Rex Hoy of Safe Work Australia (SWA) spoke on 1 June 2010 at the Australian Senate Estimates hearing (around page 44) and confirmed progress on the draft OHS regulations and codes of practice. The draft Hansard reports Hoy saying:
“Just to cover the areas we are working on: there will be model regulations covering administrative arrangements to support the model act, major hazards facilities, licensing of high-risk work, workplace hazardous chemicals, occupational diving, noise, working in confined spaces, performing manual tasks and induction training for construction work. There may well be more, depending on finishing this process.
At the same time we are developing model codes of practice. The priority areas to date are risk management, consultation, manual tasks, noise, plant and workplace facilities, chemical labelling and safety data sheets, asbestos removal and management, confined spaces and construction related hazards. Our timetable is to develop those and have them considered by the Workplace Relations Ministers Council in October-November this year prior to them going out for a four-month public comment period, starting around that time.” [link added]
Senator Catryna Bilyk of the Australian Labor Party asks a pertinent question about “good faith” and health & Safety representatives (HSR). SWA representatives admit that an explanatory memorandum may be needs in some cases to clarify the model Work Health and Safety Act but it also indicates that the Act is inexact in parts. Whether this is an acceptable vagueness in drafting laws, is unclear but surely a law that has been developed after considerable consultation should not generate more questions.
SWA’s Justine Ross reinforced a major problem with the development and application of the model Act when she responded to the question of who determines “good faith”:
“I guess that would be for the courts to determine whether the HSR had been acting within good faith.”
Court appearances cost money, create personal and organisational disruption, and delay the “rules” of OHS from being established from the legislation. Clarifying an interpretation through a court process seems to be sloppy administration and does little to help businesses determine their level of compliance or to develop their safety management systems.
Senator Bilyk sought clarification on “as far as is reasonably practicable”:
“When we look at definitions like ‘as far as reasonably practicable’ what sorts of provisions will there be to make sure that employers do not use some of these words as a legal escape route to evade some of their duties and responsibilities?”
Ross responded that
“I actually think that, unlike some current occupational health and safety legislation operating throughout Australia, we actually give quite a bit of detail on what ‘reasonably practicable’ means. It is also intended that we will produce an interpretive document that will be adopted by the regulators in each state and territory which will clarify for the duty holders how to meet that standard.”
She also said that the interpretive document will be available during the public comment phase later in the year. Ross does not really answer the Senator’s specific question so it will be an issue to watch.
The committee discussed the training of HSRs and SWA’s Hoy advised:
“As part of the implementation of the act, Safe Work Australia will be developing model training for HSRs, et cetera, in association with the vocational education training sector. We have not actually done that yet, because our focus has been on developing the legislation. Once we do this, that will be made available to all the jurisdictions so that when they enact the legislation, they can also have this training material and guidelines to assist particular representatives…”
This may be news to those in the OHS training sector and no timelines were specified but if legislation development is given priority, “model training” may be available in the second half of 2011.
Significantly, the issue of whether the process will lead to true harmonisation, or even uniformity, was taken up by Senator Eric Abetz of the Liberal Party who sought clarification on the number of jurisdictional notes in the Work Health & Safety Act. (It was later determined that there are at least 54) These notes were meant to allow for flexibility at State level but could render harmonisation ineffective. As Senator Abetz says:
“…many of the jurisdictional notes deal with fundamental issues that produce fundamental jurisdictional differences, including judicial approaches to the interpretation of the occupational health and safety laws.
Rex Hoy responded by explaining the purpose of the notes but the application may be different:
“…They allow the local drafters in each jurisdiction to make a small number of specified technical amendments to the model act to prepare for its introduction and implementation. They are technical amendments designed to ensure the workability of the model provisions in each jurisdiction without affecting harmonisation.”
One would have to say that the temptation exists for those States, like Western Australia, that are not enamoured with the harmonisation process to apply the jurisdictional notes as broadly as possible.
As was clear from the Estimates hearing, the harmonisation process is far from complete and the fact that the process is still meeting the proposed timelines is worthy. Safe Work Australia has been quiet since the draft model Act was released. Given the number of draft codes and regulations it is developing it is not surprising. The Estimates hearing provided a clear indication that there remain concerns about some of the fundamental tenets of the legislation. It is not clear whether these fundamentals will be addressed in the National process of whether this will be left for each State to deal with.
The more information, guidance and legislative clarification that can come from Safe Work Australia at a national level, the higher the rate of harmonisation at State level. Safe Work Australia must operate without anticipating political issues at State level but it is at the State level where the biggest risk of the harmonisation process falling over exists.
Western Australia dug in with its resistance to the process months ago and the relationship with the Australian government has soured even further since due to mining tax issues and health reform negotiations. If New South Wales changes to a conservative government at its upcoming election, there is a strong chance that Western Australia’s belligerence will be mirrored, particularly as NSW also has a strong and vocal mining sector.
At the recent NSW Mining Council annual conference, it was clear that the participants would not accept that the current industry-specific safety legislation would be rolled under the OHS umbrella of harmony.
The poor political relationship between the mining sector and the national Labor Government over the current taxation issue may result in some State governments spitefully rejecting the model Work Health & Safety Act or, at least, sabotaging the application. The OHS harmonisation process relied on intergovernmental co-operation to a common purpose. The Estimates hearing provided some indication of the political winds that the implementation will need to face over the next 18 months.