The business of OHS disharmony

We can now say that the Gillard government’s attempt to harmonise Australia’s occupational health and safety laws appears destined for failure. The latest setback for Gillard is Queensland, the only state that has passed the model OHS laws in full.

Early this month, the Queensland opposition declared the laws to be ‘unworkable’, ‘flawed’ and a ‘bait’ the Bligh Labor government had swallowed. The Shadow Minister for Industrial Relations, Ted Malone, made it clear in his press release that should the opposition win government at the 2012 Queensland election (due by mid-June), the OHS laws will be changed. On current opinion polling, Malone looks certain to be in a position to deliver.

The issues Malone identifies as flawed are common ones I’ve been covering on Business Spectator (Work Safety spins out of control, September 21) for some time. This includes that the model laws remove the right to silence, a protection against abuse of power under criminal law. As such, OHS law is criminal law.

The other is that the model laws do not determine that people are responsible for only what they ‘control’. I’ve done a detailed analysis as to why this is not only critical on justice principles but also to achieving high-quality OHS outcomes – that is, reductions in deaths and injuries. The government’s confusion and double-speak on this issue was apparent in the parliamentary debate in October, where there was a sense of a hidden agenda.

Originally, the model OHS laws were to have been adopted by all states as of January 1 2012. This is now not achievable; in fact, delay could conceivably continue for years. The Victorian and Western Australian governments have made it clear they have deep reservations about the new laws. The Victorian government has commissioned a detailed impact statement due out early 2012. Meanwhile, the legislation was blocked in the upper houses of South Australia and Tasmania within the last month. For South Australia, this is the second time it has been rejected.

The drafting of regulations accompanying the legislation has become messy and mostly not ready for implementation. The key problem around the regulations is that the model laws break from established OHS legal and operational principles in excluding the dependency on ‘control’. Consequently, the regulations have to be drafted within untested concepts that are confused and uncertain.

What’s surprising in this botched process is the buy-in that’s occurred from major industry associations. The Business Council of Australia is just one example. In 2007, the BCA released a report ‘Making Work Safe’ that established the core policy principles around which they said OHS laws should be structured. The report stated that the idea of all players in the workplace being responsible for what they ‘control’ is the essence of OHS law.

Yet to this day the BCA is still supporting the implementation of the current model OHS laws. This breaches the BCA’s policy. Why would they do this? My observation is that some of the industry associations have so locked themselves into the Gillard-organised OHS agenda that they don’t know how to change position. Further, I’m openly critical of them for taking their eyes off matters of important principle.

Many lessons have been learnt from New South Wales as to what happens when OHS laws hold people responsible even when they have not had control. Prosecutions and convictions occur of blameless people under processes of clear institutional ineptitude by authorities. The Kirk case covered extensively in Business Spectator (Kirk's legal revolution, February 4, 2010) was the highest profile, but just one of many instances. Thankfully the High Court declared such action illegal.

But the lessons have not been taken on board by organisations representing the ‘big end of town’. This is a similar scenario to the Fair Work Act. Gillard corralled business associations into agreeing to FWA. Business members now feel jilted by an FWA that’s working against sensible business operations. With the harmonised OHS laws, big business risks again discovering the damage too late.

Fortunately, a majority of state governments and parliaments are taking the lead where major industry associations are failing. But this is a consequence of much hard effort from many small business organisations arguing the case of flawed laws.

What’s apparent is that harmonised OHS laws are not progressing because the model being pushed is bad law. What could happen is that the states take control and amend and fix the laws. Harmonisation then has a chance to happen. Big business must wake up and seize this opportunity.

Ken Phillips is Executive Director of Independent Contractors Australia and author of Independence and the Death of Employment.