Workplace Safety: Sweeping Up OH&S Mess

Article excerpt

From a legal standpoint, breaches of workplace occupational health and safety (OH&S) laws are now on par with more conventional crimes against person or property. Indeed, with a majority of workplace accidents now involving die commission of a criminal offence, simply doing business has become akin to a quasi-criminal enterprise.

This disturbing approach to the regulation of OH&S by state and territory Labor Governments is an area of policy that is becoming not only largely incompatible with federalism, but also with the rule of law, individual freedom and the unique character of public government.

Nowhere are the problems better highlighted than in the recent introduction of differing offences for reckless or negligent conduct in die workplace resulting in death or serious injury in Victoria, New South Wales, Western Australia and the Australian Capital Territory. Despite the fact that these offences bear little real resemblance to the offence of criminal manslaughter by an individual, they are commonly referred to as 'industrial manslaughter' offences.

UNION POLLUTION OF OH&S

Unlike broader labour market regulation, state Labor Governments have historically been able to quarantine OH&S laws from the infections that flow from leftist class war ideology. But while commendable, this has been more the result of previous union approaches to OH&S, and the nature of the old industrial relations landscape, than a consequence of real leadership within the ALP.

Before the late 1970s, union involvement in OH&S was, at best, sporadic and half-hearted-confined to strikes and arbitral proceedings over safety issues, as well as seeking rents and special allowances such as accident make-up pay and dirt money. It was not until 1979, some four years after wage indexation started to bite, that the Australian Council of Trade Unions actually came up with an OH&S policy. But it was not until a declining membership base in the late 1980s, and questions surrounding ongoing union relevancy after the wages accord, that union leaders first properly recognised the enduring source of power, money and status that could come from unions institutionalising themselves as the collectivist moral voice and representative on all OH&S issues.

The unions monopolistic representation rights and other privileges under IR legislation have given them an undeserved private government status in Australian society. However, though unions may lack the sovereignty and control that defines public government, union privileges in the area of OH&S today are now so significant that their powers are much more expansive than the term 'private government' suggests.

Although not all of these OH&S privileges derive themselves solely from OH&S legislation or hold uniformly across all states and territories, they include: the ability to require that employees be paid for strikes related to 'genuine' safety concerns; the right to enter business premises without notice to investigate 'suspected' safety breaches; the right to be consulted over workplace safety, even where the union has no members; the right to prosecute employers for breaches of OH&S legislation; the right to obtain a 'bounty' in the form of half of any monetary penalty awarded in a unionled OH&S prosecution; and the right to be reimbursed by business for the legal costs incurred by the union in conducting an OH&S prosecution.

Over the past three years, proper debate about industrial manslaughter legislation across Australia has been polluted by the ability of some unions to leverage their standard class war mantra of 'blame' and 'exploitation' with state and territory Labor Governments. This has not only clouded the real regulatory and legal issues involved in this important area of public policy, but led to inconsistent and deficient legislative outcomes.

INCONSISTENT AND BAD LAW

Laws in most civilised countries differ according to whether an offence is criminal or civil, due mainly to the seriousness of the moral stigmas and sanctions attached to a finding of criminality. …