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From the Desk of the Executive Director

Ken Phillips is co-founder and Executive Director of Independent Contractors of Australia. He is a published authority on independent contractor issues and directs research on related commercial and trade practices issues. Through his numerous articles in newspapers and think-tank and academic journals, Ken is known for approaching issues from outside normal perspectives and is frequently sought out for media comment.

Work safety spins out of control

Wednesday, September 21, 2011

I have to admit to being wrong. In 2009, I declared that the battle over work safety laws was over and that the 'white hats' had won (The OHS battle is won, May 20, 2009).

Now I need to advise that the battle continues, but this time for different reasons. It's to do with the attempt to harmonise Australia's OHS laws. This directly affects every business, manager and worker in Australia.

Australia's OHS laws are specific to each state and territory. They generally comply, however, with international principles that state everyone is responsible for safety according to what people 'reasonably and practicably control'. Those three words, locked together, give each person a clear sense that they must be responsible for safety.

There's also a good thirty years of legal precedent supporting what reasonable, practicable control means when it comes to OHS prosecutions.

New South Wales was the standout exception. NSW laws held that employers were automatically guilty whether they had control or not, even if they had acted reasonably or practicably. It was this NSW disconnect from the rest of Australia that caused pressure to harmonise the laws across Australia.

When all governments agreed to a harmonised model in 2009, it appeared that the NSW model had been dropped. This is where I declared victory for the white hats. The NSW laws pushed a focus away from prevention and systemically-caused injustices in prosecution.

On the surface, Australia's governments appeared to agree to embed the principles of 'reasonable and practicable control'. What's unfolded, however, in the detail of the new model laws is something different. The laws include 'reasonable and practicable' but have removed 'control'. That is, everyone is to be held responsible for safety according to what they consider reasonable and practicable. It doesn't make sense, as I detail here. Essentially, no one will be sure if they are responsible for safety or not.

Instead, you will be held responsible if you are a "person conducting a business or undertaking", or PCBU, and if you 'influence' work. This also doesn't make sense. It's a new and untested concept both at law and in a practical sense. It's dangerous because it's confusing for work safety, particularly prevention.

What will happen is that people will wonder if they are a PCBU and wonder if they are responsible for safety or not. People will wonder if they have influence. This sort of confusion is the reverse of what's needed in good OHS laws.

This PCBU concept will also require extensive legal testing before clarity is achieved. My bet is that it will take 15 or so years and several High Court rulings before clarity is achieved. This is not a pathway to good work safety laws.

The harmonisation process requires each state to enact the model laws. NSW have done this. It's an improvement for them because they've rid themselves of their prior bad laws.

But as the realisation of the flaws in the model laws have spread, implementation is being delayed in Victoria, South Australia and Western Australia at least, and could possibly not even occur. My analysis comparing Victoria's current laws to the model laws, and South Australia's laws to the model laws, shows the stark differences.

In the way the harmonisation process has been handled, there's a sense of a slight-of-hand con in play. The federal government pushes harmonisation seemingly for harmonisation's sake, without a full debate over the fundamental new area of law being created. This is not the way work safety laws should be handled.

Further, sitting deep inside the model laws are disturbing aspects not at all discussed. OHS law is criminal law. Yet the model harmonised law takes away basic rights of criminal justice---namely the right to silence and protection from self-incrimination.

There's more: the harmonised laws allow a work safe authority to seize a business without court supervision. This is not something that exists in current laws.

The Victorian government has said they agree to harmonisation on the condition that the new laws do not damage work safety or businesses. My analysis says that this would be the outcome.

In South Australia, attempts to introduce the harmonised laws were defeated in the Upper House early this year. The government is trying again but the opposition and independents continue to see major flaws.

There's a simple principle that must be in place. Harmonising of work safety laws should only occur where an improvement in the work safety environment can be demonstrated. Anything less, risks work safety. These new laws put safety at risk.

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