When ATV helmets are “best practice” 3

A recent media statement from the New Zealand Department of Labour on all-terrain vehicle (ATV) safety is annoying and disappointing.

On 15 September 2009, the Palmerston North District Court today fined farmer Trevor Mark Schroder $25,000 and ordered him to pay reparation of $20,000 to his employee John Haar over an  ATV accident on 26 November 2008 that left Mr Haar with serious head injuries.

Dr Geraint Emry, the DoL Chief Adviser for Health and Safety, says

“…Mr Haar was riding an ATV supplied by Mr Schroder when he apparently drove into a wire used to direct cows into specific areas of the farm.  Mr Haar had not been wearing a helmet and the severity of his injuries increased as a consequence.  Nor had he been told that the wire he rode into had been put across the race.”

atvguide2 coverThe statement goes on to state

“The Agricultural Guidelines – Safe Use of ATVs on New Zealand Farms – advise that the wearing of helmets by quad bike riders is considered best practice.”

SafetyAtWorkBlog strongly knows that New Zealand is very active in ATV safety but finds it hard to believe that the “wearing of helmets…is considered best practice”.  This admits that, in using ATVs, personal protective equipment is the best hazard control option available.

The guidelines mentioned above are from 2003 and do mention ROPS:

“Until such time as there is evidence to the contrary, farmers have the right to choose whether or not they fit ROPS to their ATVs.”

The NZ DoL and, by inference, the Chief Adviser are quoting a 2003 guideline as best practice in 2009?!

Relying on helmets may be the reality but is also an admission of defeat with ATV designers and manufacturer.  In many circumstances ATVs cannot be fitted with roll-over protective structures (ROPS) due to the nature of the work – orcharding for example.  But Australia and New Zealand insist on ROPS for tractors, with similar criteria and exceptions to ATVs.

VWA Farm_ROPs coverIn one ROPS FAQ from the NZ DoL it says

“Evidence both in New Zealand and overseas has shown that the risk of injury in a tractor overturn can be substantially reduced when the tractor is fitted with ROPS of the appropriate standard.”


“Where the nature of the operation makes it not practical for ROPS to be fitted to an agricultural tractor, then, under the terms of this code of practice, the General Manager, Occupational Safety & Health Service, may issue a notice excluding the tractor from the requirement to have a ROPS.”

Some States in Australia have had rebate schemes for ROPS for many years.

It is suggested that a better level of driver protection from rollovers is evident on forklifts through the use of seatbelt and an integrated protective structure.  Applying logic to safety is fraught with danger but the rollover hazard is the same whether in a warehouse or a paddock and having only a helmet for a forklift driver would be absurd and unacceptable.  Why is only a helmet considered best practice for ATV drivers?

Rather than comparing ATVs to motorcycles as in this 2003 report, the comparison should be between ATVs and tractors or, maybe, forklifts.

The New Zealand Transport Agency says this about ROPS and ATVs in June 2008:

Many ATVs have a high centre of gravity, and are prone to tipping over when cornering or being driven on a slope. Rollover is the leading cause of injury associated with ATVs – riders can be crushed or trapped under an overturned machine.

If you attach a rollover protection structure (ROPS) to your ATV, make sure it’s securely fastened, doesn’t interfere with rider mobility and doesn’t raise the ATV’s centre of gravity. Contact OSH for guidelines on how to fit ROPS safely, and make sure the ROPS is strong enough to protect you.

So why aren’t ROPS considered best practice by the DoL?

The ATV injury case quoted above is unlikely to have occurred if the ATV had some form of structure around the driver or, admittedly, the wire was more visible or known to the driver.  The relevance in this case was that the helmet most probably reduced the severity of the injury but would not have avoided contact with the wire.

Research is occurring on ROPS for ATVs but the rollover hazard has existed for as long as ATVs have existed.  Are ATVs simply unsuitable for the work they are being used for?  Is the design wrong for workplace use?  Are they being advertised or promoted for inappropriate use?  Should farm workers be encouraged legislatively or financially to fit ROPS?  Perhaps the only safe ATV is a tractor?

