OHS harmonisation may be dead, so who will pick up the pieces?

One of the best summaries of the current status of the new Australian Work Health and Safety laws was published in The Australian newspaper on 27 January 2012 (not available without a subscription).  Lawyers from Norton Rose, Michael Tooma, Alena Titterton and Melissa Cornell, express doubts that harmonisation of national safety laws is possible.  They write:

“At this point in time, it looks unlikely that harmonisation will be achieved at any time during 2012, if it is ever achieved at all.”

The question needs to be asked whether the whole harmonisation process has been waste of time of whether some good has resulted from all the effort.  Prior to Christmas 2011, some legal commentators were satisfied that the harmonisation process had “lifted” several States’ OHS laws to a contemporary standard but the aim of harmonisation, indeed the “promise” of harmonisation was so much more.

Australian businesses that operate over multiple jurisdictions are justified in pointing the finger of blame at the ultra-conservative business groups, lobbyists and alarmists for stifling a very promising reform.  The administrative process could have been handled much better but each government had signed commitments to reform from which many are now weaseling out of.  Regardless of subsequent changes of government, these commitments should have been upheld.

Tooma, Titterton and Cornell summarise by writing:

“For legislative reform that was meant to be about providing clarity to a complex area with differing standards across multiple jurisdictions, after four years of significant effort, it appears we may have been merely gifted more confusion and simply a different set of differences.

Unfortunately, we know that it is the safety of our people that will ultimately suffer when confusion over such requirements reigns.”

Safety law is set to become more confusing and more complex.  Increased reliance on legal advice,with the subsequent increases in business costs, is likely.  However this does not necessarily mean that the management of safety is any more onerous.  An employer’s duty of care to workers is an established obligation that has been integrated in business standards, corporate obligations and community expectations.  The social expectation that workers will not place themselves at risk of harm has substantially increased.

What has changed, if harmonisation does fail, is that safety professionals and business operators must not rely on OHS laws for change and compliance but must look to other reference points for safety compliance.  There are already international safety and risk Standards that provide a framework for compliance and which have been provided some legal legitimacy through the OHS regulators.  Where these are not sufficiently specific, safety organisations, such as the Safety Institute of Australia, the Institution of Occupational Safety and Health and SIWA, must show leadership.

If the Norton Rose comments are correct, it is time to ask who will reduce the confusion and who will clarify the “different set of differences”?  If the reference point for lawyers is the law, what should be the reference point for safety professionals?  If the OHS law reform process has fallen over, it is time for Australia’s safety organisations to “piss or get off the pot”.

Kevin Jones

11 thoughts on “OHS harmonisation may be dead, so who will pick up the pieces?”

  1. I heard Shadow Minister Rob Lucas on radio 5AA this afternoon (3rd Feb) discussing the Harmonisation legislation. Again Rob Lucas said that there would be several amendments to the legislation as it was put to the South Australian Parliament.

    Because Premier Weatherill prorogued Parliament, it is not clear just when this legislation will be re-tabled etc etc etc.

  2. Hear hear to all comments above. But they prompted a curious segue.

    I flashed on a very excellent English literature teacher I had way back forever in high school, who had the radical view that rote learning could do good things. He insisted we pick a soliloquy from Shakespeare to recite. I picked one from Macbeth.

    With a tweak, I think it suits nicely:
    “[Harmonised safety laws are]…but a walking shadow, a poor player,
    That struts and frets his hour upon the stage,
    And then is heard no more.”

    When the kerfuffle (and time wasting double checking of our SMSs) is over, it will indeed be “business as usual”.

  3. Harmonisation is an amazingly useful word for the authoritarian because it can mean so many different things to so many different people. Linguists and propagandists would put it into the category of words known as weasel words.

    With harmony, the authoritarian can gently and sweetly say that we are just going to harmonise this and that. Give the herd the impression that A will happen, but in reality they mean that the less obvious B will happen. And when the herd finds out and jacks up, because you said harmonise, you can defend your self with ‘that was the plan all along and how dare these objectors waste the community’s time now’.

    Sticks and carrots are offered to induce the herd down the path of authoritarianism dressed up as harmony. Sticks like pulling federal money, and carrots such as better mutual recognition and licensing. But when you read the fine print on the packet, the bribes will likely turn out to be empty and valueless and bad for your economic health.

