New South Wales gets a win-win on OHS laws

The Australian Government must be either issuing a sigh of relief or clapping their hands together following the passing of the model OHS laws by the New South Wales (NSW) government last week.

NSW was a belligerent signatory to the agreement for nationally harmonised OHS laws but the laws passed with sufficient tweaking to make the laws compatible with the national model laws.  Several days later, on 30 May 2011, everyone is claiming a win.  Unions retain some authority to prosecute over OHS breaches, although only “for the third and least serious category of offence”, according to the Australian Financial Review.

Unions NSW secretary Mark Lennon is reported as saying that the NSW upper house of Parliament has protected an important safeguard for workers.

On 27 May 2011 Lennon was bemoaning “that the Industrial Court has lost most of its occupational health and safety jurisdiction” and yet the Industrial Relations Commission will now retain an active OHS role even though it is dealing with lesser OHS offences, similar to the unions’ role above.

Overall the amendments in the NSW Parliament seem to be a face-saving exercise for the left-wing politicians and trade union movement.  They were provided with little wins but have given way on the major objections.  It is reasonable to describe this as a pragmatic solution given that the March 2011 NSW election effectively removed the union movement’s power base in that State.

There is a real risk to the longevity of this “harmony” from the right-wingers and employers.  They need to recognise this as a substantial “win” against the union movement but not crow about it.  The tone of any media statements need to be conciliatory but forward-thinking similar to the following examples

“these amendments provide a new and solid base from which New South Wales’ OHS laws can join the best on offer nationally in Australia” or

“the new harmony in the OHS laws allows for a unified approach to improving safety in New South Wales workplaces” or

“New South Wales needed to become an integral part of this exciting national agenda that will save lives and decrease business costs.”

What is not helpful is articles such as this from Sydney Morning Herald columnist Paul Sheehan.  Sheehan is using the passing of the laws to rub the Greens’ noses in their failure to secure all their amendments.  He concludes:

“If any further proof were needed that the Greens have prostrated themselves to their union paymasters, it was evident in the NSW Parliament on Friday.”

From mid-2011 the Australian Greens have control of the Federal Senate and will have considerable parliamentary clout on a range of issues, including the application, and further development, of national OHS laws.

Through this recent OHS legislative process, Western Australia has remained very quiet.  Their Work Health Safety Bill will now be the Bill of note as the political pressures and OHS debate will occur, if at all, in a politically stable State.  Western Australia has no impending election and continuing economic growth from the large resource sector.  Economically and politically, WA Premier Colin Barnett is in a strong position to counter the Australian Government’s OHS harmonisation push.

The Victorian Government has also been quiet on the introduction of its Work Health Safety Bill.  Through the harmonisation process, Victoria has been proud that its OHS laws have been used as a structure for the national changes but there has also been a tone of superiority in many of the harmonisation seminars.  It would be a mistake for Victoria to be the last State to introduce its Bill into Parliament because from 1 January 2012, it will no longer be the “leader” on OHS.  Victoria will need to readjust its approach to fit a national perspective.

Some time ago the Australian Government acknowledged that the OHS harmonisation process was a “dry-run” for harmonisation of workers compensation laws.  The Government can take some comfort from New South Wales’ action but the workers compensation review process is likely to be much nastier as it involves a lot more money.

Kevin Jones

reservoir, victoria, australia

2 thoughts on “New South Wales gets a win-win on OHS laws”

  1. Pragmatic though it may be, it does demonstrate the inherent fragility in the harmonization process and the fact that employers will continue to face different inter and intra State safety and health laws for the forseeable future. It was always the minor regulation, regulator and court specific idiosyncrasies not the broad duty of care issues that impacted on businesses and it seems they will continue to.

  2. Workers Compensation will never truly be harmonised as it involves money and no one will give up their money. However things such as RTW rules and guidelines, as well as wordings and terminology (such as Average Weekly Earnings etc) could be easily harmonised to make it easier for everyone to understand.

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