Andrew Douglas, an Australian OHS and employment relations lawyer, has followed up some his points made in a podcast on 2 October 2009 in an article available on his firm’s website.
Part of the article says
So what is different about the Model Act and how will it be interpreted? When interpreting an Act you always turn to the objects of the Act. Courts look at the provisions in dispute through the lens of the objects. For example, the Victorian OHS Act merely looks towards providing a safe place of work for workers and the public and makes it clear that interpretation should be directed by the principles of OH&S. It includes an object to work together without specific mention of the unions. Contrast this with the Model Act (MA). The objects include:
- The primacy of a safety management system
- Consultation including unions
- Rather than being compliance focussed the objects are expansively drafted to include:
“The principle that workers…should be given the highest level of protection.”
As a result – all interpretations of the MA should be considered “aspirationally” rather than “compliance focused”.
The third dot point will be manna for those “best practice” advocates but clearly it will be very difficult to “comply” with this legislation. That raises the question of whether one of the major political aims of the harmonisation processes – to cut red tape and thereby reduce compliance costs – can really be achieved. Or is the compliance cost being made easier for the corporate few at the cost of the small business “many”?
A small but significant omission in the MA aims is “to eliminate hazards, at the source…” This aim in the Victorian Act was extremely useful in advising companies to keep analysing risks in order to get to the core contributory factors on incident and hazards. This motivation disappears in the MA with its focus on “reasonably practicable”.
“Reasonably practicable” allows business operators to consult on whether the control measure reaches what stakeholders feel is adequate and then stop. “Close enough is good enough and, if not, WorkSafe will tell us. If it is way off, WorkSafe may prosecute.” This is lazy safety management.
Looking for the source of the hazard to eliminate it keeps business improving its state of knowledge on safety, looking for new solutions for difficult hazards.
Douglas identifies the winners and losers with this new proposed legislation:
Winners
- “Business that crosses borders will have one regime to comply with. That is simpler, cheaper knowledge and easier to train operational staff/increased flexibility.
- Unions – expanded rights of entry, locked into consultative mechanisms and cheaper to train in OH&S – across Australia flexibility.
- Regulators – shared knowledge, resources, and training.
Losers
- Small to middle size businesses who cannot afford the new documentation boom that follows duty compliance and whose officers will lack the knowledge and time to positively comply.”
It will be interesting to see the submissions from the small business sector, if available, over the next few weeks. Similarly, the employer and industry associations will need to show how they represent the range of business interest of all their members and not just the multi-state companies.
The recent stats quoted by SafetyAtWorkBlog that showed a high degree of ignorance on harmonisation changes by most businesses are understandable because if you operate in only one State, why would harmonisation bother you? Now the MA is out, the state impacts of the national program are becoming clearer and more worrisome.
[Please note that in this article WorkSafe is used as a generic term representing OHS regulators across Australia]