In OHS law in Australia, the employer/employee relationship is dead or, at least, coughing up blood. OHS law is to be based on “people conducting a business or undertaking” (PCBUs have been discussed briefly elsewhere) and not a worker working in a workplace, even though the recently changed industrial law, the Fair Work Act, maintains this relationship.
This morning in a staff seminar at a large multinational business in Australia a regional CEO revealed a considerable level of financial detail to his employees, much more so than any of the staff had seen before. His reason for this was that he was talking with “adults”. He employs adults and expects his workers to act like adults. He also said that he cannot understand why, for so long, employees have been treated as children or act like children.
Past occupational health and safety law seems to reflect this relationship. Employees have expected someone else to fix a problem because the employer has the principal responsibility for everyone’s safety. The employee has had a legislative responsibility to look after their own safety and that of others for decades but it was rarely emphasised and only occasionally did it appear as a reason for a prosecution.
To be simplistic for a moment, parents set the house rules for when children are in the house. As children grow, the rules are amended and new rules are created as the child becomes more mobile, curious and intelligent. In many circumstances, the children are given a fair degree of flexibility in meeting the house rules but every so often the rules need to be enforced and children reminded of them. A penalty of some sort is applied.
At a WorkSafe seminar on 26 October 2009 in relation to the proposed Safe Work Bill, there was a tone to the panelists’ comments that seemed to be calling for a new “maturity” in OHS management. It was as if the last thirty years has been the learning phase where the house rules have been clearly established and the children have reached a point where the house rules are to be self-policed. It could also be put that the children are expected to extend these rules to any guests to the house. But the analogy of a house as a workplace and business should stop there before it becomes silly.
What the new/proposed OHS laws are looking for is a responsible approach to staying safe. The emphasis on “reasonably practicable” in the legislation is a plea and an expectation for people in a workplace to behave reasonably. The impression is that if the test in law is to be of a “reasonable person” then the OHS law should be encouraging people in a workplace, whatever their status, to act reasonably.
In short, the Australian Government is asking businesses and workers to “grow up”. The test will be who chooses to be sitting at the family meal table and who becomes the mad uncle locked in the attic that everyone feels embarrassed by.
Cynical retort – the lawyers are always finding a regulatory gap that will take 2 years to fill – that\’s their job!
To be serious, I attended a briefing on the new model laws this morning & saw a rather disappointing and rambling presentation from a top-flight silk which was all about these minutiae of interpretation of the Act in the courts, and his myriad disagreements, past and future, with the beaks who pass judgement in such matters.
My view is this is a necessary evil; the lawyers, the company directors & the denizens of Trades Hall will engage in their posturing and chest-puffing, but we must hope and strive to see that a harmonised national law is delivered, and that once it is, the local regulators and the courts will evolve to a common national approach to regulation, to prosecution, and hopefully, to the widening concept of mutual obligation which I take to be the theme of this post of Kevin\’s.
Apologies Kevin. I was \”hovering\” over the vote section and inadvertently marked my last post as excellent. I wasn\’t trying to beat up the story – I think there is enough that going on already.
For a lawyer to publically state that there will be a regulatory gap until case law provides better clarity of what is “reasonably practicable”, a window of around two years, is extrodinary. It strikes mean as either having no understanding of occupational safety and health jursiprdence for the last 20 years, or simple scaremoingering.
In 2007 the Western Austrlian Supreme Court, speaking about resonably practicable was able to say:
\”There has been considerable judicial attention to the articulation and elaboration of the balancing approach I have described for the purposes of the Occupational Safety and Health Act and similar legislation interstate.\”
Considerable judicial attention – these issues are not new.
In 2001 the High Court said that the words \”reasonably practicable\” are ordinary words bearing their ordinary meaning, and the statutory definition in this case corresponds with the ordinary meaning.
There was also a decision – I believe the WA Supreme Court of Appeal, but I can\’t get my hands on it as I write, in which one of the Judges commented that she could not understand any ongoing confusion around the term reasonably practicable as the meaning was quite plain.
The lack of informed comment in this area is quite surprising.
Greg
I have argued elsewhere that the OHS model laws have little to do with safety management and will have limited impact. I do think the law will benefit lawyers most of all.
One lawyer last week stated that there will be a regulatory gap until case law provides better clarity of what is \”reasonably practicable\”, a window of around two years. It seems absurd to me that any regulation that encourages a proactive approach to safety relies on an unrelated process to clarify definitions and compliance.
Someone else has written that if the law is noy embraced by small business it will fail.
Unless I am missing something, the comment:
\”The emphasis on “reasonably practicable” in the legislation is a plea and an expectation for people in a workplace to behave reasonably.\”
does not represent anything diffent by way of safety regulation, and (perhaps NSW excepted) \’reasonably practicable\’ has been the basis of safety obligations around Australia for the past 20+ years.
I do not belive that the legisaltion is really asking anyone to do anything substantivley different, much less grow up.
The whole National Harmonisation debate strikes me as nothing more than vested interests trying to dredge up substantive changes to safety regualtion from an exercise that really is nothing more than administrative steamlining.
Again, NSW excepted, would any decisions made by Courts or Tribunals under the various versions of safety legislation over the past decade or so be any different under the propsed Act? I can\’t see how.
Are any organisations going to need to substantially change their safety management systems to cope with the proposed legislation? Unlikley.
The new Act does not mention contractors – they are covered by the overarching PCBU concept – but does this have any serious implications for the way that contractors will be selected or managed?
There may be a positive \’due dilligence\’ obligation on managers, and the scope of who is in the net may (may!) have expanded, but even if (and that is a big if) regulators and prosecutors are prepared to lift their sights above small businesses, will we really be telling managers and company officers anything duifferent about the steps that they need to take to meet their obligations (moral and legal) than we have been telling them for the past decade?
National Harmonisation has chosen administration and management of \’red tape\’ as its stepping off point for improving safety regulation. That is important and not to be discounted, but lets not talk it up as some substantive change to safety regulation – that emporor really does have no clothes.