In support of the Safety Show mentioned in a previous article, the organisers have issued a media release which provides illuminating quotes on the issue of the Australian Government’s program for review of OHS laws:
One of those keen to comment is exhibitor at The Safety Show and chief executive of the Australian Federation of Employers and Industries, Garry Brack [significantly NOT a speaker at the Safety Conference ED.].
“We are concerned about the content of the model laws,” Mr Brack says. “New South Wales’ OHS Act is the most difficult piece of legislation in the developed world and we believe this is a lost opportunity to wind up with more balance.”
“If an employee does the wrong thing, the employer is found guilty. We’re not arguing that employees should be prosecuted but reject the notion that employers should be liable when employees fail to meet safety requirements.”
Clearly Brack has not compared the NSW OHS Act to the Federal Taxation legislation.
Brack reflects many of the perspectives of those who deal with OHS in the State of New South Wales. The pent-up frustration is clear and the employers do not believe the reassurances from the Federal Government.
Brack also illustrates the desire for prescription in OHS law. If people, in this case employers, know how to comply with a law, they are more likely to do so.
“Smaller employers don’t have the financial resources and in-house expertise to interpret what is ‘reasonably practicable’. They say ‘Tell us what we have to do’. They don’t wanted to return to the lunacy of years ago where every nut and bolt was defined but they do need a more prescriptive approach and help from regulators.”
He highlights a concern about the OHS laws shared by SafetyAtWorkBlog, small business has always struggled to provide an appropriately safe workplace. “Reasonably practicable” does not help. However, Brack’s desire for prescription is nostalgic at best, some would say fantasy. This government has no intention of taking a seemingly regressive step to prescription and Brack has been aware of this for years. At some point one has to accept reality and work with what is being offered.
Variations
Another exhibitor discussed the expectation that States will still add their own variations to the model OHS laws. This option has never been hidden by the government or the various review panels. In fact, this flexibility has been a major point in the government’s choice on harmonisation rather than uniformity.
“National legislation is highly desirable to avoid the massive duplication of work for national organisations,” Mr [Bill] Henman [of the College of Warehouse Training] says. “Unfortunately, the legislation will be enforced by various state jurisdictions and this will result in variation between states in interpretations, penalties and the finer points of the legislation. The devil is in the detail. [ED. please kick the next person who uses this cliche] Different penalties in different states currently affect the priorities of safety managers and standardised penalties would provide better outcomes.”
Henman needs to read the legislation and supportive documents to see that standardised penalties are proposed. Though Henman is considering one of the most important issues that does not seem to be in consideration in much of the commentary on the legislation to date – improved safety.
“It’s very hard to say whether these new laws will make workplaces safer. The culture of those less safety conscious workplaces where the employer bends the rules has to change. One would hope the new laws will help engender better safety cultures.”
The Master Builders Association of NSW‘s OHS risk management officer, Tim Stootman, echoes the perspective of Garry Brack, looking at the legislation through the experience of a New South Wales employer:
“Master Builders supports the review of OHS laws and believes that this is an opportunity for better, rather than greater, OHS regulation,” Mr Stootman says. “Better, rather than greater, regulation will assist to improve OHS performance in the construction sector.
Master Builders supports the rejection of what could be called a ‘highest common denominator’ approach to OHS duties. Essentially, this approach would have seen an absolute duty of care on employers to ensure the health and safety of their employees and provides unions with the right to bring a prosecution for a breach of the OHS law, the latter a provision adopted in recent changes to the law in the ACT.
The Draft National Model OHS Act is a positive step towards harmonisation of OHS laws in this country.”
Submissions to the government on the draft Safe Work Bill are being regularly posted at the Safe Work Australia website. SafetyAtWorkBlog is watching the submissions and will draw attention to some of the more useful comments in the submissions.
Jess
Your point about the State being responsible for prescriptive safety levels is right. As Government got used to having OHS legislation, they realized that issuing prescriptive standards could possibly exposed them to legal action even though the legislation clearly stated it was the employer\’s obligation for a safe and healthy workplace.
I think work may now be too complicated to apply prescription but prescription was appropriate at one time.
I don\’t have a problem with union\’s prosecuting for OHS breaches and I think the data shows that the infrequent application of their right is no great threat but for the objectors to the power to prosecute, it is the principle.
I support the argument that if unions can instigate prosecutions in some instances, why can\’t others? I don\’t think this will lead to open slather and may just have the potential to cover those injustices that \”slip through the cracks\”.
Kevin
Is prescription really the answer? It takes all responsibility from individuals and employers and makes it the responsibility of the state to determine every little issue and how to deal with it. If you want to create cracks to fall through, this is the way to go and put lives at even greater risk. Work is too complicated to legislate in this style and any attempt to will fail.
It\’s not just like writing road rules which involve a certain amount of utility. The NSW system which reverses the onus of proof is against the spirit of our entire legal system which says you\’re innocent until proven guilty.
As for unions prosecuting employers what a crock! It\’s a means of raising revenue not for the state but unions which want to punish someone.
Sadly the NSW-centric media is taking NSW-centric spin about declining safety standards and applying it everywhere. It\’s not that it\’s dishonest, it\’s just lazy and doesn\’t understand the topic.