Australian business is outraged over OHS changes but is it all piss and wind?

Australian business groups have written an open letter to the New South Wales Government protesting about the decision to continue with some OHS processes specific to New South Wales regardless of previous commitments to support the harmonisation of OHS laws.  As the letter was published as an advertisement  (Page 6 of  The Australian on 20 October 2010), it is not readily available online but the letter needs a little bit of deconstruction to better understand the politics and ideologies behind the letter and the business associations.

The letter says Australian industry signed on to the national harmonisation process because of the need for an effective way of improving safety, fair legal processes and national consistency.  Yes, to some extent but more often industry groups have been calling for a reduction of red tape for the purpose of reducing administrative costs.  Reducing the injuries and fatalities of workers is not the same as “improving the safety of Australia’s workplaces”.

The ideological gap is shown in the argument against the national imposition of “reverse onus of proof”.  The letter uses Victoria as an example of a jurisdiction without the reverse onus of proof and says

“Victoria, which was used as the model for the new national laws and which does not have union prosecutions or reverse onus, has between 30% and 50% better safety outcomes than NSW depending on the measurement used“. (my emphasis)

What is a “better safety outcome”?  Less deaths?  Less cost to business?  Is it fair to compare NSW to Victoria?  And can the variation in “safety outcomes” be directly related to reverse onus of proof?  That legal concept would only come into effect if a company is prosecuted and goes to court which is usually a small proportion of the enforcement activities of OHS regulators.  More on “better safety outcomes” can be seen in an article by Ken Phillips, no friend to the proletariat.

And is the reverse onus of proof the devil the business groups make it out to be?  The unions would probably argue that any workplace injury automatically indicates a deficiency in safety management at that workplace and that, as the business owner has the greater legislative obligations under OHS law, they should be held accountable for the cause of the injury.  For if the work site was being managed in line with legislative obligations, there would not have been an injury.  It could be argued that the reverse onus of proof supports the oft-quoted aim of thousands of large Australian businesses – achieving “zero harm”.  The protests imply that businesses profess a commitment to achieving “zero harm” (“but if we don’t, it’s not our fault”).  Is it fair to profess a commitment to best-practice safety and then complain if one is held accountable for not meeting one’s commitment?  Should companies raise workers’ hopes and then not stand by management  failures?

The open letter says

“Safety laws should be consistent with the principles underpinning criminal law”.

If this is the case, why do Australian business leaders oppose Industrial Manslaughter legislation that already exists in the Australian Capital Territory?  Accountability for negligence is an important principle underpinning criminal law. According to one definition*

“… negligence is the breach by the defendant of a legal duty to take care, which results in damage to the plaintiff.”

Part of the reason for the union movements push to retain the right to prosecute for OHS breaches seems to be as a result of the political back down of previous NSW Labor Governments on industrial manslaughter pledges.

The signatories also apply the hoary old chestnut that by refusing to change OHS laws, the State will lose investment income and businesses will think twice about setting up in New South Wales.  They know such claims will get the ear of politicians because there is little tax revenue without business, and the financial papers are almost always willing to run such stories.

The  level of protest from business groups is considerably less than it was when the West Australian Liberal Government refused to sign up to the total harmonisation package.  But perhaps this is because business expected compliance from NSW and it is the “backflip”, the uncertainty, that has most enraged them as the open letter illustrates.  If one digs in from the very start, as WA did, there seems to be less outrage and this leads to the question, is it the backflip itself that is more infuriating than the reasons given for the change.  Is the protest more about betrayal?  Is it disappointment that the light of justice that NSW businesses saw with the High Court decision on Kirk has been snuffed?  That light was never more than a chink.

The harmonisation process always had what Michael Tooma has long described as “wriggle room“.  The NSW Government is the second State jurisdiction to wriggle, to legitimately haggle in the harmonisation process.  In such political processes, should we be surprised?

In an election period where everybody is tipping Kristina Keneally’s NSW government to lose power, Keneally may retain some votes by uttering powerful statements such as

“We will not compromise when it comes to the safety of working people… Safety is too important.”

All of this argy-bargy on OHS is exciting.  Workplace safety is being talked about by political leaders, industry leaders and the occasional involvement by the safety profession, but it is politics, it is lawyers squabbling over points of law and it is not about managing safety in the factory, the kindergarten, the small business or office.  Better, more practical OHS information is likely to come from the draft regulations and codes of practice that are due for release around 10 November 2010.  The public has a few months to comment on the documents, then these are revised and, eventually, go to each State jurisdiction to be enabled as laws for that State through each States’ parliament.  What this means is that there is a long way to go in changing OHS laws in Australia and no one can guarantee that Australian workers will have less injuries as a result.

Kevin Jones

The signatories to the letter are listed below and include links to biographies or background articles which provide a strong context to their positions on OHS:

Heather Ridout – CEO of the Australian Industry Group

Wal King AO – President of the Australian Construction association

Katie Lahey – CEO of the Business Council of Australia

Peter Anderson –  CEO of the Australian Chamber of Commerce & Industry

Garry Brack – CEO of the Australian Federation of Employers & Industries

*Osborn’s Concise Law Dictionary, 8th edition edited by Leslie Rutherford and Sheila Bone.

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