Yesterday morning, Mike Hammond of the Australian law firm, Norton Rose, conducted a seminar on the harmonisation of Australia’s work health and safety laws. This was the last in the current series of seminars on this topic but Hammond’s seminar differed considerably from previous sessions. Hammond is clearly less than enamoured with the model Work Safety and Health Act, describing parts of the legislation as “bad law” and asking whether the laws were examples of “social engineering”.
Understandably, these comments generated considerable discussion from the audience of around 50 people.
The crucial nub of Hammond’s concerns was the lack of essential definitions in the model law. Given that there is a new type of duty holder – “person conducting business or undertaking” – Hammond questioned the absence of a definition of “business” and “undertaking”. He also questioned the lack of a definition of “work” and “workplace”, the latter he expanded on considerably in the light of the powers of inspectors and regulators to enter a workplace “ with, or without, the consent of the person with management or control of the workplace”.
In response to questions from the audience about “what is a workplace?” SafetyAtWorkBlog put the concept that, under the proposed laws, a workplace can be considered centred on the worker. When the worker is undertaking a work task, wherever that task is occurring – at home, in a café, in an office, on a construction site, a workplace exists and therefore the new WHS laws apply. Bearing this concept in mind, Hammond’s concerns about the powers of entry by inspectors, persons assisting inspectors and others generated considerable concern in the audience.
One participant said that Hammond’s presentation was an effective marketing strategy by generating fear and then offering a solution to that fear, but this was not overt in Hammond’s presentation and his posing of challenging questions on the model WHS laws contrasted strongly to previous presentations in this series.
Hammond repeatedly stated his support for the harmonisation of occupational health and safety laws but could have corrected some of the audience questions. For instance, the delay in the implementation of the model WHS laws in Victoria is not due to any legal concerns as inferred in several questions, according to the Minister’s media statement, but to economic concerns:
“The Victorian Government supports the principle of OHS harmonisation, however we need to be able to assess the benefits and costs to Victoria, to ensure that the proposed package is in Victoria’s interests”
The concerns raised in Hammond’s presentation seem well-founded but the absence of public debate on these concerns may indicate that they are not such a big issue in other jurisdictions or industries. A couple of States have already passed the model Work Health and Safety laws so the new concept of workplaces are now operational. And the “new-ness” of this concept is debatable. Queensland’s 1995 Workplace Health and Safety Act defined a workplace as:
“…any place where work is, or is to be, performed by
(a) a worker; or
(b) a person conducting a business or undertaking.”
This seems fairly compatible with the new model WHS laws.
Putting a positive light on the various delays in the introduction of the new laws, any delay allows for the airing of concerns, other than those associated with economic costs and benefits, and for an active debate.
Early in the harmonisation process, many lawyers said that any anomalies or definitional confusion would be ironed out in the years following the laws’ introduction. This always seemed to be a weak excuse for lazy law writing and did not consider the cost or distress of the participants being prosecuted.
The harmonisation of OHS laws across nine jurisdictions was always a big challenge and it seems to have been too much of challenge particularly if crucial concepts of “what is a workplace” have been missed in the process.
Whether Mike Hammond’s concerns are shared by others in the legal and regulatory fraternities, many in the audience yesterday morning did not know what hit them.