“It's about the passion”

Why the harmonised OHS laws should not proceed

August 2011


Background

Independent Contractors Australia has monitored and contributed to the work safety law debate in Australia since 2002. Our starting point was a desire to have independent contractors appropriately brought within the framework of the laws. Unfortunately, we now have to say 'NO' to the rollout of the national harmonised laws. We stand for the principle of 'safety before harmony'. The new laws will make work unsafe.

In the information (below) we explain the issues and principles at stake that make work safe. We look at how the debate has unfolded in Australia, the state of play and the politics.

State-by-State assessments

  • Victoria v Model laws Assessment: We've completed a detailed assessment of the model laws and condensed the results into a readable format.
  • And a similar exercise for South Australia is now available.
We'll be doing similar comparative assessments of other states.


Overview

The current attempt to 'harmonise' Australia's OHS laws contains deep flaws and should not proceed until they are fixed. The model OHS laws breach:
  • A key international convention and several principles of OHS law.
  • Basic principles of criminal justice. (OHS prosecutions are criminal matters.)
If implemented, the harmonised laws will create confusion in workplaces about who is responsible for safety, thereby undoing much of the clarity that currently exists. This will result in less safe workplaces rather than safer ones.

Specifically, the laws:
  • Create confusion over who controls workplaces and hence who has safety responsibilities.
  • Remove the right to silence and the protection from self-incrimination---key rights under criminal law.
  • Enable OHS authorities to seize businesses and their property without court oversight.
Given these shortcomings, the laws should be rejected until fixed.


A quick background on OHS law

International: 'reasonable practicable control'

Until the 1960s, specific work safety (occupational health and safety) laws did not exist. This changed in 1966 after the deaths of 109 children and 28 adults when a mining slurry heap collapsed and slid down a hill engulfing a primary school in the village of Aberfan in the UK. This galvanized governments across the globe to create OHS laws.

Following the Aberfan disaster, the UK held an inquiry chaired by Lord Robens. This resulted in what are known as the Robens principles---the principal one of which states that people are held liable and responsible for work safety according to what they 'reasonably and practicable control'.

The International Labour Organisation drew on and adopted the Robens principles when establishing an international labour Convention (C155) on OHS practice in 1981.

Article 16 of ILO Convention 155 states:
    (1) Employers shall be required to ensure that, so far as is reasonably practicable, the workplaces, machinery, equipment and processes under their control are safe and without risk to health.
In 2004, Australia become a signatory to C155, accepting an international obligation to apply the principles to OHS laws and practices.

Australia

Australian governments began developing OHS laws during the 1980s. These generally followed the Robens principles and ILO conventions, but with two different legislative approaches.

Most governments (WA, SA, Victoria, NT, Tasmania, ACT and the Commonwealth):
  • Held employers responsible under various 'duties of care' according to what they 'reasonably and practicably controlled'.
  • Applied criminal justice principles---for example, a presumption of innocence, trial before jury in criminal courts, etc.
Two governments (NSW and Queensland):
  • Held employers automatically 'guilty' under the 'duties of care'.
  • But enabled effective defences to be mounted according to "reasonable and practicable control".
In the late 1990s, however ,intense agitation arose from within the union and Labor movements to change the laws. Essentially, the argument mounted was that the nature of 'employers' is such that they will always put the profit motive above safety. Therefore employers/managers must be prosecuted aggressively to force them to be safe.

The first big push took place in NSW. It changed its OHS laws around 2000 so that guilt was applied to 'employers' even if the 'employer' had no control over the workplace or had acted 'reasonably and practicably'. This resulted in
  • Many innocent people (employers) being convicted where they clearly had not had control.
  • The High Court eventually declaring the laws unconstitutional (the Kirk case, 2010).
A similar push started in Victoria in 2002 with an attempt to introduce 'industrial manslaughter' laws. The proposed laws had strong similarities to the NSW changes. However, these were rejected in Victoria, which instead initiated a detailed review of Victorian OHS laws, conducted by Chris Maxwell QC. The Maxwell Report was adopted and led to new Victorian OHS laws in 2004 which
  • Reaffirmed and strengthened 'reasonable and practicable control' as the centrepiece of the Victorian legislation.
  • Ensured that criminal justice principles applied to accused people.
  • Incorporated self-employed people properly in the laws. Until that time all OHS laws assumed an employer--employee relationship---an assumption that excluded self-employed people. (Note: self-employed people constitute one-fifth of the Australian workforce.)
Other Australian governments had made modifications to their 1980s OHS laws, but none involving the scale of review and change in NSW and Victoria.


