BUSINESS GROUPS recently called on the NSW Government to strip trade unions of a potential right to prosecute employers under its newly proposed workplace fatalities legislation
by Craig Donaldson
BUSINESS GROUPS recently called on the NSW Government to strip trade unions of a potential right to prosecute employers under its newly proposed workplace fatalities legislation.
The legislation doesn’t distinguish between rogue employers whose bad behaviour could contribute to a fatality and the vast majority of employers who take their OHS responsibilities seriously but still experience a fatality in their workplace, according to Australian Business Limited.
Under the draft Occupational Health and Safety Legislation Amendment (Workplace Fatalities) Bill 2004, trade union officials would have the power to lay workplace death charges against any employer or manager.
The new offence carries a maximum sentence of five years in jail and fines of $165,000 for an individual and $1.65 million for a corporation.
This legislation could potentially result in trade unions receiving hundreds of thousands of dollars for each successful workplace fatality charge they lay, said Australian Business Limited chief executive Mark Bethwaite.
“We support legislation that will bring rogue employers to account, but we do not support a proposal to turn every trade union official into a bounty hunter,” he said.
“The power to prosecute should not be given to trade unions, it should be given to the Government’s own investigator, Workcover.”
Bethwaite said the legislation represented a clear conflict of interest, in that unions should not have the right to lay serious custodial charges or the right to get a 50 per cent cut of the proceeds from any fine.
“We agree that rogue employers should be brought to account. But we do not support plans for a new offence to be administered and profited from by the trade union movement,” he said.
“Union officials are the wrong people to prosecute serious custodial charges and the wrong people to receive any proceeds from prosecutions. There is real potential for this new police-style power to be abused.”
The Australian Industry Group also said the legislation failed to differentiate between employers who are reckless and those who take safety seriously.
“It is essential that the usual protections of criminal law are available to employers, including independent prosecution, full appeal rights and assumption of innocence,” said Mark Goodsell, Australian Industry Group Director for NSW.
He also said that WorkCover’s role had moved too far from regulator to policeman, and employers perceive that WorkCover is now primarily focused on enforcement.
“This has come at the expense of providing employers with education and guidance on what constitutes good workplace safety practices – a primary role of the regulator and a function they performed well in the past,” he said.
“Employers are concerned that although WorkCover was created to assist businesses in making their workplaces safer, they are now being told by WorkCover only what they can’t do, not what they can.”
New South Wales has the toughest OHS standards and the most prosecutions. However, Goodsell said, this was not reflected in a higher rate of decline in workplace fatalities than that in other states.
He pointed to research which found that workplace deaths had steadily fallen over the last decade, but they had not fallen in New South Wales as much as in states such as Victoria and Queensland.
“This result suggests that an overly strong emphasis on enforcement is not the remedy for improved safety in the workplace,” he said.
The ultimate test of the bill would be its ability to reduce fatalities, NSW Labor Council secretary John Robertson said.
“Unions see this initiative as a first step in addressing the ongoing problem of high accident rates besetting some industries,” he said.
“The second stage is a properly resourced inspectorate to enforce the law. The Government still needs to address that problem.”
