Australian lawyer Andrew Douglas has provided a frank assessment of the OHS harmonisation process instigated by the Australian government to reduce red tape and administrative costs of safety. In Smart Company on 1 March 2011, Douglas wrote:
“…the Model Act, the regulations and documents that flow from it will dramatically increase state-based businesses legislative compliance, will massively increase the paperwork proving compliance and will inevitably lead to a substantial increase in costs to business in managing safety and OHS.”
Most State governments continue to support the harmonisation process, in almost all its elements, as a positive for business. So what’s the story here?
Andrew Douglas’ opinion needs serious consideration as it is one of the few contrary positions expressed to date.
Occupational health and safety compliance has never been a friend to small business. OHS cannot be implemented “on the cheap” and has always been a business cost. In some small businesses depending on the type of industry, compliance costs are a more significant part of the operating budget than in others but OHS applies equally across all workplaces regardless of these variations. This situation has often been described as unfair but the alternative is a two-tier compliance system that is likely to be very difficult to implement and enforce.
Harmonisation has taken a similar one-size-fits-all approach to safety rather than looking at the core structures of safety management and compliance. A review was certainly warranted almost thirty years on from the original legislation and forty years on from Robens’ inquiry but Australia has chosen to tweak the laws for harmonisation purposes.
Australia is not without the expertise to have undertaken a Robens-style analysis. Prominent OHS academics and researchers such as Ron McCallum, Michael Quinlan and others could have formed a wonderful basis for a structural review but we must settle for tweaks.
The government has committed itself to the harmonisation process and, although it may fall over due to political issues, changes will occur from 1 January 2012. However, the government needs to acknowledge the limitations of this approach and the increased costs of safety that Andrew Douglas has identified. If safety is going to increase its prominence as and unavoidable but necessary element of business operations, the government should apply some of those business elements to OHS law changes. It is suggested that the following options be considered
- On the anniversary of the introduction of the OHS laws, an investigation be undertaken to assess the new costs of compliance across all sectors of business with the results to be considered and implemented within 6 months after the report.
- The new laws include a sunset provision of five years with a concrete obligation that a root and branch analysis be undertaken.
- From January 2013, Safe Work Australia begin a consultative process looking at safety management principles, concepts and application across all levels of business in order to provide case studies and national guidance on safety management strategies that result in genuine safety improvements.