Cooper Grace Ward is another Australian law firm who has issued a brief alert on the proposed OHS model laws in Australia. As a Queensland-based firm it has a slightly different take on the draft Safe Work Act
Duty of Care
Cooper Grace Ward see the introduction of “reasonably practicable” as a new duty of care for employers, although the concept is well-established in other States. It describes “reasonable practicable” below
“What is reasonably practicable will be determined by taking into account and giving appropriate weight to:
- the likelihood of the hazard or risk occurring;
- the degree of the harm that might result from the hazard or risk;
- what the person concerned knows, or ought reasonably to know about the hazard and the risk and ways of eliminating or minimising the hazard or the risk;
- the availability and sustainability of ways to eliminate or minimise the hazard or risk; and
- the cost of eliminating or minimising the risk.”
The firm says this may be “a more sensible approach than the current Queensland standard.”
Lawyers tend to like “reasonably practicable” because it is a difficult concept to define in practice and often OHS lawyers are asked for opinion. Employer associations like it because it can provide some larger business operators with the flexibility to minimise safety costs by tweaking the OHS management so that after an incident “what we thought was reasonably practicable, obviously isn’t, and we sincerely apologise” – not a lot of comfort to the grieving widow or widower.
The concept is also contrary to the dominant (if flawed) attitude of the small- to medium-sized business owner who wants simply to know if they comply. Most businesses in this sector just want to avoid the unnecessary complication and cost that a workplace injury would cause or a visit from an OHS inspector could cause. “Reasonably practicable” removes certainty from the business operator and leaves a large grey area of OHS compliance. This can lead to increased OHS costs by needing to go outside to a lawyer or OHS professional where, before, there was enough skill in-house to achieve a safe level of compliance (if such a think ever existed).
Cost to employers
Cooper Grace Ward should be congratulated for thinking ahead to how the new rules will affect businesses rather than just legal opportunities.
Employer’s will have new OHS obligations “for example, imposing a positive obligation on all employers to engage employees in a consultation process when implementing and monitoring any risks within the workplace.”
“Contrary to the Government’s claims this process may result in a decrease in business efficiencies as more time is spent negotiating methods of improving safety than actually doing so, and by reducing employee efficiency as more work time is spent assisting and negotiating the manner in which workplace health and safety systems will be improved instead of conducting their usual duties.
Costs will also be incurred to business as employers will be expected to provide those employee representatives who are acting in safety roles with adequate facilities and external training to adequately perform their role. Whilst employee representatives currently exist in Queensland, the proposed scope of their powers will be increased by the proposed Act.”
Cooper Grace Ward’s article also discusses union right of entry.
The public comment phase is only one week old, with another five to go. The legal fraternity has various approaches to the proposed OHS law that most often reflect their client base. The first law firms discussing the draft laws were those with a National coverage, understandably. Many Victoria-based law firms have come out sounding a little smug as it is largely the Victorian OHS Act which has been used as the skeleton for the National legislations.
Cooper Grace Ward is an example of a smaller, more localised firm that, in some ways, is closer to its clients or, at least, clients in the smaller business sector which, OHS regulators agree, is the sector where OHS incidents can cause greater proportional damage and where the greater business risks are taken.