Govts deliver national OH&S laws, WA holds out

Governments deliver long-promised harmonisation in occupational health and safety law, but WA holds out

Governments have delivered long-promised harmonisation in state occupational health and safety law designed to reduce employer accountability and restrict union powers.

But Western Australia remains out of the loop, with concerns it could stifle other national transport regulation reform.

The Workplace Relations Ministers’ Council (WRMC) has agreed to uniform national OH&S laws, adopting the recommendations of a 2008 review into the legal framework.

The model laws will bring change to virtually all areas of OH&S regulation, particularly in regards to prosecution of cases.

Previously, reverse onus of proof was contained in some states’ legislation, whereby the employer was required to prove innocence in alleged safety breaches. Under the proposed changes, it is a requirement that the prosecution should bear the onus proof.

Another positive change for businesses is the removal of unions’ capacity to bring prosecutions for breaches under OH&S laws.

In addition, the new model is allowing a system of appeals against finding of guilt in a prosecution, ultimately up to the High Court.

The Australian Institute of Company Directors (AICD) has welcomed the agreement by state and Commonwealth governments to go ahead with the changes.

CEO John Colvin says the agreement will address the inconsistency of OHS laws across jurisdictions, and marks a major step towards achieving a fair system.

"While we do not necessarily agree with every aspect of it, the model national law moves Australia a long way toward an OH&S system that is fair, balanced and consistent," he says.

"It will provide greater certainty and protections for directors, in a way which does not compromise standards for legitimate safety concerns."

Within the framework, the WRMC says workers must take reasonable care for their own health and safety, and cooperate with any reasonable action taken by the person conducting the business.

It has also agreed with the review panel’s recommendation that there should be a primary duty of care imposed on any person conducting a business.

This is subsequently qualified by a test of ‘reasonable practicality’, which means no specific defence is necessary.

Finally, the Council has acknowledged there should be a specific duty of care owed by a person with management or control of the workplace.

They must ensure as far as ‘reasonably practical’ that the workplace, the means of entering and exiting the workplace, fixtures, fittings and plant are safe and without risks.

References to ‘gross negligence’ will be removed from the categories of offences, to avoid crossover with local criminal laws.

The proposed alternative categories are as follows:
  • Category 1: for an offence of recklessly endangering a person to risk of death or serious injury at a workplace
  • Category 2: for circumstances where there was a high level of risk of serious harm but without recklessness
  • Category 3: for a breach of the duty without recklessness or high risk of serious harm.
In the case of category one, maximum penalties can reach $3 million for a corporation, $600,000 for an officer and $300,000 for a worker.

The AICD has been concerned about the risk of liability imposed by "inconsistent and onerous" OHS laws.

It says the existing laws are deterring Australia’s most knowledgeable and experienced directors from serving on boards or establishing new businesses, as well as adversely influencing business decisions on investment and job creation.
So far, the Western Australian Government has not committed to the national framework, according to Colvin.

"If any state opts out it undermines the nationally harmonised system and so reduces the benefits to business of this important reform," he says.

The Australian Railway Association (ARA) has called on the State to sign up to the new framework in order to pave the way for other national frameworks, including a single rail safety regulatory system.

According to the ARA the proposed OHS reforms are supported by all forms of industry including rail and offer the opportunity to create "harmonised" OH&S legislation which benefits work safety and business efficiency.

But Western Australia’s failure to commit to the national framework undermines the whole system, according to ARA CEO Brian Nye.

"To achieve the optimum benefit from these important national reforms it is vital that every jurisdiction aligns with the agreed reforms," Nye says.

"The absence of a key jurisdiction such as WA is a major impediment to the kind of reform which is vital for the prosperity of our nation.

"Australia needs a single OHS regulatory framework just the same way it needs a single rail safety regulatory framework.

"Our industry urges WA to adopt the nationally agreed OHS regulatory structure."

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