1. Institutional Arrangements on Health and Safety Representation in Australia Richard Johnston and Rebecca Loudoun Griffith University, Brisbane

2. Institutional Arrangements for Health and Safety Representation in Australia Richard Johnstone and Rebecca Loudoun Socio-Legal Research Centre Griffith University, Queensland, Australia

3. The Regulation of OHS in Australia ٧Australia is: ٧ a federation, with six states (New South Wales, Victoria, Queensland, South Australia, Western Australia &Tasmania) & two internal territories (Northern Territory & the Australian Capital Territory (ACT) ٧No express federal power to legislate for OHS: ٧ nine general OHS statutes, each with some form of a duty to consult workers, & provisions for OHS representation ٧Broadly speaking four models of representation

4. 1. Northern Territory ٧Duty in Work Health Act on employer, so far as is practicable, to consult with relevant workers about the development of measures to promote OHS ٧Provision only for OHS Committees – not for HSRs ٧2007 Review recommended introduction of HSR provisions

5. 2. NSW (OHS Act 2000) ٧S 13: a general duty on the employer to consult ٧ defined s 14, situations where consultation required outlined in s 15 ٧Consultation may be undertaken with: ٧ an OHS committee; HSR(s) or in accordance with other agreed arrangements (ss 16 & 17) ٧Details about procedures in the OHS Regulation 2001: ٧ requires consultation on type of representation; sets out processes for establishing & implementing arrangements, & for periodic review ٧Minimum requirements for election of HSRs similar to other Australian provisions ٧ but where represented by both a HSR & a HSC, the HSC is the principal mechanism for consultation ٧HSRs & HSCs have exactly the same limited functions & are owed similar duties by employer ٧ HSRs & HSC members must undergo OHS training

6. 3. Other OHS statutes: processes to determine work groups (Vic, Qld, SA, WA, Tas; Cwealth & ACT) ٧In ACT: ٧ employers in workplaces with 10 or more employees MUST begin processes described below – in all other statutes, employee(s) initiate (in Tas only in workplaces with more than 10 employees) & in some statutes employer can initiate (Victoria, WA) ٧Generally statutes contain: ٧ provisions for employees to negotiate with employer to form (designated) work groups, taking into account a range of factors (number of employees, type of work, nature of risks, overtime or shift work arrangements etc), & most enable the regulator/tribunal to resolve unresolved issues

7. Processes for the election of HSRs ٧Each statute outlines: ٧ a process for employees in each work group to elect one of the employees (more than one in Vic) in that group to as HSR (in most statutes, also deputies) for the group ٧All statutes specify period for which HSR elected ٧ & for disqualification of HSRs for abuse of powers causing harm to employers (& in SA for negligent underuse of powers) ٧Union role: ٧ Past - 2- track model in Vic, Cwealth & WA – unions negotiated; if no union coverage, empees negotiated ٧ Now - some statutes require union with coverage to be consulted; or enable employees to ask union to negotiate for employees (Cwealth, Qld, SA)

8. Functions & powers of HSRs ٧Generally to be exercised in relation to work group only ٧Cover: ٧ inspection of workplace; consultation where workplace changes affect OHS; present at interviews between employee & employer/inspector; accompany inspector on inspection; information affecting OHS of employees; OHS training & facilities; time off work to perform functions; to assistance from OHS experts (not in Qld, WA, Tas or ACT) & to investigate complaints. HSRs can always ask an inspector to visit (in some statutes this is explicitly included as a HSR power) ٧Generally provide: ٧ HSR incurs no liability by virtue of activities as HSR; & that discrimination against HSR is prohibited

9. 4. Enforcement Powers ٧Victoria, SA, WA, Cwealth & ACT: ٧ HSRs can issue provisional improvement notices (PINs or default notices in SA, written direction in Tas) for contraventions. Usually can only do so after consultation with the employer to rectify the contravention. Employer can have notice reviewed by inspector: if confirmed, becomes an improvement notice ٧Victoria, SA, Cwealth & ACT ٧ provisions for HSR to direct that work causing an immediate risk to the OHS of any person cease. Provision part of broader provision outlining processes for dealing with OHS issues; & enable employer to call in inspector

