OHS law reform should not rely on Courts for clarification

Since the early 1970’s OHS law has been “de-lawyer-fied”.  The intention of the law is to empower workers and employers to manage safety in the workplace to meet basic human rights – the right not to be injured at work, the obligation not to hurt others.  Good law allows for the basic legislative tenets to be readily understood.  Poor law is difficult to understand and leads to increased business and personal costs in order to determine compliance.

I would argue that Australia’s recent aim of the national harmonisation of OHS laws will lead to complexity and cost – the opposite of what was intended – and a disempowerment of the workforce as the legal imperative overrides the safety management obligation.  The major weakness in the law is its seeming reliance on the Courts to clarify the laws, their application and their relevance.

Legal commentators on the laws have stated publicly that the impact of the law will not be clear for several years and that many questions about the laws will only be answered when prosecutions are brought and the Courts hand down decisions.  This process is sloppy, should not be accepted unquestionably by OHS professionals and does almost nothing to help the vast majority of Australian businesses to comply.

The argument is that the laws will not change but be harmonised.  The fact is that in some States, the laws will change and change for businesses that have no trans-boundary operations.

OHS laws, enforcement strategies and impacts in Australia would benefit from a review similar to that undertaken by Thomas McGarity and others at the University of Marylands School of Law, as reported in  the Regulation At Work newsletter.  According to the newsletter:

“The authors suggest that regulatory dysfunction stems from the agency [US-OSHA] being starved of resources, operating under a statute weakened by 30 years of appellate court decisions and White House initiatives that increase time and effort needed to implement a proactive regulatory agenda.”

There are distinct similarities with OHS enforcement and regulation in Australia.

The research paper lists the following recommendations:

  • “OSHA should seek from OMB additional resources to beef up its regulation-writing capacity.
  • In the meantime, OSHA should seek ways of maximizing the impact of the few safety and health that it has the budgetary capacity and legal authority to promulgate.
  • OSHA should also consider how it can avoid rulemaking delays caused by procedural hurdles imposed by other statutes.
  • Focusing rulemaking on generic standards that apply more broadly than single chemical regulations has the potential to greatly improve OSHA’s effectiveness.”

In summary, money, resources, strategy and focus.

Although the harmonisation reform process has been time-consuming and resource hungry, it has a very limited application and therefore limited impact.  It allows for political variations at State level and requires prosecutions and other Court and enforcement action for clarification.  Business operators and OHS professionals need more clarification than this if the laws are to be applied and communicated broadly.

Regardless of how the OHS laws will be “sold”, it is the application of them at the shopfloor, not in the Courts, that will save lives.

Kevin Jones

Categories business, government, law, OHS, politics, research, safety, UncategorizedTags , , , , ,

5 thoughts on “OHS law reform should not rely on Courts for clarification”

  1. Absolutely right that legislation should never be drafted with court interpretation as a key source of explaining it\’s intent. Over a decade of drafting OH&S laws I learnt to be on the look-out for the compliance and enforcement \”cul-de-sacs\”. From my experience there is a tight correlation between a final law needing the court to work out the details and these cul-de-sacs.

    Policy ideas can get thrown in the drafting mix, sometimes without a complete sense of how it can be enforced or complied with. Nothing wrong with that; law is only another manifestation of policy making and good policy should explore hard stuff if necessary. But it\’s obviously the job of drafters to make sure the policy idea can be expressed clearly and with little or no scope for a range of interpretation of the intent.

    With a \”tricky\” policy idea it can take ages to go through the drafting process only to find you have hit a cul-de-sac: the compliance bits preceding all seem to fit together and work logically, but then you get to the \”killer punch\” – often the final bit that defines what will constitute the offense – and you find you\’ve come to a point where, despite the proceeding stuff looking OK, it doesn\’t support the killer punch adequately, and how to comply ends up looking furry. The drafter is under big pressure to deliver and no-one likes to go back to instructors and say \”It can\’t be done.\”

    It\’s an even harder thing to tell people if, after going back up the chain of drafting you come to realise that the initiating policy instructions were all screwed up in the first place. If the response is \”Well, we can let the courts work it out\” it\’s tantamount to saying that \”We can\’t be bothered anymore.\”

    I should point out that I haven\’t looked at the proposed laws close enough to see if I can see examples of likely legislative cul-de-sacs, I was just passing on my experiences about how they can come about.

    Col Finnie
    fini:OHS

  2. Hi Kevin, I think I may have canvassed this topic not so long ago where I suggested that unless the legislators write their laws in plain English (I refer to current law in respect of insurance policies where plain English is required by law) and the preamble to any law is clear and unambiguous then we will be whistling the current tune for a long time to come.

    Shifting the deck chairs via the so called \”Harmonisation\” across the nation of current law is a complete waste of time, unless a new national law is written taking into account both safety at work and injury compensation as one Act, the two matters are so strongly related, they need to be considered as one. Just maybe this approach might be a better option for all concerned. The benefits are obvious and the downside minuscule.

    Failure to accept the need for revolutionary action in getting this ongoing disaster in both camps under control will see \”SS Harmonisation\” share the fate of the Titanic.

    Forget about any voluntary codes of practice that is like putting the Fox in charge of the Hen House. any improvement to workplace safety has come about because business, in the main, has been dragged kicking and screaming to the table and forced to accept they have a moral responsibility to their workforce in relation to safety, before consideration of dividends to shareholders. The latter is usually the first consideration.

    Highly prescriptive law and regulations are required along with enforceable codes of practice in terms of compliance with significant on the spot fines for non compliance. There has been enough time and money spent on providing advice and education to the business community so they are fully aware of their responsibilities and do not need any soft warnings. If found in breach wear the penalty which should be significant with at least 50% of any revenue received being dedicated to improving the lot of injured workers.

    I would suggest, at least in the initial period we would see unfunded liability disappear through the \”Blow Torch of Accountability\” (fines) which would in turn, reduce the number of injuries because of heightened interest by employers to ensure they are complying with requirements to provide a safe work place rather than wear large financial penalties.

    I think pretty much everything else has been tried and proven not to work so why not this approach. I should also mention that any business owner who suggests that they can\’t afford to comply should sell their business immediately as they are part of the continuing problem

  3. Good point, Kevin. While working on the publicity for the Safety In Action show and conference and the WA Safety Show, I\’ve interviewed a host of experts on the impacts of the new model Act.

    Not one of them expected there would be any improvement to the safety of workers – except that the short-term focus it brings on OHS might be helpful. The harmonisation is all about savings for big business as far as I can see.

    To be fair though, the Act is meant to be broad, with the specific, life-saving guidelines contained in regs and codes of practice. As you mentioned in an earlier blog post, Safe Work Australia plans to harmonise many of those this year and I\’m looking foward to seeing how they can keep us all safer.

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