Page 320 - Week 02 - Wednesday, 7 March 2007
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Like other jurisdictions, the ACT’s Occupational Health and Safety Act 1989 includes right of entry provisions. These provisions allow authorised representatives to enter a workplace to investigate suspected contraventions of the act. To become an authorised representative, a person is required to complete training set out in the regulations. An approved training program for health and safety representatives is in place in the ACT. It is regularly reviewed and updated by the ACT’s tripartite Occupational Health and Safety Council.
Despite the existence of effective and reasonable territory legislation regulating the right of entry for safety related issues, the commonwealth decided that more regulation was needed. The WorkChoices regime requires an officer or an employee of a union to obtain a permit from the Registrar of the Australian Industrial Relations Commission before exercising right of entry powers. They are also required to enter during working hours and to provide 24 hours notice if they wish to examine the employment records. There is no benefit from this additional layer of commonwealth regulation to health and safety outcomes in workplaces. These regulations were also introduced with totally inadequate consultation.
The ACT government was not consulted about the regulations or even informed about their introduction. This is despite the fact that these regulations clearly impact on the rights of trained union representatives to enter workplaces and inspect for safety breaches. The failure to consult the ACT government about this matter is extremely disappointing but, I would note, not entirely unexpected, given the lack of meaningful consultation that preceded the introduction of the WorkChoices legislation.
Overall, the WorkChoices legislation has had a significant impact on the relative power of employees and employers in the workplace. Over time this may make it harder for employees to raise legitimate safety concerns. The reduced reach of unfair dismissal legislation means that an employee who is dismissed for raising a safety concern might only have access to the more complex and costly unlawful termination remedy.
Increasingly, employers are able to choose what type of instrument will cover the work force and possibly disregard the views of employees who would prefer collective agreements to individual ones. These changes entrench the notion that workers should passively accept the conditions of employment that they are offered. When it comes to workplace safety, the aim should be to raise awareness of potential workplace hazards and empower workers to refuse to work with risks that can reasonably be avoided.
Occupational health and safety legislation is about encouraging a systematic commitment from everyone involved in the workplace to ensure that work is conducted in a way that is safe and free from risk to health and safety. While the employer will continue to have the legal responsibility for ensuring safety at work, there is also a critical role for inspectors and trained safety representatives. By compromising the ability of workers and their representatives to take decisive action on safety issues, the WorkChoices legislation is likely to compromise optimal safety outcomes.
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