Consultation and issue resolution should be top OHS priorities

Labour law firms in many cities conduct free seminars on the legal issues of the day.  These may involve union right-of-entry, OHS changes, privacy or right-to-know.  The seminars are intended to generate custom by showing how informed and professional the legal firm is.  Commercially for the firm, the seminars are a good idea.  For safety consultants and small business operators, such seminars can be invaluable.

Recently in Melbourne, a prominent law firm, Freehills, conducted a breakfast seminar on “Tips on managing legal risk following a workplace incident” at which a short time was spent at the end discussing OHS harmonisation changes and the expected impacts of the legal changes on business.  (Off-blog I received an email about this matter only last night as it relates to schools.)  Freehills’ Senior Associate, Steve Bell, presented the following graph.

The graph clearly illustrates the priority areas that Freehills believes companies should look at in the new OHS regime.

Certainly there are no matters that are dismissed but, unlike other legal and lobbyist opinions, the greatest concern is not an increased duty on directors and company officers.  Bell signifies “consultation and issue resolution” as one of the harmonisation changes “which have more immediate operational impact”.

It is sometimes difficult to imagine that consultation is not already a significant part of an OHS management system but the duty to consult and, more importantly, listen has not been a uniform legal requirement in Australia, although it has always been good practice.  It may be that some business owners remain wary of their own workforce and consultation could be perceived as a significant threat, similar, in some minds perhaps, to the long forgotten class and ideological threats of “industrial democracy“. (If industrial democracy really does equate to a “participative, power-sharing model”, then safety professionals and health & safety representatives have been unknowingly practicing this “dark art” for decades.)

On the eve of the release of draft OHS regulations and codes of practice by Safe Work Australia, the priority perspective shown above may provide a useful comparison to the priorities of government.

Kevin Jones

Categories business, consultation, government, law, lawyers, OHS, safety, UncategorizedTags , , ,

2 thoughts on “Consultation and issue resolution should be top OHS priorities”

  1. From my perspective, I would put the Model Act duties on \”officers\” of a business as the bits companies need to have a hard look at (particularly the small to medium business).

    It\’s a relatively specific list of things in section 26 describing what \”due diligence\” of an officer covers. And I reckon that it potentially has more affect on small to medium businesses. That\’s because the Federal Corporations Act is used to define \”officer\” and that, in turn, says an officer (apart from being all the things you\’d an expect an officer of a company to be) includes a person:

    \”(i) who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business of the corporation; or\”

    The definition also includes a person who does stuff in accordance with instructions from directors etc.

    I reckon this combines to create a situation where, conservatively, about 70% of Oz\’s businesses will find that the person slung OH&S responsibilities in the SME is gunna be a bit anxious about how vulnerable they are, if a duty of \”due diligence\” lands in their lap. I mention SMEs because that\’s the size business where a person is likely to have OH&S stuff plonked in their list of duties, and it\’s more likely that in a SME those duties would affect a \”substantial part\” of the business.

    If the Model Act provision was adopted I\’d be telling my SME clients that they better move fast on working out just how they have allocated OH&S duties and how well they have documented those duties. I\’d be adding that if they want to hold on to managerial staff with OH&S duties, they would also have to move fast to make sure those staff have the resources and skills they need to do their job properly.

    I read the Model Act provision to mean that a person who finds themselves with OH&S duties will want very clear understanding of what they have to do, and in turn, will be pretty bloody keen to make sure they are properly equipped to exercise their \”due diligence\”; they would be nuts if they don\’t.

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