One of the things that frustrates me about media coverage of state political issues is the lens that they currently view anything being done by the NSW government. They've already concluded that the NSW government is incapable of making a good decision.
On the rare occasion that the NSW Government does get something right, the media don't know how to handle it. So they either choose not to inform themselves of the facts about the policy, or they wilfully ignore them and just attack the government.
The media love nothing more than conflict, especially if it's between two members of the same political party. A public spat between Julia Gillard and Kristina Keneally is like feeding the monster.
This morning Kristina Keneally announced that she would not be implementing the national OHS laws in NSW over concerns about NSW powers that would be lost under the legislation. In response, Gillard has threatened to withhold $140 million in tied federal grants.
The media have already come out this morning and described the move as an attempt to "shore up the unions support before the March 2011 election".
What frustrates me is the "sop to the unions" meme has already bounced around the media, but none of them have actually looked at the policy.
If they did 5 minutes of homework, they would discover:
1. Keneally has valid policy concerns about protections that workers in NSW will lose
2. the NSW government has voiced these concerns for over 12 months, initially under Nathan Rees. Their position has been consistent the whole time.
With this said, of course Unions have concerns about the harmonised policies. it would be hardly surprising if they didn't have an opinion on an issue like workplace safety.
The ACTU put out a policy statement at its conference last year. It supported the harmonisation process but had grave concerns about some parts of the new policy.
A short summary can be found here (recommended reading):
http://www.unionstas.com.au/News/2009/ACTU_OHS_Fact_Sheet_May09.pdf
Shortly afterwards, the ACTU launched a campaign called "Don't Risk 2nd Rate Safety". Unions NSW held a protest a few weeks after in Martin Place, and similar protests were held across the country.
The dispute between Keneally and Gillard focuses on two of the matters in that policy document. The first is the Union right to prosecute, and the second is the reverse onus of proof.
Union Right to Prosecute Employers over OHS Breaches
The Union right to Prosecute is a power that has existed in NSW for a long time. It allows a union to prosecute an employer in court over alleged breaches of OHS legislation.
If you are a union member (and even if you aren't), this is a very important power to retain. Without it, you will be forced to rely on your state/federal safety authority, or your own pocket, to prosecute an employer for breaches of safety legislation. In NSW, Unions can also prosecute - giving workers a third way to make their workplaces safer.
These powers have improved workers safety. The example often used is that of the banking Industry. In 2002, an important case initiated by the Finance Sector Union found that the Commonwealth Bank had not taken all available steps to ensure the safety of its Bank Tellers from the risk of bank robberies. The FSU won the case, and the Commonwealth bank had to spend over $100 million installing new safety screens, non-jumpable desks and other measures to ensure the safety of staff. Other banks then followed.
This power is in ther interests of workers. NSW state legislation includes it. Other states don't have it. The federal government wants to take this power away from NSW in the harmonisation process - and nobody can understand why, other than the cost to business of making the NSW laws apply nationally. Keneally is right to fight for this.
"Reverse Onus of Proof"
This law means that in any legal action on safety, the onus is on the employer to prove that they acted in accordance with OHS law.
This has been criticised in the past and is a little bit more contestable, at least on legal precedent grounds.
The reverse onus of proof effectively means that an Employer (who would be the defendent in the majority of cases) is found responsible (guilty) until proven innocent (they can show that they took all reasonable steps to ensure safety).
There is a valid criticism to be made here, which was repeated on ABC radio this morning, which is that our legal system operates on a principle of "innocent until proven guilty". The argument could run that it's This piece of legislation effectively reverses that, and that it's unfair to anyone in Australia that a law like this could enshrine that principle.
On the flipside, the effect of these laws is strong. It enshrines a principle that employers are undoubtedly responsible for the safety of their workplaces. This is a principle the Union movement has been fighting for for a long time. It's been very easy for an employer to blame an employee for poor safety standards, saying that "it was the fault of the individual for not acting safely", rather than the responsibility of an empoyer to ensure their staff are properly trained, disciplined and acting safely. Studies have shown that the "safe worker" theory is flawed and without merit. When employers take responsibility, workers are safer.
Secondy, the law provides an enormous legal and economic disincentive for an employer to take risks, and an enourmous incentive to practice diligence to the highest degree. This is the sort of culture you want to encourage in a workplace and an industry. If an employer has been slack or reckless, it will be shown up immediately in court. remember, they must show that at all times they followed all reasonable steps to ensure workplace safety.
The purpose of any OHS legislation must be to reduce death and injury in the workplace. You do that by creating an economic disincentive for employers to be slack about safety. The NSW legislation contains strong disincentives. The national harmonised laws take away some of those disincentives. These may threaten safety in NSW workplaces.
The NSW government is fighting against the laws for this reason. the media should pay more attention to the facts. There's nothing wrong with having a go at the NSW government, but it should be an informed policy debate, not this childish stuff about cowtowing to unions or a spat between two Labor leaders. Talk about the policy, examine the policy, even disagree with the NSW government's policy if you must.
Anti-Poverty Week
However, the media don't always get it wrong on trade union rights.
Today, the firfax press pleasantly surprised me. The Age published a wonderful opinion piece in defence of Unions and workplace rights in the third world. It's written by an ASU delegate and you can read it here:
http://www.theage.com.au/opinion/politics/workplace-rights-can-alleviate-poverty-20101015-16n6q.html
What prompted this change of heart, you say? Well:
http://www.antipovertyweek.org.au/
Happy anti-poverty week.
