Victoria bows out of OHS harmonisation

According to an official budget speech by Victoria’s Treasurer, Kim Wells, that State will not be enacting the model Work Health and Safety laws.  Under the subheading “A Stronger Victoria” (page 14), the Treasurer states

“The Government will not sign up to the current proposal for harmonised legislation for occupational health and safety. It offers little benefit for Victoria to offset the $3.4 billion of estimated costs, the majority of which falls on small business. Victoria will continue to work towards best practice legislation.”

The figure quoted is from the PricewaterhouseCoopers (PwC) report commissioned by the Victorian Government.

If the Government has made a firm decision on the new laws the questions that need to be asked now include:

  • What standing will national Codes of Practice have in Victoria?
  • Will WorkSafe continue to participate in the development of laws, Codes and guidance material that will apply in Victoria?
  • In this period of budgetary frugality, why is the Victorian Treasurer is prepared to relinquish $A50 million of federal funding.
  • Will the Victorian Government release the full PwC Report instead of just the summary, so that the full costings analysis can be reviewed?
  • Can Victoria still claim to have the best OHS laws in Australia?
Steve Bell, Senior Associate with law firm Freehills, provided this opinion to SafetyAtWorkBlog:

“National employers, with operations in Victoria, will view this news with a mix of happiness and disappointment.

Disappointment, in that the idea of true “harmonisation” of health and safety law is plainly in tatters. There are now “Model Law” states and territories, and non-adopting states. This has done little to provide employers with national operations with a single set of national laws.

The Victorian employers will be happy though that basic rights such as the ‘right to silence’ will not be abolished in Victoria, by the introduction of the model laws.

Also, any delay also means Victoria will also be able to pause and look north to the “Model Laws” states of NSW and Queensland to see what the Courts in those jurisdictions will make of the new duties of company officers – and consider whether those new laws achieve a fair balance.”

An indication of the risk of getting out of sync with other Australian States could be seen in a recent OHS decision by Victorian Court of Appeal reported in various newspapers including The Age.  The Age report states

“The first company in Victoria to be convicted and fined for recklessly endangering a worker has today lost an appeal against its sentence.

And the Court of Appeal has urged the maximum penalty for the crime be examined “as a matter of urgency” considering much higher penalties for the crime interstate.

In 2010, Orbit Drilling Pty Ltd pleaded guilty and was convicted and fined $750,000 over the death of 21-year-old Bradley Alford at Clonbinane.

Company director Martin Smith was also fined $120,000 after he admitted the company had breached it duty of care towards it employees.” (emphasis and links added)

The Court of Appeal judges, one of which is Chris Maxwell who undertook a review of Victoria’s OHS Act in 2004, noted

“…that the corresponding provision in New South Wales (which includes, in addition, reckless exposure to a danger of death) carries a maximum fine of $3 million”

As identified in a comparison of the new and old OHS laws by the Australian Industry Group (and many others) the potential fines under the new WHS laws would have been

“up to 5 years imprisonment for the most serious breaches. The maximum penalty for a corporation will be $3 million and for an individual $300,000.”

This equates to four times the 2010 penalty for Orbit Drilling and triple the fine for the company director Martin Smith.
The AiGroup comparison stated that :
“Significant increase in penalties to act as a deterrent and to encourage compliance.”
The decision by the Victoria government of Ted Baillieu may be saving Victorian businesses from punitive OHS penalties (and trumped-up business costs) but has the government’s decision made Victorian workers any safer?

1 thought on “Victoria bows out of OHS harmonisation”

Leave a Reply

Your email address will not be published. Required fields are marked *