In what is shaping as a major test of health and safety rules, employers will challenge NSW laws that require them to prove they have done all they could to prevent a breach of safety rules where one has occurred.

Employers will argue that this requirement – called the “reverse onus of proof” – is unconstitutional because it goes against the principle that someone is presumed innocent until found guilty.

The challenge will take the form of an appeal against a finding by the NSW industrial court that an employer failed to maintain a safe workplace after the death of a worker driving a vehicle at a quarry. The NSW Industrial Court found that the company had provided insufficient supervision to ensure that the driver was wearing a seatbelt.

Lawyers for the company will argue that the prosecution in the original case did not establish what the company should have done to meet OHS requirements. This approach follows a successful appeal in February against a conviction of a hobby farmer after an accident in which a farm manager was killed.

In that case, the High Court criticised the NSW Industrial Court for failing to show how the company should have acted to prevent risks to health and safety.

The NSW “reverse onus of proof” system is already facing changes as a result of the Rudd Government’s plan to “harmonise” state OHS laws. However, there is strong support for the NSW approach in the national labour movement because it puts responsibility for workplace safety where it primarily belongs – with those who have the power and resources to create safe workplaces.

The International Labour Organisation (ILO) has queried whether aspects of Labor’s Fair Work Act comply with international labour standards.

The concerns were raised in the most recent report of the Committee of Experts on the Application of Conventions and Recommendations. John Howard’s labour laws earned an unfavourable mention from this body on more than one occasion, but now it is Labor’s turn.

The committee raised concerns about a number of specific aspects of the legislation and about certain broader labour force policies:

·         Restrictions on the right to strike.

·         Protections of freedom of association and the right to organise.

·         Restrictions on pattern bargaining.

·         The performance of work by prisoners for private companies.

·         The treatment of vulnerable 457 workers.

·         The Australian Building and Construction Commissioner (ABCC) and its ongoing role.

In the case of the ABCC, the ILO has warned that the part played by ABCC inspectors in prosecuting workers could not help but interfere with what should be their “primary duties” of enforcing proper working conditions and protecting workers.

The role of inspectors in prosecuting workers would also “prejudice the authority and impartiality necessary in the relations between inspectors and employers and workers", the committee said. "This is even more so when the laws on . . . which workers are prosecuted have been repeatedly found by this committee to be contrary to other international labour standards, notably freedom of association and protection of the right to organise."

The report’s concerns are consistent with the view expressed by the CEPU at a national level and reflect favourably on our efforts to ensure that Australian labour laws meet ILO standards.

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