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?