South Australian Independent Member of Parliament, John Darley, has been negotiating on that State’s Work Health and Safety laws for many months. On 17 October 2012, according to a media release from SA’s Premier Jay Weatherill and Workplace Relations Minister Russell Wortley, Darley agreed to support the passing of the laws after achieving some amendments. Those amendments involve changes to
- height limits,
- duty of care,
- the right to silence, and
- the right of entry.
Tammy Franks, a Greens MLC, was able to achieve an expansion of the number of days available for OHS representative training.
A spokesperson for John Darley told SafetyAtWorkBlog that another change was for any WHS codes of practice to undergo a small business impact assessment in consultation with the Small Business Commissioner. Darley’s spokesperson said that the MP had met with Business SA after it changed its position on the WHS laws. The amendment above is likely to address the small business concerns that BusinessSA raised in its letter to its members earlier this month. The flip-flopping of BusinessSA on workplace health and safety laws was always curious and it is likely to put the organisation at a negotiating disadvantage once the laws passed. It may try to claim a mini-victory through the small business change but the change appears to have occurred due to Darley’s efforts and not through any relationship with the South Australian Government.
Premier Weatherill was particularly critical of BusinessSA’s decision and in a statement selectively released on 5 October, the Premier stated that
“The Government is very disappointed with the sudden change in position from Business SA on this very important piece of legislation.
Business SA’s support was reaffirmed only a month ago when they urged the Parliament to pass this law. This was preceded by more than twelve months of constructive negotiations to gain its support.
One of the main objectives of the Work Health and Safety legislation is to decrease red tape and to create a more competitive environment for business to operate across the country.
The proposed legislation will remove ambiguity about who has responsibility for safety in workplaces which was highlighted this week in the judgement of the Markellos case following the death of Jack Salvemini which was overturned.
It is also important as it will provide the Government with more avenues to improve safety in workplaces, rather than taking a punitive approach through prosecution in the courts.
South Australia leads the nation in reducing workplace injuries with a 38% reduction in the last 10 years. This is a result of proactive measures taken by the Government in conjunction with business and unions.”
BusinessSA clearly seems to be on the outer with the Premier and its decision has placed opposition MP Rob Lucas in a difficult position as he used the association’s flip-flop to criticise Minister Wortley in particular. Lucas said in a media statement on 8 October that
“Even with the Weatherill Government’s amendments, this is still fatally flawed legislation which will lead to significantly increased costs. For example, industry groups continue to produce evidence that struggling South Australian homebuyers will face massive increases in house prices.”
The Premier mentioned the recent judgement on the “Markello case” and until the final details are revealed by Darley on his amendment concerning duty of care it will be difficult to confirm that the “loophole” will be closed.
- “Abrogation of privilege against self-incrimination”, will be scrapped;”
- SA will apply a three metre rule on working at heights instead of the two-metre “rule”;
- “…employers will be permitted to provide an addendum to an SWMS….”
- the issue of who has “control” has been redefined [whether this is the duty of care matter mentioned by the Premier is unclear].
Darley has also introduced an additional level of oversight to union right on entry on safety issues. Curiously, given Darley’s history with SafeWorkSA, that level of oversight has been given to SafeWorkSA and its inspectors.
The State Secretary of SA Unions, Janet Giles, has welcomed the potential passage of the WHS laws and can obviously wear the union right-of-entry changes.
Work Health and Safety laws in South Australia have generated a considerable amount of self-serving strategies (warning clichés ahead) – some have backed the wrong horse, others have been in it for the long haul, others have looked over the fence for support for their arguments from other States. Few have been about reducing the harm to people from work activities and processes. It remains difficult to determine if the work health and safety laws will make the management of workplace safety any easier and it may be that the delay in achieving harmonised workplace safety laws is just part of a robust political process but the politics has weakened the intention of harmonisation and unnecessarily complicated society’s understanding of OHS. That cost is still to be identified.
[SafetyAtWorkBlog has approached John Darley and opposition Minister Rob Lucas for comment.]