Australia’s harmonisation program may be on life support but it’s getting stronger

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.

 Kevin Jones

reservoir, victoria, australia
Categories business, government, hazards, law, OHS, politics, safety, UncategorizedTags ,

6 thoughts on “Australia’s harmonisation program may be on life support but it’s getting stronger”

  1. Kevin
    Thanks for the update.
    Did you know that harmonisation of Australian Marine Safety legislation is now 40 years old and it has taken most of that time to get it close to harmonised. This is a good example of what to look forward too. It is reasonably uniform from a legislation perspective but still falls well short of safety best practice promotion.

    The process is an incredibly slow one and has achieved an enormous shift in safety awareness in its short life to date. It is still in its infancy and will take several changes of governments in both State and Federally before harmonisation begins to approach maturity.

    Harmonisation of the legislation is necessary for efficiency in Australian trans-national business and will eventually exist across the country.

    However there still seems to be a lot of confusion that this legislation is the next great advance in safety itself. Harmonisation is as its title says; it is making legislation similar (or harmonised). It has not yet made any change to the theory or practice of workplace safety.

    I hope and pray that the added attention in the board rooms generated through the harmonisation process will translate to better acceptance and understanding of the value of safety concepts to business improvement itself and thereby help the work life of safety professionals to be more productive.

    I don\’t agree with your statement that \”This is changing how OHS is managed\”, but do believe it is changing \”who\” is becoming involved in managing OHS. Which should be an equally good thing.

    The next critical step in harmonisation competency is to get the regulators themselves to harmonise their departments. In WA alone we have about 10 different regulators or quango\’s all pushing their individualistic \’barrows\’ based in a myriad of safety snippets buried in a raft of pieces of legislation, codes and standards.

    So now that industry is moving along the harmonisation track, acting Workplace Relations Minister, Kate Ellis it is your turn to look “in house” and bring your Government’s agencies into the harmonisation process!

  2. Hi Kevin,

    The whole system was better off is SA was out. There was no point to harmonisation in the first place and no point now. A lot of people and organisations have invested effort in promoting the process and hence they are invested in the idea and thus will inevitably say it must be good. Like praising an overpriced purchase avoids facing the reality of a bad decision.

    Why was it never important? As previously stated (a) the laws were already harmonised being based on the 1974 UK Act; (b) most safety improvements are \’above the line\’, i.e. not motivated by law. It\’s importance is vastly overstated; and (c) most people do not work in business that are affected by small fringe changes. So firstly the laws were harmonised, secondly they don\’t matter that much anyway and thirdly in the cases that they do matter, only a small proportion of people work in places that cross boundaries.

    Why is it harmful?

    1. Harmonisation is a harmful barrier to progress in legislation – I think its value is overstated – but what ever value it has, be it a lot or a little, it is only ever improved by innovation and now that is stifled.

    2. The harmonisation process has diverted resources that could otherwise have been put to better use controlling hazards.

    Messages that \”senior management\” should be scared of the \”new laws\” are overdone. They are probably effective in promoting training and consulting products but the fear factor is unrealistic. Despite it being possible to do so for about 30 years, how many prosecutions there has been relating to supply, design and manufacturer of asbestos. The answer might be zero. If it is not zero it is a small number. If it is therefore possible to have a broad scale problem resulting in 1000\’s of fatalities and no or few prosecutions despite laws being in place, the chances of \”senior management\” being prosecuted for comparatively minor workplace problems must be remarkably small.

    John

  3. Great article. What caused SA to reconsider. They were a hold out State. Were the amendments they made substantial and was it driven by the same interests that were resisting the legislation.

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