In The Australian newspaper on 3 April 2012, Judith Sloan presents a useful summary of the status of the OHS harmonisation process. Many of her criticisms are valid but she has not realised that the new Work Health and Safety laws stopped being occupational health and safety laws some time ago. It is easier to understand the proposed changes if one accepts that these laws have broadened beyond the workplace to operate more as public health and safety laws.
It is possible to accept Sloan’s assertion of the “demise”of OHS harmonisation but if seen in the light of an integrated public/workplace health and safety law, the harmonisation process may be a welcome beginning to a broader application of safety in public and occupational lives.
The acceptance of this interpretation provides very different comparisons and linkages. For instance, the shopper tripping on a mat in the vegetable section of a supermarket was likely, in the past, to receive recompense through public liability insurance. Now it could equally be under OHS laws. The regulation of potential legionella sources was through the Health Department, even though many of these are in workplaces and often affect workers first. Should cooling towers have been assessed by hygienists or occupational hygienists? Should these be managed under an employer’s OHS management system or through the facilities manager or landlord?
It is worth reconsidering the current approaches to addressing the social and workplace issues of mental health, stress and fatigue management. The current approach is that there is a dichotomy in workers between work and “life” but the issues mentioned above occur across these artificial boundaries. Research and support funding is being sought for the non-work element of mental health but, as acknowledged by WorkSafe’s Ian Forsyth earlier this year, the workplace approach to psychosocial hazards is in its early stages. Why apply the split? Why not simply look for mental health solutions that focus on the person instead of the place of work/life?
As much as the WorkHealth programs are half-baked, they do not discriminate between work and life, even though the program is funded through workers’ compensation returns.
Focussing on the person instead of the environment in which that person is, at any one time, needs a major conceptual shift – one that has already occurred in the new WHS laws with its broad, or vague, definition of a workplace. The challenge should not be understated.
Sloan highlights an issue with harmonisation that existed from the start, the paucity of precedent. The law writers have always anticipated gaining and providing clarity through case-law. Several prominent OHS lawyers have acknowledged in the past that no one will truly understand the impacts of the WHS laws until after two or three years of prosecutions.
Sadly Sloan continues to see WHS laws as a grab for influence from trade unions instead of seeing the obligations for safety representatives in the context of ensuing adequate consultation and communication on OHS matters. Some industry sectors, those already unionised, already have such consultative processes but the laws are saying that safety discussions are required in all workplace and at all levels of management. The laws are trying to give safety and health the prominence that these issues should have had decades ago.
As the debate continues about the absence of “control” in the WHS laws, there is an increasing likelihood that the concept of control will be reintroduced for some jurisdictions. This will cause problems for those States that have already introduced the WHS laws but this problem was going to exist from the moment of the first resistance to the laws from the Western Australian government. The only difference is that other States have taken advantage of the WA belligerence and so the problem is bigger than it could have been.
The attractiveness of control is that the primary responsibility holder for OHS is easier to identify but how is control applied when there is no formal workplace beyond “wherever work is undertaken”? Who has control of coffice? Who has control of the worker in the home office?
Sloan is wrong to agree with the Victorian Government who believes its OHS laws are “superior” the WHS laws. Harmonisation seems to be moving the laws from OHS to PHS (Public Health and Safety) so there is a different focus and a different application. Sadly the Federal Government has not fully understood the implications of its harmonisation process from the start and is years behind providing the operational structures necessary support the new Work Health and Safety laws.
National health and safety laws are probably dead, or at least, are coughing up blood. (Some cartoonists will draw the Dead Parrot sketch with OHS written on the parrot, with Tony Abbott saying “This is an ex-parrot”, with Julia Gillard saying “It’s not dead, it’s pining”) However the issue of safety will not progress until all parties acknowledge the breadth of the issue and begin another attempt at reform realising the mistakes of the past four years.
It was not so long ago that the New South Wales Government acknowledged failure in its attempt to reform its OHS laws after several years and restarted the process to a successful conclusion (a report on part of that process is online). Prime Minister Julia Gillard and Workplace Relations Minister Bill Shorten could do worse than sitting down with Fred Nile and asking advice.