Is the requirement for ROPS for tractors, but only helmets for ATVs, an acceptable double standard for workplace safety?

Kevin Jones

Principal Contractor duties clarified in the High Court of Australia Reply

Managing contract labour is almost always a pain.  The extension of OHS obligations through the “supply chain” has not helped although it was intended to.

Companies have been expected to treat contractors as employees for the sake of OHS obligations.  This was intended to generate a cultural change where a certain safety standard was extended through the links of project management.  To some extent safety awareness in the small suppliers of services to large companies and projects has improved.  But whether that safety awareness has changed to an active safety management or simply a belief that OHS is an unavoidable evil is debatable.

Regardless of the reality, the High Court of Australia recently provided some clarification on the duty of care of a principal contractor.  According to a summary of the High Court decision, Australian law firm Allens Arthur Robinson report that

“The High Court’s decision means that a ‘principal contractor’ does not have a common law duty to train or supervise the employees of specialist subcontractors in the specifics of their work.”

The High Court acknowledged that this may not relate to the New South Wales legislative situation but it is an important decision for the harmonised future of Australian OHS Law.

What it also indicates is the length of time it can take for a legal concept to be clarified and, hopefully, defined.  What does a company do in the meantime?  This is important for businesses to consider as the OHS law moves into a new national regime where individual State jurisdictions are expected to provide clarity on the legislative vagaries of “reasonably practicable”.  The government seems to be comfortable that the legal processes (cost and time) are worth the flexibility offered in OHS law.  Some see flexibility, others may see confusion, complexity and the need to reeducate.

Kevin Jones

The changing asbestos campaigns 4

As the incidence of asbestos-related diseases increases, the issues associated with asbestos have evolved beyond occupational health and safety.

The corporate conduct of James Hardie Industries and the prosecuting of its directors by the Australian Government had asbestos as the product around which corporate misbehaviour occurred.   The prosecution has not improved the lot of the victims.  The compensation fund which the director’s lied about will still be inadequate to deal with work-related claims.

Asbestos has become a true public-health hazard and issue, in a similar way that lead went from work to the community or even, perhaps, how cigarette smoke went from the personal to the public.  Increasingly, useful results will be gained from lobbying the government through the public health sphere rather than through OHS.

Today in Tasmania, Matt Peacock‘s book called “Killer Company” was launched with the support of the Australian Workers’ Union.  According to a media release in support of the event, the AWU National Secretary Paul Howes will “call for the creation of a federal National Asbestos Taskforce to manage the prioritised recall of all asbestos containing materials in all forms from the nation.”

Howes says

“The Federal Government must establish a national body with a regulatory mandate to map priority areas for asbestos product removal, such as schools and public places, and oversee its careful and total removal.”

“A National Asbestos Taskforce could facilitate and resource an Asbestos Summit, to bring together industry leaders, regulatory bodies and the nation’s top medical asbestos disease experts. Together with Governments, state, federal and local, such a summit could identify urgent priority areas for asbestos removal and develop a national strategy to deal with this ‘slow burn’ national emergency once and for all.”

Businesses in Australia must have an asbestos register but Paul Howes is also calling for

“…the establishment of a National Asbestos Register for all Australians ill from, or exposed to asbestos. He will also call for the establishment of a Register of all priority areas linked to a national Asbestos Present in Buildings Register.”

“We believe that [an] actuarial study will show that it is cheaper to remove asbestos containing materials completely from Australia, than fund the extraordinary medical cost of treating thousands of Australians contracting very serious asbestos-related disease over some decades to come.”

Unions have a proud history of effecting social change.  Asbestos fits this tradition as it concerns the spread of a manufacturing component that is, arguably, going to have more of a social cost than it ever had as a social benefit.

There is enough of a social awareness of the complexity of issues related to asbestos that traction should be achievable with the government on a public health scheme.  The challenge for the union movement and asbestos-safety advocates is that the campaigns still need to convince the whole community that this cannot be dismissed as a “union issue” but is a public health issue “championed by the unions”.

