On 23 May 2011, prominent Australian business writer, Robert Gottliebsen published an article in BusinessSpectator entitled “Saying no to Canberra’s IR dopes“. The article was uncharacteristically contained major errors on the application of new harmonised OHS laws.
The article generated considerable discussion on some Australian OHS discussion forums but the article’s website has attracted only one comment. SafetyAtWorkBlog is in possession of a copy of the full reply sent to BusinessSpectator by SafeWorkSA, the OHS regulator in South Australia, a state that featured in Gottliebsen’s article. SafeworkSA’s reply is reproduced below as it is yet to appear on the BusinessSpectator website, a week after it was sent.
“From: Bryan Russell, Director of Strategic Interventions, SafeWork SA & SA Representative on the Strategic Issues Group – OHS with Safe Work Australia.
Robert Gottliebsen’s commentary of 23 May on South Australia’s actions regarding the Model Work Health and Safety Bill contains several serious errors that need to be addressed.
For the record, let me emphasise the following.
The Work Health and Safety Bill 2011 was reintroduced to the South Australian Parliament on 19 May 2011.
The Bill was tabled in the same form before the Legislative Assembly (Lower House), where the current Minister for Industrial Relations, Patrick Conlon, sits.
The SA Government is on the record as stating that the Bill was withdrawn from the Legislative Council (Upper House) on 3 May 2011 due to the recent change of Ministers.
Contrary to Mr. Gottliebsen’s assertions, we have observed no “community outrage” generated by radio talkback hosts. There was debate over one morning on claims by the Housing Industry Association that the cost of a new home would rise, as a result of compliance with regulations on fall protection.
The regulations are in line with current national standards and in SA; these will be ushered in as part of the new legislative package.
The concept of PCBU (person conducting a business or undertaking) replaces the previously narrower concept of ‘employer’ and expands the range of entities that must take responsibility for safety in a workplace.
The Model Act recognises that more than one person can have the same duty concurrently and provides that each person must discharge their duty to the extent to which they have, or would have, the capacity to influence and control a safety outcome.
As an example, multiple contractors on a single construction site will ALL have responsibility for the health and safety outcomes of activities under THEIR control.
Regarding the removal of the right to silence, Clause 172 of the South Australian Work Health and Safety Bill 2011 (SA Bill) mirrors Section 172 of the national Model Work Health and Safety Act (Model Act) on this aspect.
It does remove the privilege against self-incrimination, and means that persons must comply with requirements made under these provisions, even if it means that they may be incriminated or exposed to a penalty in doing so.
This provision recognises that the right to silence can limit the information available to inspectors or the regulator, which in turn may compromise their ability to protect life and limb at work.
The imperative to ensure safe workplaces is considered sufficiently important as to justify some limitation of the right to silence.
That said, Clause 172(2) instead provides for a ‘use immunity’, which means that the answer to a question or information or a document provided by an individual when required by the regulator is not admissible as evidence against that individual in civil or criminal proceedings.
By making the information, document or answer inadmissible in proceedings against that individual, the provision strikes a balance between the common law right to silence and the need of the inspector to obtain information critical to good safety outcomes.
As with the previous provision concerning ‘control’, the SA Bill does not deviate from the substantive provisions of the Model Act.
In summary, Mr. Gottliebsen does your readers a regrettable disservice through the amount and extent of mistaken information in his commentary.”