The recent OHS Strategy Summit on the Gold Coast highlighted a number of concerns regarding the now in force national OHS harmonisation laws; probably the most significant reform to OHS legislation in the past 30 years.
The new model Work Health and Safety Acts (WHS) came into effect on 1 January, 2012, with the exception of four jurisdictions.
Tasmania has essentially passed the Bill, and is now waiting to ratify its start date of 1 January 2013. South Australia is currently debating the Bill, and Victoria and Western Australian are likely to defer implementation until later in the year.
Tracey Browne, Australia Industry Group’s manager of national OHS policy and membership services said Ai Group has been debating the laws for the last three years, and believes the outcome has been a set of laws that can work in the industry.
"It is clear the laws do not have to be identical to be harmonised. When the Bill was out for public comment there were many concerns about the number of jurisdictional notes that were in there, allowing the jurisdictions the opportunity to make changes," Browne said.
However, the jurisdictional notes are not about allowing divergence from the laws, she explained.
"Instead, they are there to allow the regulators or the Parliaments to implement these laws within the complex legal systems in which they operate," she said.
Applying the new laws
Browne said a key factor in making the laws effective is how employers or persons conducting a business or undertaking (PCBUs) adopt the new legislation.
"From Ai Group’s perspective, large organisations that operate across multiple jurisdictions have the opportunity to highlight where the issues are, raise them back with the regulators, raise them through Safe Work Australia so we can have them addressed."
"It’s not actually the courts that will determine whether harmonisation works or not," she said.
Browne said the different additions each state has made so far will not be a barrier to harmonisation.
"Right from the start, harmonisation was never about identical laws," Browne said.
"Part of the issue that we’re seeing in the media debate is concerns that if four jurisdictions aren’t there yet, and can’t be convinced that we’re actually going to have harmonised laws, maybe we should just let them all fall over," she said.
"There was even a comment made recently that New South Wales was actually the start of the failure of harmonised laws because of the amendment that was put in to allow a much more narrow application for union right to prosecute."
However, Browne believes that from the perspective of what the harmonised laws mean within a workplace, that detail is not as significant as workers and unions might have feared.
"That’s something that might get applied by the unions at some stage if they want to prosecute a particular employer," she said.
Safety on the agenda
Konekt principal of health, safety and compensation Nicholas Ward said now is "a time like no other" for workplace health and safety.
"We actually are seeing a national debate about Workplace Health & Safety.
"If that is the sole outcome of harmonisation then I think the harmonisation project has achieved a great deal already."
Ward said he has certainly noticed the paradigm shift in the way employers and officers of organisations have been embracing work health and safety.
"And a lot of the impetus has been these laws," he said.
"[The laws] have given health and safety managers – who are looking to influence the officers of their organisations – the opportunity to have the discussion in the first place, and to then bring in what the new laws actually mean for those officers," Ward said.
Ward explained that the new laws make the duties of officers extremely clear, in regards to what they do and what they have to achieve.
"So there’s no ability to hide from what their duties are anymore. There’s no delegation back to the OHS manager. They are responsible, they know that," Ward said.
"They also know that in that context they’ve got massive increases in penalties and they’ve just got more skin in the game. So essentially what I have seen is that the engagement of officers has certainly increased," he said.
The question is…
Safe Work QLD associate director general Barry Leahy said the key question in the whole harmonisation debate is: ‘Why do it?’
Leahy said the simple answer is that there are just so many different sets of regulations that the situation has become unwieldy.
"In a country with a working population of about 10 million people, why on earth do we have nine or 10, or far more than that, sets of regulations around Workplace Health & Safety?" he said.
"It just doesn’t make sense to me, and particularly when our economy, as it develops, will have more and more national companies with employees in each of the jurisdictions," he said.
So, in a sense, "harmonisation is a no brainer," Leahy said.
Image above: (L-R) Brookfield Muliplex general manager of Safety & Health Professor Dennis Else (moderator of the discussion), Australia Industry Group’s manager of national OHS policy and membership services Tracey Browne; Konekt principal consultant Nicholas Ward; and Fair and Safe Work QLD associate director general Barry Leahy.
Image credit: SE-Corp
For more information about the OH&S Strategy Summit, you can contact Tyron McGurgan, Director, SE-Corp. Email: firstname.lastname@example.org or phone: +61 (2) 9435 3542. Next year’s Summit will be held from 6-8 March, 2013.