Concerns increase as Australia’s OHS law changes loom

Conference organisers IQPC started its two-day Safety in Design, Engineering and Construction conference on 16 August 2011.  The most prominent speaker on day one was Barry Sherriff of law firm, Norton Rose.  Sherriff spoke about OHS harmonisation‘s impact on the Australian construction industry.

Over time Australian labour lawyers generally have moved from saying that Victorian companies have little to worry about from the new laws expected on 1 January 2012 to quite alarming suggestions of challenges to do with contractor management and consultation.  Part of this modification of advice may be due to the increased analysis of company OHS systems.  Sherriff said that he has been surprised how many companies ask for advice about compliance under the new laws and yet are not complying under the existing OHS laws.

On the issue of consultation, Sherriff identified the “coordination of activities” and managing the “flow of information” as a critical element in the new OHS model laws.  But he stressed that such obligations have existed in OHS laws in many Australian States for sometime but are now more overtly stated.

He also said that many companies have been working beyond OHS compliance, a level he described as “good practice” however this “good practice” has now become the new level of compliance in the model OHS laws and so companies will need to review their management systems to the new compliance.

Significantly the increased union right of entry under the new laws was described by Sherriff as not “a Trojan Horse for Industrial Relations”.

He also advised that the changed powers of OHS inspectors and the reduced rights of those being interviewed following an incident require a lawyer’s support for all notifiable incidents.  This may change when a harmonised enforcement policy from the OHS regulators is made available.

Sherriff was not overly concerned that the increased role of designers in the laws was not supported by a definition of a designer.  This contrasted greatly with the  next speaker at the conference, Paul Breslin of Brookfield Multiplex.  Breslin was at pains to emphasis that safe design was not the safety panacea that many believe but stated that a major deficiency in the new OHS laws was the lack of a definition of designer.  Without that definition, he said,  the OHS roles and responsibilities would never be as clear as they otherwise could be, and that this lack of clarity weakens the overall emphasis on safe design principles.

Over the next few months law firms throughout Australia are running seminars on the Work Health Safety laws.  Each will have a slightly different audience and a slightly different tone.  All will be hampered by the delay in clarification from Safe Work Australia.  The longer the delay for finalised WHS regulations and support documents, the  higher will be the tone of panic coming from employer associations.  Many Victorian firms and safety professionals felt a sense of comfort, as the new laws were largely based on the existing Victorian legislation.  Sherriff’s comments at this Melbourne conference resulted in an unease in the audience that, hopefully, will generate some quick self-analysis and constructive action on safety management systems.

Kevin Jones

reservoir, victoria, australia

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