As more and more cases of asbestosis and mesothelioma start appearing in people who have not been involved in manufacturing or using asbestos, or washing the dust out of clothing, or living near asbestos mines, the seriousness of the health hazard will become evident.  But we should not have to wait till then and a socially-aware government as the Rudd Labor Government in Australia claims to be should be able to acknowledge the sins and mistakes of the past and plan for the future, as it has done on other social concerns.

Kevin Jones

A video and audio interview with Matt Peacock is available online .

UPDATE: 17 September 2009

Tasmania’s Minister for Workplace Relations, Lisa Singh, has released a media statement about her launch of Matt Peacock’s book.  In the statement she outlines her government’s action on asbestos:

“Shortly after becoming the Minister for Workplace Relations, I arranged a forum on Asbestos which was held by Workplace Standards on the 18th of March this year.

“A whole of Government Steering Committee was established following the forum and will make recommendations to me later this year.

The Committee is considering a range of issues including prioritised removal, mandatory reporting and disclosure, disposal, current legal and compensation issues and community awareness and education.

An audio report on the call for asbestos registers by the AWU  was in the ABC Radio program AM on 17 September 2009 and is available online.

Return-To-Work and OHS Reply

Many OHS professionals do not understand the return-to-work (RTW) process.  Many OHS professionals choose to avoid RTW like the swine flu.  In Australia, rehabilitation and compensation come under different legislation to OHS so it is easy to delude one’s self that they are different beasts.

On September 15 2009 at the WorkCover SA Conference, it was possible to argue the same ideological isolation as above but from the RTW stance.  RTW can be as isolationist as OHS.  Admittedly, the conference was about workers’ rehabilitation and injury management but it was surprising how many speakers talked about integrated management without mentioning OHS.

Is this demarcation widening?  Was it formalised by the different Acts of Parliament? By different training backgrounds and criteria?  By the different work-related government departments (they often inhabit the same office, share the same board members, but report to government separately?!)?   Is the demarcation between the human resource specialists and the safety engineers?

In most workplaces such a demarcation would be unmanageable.  Most workplaces, certainly the smaller ones, have the official RTW Coordinator role as part of the duties of an existing staff member, whoever is already juggling the personnel duties and often payroll as well.  It is often a luxury to have a full-time RTW Coordinator.

It is noted that the Australian conferences of the OHS professionals rarely include RTW, and vice versa.  Isn’t is just possible that some bright spark may offer a safety management conference that unites the complementary disciplines, professionals and government departments so that business managers can receive a combination of information that matches the reality?

Kevin Jones

Kevin Jones attended the conference with the support of www.rtwmatters.org an (increasing prominent) online RTW website, and WorkCoverSA.

Union opposition to Australia’s OHS laws – new radio campaign 1

On 14 September 2009, the Australian Council of Trade Unions (ACTU) released a series of radio advertisements that call on the government to not reduce the occupational health and safety conditions of Australian workers.

An article about the ads with interviews with the major political players is available on ABC Radio for a short time.


There are several issues raised by the ads and the interviews.  Jeff Lawrence of the ACTU says that the new harmonised OHS laws will reduce conditions across Australia.  For “across Australia” read “New South Wales”.  The proposed OHS laws will create the most change for unions in New South Wales.  This state had the most extreme duty of care in any State and always had the most to give up.  This was always going to be the point of conflict.


The ads can also be seen as an admission that the in-house tripartite negotiations are not going the way the union movement wanted.  The Australian Government has persisted with the tripartite consultative structure for OHS.  Each party – government, unions and employers – are supposed to have an equal(ish) say in changes to the OHS law.  The new radio ads, and the recent street protests, could indicate that the unions are not being listened to to the extent they wanted.

It could be that the union movement want to add colour and movement to the negotiations but it is an expensive method and one that does not have the same traction as their Your Rights At Work campaign that contributed to the fall of the conservative governemtn of John Howard, regardless of what the advertising sellers say.

The government of Prime Minister Rudd was always seen as sympathetic to big business.  This is a legacy of the consensus politics of the Hawke/Keating period.  The traditional voter base for the Labor Party has been eroding for years and the only way it has been able to retain or regain government over the last 25 years has been to broaden its appeal to the middle classes.

