers’ Conference 2006

2. Changes to the IR laws that effect OHS • Trade Union Training Leave for OHS • Right of Entry Permits for Union Officials • Hours of Work • Cease Work for Fear of Imminent Risk of Harm

3. Trade Union Training Leave for OHS • Illegal in workplace agreement • Government says it does not pertain to employer – employee relationship • Unions asking for this in agreements could face $33,000 fine •  Does not refer to Health & Safety Rep training

4. Beaconsfield mine disaster • The Howard government maintains that safety training • provided by a trade union is • “…something which people are entitled to do in his or her own time. It is not part of the job they are doing.” • Unions and trade union training improve safety •  Unions NSW trained 20,000 workers in OHS over 2 years under the trade union training clause

5. Trade Union Training Leave for OHS • WORKCHOICES ACT SAYS: • PART 8 WORKPLACE AGREEMENTS • Division 7.1 Prohibited content under section 356 of the Act • Subdivision B Various matters that are prohibited content • 8.5 Various Matters • (1)A term of a workplace agreement is prohibited content in the extent that it deals with the following: • (c) employees bound by the agreement receiving leave to attend training (however described) provided by a trade union; • (d) employees bound by the agreement receiving paid leave to attend meetings (however described) conducted by or made up of trade union members;

6. 2. Right of Entry Permits for Union Officials • Union officials who have right to enter under state and territory OHS law, must now hold Right of Entry under WorkChoices law • $33,000 penalty for a breach • Unnecessary doubling up of permit process & excessive fine

7. 2. Right of Entry Permits for Union Officials • Union officials must give 24 hours notice before entering workplaces to inspect employment records such as hours of work, over time… • $33,000 penalty for a breach • Lengthy delay to inspect employment records & excessive fine

8. 2. Right of entry permits for union officials WORKCHOICES ACT SAYS: 756 Permit required for OHS entry (1) An official of an organisation who has a right under an OHS law to enter premises must not exercise that right unless the official: (a) holds a permit under this Part; and (b) exercises the right during working hours. 759 Limitation on OHS entry—permit conditions A permit holder’s right to enter premises under an OHS law in accordance with section 756 is subject to any conditions that apply to the permit.

9. 3. Hours of Work • Allows employers to average out “ordinary hours” over a year • “Additional hours” are subject to the risk they pose on employees’ health & safety •  Legislated defence in claiming “additional hours” are a risk to health, safety and wellbeing

10. 3. Hours of Work • WORKCHOICES ACT SAYS: • Subdivision B – Guarantee of maximum ordinary hours of work • 91C The guarantee • An employee must not be required by an employer to work more than: • an average of 38 hours per week over the employee’s applicable averaging period; and • reasonable additional hours • Reasonable additional hours • (5) For the purpose of paragraph (1) (b), in determining whether additional hours that an employee is required by an employer to work are reasonable additional hours, all relevant factors must be taken into account. Those factors may include, but are not limited to, the following: • (a) any risk to the employee’s health and safety that might reasonably be expected to arise if the employee worked the additional hours • (b) the employee’s personal circumstances (including family responsibilities)

11. 4. Cease work for the fear of imminent risk of harm • Workers who stop work could be fined, sued or have their pay docked if the employer believes the action is unreasonable • It will be the employers word against the workers’ • Together with the threat of unfair dismissal leads to unsafe workplaces • ILO Convention on OHS states that there must not be undue consequences for ceasing work if a worker has reasonable justification

13. 4. Cease work for fear of imminent risk of harm WORKCHOICES ACT SAYS: 106A Meaning of industrial action Does not include the following: (g) action by an employee if: (i) the action was based on a reasonable concern by the employee about an imminent risk to his or her health or safety; and (ii) the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform. Burden of proof (4) Whenever a person seeks to rely on subparagraph (g)(i) of the definition of industrial action in subsection (1), that person has the burden of proving that subparagraph (g)(i) applies.

14. The new industrial relations laws - WorkChoices – “…aims to create more flexibility for employers and employees.” - Federal Minister for IR, Kevin Andrews -

15. “While the shift to flexible work arrangements and rounds of organisational restructuring has been promoted as a critical vehicle to enhancing productivity to meet global competition, and to a lesser extent achieving ‘win-win’ gains to employers and employees there is mounting evidence that these changes are having serious adverse effects on worker health, safety and well-being.” Quinlan,M., Working Paper 16,Flexible Work and Organisational Arrangements – Regulatory problems and Responses, July 2003

16. The new laws will have an adverse impact on • health, safety & wellbeing: • Increase flexible work arrangements • Increase unpaid overtime and irregular hours of work • Increase work intensification • Increase unfair dismissal laws & reducing access to union representation

17. Increase flexible work arrangements • Evidence shows: • Casuals are more likely to go to work sick • More likely to experience bullying & harassment • More likely to stress over money • More likely not to report injuries

18. Increase unpaid overtime and irregular hours of work • Increase in fatigue & stress • More pressure on work life balance

19. Increase work intensification • Evidence shows: • Increases risk of musculoskeletal injuries • Increase in dangerous work hours • Increase in work stress • Increase pressure on work life balance

20. Increase risk of being sacked & reducing access to union representation • Increase worker fear and isolation • Increase fear to speak out about health & safety issues • Increase risk of bullying and harassment • Increase pressure on work life balance

22. Mainstreaming OHS and Workers’ Compensation • Obligations create opportunities • Getting more health and safety reps • Innovations in OHS training

23. Obligations create opportunities • State and territory OHS laws are generally not effected by WorkChoices • Under state and territory OHS law employers have a general duty of care to provide and maintain a working environment that is safe and without risks •  Workplace agreements should contain employee friendly OHS provisions

24. 2. Getting more health and safety reps (HSR) • HSR are mandated under the state and territory OHS laws (except for NT) • HSR have a lot of power under these laws • Link HSR & Union delegates • HSR training by State Union bodies • Return to Work Reps (to be union members)

25. Innovations in OHS training • Face-to-face, Online or Blended delivery • OHS training now includes workers’ compensation • Industrial issues & OHS issues • Union training gives ACTU OHS Policy • Union safety culture versus behavioural safety culture • Focuses on ‘Organising & OHS in workplaces’