In April 2012, this blog said that the harmonisation of occupational health and safety laws (OHS) in Australia was coughing up blood. On 1 January 2013, two more Australian States introduced new OHS laws based on the model Work Health and Safety Act and Regulations of the harmonisation process. (only two left, Victoria and Western Australia) As Acting Workplace Relations Minister, Kate Ellis, said in a media release yesterday:
“As of today 64 in every 100 working Australians will be covered by modern, best practice and consistent laws…”
On the national front, harmonisation has failed but from the perspective of those individual States that have introduced the WHS laws, the process has increased the influence and attention of workplace safety in their jurisdictions.
Laws do not improve worker safety by themselves. They require support and commitment from both business owners and workers. Those fierce and, often, confused critics of the WHS laws need to accept that their campaigns have failed. The maturity of those critics will now be judged by the critics’ preparedness to accept the situation and work within the new laws to improve the safety of their members and clients.
Australian businesses will not benefit from constant white-anting of the new laws, undermining safety laws for political reasons benefits no one. However this does not mean there is not opportunities for change. The WHS laws in South Australia were only passed after fixed periods of review were agreed to. Each of these reviews provide an opportunity for lobbyists to state their grievances. The national model laws also have a review timetable.
Critics also need to remember that there are large parts of the WHS laws that are ill-defined. The harmonisation process, much to its shame, allowed for the laws and their application to be further clarified and refined through prosecutions and court cases. This is poor regulatory writing in my opinion but that is the reality and the laws will be tweaked over the next few years. Many laws are revised to accommodate court decisions but it is hoped these decisions do not reverse some of the laws’ aims as this will reduce some of the business economic benefits.
As expected the increased financial penalties, substantially increased in some jurisdictions, are gaining considerable attention. It is unlikely that the reckless conduct category of penalty will be applied often but it certainly is attention-grabbing, particularly at Board level and in the context of due diligence.
The new OHS laws are not in place everywhere but some of the new requirements, particularly due diligence, is changing the deliberations of board members and CEOs in all Australian jurisdictions. This is of course what aiming for best practice should do. Best practice (a questionable term but used by many) exists beyond legislation and has spurred due diligence to become part of every executive’s role. This is changing how OHS is managed. It is providing an audience for workplace safety information, safety initiatives and safety risk registers at the Board level – a dream of safety professionals for many years. The trick now is to ensure that this advice is not hijacked by the OHS charlatans peddling the latest managerial and psychological fad. But that’s another blog article.