Likely Process of State OHS Legislation

As part of the COAG meeting in early July 2008 the Ausralain governments have signed an Inter-Governmental Agreement for Regulatory and Operational Reform in Occupational Health and Safety. For those of you interested in how the replacement body for the Australian Safety & Compensation Council will operate and be funded, this is the blueprint.

However, part of the agreement on OHS reform does not sit right with the commitments we have heard from the government over the last 6 months or so.  Perhaps our interpretations and expectations were a little unrealistic.

Part 5 of the inter-governmental agreement says

PART 5 – OCCUPATIONAL HEALTH AND SAFETY REFORM
5.1 Model OHS Legislation
5.1.1 The Parties commit to work cooperatively to harmonise OHS regulation through the adoption and implementation of model OHS legislation.
5.1.2 The Parties support the National Review into Model Occupational Health and Safety Laws, announced by the Commonwealth Minister on 4 April2008.
5.1.3 Model OHS legislation will comprise a model principal Act supported by model OHS regulations and model codes of practice. Model OHS legislation will be developed by [ASCC replacement body] in accordance with the terms of this Agreement.
5.1.4 The development process for model OHS legislation will allow for interested persons to make representations concerning any proposed model legislation. Prior to submitting any proposed model legislation to WRMC, [ASCC replacement body] will give due consideration to any representations duly made to it and make such alterations to the proposed legislation as it sees fit.
5.1.5 The Parties agree that a national compliance and enforcement policy will be developed to ensure a consistent regulatory approach across all jurisdictions.
5.1.6 For the purpose of ensuring that model OHS legislation applies throughout Australia, each Party to this Agreement will, subject to its parliamentary and other law-making processes, take all necessary steps to enact or otherwise give effect to model OHS legislation within its jurisdiction within the timeframes agreed by WRMC.
5.1.7 For the purposes of subclause 5.1.1, the adoption and implementation of model OHS legislation requires each jurisdiction to enact or otherwise give effect to their own laws that mirror the model laws as far as possible having regard to the drafting protocols in each jurisdiction.
5.1.8 The adoption and implementation of model OHS legislation is not intended to prevent jurisdictions from enacting or otherwise giving effect to additional provisions, provided these do not materially affect the operation of the model legislation, for example, by providing for a consultative mechanism within a jurisdiction.
5.1.9 [ASCC replacement body] will make model OHS legislation publicly available on its website when it is agreed by WRMC. [ASCC replacement body] will hold and maintain all original copies of agreed model OHS legislation, including any subsequent amendments.

Clearly, there is not going to be one OHS Act and jurisdiction for Australia.  Many OHS organisations and businesses advocated for a single administrative structure but there was always the Constitution in the way.  The Workplace Relations Ministerial Council (WRMC) has suggested that each State structures its own OHS legislation “subject to its parliamentary and other law-making processes” (5.1.6 above)

Certainly States could not implement something that conflicts with the core obligations and conditions but the quote above clearly allows State politics to affect OHS operations within the State.  However you look at there is clearly room for the States to move.

However this movement will be tempered by having amendments and new legislation “approved” by the WRMC and then have each of the States amend their own OHS legislation to accommodate the other State’s changes, in order to keep close to national uniformity

5.5.2 Any Party that proposes to amend its legislation or introduce new legislation so as to materially affect the operation of model OHS legislation will submit the proposed amendments or new legislation to WRMC for decision. Each Party agrees that it will not progress implementation of any such amendment or such new legislation unless WRMC has endorsed the proposed amendment or new legislation.
5.5.3 Where WRMC approves an amendment to legislation or new legislation that affects the operation of the agreed model OHS legislation, all Parties will (unless otherwise agreed by WRMC) undertake all necessary steps to introduce appropriate changes to their legislation with a view to ensuring that OHS legislation remains nationally consistent.

In no way does any of this diminish the level of political activity related to OHS law making over the next few years.  In fact I would be surprised if the lobbyists are not revising their strategies now.

The structure sounds workable while there is a friendly relationship between State and Federal governments.  If one of the States changed to a conservative government the timelines or processes could vary considerably.  There has already been persistent questioning about New South Wales Premier Morris Iemma’s tenure over the last week.  For the reform process to work, the NSW Labor Party would need to provide a strong leader before the next election so as to avoid a conservative government.  New South Wales has some of the most (according to business groups) draconian OHS legislation.  If a Liberal government came into power, and with a clear mandate, OHS will become a battleground.

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