It has always seemed an odd timetable for the Australian Government to introduce a Bill for replacing the Australian Safety & Compensation Council with Safe Work Australia when there is also an active national review into the laws that the authority may end up managing.
This week the Minister for Workplace Relations, Julia Gillard, set aside the Safe Work Bill because she would not accept amendments by the Opposition or she had to verify changes through the Workplace Relations Ministerial Council, depending on your political leanings.
Parliament has ended for 2008 so the reintroduction of the Bill will wait till 2009. This allows the government to make another pitch by including the recommendations of the National Review. The Review has consulted broadly across the political spectrum and should present legalistic sweeteners to all. This also allows the government to say that they didn’t get cross and arrogant but have been able to be more inclusive and consultative.
The amendments proposed by the Opposition don’t have a great deal to do with safe workplaces but a lot to do with limiting union influence in the decision-making of the new OHS body. Some amendments are just unnecessarily provocative by trying to limit ministerial interference. The alternative jargon to this is the exercising of ministerial discretion. It’s the same thing except to those on the receiving end or who feel excluded from the process.
Of course, the government is not obliged to accept all the recommendations of the review panel and over the next few months it will be closely watching the reception of its industrial relations legislative platform to perhaps indicate a more successful pathway for its Safe Work Bill.
A sticking point, and overlap of the two legislations, is the right of entry. Currently there is a political stink about how much access unions are entitled to in workplaces, some of which does seem unnecessarily intrusive, but frequently workplace safety is the impetus for entry requests, as per the recent intrusion to the desalination plant in New South Wales. Right of entry will not go away as a political issue over the Christmas break while there are large infrastructure projects in New South Wales and Western Australia, in particular.
Last week the Deputy Prime Minister and Minister for Workplace Relations, Julia Gillard, delivered on some of the government’s promises by presenting the Fair Work Australia Bill into the Australian Parliament. This does not present a revolution but is a solid rollback of some of the excesses of the previous (conservative) government. The responses from employer groups and trade unions were in the tones and on the topics that were expected.
The National Review into Model OHS Laws rolls on towards its January 2009 deadline. The OHS law review was not something urgent for the government, even though it was an election pledge, and it does not indicate a commitment by the government to improving the level of safety in Australia. The aim is to provide an easier way of managing safety across state borders in Australia with the hope that this will flow to benefit the safety of workers.
It is important to remember that this review came after years of concern about the perception(?) that OHS was part of the red tape of managing businesses, and therefore an unacceptable cost burden. The danger in this review is that the recommendations will reduce the business costs with no discernible improvement in safety.
There are many OHS professionals and organisations who are hoping for some grand review of workplace safety. It is a review of law and business bureaucracy, not safety. Those who will most benefit will be large companies that operate in multiple States. It will provide no change to small business. It will not increase safety in the vast majority of workplaces. It may improve the bottom line company results in 2009 when profit growth is declining but that just means that managerial bonuses are less than normal. It does not mean that the cost savings will be used to improve safety.
The Fair Work Australia Bill and the National OHS Law Review may change some of the ways in which corporates approach OHS but they will have little, if any, benefit to individual workers.
It is important to remember that any legal changes always benefit legal practitioners, as well. And OHS lawyers are almost always there after the incident in order to minimise company damage. Policies and procedures are largely determined without legal involvement. Machine guarding is not installed by lawyers. Abusive supervisors are not tempered by legal threats. Safety is the manager’s job in partnership with the employees, and it will always be so.