The nonsense of Victoria’s non-harmonisation

[Guest post from Ross Macfarlane]

A rhetorical question: if you were an OHS advisor for, say, a Victorian construction company, would you prefer to rely on a regulatory guidance document issued in 2012, under legislation which is not in force in the State, or one which is well over 20 years old, and issued under another piece of legislation which is not in force in this State?

It is received wisdom in OHS professional circles that the continuing failure of Victoria and Western Australia to implement harmonised work health and safety laws is a triumph of politics over policy – a victim of lobbying by special interest groups, mostly of a conservative persuasion. It is a fact that the goal of nationally harmonised laws was established during John Howard’s Prime Ministership, but it is also a fact that the national model laws were adopted by the Council of Australian Government (COAG) in July 2008 (with a target date for adoption of 1 January 2012,) in a narrow window of time when Labor governments were in power in the Commonwealth and every Australian State and Territory.

I don’t wish in this article to dwell on the politics surrounding of the adoption, rejection or modification of the harmonised laws. Key ideological differences such as the magnitude of penalties and union right of entry are I believe of less consequence than the failure to adopt the common structure and common approach to regulation. Hence I want to focus on some of the anomalies and contradictions that have arisen in Victoria as a result of the laws not being adopted in this State.

Following the passage of the Occupational Health and Safety Act in 2004, and the Regulations in 2007, Victoria was seen as the leader in national OHS law and policy. WorkSafe’s combination of consultative carrots, the stick of enforcement, and the development of high-quality guidance material to assist in achieving best-practice health and safety compliance, was widely regarded as setting the standard. As a consequence, Victorian legislation was used as the framework for much of the national laws, with WorkSafe Victoria taking the lead in developing model regulations and national codes of practice, even following the Coalition’s surprise win in the 2010 election.

Sadly, this is no longer the case – the State government has eschewed adopting the harmonised laws, based on a questionable case of high compliance costs. But far from saving Victorian industry, my assessment is industry has been the loser. In this article I wish to highlight two key areas where it has lost out: stagnation in the production of high-quality OHS guidance (an area where Victoria once led,) and confusion around the management of hazardous chemicals.

Codes of Practice

After the OHS Act and Regulations, WorkSafe Victoria’s key OHS documents are its Compliance Codes, the creation of which was encoded in Part 12 of the 2004 Act. Following the declaration of the 2007 OHS Regulations, 8 new compliance codes were declared in September 2008: Workplace amenities and work environment, Communicating Occupational Health And Safety Across Languages, First aid in the workplace, Prevention of falls in general construction, Managing asbestos in workplaces, Removing asbestos in workplaces, Confined spaces, and Foundries.

However, the promise of more to come never materialised, as the work was redirected to developing national Codes of Practice. And here is the irony – WorkSafe Victoria employees invested considerable time and effort to develop nationally recognised work health and safety guidance, but because of Victoria’s failure to adopt the harmonised laws, the value of this work effort is lost to Victoria.

As of the current date, Safe Work Australia has adopted 23 national Codes of Practice which provide guidance for implementing best-practice work health and safety across a spectrum of generic workplace obligations and specific high-risk work activities. A further 12 are set to be declared by 30 June 2014, with more still under development.

Meanwhile, Victoria languishes, with the WorkSafe website still linking to 7 Codes of Practice created under the Occupational Health and Safety Act 1985 – an Act repealed a full decade ago! These relate to some of the most significant areas of workplace safety, such as plant, construction, demolition and hazardous substances – and most are old enough to vote.

The oldest, Safety Precautions In Trenching Operations, dates from 1988, and begs the question: would you prefer to rely on a document issued over a quarter of a century ago, under legislation which is not in force in this State, or one issued in 2012 (the Safe Work Australia Excavation Work Code of Practice,) under another piece of legislation which is not in force in this State? Similar questions can be asked in respect of the Codes of Practice for Building and Construction Workplaces (1990,) Demolition (1991,) and Plant (1995.)

Importantly, the Safe Work Australia Codes of Practice specifically refer to legal obligations laid down in the harmonised Work Health and Safety Act and Regulations, down to the specific Act or Regulation number. These references are not applicable in Victoria unless and until it adopts the harmonised laws – a powerful argument, in my view, for their adoption here as in all other jurisdictions.

Instead, WorkSafe Victoria in May 2014 issued a new draft Compliance Code for Manual Handling, to replace the 2000 Code of Practice – the first such draft in 6 years. The draft is open for comment for just 4 weeks, but my question is – why, when a national Code of Practice was adopted just 2 years ago? Are Victorian backs, knees and shoulders somehow different from the rest of Australia?

Hazardous Chemicals

Of no lesser significance is the legislative shemozzle that is hazardous chemicals legislation. Chapter 7 of the harmonised Work Health and Safety Regulations integrates requirements for the oft-misunderstood categories of dangerous goods and hazardous substances. Conversely, Victoria not only maintains separate regulations for storage and handling of dangerous goods, it has twice had to update them, in 2011 and 2012, and in 2013 issued a revised Code of Practice for the Storage and Handling of Dangerous Goods. None of this work would have been required had the harmonised laws been adopted.

Another instance of Victoria’s outdated regulatory approach can be found in OHS Regulation 4.1.30, Health surveillance. It mandates that health surveillance be carried out for employees “exposed to any hazardous substance … listed in column 1 of Schedule 3 to the National Model Regulations for the Control of Workplace Hazardous Substances (except asbestos)”. These National Model Regulations are difficult to obtain, as they are no longer found via a menu link on the Safe Work Australia website. A web search can locate the page, and the explanation – issued in 1994, “These National Model Regulations have been superseded” by the model Work Health and Safety Regulations. And yet they are specifically called up by the Victorian OHS Regulations!

Chemical safety is in my experience one of the least understood and most frequently mismanaged aspects of workplace health and safety. Often the result is unproductive busy work chasing safety data sheets for chemicals of inconsequential risk, but sometimes it is dangerous chemicals stored or used with inadequate controls. If there is one area where a common, harmonised approach is needed, it is this – but Victoria has yet to align its regulations to the pending arrival of the GHS (Globally Harmonized System of Classification and Labelling of Chemicals.)

It is yet one more instance of how our State regulator, so recently lauded as the model of OHS regulation for the nation, has been mired in a politically motivated morass of Not Invented Here Syndrome.

Ross Macfarlane
Email: rm@rmtheriskmanager.com.au
http://www.rmtheriskmanager.com.au

© RM The Risk Manager, Pty Ltd