Manufacturing News

Harmony in sight: towards national OHS legislation

Making Australia’s workplace safety laws consistent across states is well worth the effort.

I HAVE long argued that workplace safety is too important an issue to have occupational health and safety rules rewritten in every state. The variations that occur across the country make compliance a costly and diverting nightmare.

Standards of legal responsibility for both employers and employees are different across the country, appeal rights exist in some states and not others, expectations about consultation vary widely, and there’s a myriad different regulations when it comes to detailed matters like scaffolding, electrical work or asbestos removal.

Frustratingly, the regulators in each state can have different views on what is safe and what breaches should be subject to prosecution.

The time and attention spent sorting out the different rules and expectations diverts companies from the most important issue, which is providing safe work places.

Drafting of a law providing for harmonisation of all Australia’s occupational health and safety laws has finally commenced, with the agreement by the federal government and most states on May 18 to accept the majority of suggestions by a review panel appointed to report on the National OHS project.

The draft OHS harmonisation legislation is expected to be released for a public comment period over October and November, 2009.

Unlike recent changes to Australia’s national workplace relations legislation, the national harmonisation of OHS laws will not create a single national law.

However all states except Western Australia are in general agreement that the direction outlined by the review panel is the right one, and plan to enact state laws and regulations on the same terms. WA is reserving its right to wait until the final draft before making a decision.

Negotiation, drafting and agreement on the exact form of the law will be overseen by Safe Work Australia, a body including nine representatives from Federal, State and Territory governments, two from employer groups and two from unions. Ai Group Director NSW Mark Goodsell is one of the employer representatives.

Final drafting and agreement on the form of the model law will occur in the first quarter of 2010. It will be enacted by all states and territories by the end of 2011.

The May 18 agreement included acceptance of most of the key recommendations that Ai Group sought in our submissions to the review.

In particular Ai Group pushed for legal standards to be consistent with all other areas of criminal law and a consistent approach by regulators to the assessment of risks and the handling of enforcement.

The overall package meets these requirements.

Among the key principles that have been agreed to are:

‘Reasonably practicable’ should be used to qualify the duties of care, by inclusion of that expression in each duty of care.

The prosecution should bear the onus of proving beyond reasonable doubt all elements of an offence relating to non-compliance with a duty of care.

There should be a duty of care on all workers to take reasonable care for themselves and any other person whose health or safety may be affected by their conduct or omissions at work.

There should be a system of appeals against a guilty finding in a prosecution, ultimately to the High Court.

The model Act would not provide for unions to initiate OHS prosecutions.

Ai Group will be holding consultation sessions on the draft legislation later this year, which will be a good opportunity for businesses to express their views.

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