Over the last few months most Australian OHS regulators, and many labour law firms,have been conducting workshops and public seminars on Australia’s plans to harmonise its OHS legislation. In those workshops, the consultative process and timeframes have been described by some as a “nightmare”, which is not exactly inspiring participants who are seeking clarity from the confusion.
Significantly, others are encouraging the audience to advocate specific positions in potential submissions.
Recently, concerns were raised over the revisions to Safe Work Method Statements (SWMS) provisions. It was suggested that SWMS have the potential to bloat beyond several pages due to the need to include “associated risks”. Most safety management systems and OHS professionals would already have include secondary, ancillary or associated risks as part of the job safety analyses and SWMS.
As an example of this type of discussion, WorkSafe Victoria’s comparison document of its Victorian OHS regulations to the new national draft says
“The SWMS duty will expand to require all hazards, risk and controls associated with the high-risk construction work to be recorded, as the risks of the work.” [emphasis added by WorkSafe]
WorkSafe seems to consider this as a major issue as is evident from the (unnecessary) emphases in the document. Associated risks become a minor issue some years ago when the duty of care was expanded, or clarified, to apply to visitors to workplaces.
A major risk with complicated SWMS is one that already exists and is not being adequately addressed – the cutting and pasting of SWMS that have only a tenuous relationship to the task being undertaken. SWMS run the risk of bloating but this is more likely to occur if the role of SWMS in managing safety is poorly understood or poorly explained. It is acknowledged by regulators that the new WHS Act and regulations will undoubtedly increase the amount of paperwork required to demonstrate compliance. SWMS is just one part of that paperwork but a vital one, particularly in the area of contractor management
It should be noted that Comcare has also released a comparison document of the WHS Act itself but it is much briefer and does not mention the SWMS issues as the SWMS section is in the draft regulations.
Another consideration in the harmonisation process is whether OHS regulators’ information seminars and supportive documents should be expressing opinions at all. All Australian OHS regulators have already been closely involved in the writing of the draft OHS regulations and will be even more involved with the harmonisation of Codes of Practice, guidances and safety alerts. The national drafts have already considered the positions of all the government regulators but clearly the documents are not agreed positions. In fact, the positions of the OHS regulators seem far from harmonised.
It is important to ask whether the OHS regulators should be “leading” people who are to make submissions on the draft documents?
Safe Work Australia has received less than 40 submissions to date (only one from Victoria), which is slow, but should not be surprising given the scheduling of the public comment phase over the Christmas/New Year break. Like most inquiries, a slew of submissions can be expected in the next few weeks leading to the April deadline. It will be fascinating to see if there are any common threads to the submissions from each State jurisdiction.