The unsafe option

It’s an odd idea that Julia Gillard, in conjunction with the states and territories, would propose national harmonised work safety laws that would put workers' lives at risk. Yet this is the allegation being made by the ACTU in a media campaign.

Since the 1990s the number of work-related deaths has dropped from about 350 a year to the low 200s. The number of injured workers a year has dropped from about 19 in every 1,000 workers to about 16. But the decline in injuries and deaths does not match the work safety improvement targets set by governments across Australia.

Governments have accepted that a key hurdle to better work safety is that occupational health and safety laws in each state are confusingly different.

On September 25, the Employment and Workplace Relations Minister released, with the states' agreement, model OHS laws intended to apply nationally. For all states except NSW, the Gillard proposal is a consolidation and clarification of existing laws, creating national alignment.

The key feature is that each individual is responsible for safety, taking into consideration the practical circumstances and reasonable expectations. For example, a worker can be liable if they fail to mop up spilled grease and an injury occurs because of the spill. A company director or manager will be liable if they allow a machine to be unguarded. Worker safety representatives and committees will be empowered to stop unsafe work. Workers will have the right to refuse to do unsafe work. Authorised union officials will have the right to enter workplaces as long as they don't abuse those rights.

It's a practical safety package consistent with international OHS conventions that Australia has signed.

The situation is different in New South Wales, which has OHS laws unlike any other in Australia. OHS prosecutions elsewhere are criminal matters, but in NSW prosecutions are conducted in industrial relations courts, not criminal courts, with no right to a jury or to appeals. A safety incident causes guilt to be applied automatically, without consideration of what a person could reasonably or practically do. However, this applies only to employers.

This has led to the layering of gross injustices on top of workplace tragedies in NSW. Take one example. A NSW plumber has a criminal conviction against him after a hot water valve he installed in an aged nursing home failed. An elderly woman was scalded and tragically died. The court found the plumber had properly installed and maintained the valve. The valve failed because of a microscopic fracture in an internal sealed component. Yet NSW OHS law required that the plumber be declared guilty.

There's a long list of similar unjust outcomes in NSW, such that the law and legal institutions are not trusted.

One NSW judge referred to one case as "constituting more than prosecution and amounting to persecution of the defendants".

Many people in NSW are of the opinion that OHS cases lead to persecution rather than fair prosecution. This is dangerous because it destroys the community's faith in justice and distorts safety objectives.

When justice is defiled, it's hard to identify who should be prosecuted, instead of those who are blameless being declared guilty.