10. Union Right of Entry for OHS Purposes: NSW ٧Until recently: ٧ union right of entry not expressly dealt with in most Australian OHS statutes – only covered in provisions enabling HSR to call in an OHS expert/consultant to assist ٧The 1983 NSW OHS Act (ss 76-85 of OHS Act 2000) ٧ gives an authorised representative of an industrial organisation limited powers to investigate a suspected contravention of the Act. NSW Act also empowers secretary of a union registered in NSW to commence proceedings for a contravention (s 106) ٧Similar provisions in Vic & ACT ٧ & complex relationship with Cwealth workplace relations permit system

11. Health & Safety Committees ٧Can be requested by a HSR (or an employee in WA or a majority of employees in Tas but only where more than 20 employees) ٧Statutes provide that employer representatives must not exceed number of employee reps, & generally leave it to committees to determine their processes ٧Functions generally to assist employer develop, implement & review OHS measures, & to facilitate co-operation between employer & employee in relation to OHS matters; & assist employer disseminate OHS information to employees

12. Coverage of workers who are not employees ٧OHS statutes tend to limit participation to employees at the workplace in relation to their employer. Except: ٧ S 39 of the OHSA(ACT): principal contractors in construction can request Commissioner to declare that provisions relating to HSRs HSCs apply in relation to the sub-contractors employees (similar provision covering HSCs in WHA(NT)) ٧ OHS Regulation 2001(NSW) cl 23(2) outlines factors to be taken account of in setting up work groups: include patterns of work of employees; geographic location of workers; the interaction of employees with employees of other employers ٧ OHSA(Vic) 2004 s 44(1)(e) – in negotiating DWGs can negotiate whether HSR is authorised to represent independent contractors engaged by the employer their employees; Part 7 Division 2 provides for the negotiation of DWGs of multiple employers (similar provision in WA)

13. Survey data on experiences of HSRs & HSCs ٧AWIRS 1995: 66% of workplaces had elected HSRs, 43% had HSCs; 30% had no HSRs or HSCs ٧ACTU 2004: 30% had not received OHS training in past 2 years; 5% no training at all ٧ACTU 2004: 55% did have enough time to carry out OHS functions; 33% not enough time ٧ACTU 2004: 28% say pressured by management to not raise OHS issues ٧ VTHC 2003, 2005: about 33%; ACTU 2004 & VTHC 2005: 25% bullied or intimidated by mgt because they raised OHS issues ٧ Blewett SA 2000: 49% reported difficulty in performing their representation work; 43% reported harassment or bullying because were HSR

14. ٧ACTU 2004: 41% say employer automatically consults them ٧ 40% consulted only when they ask; 13% never consulted ٧ VTHC 2003 2005: 65% employers dont automatically consult HSRs/workers ٧ACTU 2004: 48% automatically informed by employer when injury occurs ٧ 35% informed when they asked; 12% never informed ٧ACTU 2004: 44% automatically included in investigations of OHS incidents ٧ 34% when request it, 17% never included ٧ACTU 2004: 58% say HSRs or other workers regularly included in employer inspections when take place ٧ 31% occasionally do; 8% never

15. ٧ACTU 2000: 11% said inspector automatically spoke to them; Johnstone Quinlan: inspectors spoke to HSRs in only 37% of workplace visit ٧ACTU 2004: 11% of HSRs said issued PIN or default notice – 91% of these said it was effective in resolving OHS issue; VTCHC 2003 2005: 25% issued PINs (2003: of the 25% issuing PINs, 45% only issued one) ٧ 2007: first successful prosecution in Victoria for contravention of a PIN ٧ACTU 2004: 21% of HRSs said they directed that unsafe work cease or stopped work for OHS – 88% said effective in resolving issue

16. What are the prerequisites for effective worker participation? ٧A strong legislative steer ٧effective external inspection & control ٧demonstrable senior management commitment ٧competent hazard/risk evaluation & control ٧effective autonomous worker representation at the workplace ٧external trade union support

17. What do unions do? ٧International research consistently indicates that trade unions: ٧ act as source of information for workers on OHS ٧ give employees a voice to raise grievances with mgt ٧ act as a positive support for workers who suffer ill-health as a result of working conditions ٧ have a positive influence on - attitudes towards H&S of both workers & mgt health & safety mgt practices compliance with H&S legislation the process used to decide on H&S issues

18. But all unions are not alike…. ٧ Draw on 2 larger studies to investigate what unions do to support HSRs in the UK & Australia ٧ what does a good union look like for HSRs ٧ what do they see as the challenges for HSRs in the modern workplace? ٧ what are the challenges for unions in providing this support?

