BusinessSA’s backflip on OHS laws carries short-term gain but long-term risk

Australian business associations have different perspectives on the need to harmonise occupational health and safety laws across Australia but BusinessSA has performed an enormous backflip in only a month on new Work Health and Safety Laws.  In a letter (now a media release) to the industry association’s members, BusinessSA has called on the South Australian Government to defer the laws until a scheduled national review in 2014.  The major points of the letter are discussed below.

Objections to the letter on some of the LinkedIn discussion forums have been voiced by some safety and legal professionals, the principle concern being that all state governments agreed to the initiative of the Council of Australian Governments (COAG) in 2008 to harmonise the OHS laws.  Employer groups, unions and OHS regulators have been closely involved in the harmonisation process.  Other parties, including BusinessSA made submissions.  According to the 2008 submission, these were the six key issues:

• “Self-regulation: The appropriateness of the duty of care, consultative mechanisms, performance-based (as opposed to prescriptive) regulation, and education/training in facilitating an effective (self-regulating) OHS system.
• Causality and uncertainty: Can, and should, governments attempt to regulate with respect to potential future hazards, given the enormous pace of technological change and uncertainty relating to that change and where causes of disease cannot be readily determined?
• Cost-benefit: To what extent should (can) risk be eliminated regardless of cost? Should risk economics (the evaluation of risk management techniques based on cost/benefit analysis) form the basis of OHS&W strategies and regulation? The issue and interpretation of ‘practicability’.
• Legislation/regulation: The implications of governmental intervention into OHS issues, trends in regulatory treatment of OHS&W and their effects of inconsistent legislation.
• Enforcement: Strategies for ensuring compliance. Are punitive penalties appropriate and relevant?
• Interaction of occupational safety and health with workers’ compensation: How does compensation influence prevention?” (page 10)

On 8 June 2012, the Adelaide press reported that

“Business SA chief executive Peter Vaughan said the initial legislation “created enormous uncertainty” as to who was ultimately responsible for safety outcomes in the workplace.

But through meetings with Industrial Relations Minister Russell Wortley, Mr Vaughan said changes had been made which meant Business SA could support the Bill.

“We are pleased that the Government has agreed to address the concerns of business regarding control (over workplace safety), while also retaining the current South Australian provisions of the right to silence (for people involved in an accident),” he said.”

According to the letter to members in October 2012, the concerns are:

• “The legislation is overly complex and difficult to interpret, which is likely to result in poor compliance or even non-compliance, albeit unintentional
• The sheer volume and complexity of the proposed new codes of practice are unworkable. Some of the codes are up to 90 pages in length and the materials often do not reflect industry-relevant best practice
• The proposed new, complex scheme would create an ‘overload’ of paperwork and administrative requirements which do not equate to safer workplaces. In fact, safety practices could be directly undermined by the huge distraction that will be presented by this administrative overload
• Small business, which represents a large proportion of this State’s employers, would be forced to use already stretched management resources to meet compliance paperwork at the cost of actual time on site and on the shop floor directly supervising work place environments for the best safety outcomes.”

It is acknowledged that the harmonisation process has developed over four years so variation from 2008 to now is, perhaps, understandable, but a change in position over a matter of four months should be of concern to the members of BusinessSA and the general community.

The new concerns also do not have credence.  The Work Health and Safety legislation may be more complex but any law that is a revision from the same laws from 1986 will appear complex.  Complex to one would be contemporary and applicable to another.

The accusation that the new laws’ complexity may lead to non-compliance ignores the fact that most of the content of the laws is not new and has existed for over 30 years in South Australia.  The duties to maintain a safe and health workplace have not changed, even though the holder of that duty has undertaken a name change to a PCBU.

Many of the new Codes of Practice are still in draft form and are being developed in consultation with whoever wants to be consulted.  And few workplaces, if any, will have to apply all the Codes.  The new Codes are associated with industry sectors or specific workplace hazards or provide guidance on basic OHS and risk management.  Almost all the Codes are revisions of existing Codes or guidances.  As with the content of the laws, most of the content is already familiar to South Australian businesses and industry associations.

BusinessSA raises concerns over red tape but not in that phrase.  SafetyAtWorkBlog has countered this accusation in several articles over the last few years.  The red tape issue is not only occurring in safety management and is part of the larger debate on productivity, accountability and due diligence.

The concern over the impact on small business seems recent as there is no mention of “small business” in BusinessSA’s 2008 submission.  Concerns about OHS in small business have existed for a long time but Elizabeth Bluff provided advice on how small business can use local business networks (dare we say, industry associations?) to implement OHS improvements   Her paper is from 2003 but quotes research from 2001 and illustrates some advantages in addressing OHS matters.

“Walters (2001:375) suggests that there is a strong potential to provide the necessary support for OHS activity in smaller organisations from within their social and business environment, building support networks and establishing relationships with a range of parties that might include larger private enterprises, public sector agencies and local authorities, information agencies, training agencies, business advisers, general and community health care providers, business suppliers, clients and customers. This involves making use of dependency and contractual relationships between organisations and their clients, customers and suppliers as well as others with whom small businesses interact in daily business. Provided trusted relationships can be established to convey and reinforce information about OHS requirements, Walters (2001: 166) is optimistic that there are characteristics of smaller organisations that will facilitate attention to OHS. In particular, there is the potential for faster decision making, informal communication, understanding of practical issues which may facilitate consideration of OHS issues.” (page 42, emphasis added)

Bluff returned to the issue in her 2005 paper “The Missing Link: Regulating Occupational Health and Safety Support“.

In the letter, recent CEO, Nigel McBride, is also careful in his words about which States already have harmonised laws.  He says Victoria has said no and that Western Australia is still reviewing their WHS Laws. He admits Queensland and Northern Territory have introduced new harmonised laws but fails to mention New South Wales or Tasmania or the Commonwealth or the Australian Capital Territory.

McBride states that

“It is also apparent that there will not be nationally harmonised laws in the foreseeable future.”

Most would agree that harmonisation has not met the national criteria first proposed in 2008 but the majority of Australian jurisdictions have introduced laws based on the Model Work Health and Safety Act (for which Safe Work Australia released a guidance in the last couple of days).

Some commentators have speculated that this radical switch is a purely political move but this is meaningless as OHS harmonisation has been a political beast since former Prime Minister  John Howard, announced the need for such a process in the last years of his government.

Something has changed in South Australia very recently and BusinessSA has sniffed the wind and re-strategised.  Some months ago the Federal and South Australian workplace relations Ministers were confident that new WHS laws would be introduced in each State only not to the original timetable.  If their hopes are realised, BusinessSA will look silly.

BusinessSA’s call for a deferment to 2014 does not mean that laws will be introduced in that year.  2014 is set for a national review of the Work Health and Safety laws.  That review process and consultation will  take months if not a year and will be exposed to further political lobbying.  The statement may indicate a “deferral” but, if the SA government agrees to this, South Australia will not see new laws for many years.  This delay will lead to more controversial court prosecutions on outdated legal concepts  like the Salvemini case and continued attacks on the operation of SafeWorkSA.

Kevin Jones