Dis-harmonisation over OHS laws

Victoria’s largest OHS conference and trade show has ended.   The shadow of the impending harmonisation of OHS laws hung over both events.  The OHS message throughout the conference was one of nothing to worry about. WorkSafe’s Ian Forsythe felt that Victoria was well-placed for minimal disruption as the OHS laws in that State had been thoroughly reviewed by Chris Maxwell QC in 2003.  Forsythe described the current OHS review as “Maxwell on steroids”, a good line for the conference audience but one that reflects the, often, smug approach of many Victorians to the harmonisation process, an approach not shared elsewhere as shown by a front-page article in The Australian on 9 April 2011.

The Business Council of Australia is concerned about the different interpretations of the laws by each of the states.  This has been a possibility from the very start of the reform process because the focus was always harmonisation, not uniformity.

Influential mining corporation Rio Tinto is concerned about the increased powers of health and safety representatives under the new national laws.

The Minerals Council of Australia’s (MCA) comments are perhaps the most telling. The MCA believes that the new laws will divert attention from safety to compliance and increase the need for paperwork. The latter concern, increasing red tape, was said to be one of the main reasons behind the review in the first place.

OHS lawyer, Barry Sherriff, has denied that the model Work Health Safety Act would necessarily impose greater costs on employers.  He reportedly said that

“A lot of what we’ve done is to simplify and clarify things, to make the law better and remove the legal gobbledygook.  People in the office, factory, the warehouse, or the road who need to understand the safety laws.  It requires what you should now be doing anyway.”

However Senator Eric Abetz has said

“All it [harmonisation] will do is add extra cost, extra burden and confusion because of the complexity.  As a result, workers won’t be safer, productivity won’t increase and there’ll be extra burdens on business…”

(To see the full context of the senator’s comments, the full transcript is available HERE)

Many of the organisations above have been direct players in the development of the new OHS laws, and should know the rationales behind all of the decisions and consultations that have led to the current situation.  WorkSafe Victoria has said that it did not make a submission to the review specifically because it has been so involved with the review process.  Yet the organisations involved in the tripartite consultation must take some ownership of the proposed Act, Regulations and codes of practice.

It is very risky for those OHS professionals in Victoria to dismiss what the fuss is about across the borders.  Confused messages abound about the impact on red tape and the impact of business operating costs, with additional elements entering the fringes of the OHS legal debate, such as the “Industrial Manslaughter” bill in Western Australia.

To understand the umbrage of businesses, unions and employers associations over the OHS harmonisation process it is essential to look outside the Victorian statements, submissions and media.

Kevin Jones

Categories conference, consultation, economics, government, guidance, hazards, law, OHS, safety, UncategorizedTags , , ,

7 thoughts on “Dis-harmonisation over OHS laws”

  1. Nice information. Persons who control or manage matters that give rise or may give rise to risks to health or safety are responsible for eliminating or reducing those risks so far as is reasonably practicable. Some carry personal criminal liability for directors, even where they may not have had any personal involvement in a breach. In some states, they reverse the onus of proof, removing the presumption of innocence, and offer narrow legal defences and limited appeal rights. He misunderstands the application and aims of OHS law. All people in a workplace have a responsibility to ensure a safe and healthy workplace for themselves, for employees and for members of public on and off their worksites. Directors have more detailed obligations, but not less, because they have control of production and benefit more from the success of the company than do the employees.

  2. The Safe Work Australia media release is curious. It is surprising that an organisation who is in the process of assessing submissions would believe it is necessary to address some political comments that have appeared in the media. I would have thought the \”ownership\” of the model OHS laws would have sat with the relevant Minister, rather than a regulatory body.

    The media release illustrates a sensitivity to criticism but the criticism is aimed, as I see it, not at the process currently underway. So what if the regulations are hundreds of pages? Size does not necessarily equal complexity.

    And, anyway, the current version of the laws remains a draft. In fact, everything in the harmonisation process is still in draft form.

    The public and political statements could be appearing in order to have submissions reach a broader audience and to signify a level of influence in the OHS debate beyond a simple (sometimes, hard to find) and dry submission. The trouble is that some of the comments could indicate a dissatisfaction with the tripartite negotiating process that has led to the draft documents. The Western Australian submission Graham refers to is available online and, as Graham says, is worth a detailed read for it is not unreasonable to have expected WorkSafe WA to be party to the tripartite discussions.

    Also, the WorkSafe WA submission contrasts with the absence of any submission from WorkSafe Victoria.

  3. Kevin, I think the WorkSafe WA submission is a very telling one in terms of its impact on the harmonisation process – it questions the benefits, challenges the costs that will be imposed, takes issue with the substance of many issues in the Regulations and even now says the Bill is not right.

    As for the apparent divergence between Barry Sherriff and the business submissions on costs, I think they can both be right.

    Barry is talking about the Act which was built around the recommendations in the Report he co-authored. The business submissions are primarily talking about the Regulations and COPs which were developed through the process with Safe Work Australia, all Regulators, the ACTU and employer representatives ACCI and Australian Industry Group.

    I note that this afternoon SWA put out a media release responding at least in part to some of these criticisms.

    Regards, Graham Dent

  4. The comments presented above are not surprising.

    To a point, harmonisation is a good thing. Greater consistency of legislation will bring enhanced equity for employers and employees alike.

    However, the fact remains harmonisation of itself will do little to change OH&S outcomes in Australia.

    We need to encourage more debate on how to transform performance, how to create better safety cultures, how to increase skill, knowledge and capability, and better understand that OH&S incidents and accidents are indicators of failures within the business model itself, not just the often administrative processes of OH&S.

    How can we lift the debate?

    Peter

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