Lawyer Andrew Douglas’ latest article for SmartCompany illustrates the conflicting approach to the enforcement of alcohol and drug policies in workplaces. Douglas illustrates the constant struggle for business operators between employment law and safety law, workplace relations and human resources. Case law has progressed the management of human capital more quickly than has safety management over the same workplace issue of alcohol and drug use leading to a difficulty in determining the best managerial approach to the hazard.
Douglas’ discussion of the role of case law in changing managerial approaches also has relevance in the OHS harmonisation process currently occurring in Australia. In the early days of this process, the legal fraternity believed, and often publicly stated, that the operation of the law will be “ironed out” only after several years of prosecutions and case law. These statements seem to forget that behind almost all OHS prosecutions are one or more injured workers and the reality is often forgotten when part of a lawyer’s motivation is also to seek a precedent or a clarification of the law.
OHS law is fundamentally preventative, not punitive, so prevention should begin when the law is enacted. To do so people need to understand how to apply the law from the beginning of the need to comply. This should place great pressure on the OHS regulators to produce guidances on preventing injury for it is only fair that business operators know how to comply with the law when new laws are introduced.
The regulators, though, are taking a different approach due to the Work Health and Safety laws being a reform of existing laws. This is a major missed opportunity for the governments to lift the profile of safety management and to support the introduction of new legal obligations with new, contemporary management advice. It is suggested that by supporting businesses across a range of hazards governments could have reduced some of the outrage being voiced on some of the more contentious and confronting legal obligations.
One set of draft guidances and codes of practice have already been released. Public comment has closed but no finalised versions have been released yet. A second group of draft information is due in the second half of 2011 but will not be finalised until after the new Work Health and Safety laws are enacted on 1 January 2012. In effect, in many States, businesses will be required to comply with new laws but without guidance on how to comply. This strategy may increase the confusion for many businesses and thereby reduce the support of these laws which, if followed, are designed to be supportive of business imperatives through the prevention of injury and harm.
It is a flawed strategy to introduce laws without supportive documentation, just as it is to oblige people to comply with laws and yet wait for prosecutions to resolve any legislative anomalies or inequities. OHS regulators, and perhaps law writers, should be anticipating the trends in other areas of business and human resources law in the drafting of laws, rather than establishing a legal skeleton and waiting for the courts to provide the flesh.