How is it that New South Wales work safety laws arguably breach human rights principles and international work safety obligations, and what of the other states?
On 26th March this year Australia's occupational health and safety obligations (PHS) under International Labour Organisation Convention 155 came into effect. Australia's ratification of C155 requires that our OHS laws impose obligations on parties at work given what each person controls, judged by what is reasonably practicable to do.
In late 2004 Victoria passed new OHS laws consistent with C155 requiring all people at work to be equally responsible for what they reasonably and practically control. This includes employers, independent contractors, employees, suppliers, site managers and probably extends to unions. Heavy fines apply for breaches. Jail is possible after a proper trial.
However NSW breaches international obligations. The NSW Occupational Health and Safety Act 2000, holds employers and independent contractors guilty of OHS offences whether they controlled a situation or not. The fact of an OHS breach occurring causes guilt to be applied. If a company is held to be guilty the managers are automatically held to be guilty. Judgment of what was "reasonably practicably" is contorted by being limited to defense against preordained guilt. Innocent people will surely go to jail. Only employees are held accountable for what they control.
In NSW employers, their managers and independent contractors can be jailed but employees cannot. When looking to convict someone NSW has thrown out human rights and justice principles. There is no trial before a jury, the Industrial Relations Commission passes judgment, there is no right of appeal through the justice system and burden of proof of innocence is on the accused. A person can be found not guilty at a first trial then recharged with the same offence.
NSW law corrupts the legal process completely by allowing unions to act as prosecutors and receive up to half of the fines awarded. This strips the prosecution process of its impartiality and integrity by giving union prosecutors vested financial interest in the outcome. In just four cases NSW unions have been paid in excess of $780,000 from fines and costs.
The contrast between NSW and Victoria is stark. Other states have are considering their OHS direction. Confusion exists because of inconsistent laws. When jailing, some states apply the legal idea of "recklessness," others "gross negligence" and NSW "strict liability". People are liable to go to jail in one state but not another for exactly the same OHS breach.
The problem creates a dilemma for the federal government. The states have prime responsibility for OHS laws, but the federal government has to ensure international treaty compliance and could be pressured to override non-complying states.
NSW has an urgent need to address its international OHS and human rights breaches. The states could take a lead from Victoria and comply with C155. Common sense is needed to ensure that OHS responsibilities are tied to "control" within the bounds of what is, "reasonably practicable".
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