A great example of this was the fall of the government of Jeff Kennett in Victoria.  The Labor Party began wooing the rural conservatives, a sector that Kennett had almost dismissed (except for the occasional search for the best vanilla slice).  This action undercut the Liberal Party and National Party heartlands.

The ACTU is also trying to talk with the heartlands of workers but it needs to assuage concerns about the industrial relations changes.  The community is fearful that the unions are asking for too much.  The Government is aware of this and that is why the mantra of the Prime Minister and Industrial Relations Minister, Julia Gillard, is all about “restoring the balance”.


The radio report this morning also indicates a deficiency in the Australian media.  There are no reporters in the mainstream media who specialise in OHS.  That’s understandable as OHS is often a niche area, a subset of industrial relations.  But this also means that OHS is always considered in terms of industrial relations because this is the information base from which reporters and journalists draw.

This is noone’s fault, in particular, but as you listen to the radio podcast, the IR “tone” is always there, both in the journalists and the subjects interviewed.

Perhaps the media sees no value in OHS without the IR perspective.  Perhaps it is because today’s report was always going to be about industrial relations with an OHS twist.  If this is the case, where are the OHS advocates who can comment without industrial relations baggage?  Where are the humanists, the realists, where is the OHS voice?

Kevin Jones

New safety campaign – making the invisible visible 4

hi res moving cement vwaThe last week of October each year is Safe Work Australia Week.  This theme is enacted in each State with their own resources and events.  WorkSafe Victoria is one of the more active of the state regulators and 2009 seems no different.

On 13 September 2009, WorkSafe Victoria will launch a new campaign of graphic advertisements but what makes these different is the injuries result from “simple” work activities.  They are not in high-risk industries where workers may perform high-risk tasks.  These ads concern the (mis)use of an office chair, lifting a bag from a pallet, not using the stairs, slipping on a wet floor and lifting a person.

hi res office chair vwaThere has always been the challenge of how to generate interest in manual handling injuries as they are internal or invisible, and cumulative.  WorkSafe has done well by illustrating the physical consequences of what many dismiss as “taking a fall”.  In fact, the images that are less confronting than the noise of the bones breaking or the hernia appearing.

WorkSafe’s Executive Director, John Merritt, describes the campaign this way

“There’s no ‘blood on the floor’ or spectacular images on the nightly TV news or in the morning paper, yet the consequences of these injuries are enormous for individuals, their loved ones and their employers.

“For business, the average cost of treating these people through Victoria’s workers compensation system averages $45,000 per claim.

“Individuals lose quality of life and many, the capacity to work for at least a short period, some require surgery or have permanent pain and never fully recover.

“For employers productivity is cut, there may be staff replacement costs, retraining and safety improvements to be made after the event. Industries lose people permanently.

“Identifying and preventing these issues has benefits for all.”

Merritt also provides the statistic that  60% of all reported workplace injuries* – more than 17,000 a year in Victoria – involve manual handling.

The new campaign is graphic but it is hard to see how the total costs – social, personal and business – could have been described better.  Having a worker clutch their lower back and grimace with pain has been seen in campaigns and images repeatedly for decades and a new approach was needed.  Making the invisible visible should help.

Kevin Jones

* Based on Victorian Workers compensation claims where people are off work 10 days or more and / or medical treatment costs in excess of $520.

Injuries cost business 6% of their profit 7

At The Safety Conference in Sydney in October 2009, Dr Ian Woods, a senior research analyst for AMP Capital Investors, will advise Australian employers that the cost of workplace injuries on their businesses could be around 6% of their profit.

According to a media release in support of the conference

Dr Woods signals three occupational health and safety costs of concern to investors: workers’ compensation premiums, indirect costs, and the costs of alleviating workplace incidents.

“The indirect and unbillable costs associated with workplace injuries are like an iceberg,” he says.  “They represent a huge percentage of the total cost that’s impossible to assess until you run into trouble.”

“The disruption to production caused by workplace injuries cost Australian businesses an estimated $490 million in 2000-01.  The extra administration cost another $360 million.  Incidents can also trigger loss of goodwill, strikes, recruitment issues and dozens of other immeasurable costs.  The United Kingdom’s Health and Safety Executive indicated that the cost of uninsured losses is 10 times the business cost of insurance premiums paid for the same period.