Why the current push for harmonised OHS laws

If NSW had not made such a radical shift in their OHS laws around 2000 the strong demand for harmonised laws might not have arisen.

Conceptually, 'harmonised' laws are not necessarily 'identical' laws. Harmony should mean laws that are pointed in the same general direction, but which allow for the accommodation of differences. Broadly speaking, all Australian governments except NSW (and to some extent Queensland) had OHS laws that were in 'harmony'. But because of NSW (and Queensland) there were extreme differences between all the other governments on the one hand and NSW (and to a lesser extent Queensland) on the other.

For example, given exactly the same circumstances arising from and surrounding an OHS incident, an individual could be found guilty in NSW but not even be prosecuted in Victoria. It was not the facts of the case that determined this glaring difference, but the structure, philosophies and intent of the different laws.

What has happened, however, is that the push for harmony has been turned into a structured attempt to create identical laws in each state.

The politics of creating harmonised (identical) OHS laws

The big push for harmonised OHS laws began under the Rudd Labor Government in 2007. The plan was to design model OHS law that all governments in Australia would implement.

There were two opposing forces within the Labor movement over the design of the model law.
  • The first was the Labor machine in NSW backed by Unions NSW, particularly the construction unions. This push was supported by the Australian Council of Trade Unions which wanted the NSW style laws to go national.
  • The second was the balance of the Labor governments in the states (SA, Vic, Queensland, NT, WA and Tasmania) and the Commonwealth who wanted model laws similar to their existing laws---that is, those that embodied 'reasonable and practicable control'.
A National Review of OHS laws was conducted. It produced a report in 2008.

On first appearance, it looked as though 'reasonable and practicable control' had been accepted both by the report and the subsequent draft legislation. On much closer study conducted recently, however, the model law contains deep flaws, picking up some bad aspects of the NSW Labor/union-preferred model. The details are below.

The state of play [as of 25 August 2011]

During 2008-09, when Labor controlled most state governments, the model national OHS laws were agreed to by all governments through the Workplace Relations Ministerial Council process.
  • NSW repealed its existing OHS laws and replaced them with the model laws in May 2011. But the Shooters Party in the Upper House, with the support of the Labor Party and The Greens, amended the law to allow unions a (limited) right to prosecute.
  • Queensland adopted the model laws around April-May 2011, but on some analyses it appears it may have excluded the mining sector. This needs to be clarified.
  • SA attempted to pass the model laws in early 2011, but they were rejected in the Upper House. The model laws have been re-introduced into the Lower House, but the cross-benches in the Upper House have made clear their continued objection to them.
  • WA has said that it will adopt the laws but with modifications.
  • The Victorian cabinet has announced an 'in principle' intention to adopt the model laws on the condition that the laws are not a retrograde step.

Understanding the structure of OHS laws

OHS laws comprise three primary layers:
    (a) The Act. This establishes
    • Who is responsible for safety under "duties of care"---that is, (under ILO conventions) who has 'reasonable and practicable control'.
    • What people are responsible for, expressed in a general way.
    • The role of work safety committees and unions.
    • The powers of the work safety authorities, inspectors and prosecutors.
    • How and where (in which courts) prosecutions occur.
    • The general role of regulations and codes of practices.
    (b) Regulations. These put the practical detail around the more general issues covered in the Act---particularly those covering the activities of the work safety authorities.

    (c) Codes of Practice. These are the practical 'meat on the bones' of the Act which apply specific rules to specific industries. Codes are what most people in business focus on. For example, the code for the electrical industry will detail what electricians must and must not do to comply with safety.