OHS uniformity is looking unlikely

Michael Tooma, a lawyer with Australian law firm Deacons, has stated

“Despite the enthusiastic manner in which the harmonisation agenda has been pursued, and the appearance of progress in that regard, it is likely that the quest for uniformity in OHS laws across Australia will remain elusive.”

His reasons for this statement in a recent edition of Safety Solutions magazine (August/September 2008) are

  • The National OHS Review was set up to develop model legislation for implementation in each State jurisdiction;
  • Duty of Care is absolute in two States, Queensland and New South Wales;
  • “Reasonable practicable” is not applied in each State to the same extent;
  • The New South Wales right for unions to undertake prosecutions for OHS breaches;
  • Not each State has a legal forum dedicated to handling OHS prosecutions;
  • The level of enforcement of OHS law is inconsistent between States; and
  • The level of maximum penalty available.

Tooma is worth listening to for lots of reasons but principally he seems to be less wrapped up in political baggage compared with other OHS legal commentators.

Tooma seems to favour an industrial or OHS court because of the substantial jurisprudence that has been achieved through the New South Wales Industrial Commission.  I support the expansion of this type of court as NSW decisions, regardless of legislative differences, can be particularly useful is clarifying the most suitable OHS interventiosn for particular hazards.

He also says that enforcement must be consistent.  This is true or else, if given the chance, an employer could undertake certain hazardous tasks in the jurisdiction where enforcement or prosecution is less effective and active.

This relates, in a way, to Tooma’s last point on penalties.  An OHS offence in Victoria could lead to jail but in Tasmania, not.  A monetary fine of over $1 million could apply in some States with only $180,000 in another.

It seems that the fantasy of one OHS law for Australia will remain a fantasy.  The trick will be whether, after months of government review and hundreds of submissions, there will be sufficient consistency across the States.  The likelihood is that we will be slightly better off but still with State variations.  We have a little less red tape but red tape nonetheless. 

My question will be, was it worth it?

Categories Duty of Care, government, law, OHS, safety, UncategorizedTags , ,

3 thoughts on “OHS uniformity is looking unlikely”

  1. I reckon there is a fairly significant motivation for jurisdictions to have uniformity too KJ. I\’d suggest that a lack of uniformity is present but it can be there, rather than it\’s seen by the jurisdictions as a good thing. The benefits of dispersing the cost of putting together laws, guidance material and enforcement programs is well understood. The jurisdictions have their Heads of Workplace Safety Authorities trying to implement consistent approaches, while I was in the fold I convened a network of people doing guidance material in other jurisdictions so we could share ideas and approaches. And that latter thing wasn\’t my idea. It came about when I was researching needs in guidance material development when I moved out of legislation drafting to the guidance material gig. It was WorkSafe Vic people who asked for it.

    What all this says to me is the commonsense of uniformity is acknowledged, it \”just\” needs a resolute attitude to making it happen. It also needs an acknowledgement that this is the moment. They come along every now and then. If the moment gets lost then we will fluff around for another decade before the next \”moment\”.

    I disagree that the benefits of uniformity are minimal. I noticed in a HSE plan for 2010 and beyond that the Poms have accepted that all that lovely, \”safe\”, generic guidance material has to stop and specific workplace targeted guidance is needed. Plus more face to face help is needed. From my view of the world, that\’s exactly what my punters are looking for.

    All that equates to more work, more resources (or more cost-efficient use of resources). Combined efforts that pivot around a uniform set of legislation and enforcement system is the answer.

  2. The motivation for uniformity comes from two main areas – business and unions.

    Business has stated that, for years, there is unnecessary cost through the need to comply with different legislative obligations in each Australian State. I agree but note that the majority of businesses in Australia only operate in their local States, and therefore, to many, the issue is irrelevant.

    Business have argued their case well to the National OHS Model Law Review and to Productivity Commission inquiries before that. Unions have a more difficult proposition.

    Unions argue that their tasks would be easier with national uniformity but this does not equate to their members benefitting, other than the unions being able to operate with a slightly reduce operating cost. basically, the same argument as the employers.

    On OHS matters, lawyers are like unions in that uniformity would allow them to provide one set of advice to all clients in each State. I would put that the job may be easier but the workload will be the same, partly because each jurisdiction has already established a history of legal precedents and, regardless of the enforcement regime, application of these precedents will result in lawyers setting State variations to any OHS legislation, national or model.

  3. Clearly Tooma is aiming to be \”realistic\” about the prospects of legislative uniformity, but I believe his argument falls over because it has a cart-before-the-horse quality.

    It has to be assumed that the core issue is paramount: an absence of uniform OH&S laws and enforcement in Australia is a bad thing. If that\’s accepted by the community, then the discrepancies between each jurisdiction\’s laws and enforcement practices is significant for the ultimate set of solutions but essentially irrelevant to the question of whether we should go ahead.

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