Harmonisation strategy will fail and legal costs for OHS will increase

The Australian Government’s plans to harmonise the country’s OHS legislation will fail.  In the Australian newspaper on 6 May 2010 the president of the Safety, Rehabilitation & Compensation Licensees Association, Dean Stone, said

“Harmonisation was aimed at having the same law in force across the country but it is simply not going to be able to do that…  Each of the companies moving back to the harmonised schemes will need more staff merely to comply with the different approaches.”

Stone, currently the Manager, Workers Compensation & Governance for the National Australia Bank, is under a misunderstanding by thinking that the government ever wanted to unify OHS laws.  Unification makes a great deal of legal and operational sense but the government had always talked about harmonisation.  One could say this is a gutless form of unification but it reflects the OHS legislation itself.  Harmonisation is unification “as far as is politically practicable”.

Over many years national companies had made their desire clear by leaving State-based OHS and compensation jurisdictions and moving to Comcare.  They wanted one system of OHS legislation for all there multi-State operations.  The newspaper article makes it clear that one benefit of moving to Comcare was the ability to administer OHS nationally without the need to increase staffing levels.  The increasing reality of harmonisation allowing State variations negates this advantage to some extent and, as the article suggests, legal costs are likely to increase but only to the level of those companies who did not jump to Comcare.

Michael Brennan, a lawyer with TNT, illustrates an important point that even with harmonised OHS laws, enforcement will rely on State-based legal systems.  Brennan says that a major advantage of the Comcare move is that any prosecutions occur under the one court, the Federal Court.  Although all courts are under-resourced, a single national court for OHS disputes and prosecutions makes enormous sense and would remove much of the tension that has existed in New South Wales over the conduct and use of the Industrial Commission.  Brennan says

“….under the eight systems, things go to the NSW Industrial Commission in court session, to the County Court in Victoria, they go to magistrates courts, they go to all sorts of courts…. There will be differences in interpretation and various courts will not be bound by courts in other states. Each state will be able to nominate which court has jurisdiction for OH&S matters. This is definitely not ideal. This is not true model legislation.”

The article, by Chris Merritt, says that those companies operating currently under the Comcare scheme are unsure of their future.  The concerns are no more than those of any other company in Australia as Comcare’s OHS legislation is one of the many jurisdictions that are in the harmonisation scheme.  It is unlikely they will be forced, or even encouraged, to move and, indeed, they have the advantage of Federal Court coverage.  It is likely that moving to the Comcare scheme, once (if ever) the Government lifts its moratorium, will be as attractive as ever to multi-state corporations.

In a text box article in the same newspaper a spokesperson for the Workplace Relations Minister, Julia Gillard is quoted as saying:

“…we believe they [adjustment costs] will be significantly outweighed by the savings for businesses and governments in having uniform legislation.

“The commonwealth is currently working with state and territory officials to give further consideration to the issues, including whether all or only some licensees need be transferred to state and territory coverage . . .

“As part of this process, the Department of Education, Employment & Workplace Relations and Comcare are currently consulting licensees, workers’ representatives, state and territory officials and other stakeholders about arrangements to facilitate the smooth transfer of affected Comcare licensees to state and territory OHS jurisdictions.”

(The reference to “uniform legislation” is hopefully a faux pas but does little to placate some of the concerns voiced by business)

The spokesperson talks of  “all or only some” and “affected Comcare licensees”.  The move out of Comcare is equivocal and political needs are likely to allow licensees to choose their jurisdiction.  The future, as ever, relies on the skills of the lobbyists and the political influence of business and labour representatives.  And very little of this argy-bargy concerns improving safety for those most at risk, the workers.

Kevin Jones

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