“An injury with $1,000 in direct claims costs will also bring about $5,000 of indirect costs.  Assuming a 5% profit margin, that equates to $100,000 of turnover.  This simple return on investment (ROI) illustrates how valuable preventive measures are to financial bottom lines.

“Still, there is more to investing than just the economic case for improving OH&S performance.  As well as the economic costs, inequality of benefits, costs and suffering are key issues.”

Some of the concepts sound familiar.  Around the turn of the century there was increasing interest in corporate social responsibility and ethical investments and OHS was mentioned regularly as a corporate element that investors would seriously consider.

A good example of the feeling at the time can be seen in a 2002 interview for SafetyAtWork magazine, Paul Gilding of ECOS Corporation* talked about workplace safety.  He was asked about linking workplace safety with sustainable business.

Pages from Safe Companies Ecos Corporation March 2002 coverPG: This is a real fascination for us.  We first came across workplace safety as a major issue for one of our clients, DuPont, where safety culture is so embedded in their business that you can’t walk into their offices without picking it up.  We realised that, as sustainability experts, we had hardly ever come across that issue.  The people who talk about sustainability also talk about corporate social responsibility, human rights in developing countries, climate change, biotechnology, ethics, every issue you could think of but they very rarely, except in a token way, talk about workplace safety.

We first thought why should this be a sustainability issue and then we thought why wouldn’t it be?  We’re talking about the way corporations behave, the effect they have on society, the effect they have on the community they work in, yet we’re not talking about the fact that they are killing and hurting their own people.  This is a surprising omission when it is so fundamental to sustainability.

This perspective has transformed into the widespread advocacy of “safety culture”.

2i14-3 horstAround 2001 Westpac Banking Corporation was developing an OHS index that measured the share performance of the top 100 companies.  Interest in this has faded over the last ten years to such an extent that it is difficult to locate any reference to it.  However, the Westpac index was discussed at many OHS conferences at that time and gained overseas attention as shown in these comments by the former Director of EU-OSHA, Hans-Horst Konkolewsky to Safety At Work magazine in 2001. [Full interview is available]

Q: One of Australia’s major banks, Westpac, is establishing an OHS index that shows relations between this index, the All Ordinaries share index and a company’s share performance. Have you seen this sort of thing in the European region?

HHK: We haven’t seen it explicitly. This bank has taken the lead. I saw on my way to Australia that there seems to be an F4 investment initiative to assess companies’ performance but more broadly with environmental performance, social performance, child labour issues, but also safety and health.

This is one of the many ways we can improve awareness and create a preventive culture starting through the investment area. In Europe, we have had quite a number of different approaches where companies have issued social statements or accounts where they have informed about their employees’ satisfaction with their work, working conditions, customer satisfaction with servicing, their relationship to the society, activities related to employment problems and so on. There are a number of examples that point in the same direction.

I must say that I believe that this can be a rather strong movement if investors and customers, through their demands and market mechanisms, can improve safety and health.

A capital-idea coverA more detailed report that places OHS strongly within the CSR discipline is a 2002 report, now available through an Australian Government website, called “A capital idea -Realising value from environmental and social performance“.

Dr Wood’s presentation will build on these reports and the work of overseas OHS organisations in trying to provide a cost estimate for workplace injuries.  Let’s hope that there are specifics and that there is enough audience enthusiasm to generate a sustainable interest.

Kevin Jones

* cannot verify that this report is still available online

SafetyAtWorkBlog gets praise for independence Reply

Today, the Australian Chamber of Commerce and Industry (ACCI) released a four-page document criticising the campaigning techniques and statistical foundation of the Australian Council of Trade Unions (ACTU).  Nothing unique in that ideological battle, however, what grabbed our attention was that SafetyAtWorkBlog is mentioned specifically.

ACCIBriefing_8Sep2009 coverI contacted the ACCI this morning and thanked them for reading the blog and for describing SafetyAtWorkBlog as a “respected website”.  We’ll accept praise from anyone as our major indicator of success mainly comes from the steady increase in our readership statistics.

