New work health safety laws in NSW parliament

The New South Wales Government submitted its version of the Work Health and Safety Bill into parliament on 4 May 2011. Neither the Bill or speeches are yet available on-line [Update – see comments below] but NSW Greens MP, David Shoebridge, has provided some indication of what was presented.  Hopefully more information will be available tomorrow.

Shoebridge confirms what many expected

“The Work Health and Safety Bill and Occupational Health and Safety Amendment Bill will remove the capacity of unions to prosecute for breaches of Occupational Health and Safety laws….”

“These bills will also remove the jurisdiction of the Industrial Relations Court and abolish the reverse onus of proof…”

These changes are simply the political cost of the national harmonisation process.  Whether the removal of these powers will decrease workplace safety levels in NSW is highly debatable, as the lack of these in other State does not seem to have affected safety levels.

Shoebridge does his argument no favours by engaging in the ridiculous hyperbole of

“This is NSW pulling back from world-class workplace safety laws to a new and lower national standard,”

No one outside of the union movement would describe NSW OHS laws as “world-class”.  There were many positive elements but the negatives were insurmountable.  The loss of the Industrial Court is a major loss for for the safety profession across Australia as it provided important case data on safety shortcomings and poor practices.  Some lawyers have acknowledged that the new OHS regime will require several years of prosecutions and court actions to provide clarification of legal points.  It is hoped there is more of a legal legacy for the NSW Industrial Court decisions than occurred when the Federal Industrial Awards structure was dismantled.

SafetyAtWorkBlog has often written that safety laws are not the same as safety management, and it is safety management – how OHS laws are interpreted and applied – that saves lives.  The NSW legislative changes are unlikely to lower the levels of safety in workplace but nor will they necessarily improve safety.  The challenge for the NSW union movement, NSW businesses and the OHS regulator, is to realise that these laws will inevitably be introduced across Australia and to establish a strategy of attaining the best levels of safety for workers.  By acknowledging a political defeat early, it is possible to set the agenda for the future and to reallocate sufficient resources to implement that agenda.

Early responses from at least one union, the Australian Manufacturing Workers Union (AMWU), are not hopeful.  In a media statement on 4 May 2011, the AMWU expressed concerns about the following issues in particular:

  • “Reducing OH&S to a matter of cost and expedience instead of working towards a culture of workplace safety.
  • Removing the absolute liability of employers to provide a safe workplace will render OH&S legislation impotent and restore the confidence of rogue employers
  • Reversing the onus of proof from employers to injured workers and removing the ability – used only very rarely – for unions to prosecute employers.”

SafetyAtWorkBlog shares some of these concerns and New South Wales is the State which will suffer the greatest culture shock from the new laws because the process for managing safety will have changed for both businesses and unions.

Kevin Jones

Categories business, government, law, O'Farrell, OHS, politics, safety, safety culture, UncategorizedTags , , , ,

3 thoughts on “New work health safety laws in NSW parliament”

  1. Wow, the smartest move anyone in NSW has made in years, the Occupational Health and Safety Amendment Bill 2011 especially!

    Bring on the new laws, I\’m glad the Labour government wasn\’t allowed to screw with it and leave us as the odd state out. National law and some common sense… about time.

  2. OK, NSW is off and running. It introduced two Bills to Parliament today:

    (1) Occupational Health and Safety Amendment Bill 2011 (OHS Bill); and
    (2) Work Health and Safety Bill 2011 (WHS Bill)

    Links to each are below. In summary:

    THE WHS BILL

    \”The Bill enacts the nationally agreed Model Work Health and Safety Act\” and confirms it will be supplemented by Model Work Health and Safety Regulations and Codes of Practice. While I have not yet had a chance to reveiw the Bill the quote from the Overview of the Bill, without any reference to qualifications, suggests (although there are of course specific areas of permitted \”jurisdictional\” variations) NSW will not depart from the Model. This means WA is still the only jurisdiction which has foreshadowed that it will depart from the Model in specified areas.

    In relation to jurisdictional issues the Bill will take the jurisdiction for OHS Offences away from the IRC and prosecutions will now be instituted for summary offences – in the Local Court (which will only have the jurisdiction to fine up to $50,000) or District Court. The standard criminal process will apply to charges in the District Court.

    The Bill is proposed to commence on 1 Jan 2012.

    THE OHS BILL

    This one is probably the big news for the day in NSW. It pre-empts the commencement of the WHS Bill by picking up specific aspects of the WHS Bill and amending the NSW OHS Act 2000 to make the these aspects COMMENCME on the assent of the OHS Bill (which could be as early as the day it is passed by the NSW Parliament) rather than waiting until 1 Jan 2012. The areas of significance addressed are:

    (i) Removing the unqualified absolute duty on employers and substituting a duty based on “reasonable practicability” – the reverse onus of proof is eliminated;

    (ii) The unqualified duty on employees to co-operate with OHS requirements at work becomes qualified by as far as “reasonably” necessary;

    (iii) An occupier’s obligation to comply with investigation notices is qualified by a defence of “reasonable excuse”.

    (iv) The defence of due diligence for managers is removed and replaced by the positive duty of due diligence on officers consistent with the WHS Bill.

    (v) Prosecutions by Trade Unions are abolished.

    (vi) The amendments WILL NOT APPLY to contraventions occurring before the commencement of the OHS Bill.

    (vii) There are consequential amendments to the Regulations to reflect the changed “reasonably practicable” approach in the Bill.

    See: WHS Bill: http://tinyurl.com/DCL-NSW-WHS-Bill
    See OHS Bill: http://tinyurl.com/DCL-NSW-OHS-Bill

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