Anyone who thought the battlelines over workplace reform were clearly established around Work Choices needs to look again. The extent to which Work Choices is only one part of a much larger structural change is becoming apparent.
In the latest development, occupational health and safety laws have shifted firmly onto the agenda, in a way few could have expected, affecting everything that made the old industrial relations club in Australia so powerful.
The effect will be particularly acute in NSW, where the political fallout could affect both the federal and state elections.
The Commonwealth is not attempting a direct OHS takeover, but in 2004 it made its own workers compensation scheme, Comcare, available to businesses large enough to self-insure and which were in competition with a government authority or ex-authority.
And early this year, the Commonwealth introduced legislation to ensure that, when a business joins Comcare, it is subject to federal OHS laws and exempt from state laws.
It is understood that a rush of applications to join Comcare is now underway. Why?
The federal OHS laws are similar to most of the state laws. Some key principles apply where employers, suppliers and so on (including employees) are held liable and responsible for what they reasonably control. But in two areas the states differ markedly from the Commonwealth.
Most states give unions high workplace entry rights on OHS issues, and there is a state push to jail managers over deaths without applying normal criminal processes. Commonwealth OHS laws downplay union OHS entry rights and apply strict criminal standards in the event of possible jailing.
The Commonwealth package of single, national workers compensation and OHS standards is extremely attractive to nationally operating businesses. It's a significant, initial step towards national consistency.
In NSW, the reaction on the OHS issue is massive. The state has OHS laws unlike any other state and, possibly, unlike any country.
The 2000 act holds employers automatically guilty in the event of an OHS incident. With a glaring double standard, employees are deemed not to be guilty. The test of "reasonable control" is not applied in the prosecution of employers -- only in defence. Unions prosecute and receive half the fines. Jailing outside of normal criminal processes is possible. Prosecutions occur in the industrial relations system without rights of appeal.
Significant numbers of prosecutions of small and large businesses have occurred, or are in the pipeline, and owners and managers have become fearful.
Examples of clear and severe injustices are widely known. There is an emerging view that OHS prosecutions in NSW are tainted by political and union agendas.
The OHS laws are being spoken of as a factor in the declining NSW economy.
To try to quell the brewing unrest, the state government conducted a review of OHS last year. For the first time, every industry association made submissions calling for fundamental change.
The NSW political settlement around OHS has collapsed.
The government is caught in a corner. It can no longer claim business support for its OHS laws. If it makes the laws consistent with those in other states, it risks a damaging split with NSW unions.
The Commonwealth is offering an escape, for larger NSW businesses at least. Smaller businesses may look to a change of NSW government in March 2007.
The NSW government's response has often been to deny the truth of its laws. Recently, a huge public relations counter-offensive was launched, focusing on work-safety victims. It's designed to intimidate businesses and industry associations into keeping their objections quiet. It's also an attempt to paint the Commonwealth as a defender of unsafe business practices.
A new phase of the national work reform agenda has began. The Commonwealth push for nationally consistent OHS laws is now on. With NSW under the greatest pressure.
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