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.