Labor lawyer raises strong concerns over new Work Health and Safety laws

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.

Kevin Jones

reservoir, victoria, australia
Categories economics, government, guidance, law, lawyers, OHS, politics, Rich-Phillips, safety, workplaceTags , , , ,

7 thoughts on “Labor lawyer raises strong concerns over new Work Health and Safety laws”

  1. Hi Kevin. I understand as a matter of principle your concern about certainty and the point you make that:

    ” The new Work Health and Safety Laws do not support business and citizens in this risk management aim, particularly when lawyers, in my opinion, glibly, say that following the passing of the laws, the Courts will provide clarity. Each court case of clarity requires an accused and a prosecution and a major disruption to a business and people’s lives. Clarity is required at the start of the safety management process instead of at the safety prosecution process.”

    But with respect I think you are overstating the difficulties. Most incidents do not involve issues where the business has had to wrestle with a dilemma as to where to draw the line. The vast majority of incidents that get to court relate to basic failures to apply known, readily available controls to known readily identifiable risks.

    When I started in OHS I was a prosecutor with the Victorian Department of Labour – 30+ years ago. And at that time the law was quite prescriptive. If my memory serves me correctly it not only prescribed and told you what parts of a machine were dangerous, it then told you how you had to guard that part.

    And you may recall, with all that “certainty”, guess what? – Business hated it – it was inflexible and so business screamed, it stifled innovation. so the law did a big turnaround and we moved to a regime of flexibility, a duty based on reasonable practicability, and Codes and guidance.

    Look at the complexity and diversity of the workplace and business structures. And they are not static. How could any draftsman meet the objectives of WHS legislation and cover off every contingency in order to provide “certainty”.

    As noted in my post above there are countless areas where we face uncertainty in terms of what the law demands of us, but the reality is if you just “get on with”life, business, whatever it may be, and the law rarely creates an issue.

    If I stressed every time I drive your car that I am not sure what I need to do to avoid being charged with culpable diving? If you place a job advert, or run a promotion for your business, do you lie awake at night wondering whether you are guilty of misleading and deceptive conduct? They are not perfect examples, but I think they illustrate the point.

    In relation to the point Mike Hammond raised about inspector’s access to private homes, we already know that OHS duties apply for home based work so is it really surprising that on a case by case basis if something goes wrong an inspector may need to determine whether the house, or part of it, is a workplace some or all of the time.

    I think there is a danger that we can become lost in the minutia of arguing hypotheticals around fine distinctions which will rarely present an issue in practice.

  2. While you are thinking about the meaning of various terms in WHS, have a good hard look at what “registration” or “regsitered” really means in WHS. Registration in the dictionaries and in daily use, has a meaning close to “recording” or “listing”. But in WHS, “registration”, or “register” as really defined by the complex interaction of clauses that use those words, now has same meaning and effect as “approval”.

    OHS legislation in the mid 90’s, which WHS is based on, specifically got rid of “approvals”. And some authority technocrats really did not like that. Now under the guise of “harmonisation”, approval is making a stealthy comeback. But we are all fed the lie that WHS is not changing anything except what is stated in the RIS as costed & in need change. Ha!

  3. Critical parts of WHS law do not comply with COAG or OBPR regulation making guidelines – and for that reason it is indeed bad law. The Victorians can see that. Those law making guidelines have been around for a long time and define what is good law. But legislators sometimes still try to, and succeed in, circumventing them. That is why the OBPR watch-dog exists. Some regulatory impact statements, including the WHS RIS, are weak, too narrow (relying on manufactured dilemmas), and sometimes serve to substatntaite the law that the legislators simply want rather than what can be proven to be appropriate and necessary.

  4. Once again I wish to make a social comment – laws never prevented any crime or other wrong being done. All they ever do is provide standards for what is classified as ‘wrong’ so that those who fail to meet their obligations can be held accountable for that failure.

    All the worry and concern over ‘definitions’ and precise language and such like is an attempt to determine where the line should be drawn as the minimum ‘practicable’ standard expected. “what can I get away with NOT doing?”

    It’s long past time that all parties concerned begin to strive to achieve the ‘best possible’ standard. If we put as much effort and energy and resource into prevention as we do in seeking to minimise ‘what I have to do’, we would all be a lot better off.

    In the present age, it will never be ‘practicable’ for law writers to come up with definitions to cover every eventuality. Even if they achieved it for ‘right now’ it would not cover those situations tomorrow that are established to get past those definitions of today.

    I believe that such work practices as outwork, telecommuting, and all such like, are developments that have their roots in employers seeking to minimise their accountabilty for the safety of those they engage (dare I say exploit?) to do work from which the employer will profit.

    We only need to look back a few short years to see how so many employers sought to divest their responsibility for safety of employees by engaging contractors. Then came the labour hire approach. And each time a new development or approach to managing ‘workers’ arose the law was playing ‘catch-up’ to ensure those ’employers’ were held accountable for the safety of the ones who did the work.

    I’m a cynic – as soon as the law establishes concrete definitions for PCBU, Officers, and the like there will be exploitative employers seeking to modify how they manage work, and workers, in order to minimise the effort they need to apply to make those workers safe.