    Lets stop bullshitting each other and banish the word harmonise from the regulatory lexicon and restrict it to the music trade where it’s meaning is at least clear and precise.

    OK, so the States and Territories have different legislation. If you are a multi-state business you should by now already have uniform internal procedures & processes that assimilate the requirements of OHS legislation as well as a great deal of other legislation (yes there is more than just OHS) and a very wide range of other information that could never be the subject of regulation. And If you don’t, grow up, get help to think and act for yourself and stop waiting for mummy or big-brother to tell you what to do to deliver safety.

    I think it’s fair to accept that real federal OHS legislation that replaces all State OHS legislation, is impossible. But moreover, it is probably even undesirable, because regulatory competition between States through varied legislation has indeed kept some authoritarian cultures in check. And that alone was a very big national benefit that far outweighed any disadvantage from jurisdictional dis-harmony.

    Australia would get more bang-for-buck if top level economic oriented regulators, and not authoritarian inclined technocrats, instead simply identified the one, two or three most offensive bits of each State regulation or process and worked to bring them more back into economic sensibility to solve real and precisely stated problems. The laws may never get harmonised but as Les so rightly pointed out, does it matter?

  4. Here in South Australia there was little to no consultation in regard to the legislation that was proposed.
    The current minister could not convince the Upper House of the merits of the legislation, because even he had not been briefed properly.

    Then there was the very real concern about the mixture of paid and volunteer workers.

    In all the Harmonisation Project was simply mushed from the start with no one wanting to consult outside the safety industry.

    So much time effort energy and money has been wasted for no real outcome.

    There is no point in seeking out a person to lay the blame on, because that will not reslove anything.

    I have always said that the Harmonisation project would go the same way as the National Road Rules -cherry picked or disposed of-.

  5. There should be no confusion. Safety professionals already have a duty to look past prescribed methods.

    The mandatory compliance requirements, i.e. ‘the law’ only form a small part of OH&S obligations. The performance based system we now operate within requires that businesses are proactive in safety and risk management and look past these ‘minimum’ requirements.

    The reference point for safety professionals is ‘industry best practice’, which generally exceeds mandated requirements. And whilst I understand that there are some safety professionals that abhor that particular expression due to the implication that they should inherently know what ‘best practice’ is. I always say that if they are not aware of ‘best practice’ they are operating outside of their field of expertise. For example, If you are not familiar with the mining industry, why on earth would you advise them on safety?

    A great analogy is the application of mechanical engineering. There are many facets to mechanical engineering; such as naval engineering, structural engineering and automotive engineering to name a few, and whilst these fields are not mutually exclusive, the difference between them is enough that you would not want an automative engineer designing a naval frigate.

    In my opinion the reform was only set to affect those that apply only the minimum prescribed effort in meeting ‘compliance’, which is exactly the group that should be targeted in such a reform.

  6. Does it really change anything for safety professionals?
    In the relevant jurisdiction – what the does the Act and Regulations require? The only difference in those jurisdictions that have ‘harmonised’. And the degree of difference depends on which jurisdiction – eg: NSW changes are – relatively- minimal.
    But no change for the non-harmonised jurisdictions.
    As to standards of safety – ‘National Codes of Practice’ are being approved – again only minimal change in NSW as we had many in place already. In fact some of the prior ones are being withdrawn.
    So – has the failure to achive harmonisation adversely affected Saftey professionals – I think not.
    All it has done has further confused the safety standards for those businesses that operate over multiple jurisdictions. And if they were working to the ‘best standard’ across the various jurisdictions then they have nothing to worry about except to check if any of the existing standards are more onerous than previously.
    And those businesses that weren’t bothering to comply at all are still at risk with the cost of being caught under the harmonised legislation being higher than it was before.
    For my money – it’s business an usual.
    Les Henley

  7. It is a mess – a calculated and a very expensive mess.

    I have not read the entire legal document but I have to assume with the industry consultation that supposedly went on, one of two things happened.

    Either the legislation that ended up on paper was very different to anything that was approved in remote detail throughout this consultation process … or … the industry saw an opportunity to jump on a political band wagon that would undermine the Government (while at the same time push back the Union movement) effectively killing two birds with the one stone.

    I suspect it was the latter but I don’t bloody care which…

    All I am certain of is the heart breaking impact that brings good people undone when a workplace is unsafe and clearly any steps toward improving those outcomes are like getting blood from stone.

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