The ACCI makes considerable mileage out of a SafetyAtWorkBlog article that discusses the survey results that the ACTU released in support of some of its campaigning for further changes in the national OHS laws that are currently being drafted.

Several comments are useful in relation to the ACCI paper

SafetyAtWorkBlog obtained the survey results by requesting them through the ACTU and being provided them by Essential Media.  We have a policy on any media releases that quote statistics.  If the statistics are not readily available, or at least the relevant OHS parts of survey results, we do not usually report on the issues raised or we make a point of stating that the statistical assertions are not able to be verified.

The ACCI paper echoes many of the points raised in the blog article.  Our main point was to question the wisdom of using statistics as support for a campaign when the statistics do not, necessarily, support the  campaign objectives, or, in the least, may provide alternative interpretations.

The Essential Media report provided to SafetyAtWorkBlog could have been more detailed and the ACCI certainly wants more than we have seen.  Releasing such a paper criticising the ACTU for not sharing research data puts the ACCI in a position now where it cannot deny the public release of its research data, at least, on matters relevant to OHS.  The questions from ACCI have set a precedent for openness and information sharing.

Whether marching in the streets in support of an OHS campaign is effective, or warranted, or not is almost a moot point.  Many of the televisions stations covered the union marches in Australia earlier this week.  The 7.30 Report felt there was enough of a profile raised by the union campaign that it followed up many of the concerns raised with a long article in its show on 8 September 2009.  The media exposure has been able to further raise the profile of OHS as a contentious issue that is being acted upon by government.  It should raise the “seven out of ten” OHS awareness factor, quoted by the ACCI, a few points at least.

Given the criticism of the ACTU, one could genuinely ask, how the ACCI is increasing awareness of OHS matters in the community as well as its membership?  It is not expected out in the streets but the occasional media release or four-page rebuttal does not have the same affect as a march of hundreds of people on the television.

In all of this to-ing and fro-ing, SafetyAtWorkBlog takes pride in its independence and as a forum for expressing views on a social and industrial issue that has only ever before been discussed by political ideologues from fixed perspectives.

Perhaps safety professionals could apply the wisdom of Oscar Wilde to safety

“The only thing worse than being talked about is not being talked about.”

It seems to me that OHS has not been talked about for far too long.

Kevin Jones

Television report on the status of Australia’s OHS law negotiations 1

The 7.30 Report on September 8 2009 broadcast a fairly long story on the current status of the negotiations on Australia’s new OHS laws.  They interviewed the major players and took good advantage of the recent union street protests.  The video and transcript are available online.

Kevin Jones

Lawyers identify contentious OHS law elements Reply

The Safety Conference scheduled for Sydney at the end of October 2009 has finally got an OHS issue that is contentious and is also a work in progress.  The unions are starting to make noise on the OHS laws.  The employer groups are manoeuvring cautiously.  The safety professionals are largely silent (again) but the lawyers – the group with perhaps the most to gain from the new harmonised OHS laws – are set to analyse and debate.

A media statement from the conference promoters was distributed on September 8 2009 and, very differently from most media releases, is informative without being pushy.  Below is the body of that statement:

Three issues are set to dominate discussion: the burden of proof, the personal liability of company officers, and the impact on prosecutions. Neil Foster, senior law lecturer from the University of Newcastle, believes personal liability is at the heart of the changes.

“The harmonisation process seems to have been driven by directors’ fears of personal liability and the hope that there would be some watering down of the laws,” he says.  “In my view, the Model Act inappropriately waters down the personal responsibility of company officers, although I do support some of the proposed changes in this area, including the acknowledgement that the officer has obligations to exercise due diligence to protect the workers. But with the change to the current onus of proof provisions, it is quite possible that guilty people will now escape justice.”

Michael Tooma of Deacons law firm, who will moderate The Safety Conference’s harmonisation panel discussion, says that while current state laws differ in their approach to the approach to personal liability of officers, all will be reshaped by the proposed Model Act.

“Despite the range of liabilities, all have one thing in common: the officer will be personally liable only if their company commits an offence,” Mr Tooma says. “The new regime does not require this.”

