New South Wales work safety laws are the worst in Australia and possibly the worst in the world. The laws create unsafe work cultures involving complacency and responsibility avoidance. They are dramatically impacting on the NSW mining industry.
The NSW Occupational Health and Safety Act 2000 presumes managers to be guilty even before an accident investigation occurs. They are denied trial in a proper court or trial before a jury and cannot appeal. They are personally fined large amounts in the NSW Industrial Court even if something happens over which they had no control. They are denied basic rights to legal justice that the worst of violent bank robbers receive.
If these laws were in place but hadn't been used, perhaps there wouldn't be much community anger. But the NSW mining industry saw these laws being used against some of its managers in the Gretley coal mine disaster prosecutions and now the industry is in silent but near panic.
The Gretley disaster occurred in 1996. The government initiated the manager prosecutions in 2000. Four miners drowned in the Gretley underground mine in Newcastle when drilling accidentally broke into a 100 year old, disused and water-filled mine shaft, flooding the new mine.
The subsequent formal investigation found that flooding occurred because the company was using mine maps that were wrong. The company was required by law to use maps supplied to them by the NSW Government's Mines Department. The maps showed the old flooded mine to be in a different location to where it was. The NSW Mines Department admitted in evidence it was at fault.
But the NSW OHS laws impose "absolute" obligations on companies and managers. This meant that the managers at Gretley were supposed to have god-like powers that enabled them to discover that the government maps were wrong. Three mine managers have been prosecuted and personally fined in excess of $100,000.
But the government refused to prosecute its own Mines Department and has never explained why. Is something being hidden? Why were the mine managers picked-on and the department left alone? Since Gretley there have been other NSW mine incident prosecutions that raise questions.
The company that now owns the Gretley mine has tried to support the managers by challenging the validity of the government's laws that block appeals. But the government strengthened the appeals blocking laws just before Christmas last year. This is as close to a stacked kangaroo court, legal process as can be found in Australia.
In addition, the NSW OHS laws do not apply similar responsibilities to employees. So if a mine employee does something that leads to a mine incident they won't face OHS prosecution in the way a manager would. This sends signals to employees that they don't have to be as diligent on safety as in other States because in NSW someone else will be blamed. No other state applies these double standards.
What's the outcome?
Mine managers and NSW mine companies are worried. The government passed new OHS laws in 2005 that enable the jailing of managers in the event of a work death. Presumption of guilt applies to managers stripping them of criminal justice rights.
NSW mine companies won't publicly say so but they are having difficulty finding new managers. Existing managers down to supervisors are actively looking for jobs in the mining boom states of Western Australia and Queensland. NSW mine managers are looking to become "consultants" where they can give advice but not be the decision makers.
And no one will disclose how these laws are impacting on mine upgrades and future mine investment considerations. It's easier and safer for companies to quietly make investments outside of NSW.
None of this should be occurring. Victoria for example, strengthened its work safety laws in 2004 by applying responsibility to everyone at work for what they control. Proper principles of legal justice apply under OHS laws in the other states.
NSW is currently undergoing a review of OHS laws. But there are concerns the review may prove to be a piece of political management rather than a serious re-consideration of the dangerous OHS laws.
What is needed are strong laws that apply full responsibility to everyone who is involved in work and who has control. Legal justice must apply. Only then can work cultures and behaviours be fully focused on safety.
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