Many people have devoted time and energy to negotiating the best possible outcome for harmonised work health and safety laws; the road to hell, however, is paved with good intentions.
It has been more than six years since all the jurisdictions signed on to the ‘Inter-Governmental Agreement for Regulatory and Operational Reform in Occupational Health and Safety’. The objective was to produce a model for a national approach to OHS that would develop uniform, equitable and less costly safety standards and would reduce workplace injuries and deaths significantly.
Cooperative federalism has been the cornerstone of this relationship. Other options, such as using the external affairs and/or corporations powers of the federal constitution to create one national law, have not been embraced. Thus, the extent to which work health and safety (WHS) laws are harmonised is dependent on the level of agreement between jurisdictions.
How are we going? Many years ago OHS laws started off being similar and over the years drifted apart through successive amendments, says Michael Tooma, partner and head of occupational, health, safety and security – Asia Pacific, and head of government – Australian practice, at Norton Rose Fulbright, lawyers advising the Council of Australian Governments (COAG) review. “So why would realigning them for a fleeting moment in 2012 be an outcome that is desirable?” But even this was never achieved. “The laws have never been aligned perfectly” and “at best you
would say they look similar,” he adds.
“Why would realigning [the laws] for a fleeting moment in 2012 be an outcome that is desirable?…The laws have never been aligned perfectly” and “at best you would say they look similar.”
At the time the intergovernmental agreement was signed in July 2008, Australia had wall-to-wall Labor governments. But it was highly unlikely that the political environment of the time would prevail, that Labor governments would always agree with each other and WHS policy would remain static.
As history shows, in late 2008, the voters of WA elected a Liberal state government. Although at the time the WA government said it was committed to harmonisation, it soon announced that its WHS laws (yet to be introduced) would be different. The NSW Labor government ultimately refused to introduce laws that omitted the reverse onus of proof and unions’ right to prosecute; however, when the NSW Liberal Party was elected to power in 2011 and introduced the WHS laws, it changed the onus of proof but, ironically, for political expediency, retained a reduced right for unions to prosecute.
A few years on and with more changes in government at federal and state levels, harmonisation continues to mean different things in different jurisdictions. Queensland, for example, recently reviewed and changed its laws after electing the Liberal National Party to power. Also, after the election of the Liberal Party in Victoria in 2010, the state ultimately decided not to introduce the model laws.
Now, the new federal Coalition government has initiated a COAG review of the model laws to determine if they contain too much red tape. Safe Work Australia is consolidating feedback on the issues paper released earlier this year with data and results from related research and it will produce a report for the WHS ministers to consider.
The ministers are expected to provide a report to COAG by the end of 2014. COAG will make decisions on the public release of the report.
Among a number of issues, the COAG review is asking whether changes made recently to Queensland laws should be accommodated in the model Act. Queensland removed the right of health and safety representatives (HSRs) to cease unsafe work.
Ai Group disagrees with removing the HSRs’ right but recommends that training on the right to cease work should include competency-based assessments and applying sanctions to HSRs who abuse the power.
There is absolutely no evidence from Victoria, with almost 30 years’ experience of this provision, that HSRs have exercised it without due care and concern.
Victorian Trades Hall Council (VTHC) sees things a little differently. Although Victoria is outside the harmonised scheme, much of the substance of the model laws is based on its legislation. “The HSRs’ right is premised on ‘reasonable concern’, not scientific/technical certainty. There is absolutely no evidence from Victoria, with almost 30 years’ experience of this provision, that HSRs have exercised it without due care and concern,” says the VTHC submission to the COAG review.
The COAG review also asks if the right of entry provisions to inquire into suspected WHS contraventions could be limited further by adding a notice requirement of at least 24 hours but not more than 14 days, as was also introduced recently in Queensland.
Ai Group agrees, arguing that unions in the construction industry have abused right of entry and that there’s little evidence that a 24-hour notice period will cause risks. VTHC says the limitation isn’t warranted, as union officials attend training and there are protections against abuse of powers.
Tooma says that the model Act has been a positive step in identifying duty-holders, including the duties of officers, and that those fundamental concepts have largely been accepted and adopted across the jurisdictions.
He says arguments about WHS right of entry and victimisation are ideologically driven. Similar laws already exist in the Fair Work Act 2009, so the debate about whether we are moving away from or towards these laws in WHS is marginal, he says.
Tooma believes the more important issue is the accountability of senior leaders. The due diligence provisions in the model Act, he says, were a “landmark” and a “watershed moment” in taking safety forward.
However, the COAG review asks if these laws should change, too. Unions and Ai Group disagree, but the Business Council of Australia is more open to contemplating change. Its submission to the review states: “The review should identify a way to bring the national scheme into line with the Victorian and WA occupational health and safety schemes.” It goes on to explain that existing WHS laws in Victoria differ from the model laws because officers are liable only when the body corporate contravenes the legislation. Under the WHS laws, officers can be liable without the corporation breaching the model law.
While the model Act is an improvement, Tooma says the regulations pose problems. The process for creating them looked very much like bartering between jurisdictions, he says. Pointing to the 600-plus pages of Regulations, he describes them as a “hotchpotch” of “pet topics”—provisions that came about through jurisdictional trading.
Six-hundred-plus pages of Regulations. A “hotchpotch” of “pet topics”—provisions that
came about through jurisdictional trading.
Among the issues, he says there are too many regulations; they deal with a lot of low-consequence, high-frequency risks; and emerging issues such as psychological risks are not addressed while some traditional risks need to be reviewed. Tooma says he hopes the COAG review will lead to a consolidation of the volume of the regulations.
Cathy Butcher, OHS coordinator, VTHC, disagrees for the most part; she notes that the model Regulations consolidate what was previously in place and include provisions for workplace hazards that need to be controlled. She agrees with Tooma on the need to regulate psychological risks.
Ai Group says the model laws do little to engage small business. The volume of the legislative package is a barrier to “engagement, comprehension and implementation”, it states. Ai Group wants the model laws to retain the general duty to eliminate or minimise risks as far as is reasonably practicable but remove some Regulations, relocate others to codes of practice and recast some codes of practice as guidance material.
Butcher says moving information into the guidance material is no guarantee employers will read it. As for the model laws being ‘overwhelming’, she says the Regulations are essentially the same, and only those relevant to specific workplaces must be adhered to; Regulations are prescriptive because they state how to control the risks. Part of the problem, she says, is misunderstanding and misusing ‘reasonably practicable’.
Tooma says there is a difference between being in or out of the Regulations. Guidance material isn’t legally enforceable and not admissible in court; a code of practice isn’t legally enforceable but admissible in court as evidence of what was ‘reasonably practicable’; Regulation is the law and legally enforceable. Healthy debate about what belongs in the Regulations is needed, he adds.