19. Australian study ٧Horizontal study design Aim - To gather a representative sample of unions in Qld Random selection state-based unions with members covered by the Qld WH&S Act 1995 & registered with the Qld Ind Relation Commission ٧Interviews conducted with officials in Brisbane & in 2 regional locations (where union had regional offices or officials) ٧Face-to-face interviews conducted between Mar & Dec 05 using a semi-structured schedule

20. Final mix of unions ٧Represented workers in most of the key sectors of Queensland industry ٧Included a balance of large, medium & small unions, representing workers in a mixture of strongly & weakly unionised workplaces, & with members who were both white collar & blue collar workers ٧Included a blend of unions with members in privately & publicly owned workplaces but the latter were over-represented in the sample

21. UK study ٧Vertical study design ٧ Aim - to gain indepth knowledge of OHS activity in small number of unions ٧Interviews conducted with officials from 4 unions & from key actors in union OHS activity (TUC, OHS trainers & authors of union OHS publications & manuals) ٧Face-to-face interviews conducted between July & Dec 06 using a semi-structured schedule

22. The modern approach ٧What do unions do (aim) to raise awareness & support for HSR's so that they are not working in a silo. It is about people getting actively involved in the workplace …. It is another arm, another eye We dont generally solve H&S problem for members. We aim to arm them with the information or tools to do it themselves through collective action. We help them to build a team. By doing this an encouraging them to work together they know that if they stay together they can solve their problems ٧And what dont they do.. Looking at the resources that unions put into OHS they dont have paid offices in the regions (nor does the TUC) that are dedicated to OHS. Without this support & skills people skirt around issues they dont feel comfortable with or they dont have somewhere to turn

23. Challenges for supporting HSRs ٧Getting people to stick together & recognise that issues are collective not individual problems people [generally] know that they can turn to the HSC in the short term or for a specific issue so this presents a non-union approach to remedying it. In the long term though this rarely works as they need a collective effort to change the culture (ie. The machine guard might go back on but it will soon back off if they put production over safety often when a H&S issue crops up that an employer doesnt want to deal with, members will suddenly become distracted by talk of a wage rise or some other improvement in their conditions. Its a cheap approach, but effective

24. Psychosocial issues problematic ٧Wider definition of H&S presents new challenges Often H&S is seen as an individual issue & sometimes change requires a collective effort, especially when it relates to less tangible risks like stress & things that relate to the culture of the workplace. Unions need to raise this collective spirit. HSR's cant do it alone. Stress is often difficult…because people say we are all under stress. Why is that person special & going off sick? The challenge is to unpack the individual stress claim & get to the underlying, collective issues [H&S] is difficult when the issue is open to interpretation. Unless there is a clear right or wrong people dont like to complain. They try to settle it themselves without contacting the union or going through formal channels

25. HSRs cannot work alone ٧Efforts in OHS as well as IR avenues are often needed to fix OHS problems so HSRs & union delegates need to work together There are so many redundancies [in this industry] but the work still needs to get done so they have a lot of pressure, work intensification & bullying. Sometimes we deal with this through the H&S avenues & sometimes through industrial avenues H&S usually gets caught up in other issues. An example of this is the long-hours campaign. H&S was a good reason to reduce the hours but it wasnt the only reason looking for the underlying issues is difficult & there are usually IR issues involved. To solve them we need to work together & sometimes they cant be solved in one arena alone. Eg work intensification, long hours & stress need a two-pronged approach

26. Comparing the UK & Australia ٧UK more proactive than Qld unions ٧Qld unions more likely to be hamstrung by what they saw as complexity of H&S ٧ May reflect and contribute to the lack of resources they invested in OHS training, education & promotion ٧ Emerging and growing issues (eg. stress, bullying & employment equity) largely seen as individual issues to be dealt with in OHS issues in Qld ٧Why? ٧ Qld legislation falls short of union appointed HSRs ٧ Regional issues