    Please – I’m not saying all employers. But those employers who seek to do it right do more than the law establishes as minimium anyway. Hence they rarely come before the courts.

    I have been working in OHS for over 20 years now, in NSW and other jurisdictions, in both consultation and practitioner roles; and in all that time I have only personally met 3 WorkCover Inspectors in relation to 2 significant incidents.

    In both cases, though there were significant injuries to 2 different employees, the outcome was PIN notices only.

    On 3 other occasions I have notified WorkCover of significant incidents, not involving injury, and in none of these cases did an Inspector come to site.

    It is my opinion that WorkCover Inspectors only launch a prosecution, and hence employers become defendants, where there is evidence that someone wasn’t putting someone else’s safety before the job at hand.

  5. Mike Hammond has a sound reputation and is a lawyer for whom I have a lot of respect, in relation to his knowledge, legal skills and integrity – and he is an all round genuine person to top it off. He is a partner with one of Australia’s leading law firms and does not need to scare his audience to drum up work. The issues he raises are valid, but as Kevin points out they are not new.

    Mike I suspect enjoys sometimes being an agent provocateur and he has a great skill in stimulating discussion and making people think about the implications of a definition and its scope – which is exactly what he has succeeded in doing here.

    The reality is the question of what constitutes a workplace raises a genuine dilemma for regulators. They want to protect workers in an increasingly dynamic work environment where technology means work can be undertaken pretty well anywhere. As soon as they put a boundary around it it will create anomalies and leave some workers exposed and unprotected by the Act. It will also lead to some employers (PCBUs) to actively seek to circumvent their obligations (yes, some PCBUs still try that) in the manner in which they structure work, or where they locate it.

    The reality is the law in many fields of human endeavour cannot be specific – the Crimes Act does not define what words constitute offensive language, the censorship laws provide only general criteria as to what types of language and images will be refused classification (banned), the law on who is a contractor and who is an employee fills many pages of the case books; the primary duty which underpins our common law – the duty to take reasonable care for example not to hurt or injure when we are driving our cars does not define specifically what acts or omissions constitute negligence, nor does the Road Safety Act define precisely what constitutes dangerous driving or reckless driving or culpable driving.

    The Australian Consumer Laws (old Trade Practices and Fair Trading Acts) don’t tell you exactly what is misleading and deceptive conduct or harsh and unconscionable contract terms.

    So lets not pretend that this lack of precision is unique to OHS law and a failure of the drafters or our legislators. The problem lies in the infinite potential for variations to human conduct and in the desire of some people if there is a clear definition to circumvent it.

    By the way, if we are talking about lack of clarity there is a term in the act called “reasonably practicable” … and it includes considerations of “state of knowledge” and “cost which is not grossly disproportinate to the risk” … and it is a living definition. By that I mean what may comply with the law today may not comply on a years time because of new knowledge and means of risk control.

    And there is another definition “officers” .. need I say more ?

    By all means we should have certainty where it is possible – but as they say there are only 2 things that are certain in life – death and taxes – and with the advances in medical science it may not be long before that is down to just one certainty – taxes. So lets not be too hard on our legislative drafters.

    Cheers, Graham

    1. Thanks for the response Graham. I too admire Mike as a lawyer who has opinions and is willing to express them, a rarity in Australia.

      However, I want to expand on a point mentioned briefly in the article. Going to Court as an accused is hugely stressful, even for those who are confident in their innocence. A major element of risk management of our businesses and our social conduct is to avoid the Courts and minimise the involvement of lawyers. The new Work Health and Safety Laws do not support business and citizens in this risk management aim, particularly when lawyers, in my opinion, glibly, say that following the passing of the laws, the Courts will provide clarity. Each court case of clarity requires an accused and a prosecution and a major disruption to a business and people’s lives. Clarity is required at the start of the safety management process instead of at the safety prosecution process.

      The successful application of OHS laws in Australia and other Commonwealth countries relied on worker participation, consultation and shared safety values. Legal representation was not advocated and the workforce was to be engaged in determining and improving their own safety.

      The blog article above and, probably, these comments also, illustrate a trap in our analysis of new Work Health and Safety Laws. We look at what happens after things have gone wrong instead of looking at how the laws can assist everyone in improving the safety of workplaces.

      Elsewhere I have stated that the harmonisation process is all about the law and not at all about safety. Will the new laws assist in making workplaces and workers safer? No. Will they assist in clarifying legal liability in the event of an incident and subsequent prosecution? Yes. Mike Hammond’s presentation straddled both approaches by asking how safety can be managed effectively when important management elements are not defined and then asking how does a regulator and inspector work effectively in the event of an incident without specific definitions.

      I suppose this article and comment is a further example of the conflict between OHS laws and OHS practice.

  6. >>> 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.<<<

    Thank you Kevin for highlighting that little detail. Surely these law writers are paid decent enough money to warrant considering the more obvious appeals that may result in bad law?

    Watching all this unfold with the WHS Bill is really very draining. I can't help but wonder where the many hours of deep consultation processes ended up and what point there was.

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