Legislation bites as interlopers play the prosecutor

If you are driving a car, have an accident and kill someone, you can be charged by the police and prosecuted for offences under the road laws, or even criminal manslaughter.

It would be strange if the law allowed the tow-truck driver called to the scene to prosecute you -- yet this is what happens under NSW work safety laws.  Unions are allowed to prosecute.  They do it all the time.  And it's disrupting the proper processes of prosecutions and justice.

This has been demonstrated by a feud between WorkCover and the Construction, Forestry, Mining and Energy Union.  The union recently blocked a WorkCover prosecution over the death of a young building worker in 2003.  The death was painstakingly investigated by the police and WorkCover inspectors, and a full coronial inquiry was undertaken.

Throughout the rest of Australia, only the workers compensation authorities can prosecute under work safety laws.  They do so impartially and without vested interest.

But in this case the union used powers that are available only in NSW, and lodged a prosecution before WorkCover could act.  WorkCover claims its trained investigators and the sizeable evidence it has gathered have been neutered.

Not only can NSW unions prosecute, but they can receive up to half of the fines awarded.  Further, the unions can have their legal fees paid by the person being charged.

In 2002 the Public Service Association prosecuted the NSW Roads and Traffic Authority over an LPG bottle explosion.  The RTA was fined $90,000.  The association received $45,000.

The Public Service Association also prosecuted the NSW Department of Education in 2003 over attacks on teachers by violent students.  The department was fined $160,000.  The association received $80,000.

In 2003 the Finance Sector Union prosecuted the ANZ Bank over an armed robbery.  The bank was fined $156,000.  The union received $78,000.

And in March Patrick Stevedores was fined $115,000 over work practices that risked, but did not cause, repetitive strain injury.  The Maritime Union of Australia was the prosecutor and received $57,500.  Patrick had to pay the union's legal bill of about $529,000.

Unions getting a share of the fines make the NSW work safety laws look like a money-making scam.

If work safety laws are to have integrity, prosecutions must be done only by independent, state-run authorities who have nothing personal to gain from the outcome.  This is the role of the police and WorkCover.  This is the situation in every state except NSW.

Facts must motivate work safety prosecutions, not the allure of possible financial gain.

But now the Construction, Forestry, Mining and Energy Union will run this particular prosecution of the 2003 building site death.  WorkCover says it has been forced out of the prosecution loop.  Unfortunately the NSW Government cannot stop the unions blocking WorkCover's proper role because it made the law in 2000 which allows them to do just that.  Now the people of NSW are living with the consequences.

Work safety laws are too important to risk being compromised.  Safety laws must set high standards and be strongly enforced.  But to produce safer worksites, people must be confident that the laws and processes are fair.

Allowing unions to prosecute and to receive money from prosecutions damages community confidence and compromises work safety.

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