“Under the approved recommendations for the new OHS laws, officers will be liable if they fail to exercise due diligence. That is, the duty has been recast as a positive obligation on officers to proactively ensure compliance with OHS laws rather than an attributed liability in the event of a breach by the company. This is a landmark shift in approach which will have a significant impact on OHS enforcement and compliance.”

The definition of “due diligence” may also be contentious.

“The Workplace Relations Ministers’ Council (WRMC) did not approve the recommendation for a definition of due diligence,” Mr Tooma says. “The Committee had recommended that due diligence be defined in line with existing case law on its meaning, drawn largely from NSW where the term has been in use for almost 30 years.”

“Instead, WRMC preferred to rely on the Courts to interpret due diligence. Practically, that means that the true harmonisation of the scope of the personal liability of officers may have some way to go as each State Court and Territory Court attempts to interpret due diligence in the context of the case before it until a case is brought to the High Court so that an authoritative determination of that term is made which is binding on all state and territory Courts.”

Michael Selinger of Holding Redlich Lawyers points out that company officers found guilty will face increased penalties, rising from the from the current maximum in NSW of two years in prison or fines of $55,000 to fines of up to $600,000 for an individual and five years in prison.

New South Wales employers, however, may enjoy some relief as the burden of proof shifts to prosecutors.

“The new Model Act will have a more significant impact on New South Wales employers than those in any other states because the Model Act is largely based on the Victorian and Queensland Acts,” says Mr Selinger.

“For New South Wales, the onus of proof will move away from the employer as a result of the inclusion of the qualifier of ‘reasonably practicable’ in the general duty to ensure safety under the Act. When it comes to proving liability, the prosecutor will now need to show the employer has not taken all reasonable steps to prevent injury.

“In 95 per cent of cases, shifting the burden of proof to the prosecutor won’t affect the outcome. This is because when an injury occurs, employers examine the workplace to see what actions need to be taken to prevent a recurrence – by doing that, they show that there were reasonable steps that could have been taken, which makes it easier for the prosecution to prove liability. To some extent, there’s always been this tension between trying to improve the safety system and protecting your legal position.”

“The legislation in NSW has historically been enforced more vigorously than in other jurisdictions but most OH&S regulators only initiate a prosecution if it is in the public interest and they have a good prospect of success. Under the new Act, there’s likely to be more of an emphasis on education and cooperation between the regulator and business. We won’t really know the answer to whether there’s likely to be fewer prosecutions until the new Act is implemented – at the end of the day, how it is enforced will be the key factor. The regulator will still have plenty of enforcement tools and there is likely to be a uniform enforcement policy applied across the country.”

On the other hand, Neil Foster believes the onus of proof belongs with employers.

“The Model Act has been legitimately described as ‘a race to the bottom’,” Mr Foster says. “The onus of proof should be placed on employers because they have the greatest control over safety: how hard people work; safety procedures; how money is spent; and safety policies. There is still a lot of carelessness in workplaces and WorkCover sensibly doesn’t launch prosecutions unless there’s a good chance the employer is guilty and hasn’t taken reasonable precautions. I think the NSW safety system has been working well.”

Scarlet Reid, special counsel for Henry Davis York says the impact of reversing the onus of proof is uncertain.

“From a practical perspective, this could make convictions more difficult to obtain in New South Wales,” she says.  “In the absence of any changes that stipulate which courts hear prosecutions at first instance, it remains to be seen if this is in fact the case. It is questionable as to whether real uniformity can be achieved without examining this important issue.”

Ms Reid says employers were likely to benefit from other changes under the proposed Model Act.

“Defendants in NSW and Queensland should benefit from the proposed expanded appeal rights,” she says. “Defendants in NSW may also find comfort in the proposal to abolish the prosecutor’s right to appeal against an acquittal.”

If employers are winners under the changes, unions, who will lose the right to launch prosecutions, protest vigorously against the proposed Model Act, claiming it would be detrimental to safety. Neil Foster agrees.

“The changes to be brought in under the harmonisation process send a message from government to employers: safety’s been too tough and that we’re not so worried about it anymore. It’s very sad.”

Kevin Jones