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OH&S Legislation Adds Greatly To Union Power
article by Paul Sheehan published in The Sydney Morning Herald, 19 December 2011
with comments by Grace Collier and Des Moore

I have already drawn attention to the greatly increased power provided to unions under the Fair Work Australia legislation. But thanks to workplace consultant Grace Collier, my attention has also been drawn to the further remarkable additions provided under new national health and safety legislation coming into law on January 1. Below are comments by her and SMH journalist Paul Sheehan on the serious implications of this legislation.

Resort by unions to complaints about worker safety has been part of the strategy used to press employers for other claims. This legislation seems likely to make OH&S a major weapon. It is astonishing that the Victorian and NSW governments have accepted this legislation while the WA government has not.

Des Moore

Comments by Grace Collier
(Managing Director, Industrial Relations Consulting, ph 0437 565 135)

The new national health and safety regime will result in an alarming increase in union power. National laws are being adopted by every State except WA (see below excerpt from government website) on January one next year.

Employers might not get the opportunity to end disputes by locking workers out without pay. Unions will no longer take the risk of lockouts and will cease notifying of their intention to take protected industrial action. Instead they will win their battles by withdrawing labour on full pay at key times.

Workers will remain on full pay without performing work until the employer either persuades the union or overcomes a reverse onus of proof in the legislation to prove to the State Industrial Relations Commission that the workplace is safe.

The blue collar unions will use these laws to completely control sites. We will see many a Friday lunch time 'safety walk out'. Workers will return on Monday when their union delegate declares the site 'safe again'.

If business think the FWA has increased union power to unacceptable levels, I anticipate a catastrophic reaction to the impact of the harmonisation legislation. This legislation makes the Fair Work Act look positively anti union.

It defies belief that State Liberal Governments are accepting of the regime. NSW and Victoria plan to delay their implementation until January 2013 to allow business time to 'adjust' but all other states (not WA) will adopt the legislation within weeks.

A Trojan Horse to empower the unions
article by Paul Sheehan published in The Sydney Morning Herald, 19 December 2011

It may be the season of political peace, if not goodwill, but the NSW and Victorian governments will be lax and naive if they allow the conviviality of the next two weeks to let a Trojan Horse enter their gates on January 1.

This Trojan Horse is a sly and toxic law that will begin germinating the seeds of industrial bastardry from the first day of 2012.

Just as the federal government's Fair Work Act opened up a host of grounds for industrial dispute - and we are seeing the result - the new national health and safety legislation coming into law on January 1 will allow unions greater power to shut down worksites without even having to go on strike.

Greg Pearce, the NSW Minister for Finance and Services, who has responsibility for industrial relations, needs to stop this potential for manipulation. So does his Victorian counterpart, Richard Dalla-Riva, the Minister for Employment and Industrial Relations.

They need to lock out the Trojan Horse, more drily known as the Commonwealth Work Health and Safety (WHS) Bill 2011 and its ''harmonised'' WHS regulations. It is the first stage in creating a uniform national workplace health and safety code.

Only union-based governments could love this entire law, which is why the federal, Queensland, South Australian and Tasmanian governments, plus the ACT, will implement the bill in its entirety on January 1.

NSW and Victoria have opted for a twilight zone, adopting the bill but delaying its implementation for a year until January 1, 2013.

They should follow the lead of Western Australia, which has rejected elements of the bill outright. For good reason. Under this legislation, unions will have a new set of powers to exercise control of industrial worksites. It gives them an avenue to bypass the risks of industrial action and costly lockouts. They will have greater leverage to use workplace safety to take employees off a site while leaving them on full pay.

The WHS bill gives union officials the right to enter workplaces without notice. They need only to inform employers of their presence ''as soon as practicable''. They will have the right to ''direct'' employees to cease work on safety grounds. Workers will be entitled to full wages during such stoppages.

Further, the bill places the onus of proof on employers to prove there is no safety issue justifying a work stoppage. For an employer to get staff back to work, it would have go to the Industrial Relations Commission to prove the case that the worksite is safe.

The bill also sets more punitive penalties for safety breaches.

These problems are pointed to by the WA Department of Commerce on its website: ''WA has highlighted four areas that it did not agree with [in the WHS bill] and consequently would not be adopting as law in this state: penalty levels; union right of entry; capacity to direct the cessation of work; reverse onus of proof in discrimination matters.''

This legislation will compound problems already exposed by the Gillard government's Fair Work Act, which has seen an outbreak of strikes, lockouts and formal disputation via Fair Work Australia.

The industrial relations climate is contributing to the stagnation in productivity now hindering the economy and the government's ability to extract itself from its panic spending in 2008 and 2009 when, having inherited a budget surplus, it created Australia's biggest budget deficit since World War II.

Julia Gillard's dependence on union power and union officials is personified by her continued support for the slow-motion political disaster known as Craig Thomson, who can now add questions over plagiarism and junketeering to the laundry list of questions he was already facing.

The government's legitimacy and survival thus rests on the shoulders of a former union official, Thomson, who appears unable to survive another election, and the two MPs whose electorates recorded the lowest Labor/Greens votes in the entire 2010 election: Robert Oakeshott and Tony Windsor.

We also have a Treasurer, Wayne Swan, whose political career appeared cooked during the Godwin Grech affair in 2009 until a miscalculation by the then leader of the opposition, Malcolm Turnbull.

On the subject of Turnbull, I received an email from him at 5.59am last Thursday in response to my column setting out the stark new political divide in Canberra over gay marriage.

Turnbull: ''Paul … your statement that I am a vocal supporter of gay marriage is false … In fact while I have said I am re-examining the issue with an open mind I have quite expressly said that I have not changed my position stated many times that marriage is a permanent union between a man and a woman …''

I replied: ''The offending sentence has been removed from the online edition of the SMH. The sentence now reads: 'The former Liberal leader Malcolm Turnbull, whose electorate has a large gay population, is advocating a conscience vote for the Liberals.'

''I wrote what I wrote because you have been having a bet each way on gay marriage, deviating from [shadow] cabinet solidarity and undermining the Opposition Leader's unambiguous position. But … I will correct that in my column on Monday.''

To which Turnbull replied: ''I am not having a bet each way on gay marriage - I am doing exactly what I undertook to my electorate I would do and re-examine the issue … the assertion in your amended copy that 'Malcolm Turnbull … is advocating a conscience vote for the Liberals' is also not correct … As a shadow cabinet member I would vote in accordance with the shadow cabinet's decision - so the wording would be 'has advocated a conscience vote.' ''

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