If the Federal Government’s proposed Workplace Health and Safety Model Bill is passed in its current form it will reduce Australia’s workplace safety standards.

Workers in the Finance Sector stand to lose out.

1. The Right to Prosecute breaches of OHS laws will be lost to Unions.  This has been an effective tool and disincentive to employers to flaunt the law.

In 1998, there were 180 armed robberies in NSW, and in 85% of incidents bank staff were molested or assaulted.

By 2007, the number of NSW bank robberies was reduced to just 34.

Between 2001 and 2005, there were 5 prosecutions undertaken by FSU in accordance with NSW OHS laws.  The Union prosecuted ANZ twice, CBA twice and there was one Westpac prosecution.  Each of the banks pleaded guilty, having been formally notified by the FSU of the potential harm they were placing employees in on a series of occasions.

One of the most effective of these prosecutions resulted in the installment of anti-jump barriers via a national re-fit of all ANZ branches, following repeated robberies.

The Union right to prosecute ensures that these large employers now respond more quickly to protect the safety of their employees.

Recommendation: The harmonised national laws should reflect best practice and recognise that the Union right to prosecute is a powerful incentive for employers to protect workers’ health and safety.  Adopt the current s. 106 of the Occupational Health and Safety Act (NSW) 2000.

2. The enforceability of laws relating to psychological illness and injury.

Stress from overwork and bullying are two growing areas of illness and injury for finance sector workers.   In their present form, the laws will not provide protection against the causes of psychological illness or injury, other than through Codes of Practice or Guidelines.

If the harmonised laws are to truly reflect current OHS trends, they must include protection against bullying and other stress factors in the workplace.

Recommendation: Given the cost to industry of psychosocial risks at the workplace and growing concerns over stress and bullying in the finance sector, the legislation include reference to psychosocial risks in regulation, supported by codes of practice.  [See draft Report Performance Benchmarking of Australian Business Regulation: Occupational Health and Safety, Productivity Commission, January 2010.]

3. Arbitrary health and safety policies with fines for workers.

Under the proposed laws, employers will be able to enforce health and safety policies which are arbitrary, not subject to any minimum standard, and do not require consultation with employees.

For example, employer policies will be able to prevent workers from choosing their own doctor to see about a work related illness or injury.  This has already proven to be a problem at NAB and the Commonwealth Bank – both of whom are self-insurers under the Comcare scheme.  Disputes around genuine illness and access to doctors have led to more sick leave and stress for workers- and further cost to the employer.

The proposed laws would make workers subject to fines or prosecution for failing to comply with any aspect of a Health and Safety Policy.

Employers and senior executives are protected from prosecution under the proposed laws, but workers are not.  In extremely hierarchical organisations such as banks, this proposal is simply unfair.  Workers are often unable to control risks in these organisations.

Recommendation: Adopt provision from current Vic OHS legislation

[s. 25.3] which provides reasonable protection from prosecution for workers].

4. More risk for workers who volunteer as Health and Safety representatives.

The proposed laws would mean that representatives could have legal action taken against them by an employer for carrying out their HSR duties.

The new laws will discourage workers from volunteering for this role and employers will be able to intimidate health and safety representatives who are carrying out their role effectively.

It will make workplaces less safe as HSRs become less confident about when to use their powers.

Recommendation: The current Victorian OHS legislation states that representatives must not be exposed to the threat of legal action by their employers, unless they intended to cause commercial harm to the business- this principle should be adopted nationally.  The proposed bill should be clarified to allow a court to determine the length or permanency of any disqualification.

5. Risk Management procedures will no longer be enforceable.

Under current legislation an employer must have an adequate risk management strategy in place, or be subject to penalties.  This is a fundamental tenet of a safe workplace.

The proposed laws introduce a lower standard of risk management via a code of practice, and the code of practice will only be relevant after an accident has occurred.

Under the lower standard of a code of practice, an employer who does not have a risk management strategy will only be subject to prosecution if an accident investigation reveals that there was no risk management strategy in place, or a risk management strategy did not meet the code of practice.

Risk management is the most effective preventative measure in workplace safety – it should not be undermined in the new national laws. 

Recommendation: Adopt s. 27A of the Qld OHS legislation as an appropriate national standard.