No harmony likely under new OHS laws

Most of the argument over Australia’s new OHS laws to date has centred on who should carry the burden of proof. Currently, employers in NSW and Queensland must prove they have taken reasonable steps to ensure safety, but this would become the prosecutor’s responsibility under the draft national model law.

“Any lawyer in this field will tell an employer charged with a breach of NSW’s OHS Act that under the reverse onus of proof, the most sensible approach is to plead guilty and do it early,” says Greg Pattison, General Manager, Workplace Solutions for the NSW Business Chamber. “People are in a system where they feel they don't stand a chance and that’s not fair or credible.”

On the other hand, Geoff Fary, Assistant Secretary of the ACTU, says: “Removing the burden of proof from the employer reduces the rights and entitlements of workers. We were given repeated assurances by the governments through the COAG process that no employee in any jurisdiction would be worse off under the new nationally harmonised OHS laws.”

Pattison and Fary will join WorkCover NSW General Manager John Watson and Professor Michael Quinlan on a panel debating harmonisation on 27 October at The Safety Conference in Sydney. The panel’s moderator, OHS legal expert Michael Tooma, says reversing the onus of proof will be largely irrelevant.

“The debate around the standard of the duty of care ignites a great deal of passion on both sides. But that passion may be misplaced for both sides,” Tooma says. “In all jurisdictions, if it is established that it was not reasonably practicable for the employer to have ensured the health and safety of the person, the employer will not be guilty. The difference lies in the onus of proving reasonable practicability. In most cases, this will make no difference.

“After the incident, it’s all too often obvious what steps should have been taken and all too often those steps were practicable prior to the incident. There either should have been a guard or not. No amount of changing of the onus of proof will change that simple fact.”

Both Tooma and the Business Chamber say the regulator’s approach - rather than the law itself - has the greatest real impact.

"Historically, there have been more prosecutions and fines imposed in NSW than in all the other Australian jurisdictions combined, but NSW doesn’t have the best OHS results,” says Greg Pattison. “Recently, WorkCover NSW changed its approach, giving greater attention to helping people understand and meet their OHS obligations; and injury statistics improved. What has been recently achieved in NSW reflects WorkCover’s change in approach, not the legislation.”

Tooma goes further: “The reason why some jurisdictions are perceived to be tougher than others has nothing to do with the law and everything to do with the discretion to prosecute - something that this model of harmonisation will not fix.

“For far too long, some regulators have made poor decisions in which matters they should prosecute and which they should not. At one point, the prosecution rate in one state was twice the national average, with a heavy focus on employer prosecutions and no attention to upstream duty-holders or culpable employees. That problem can only be fixed by either allowing reviews on the decision to prosecute in the legislation or having the same regulator across the country. Neither option is proposed by the new regime.”

Other planned changes to NSW's OHS laws have angered the ACTU, says Geoff Fary: “We’d lose the victim’s ability to launch prosecutions and the reversal of the onus of proof. There would also be a reduction in the abilities and powers of OHS representatives, who have been proven over decades to be critical to safety at work.”

The suspicion that the unions will use safety issues for industrial relations purposes has led to employer resistance to wide-ranging union powers of investigation.

“I don’t particularly have a problem with union right-of-entry to investigate OHS breaches, so long as it’s used for what’s intended,” says Pattison. “It’s the misuse of the right-of-entry which brings it into question.

“The unions haven't prosecuted very often because they don't have the same investigatory powers or resources as WorkCover. But the number of prosecutions unions have taken is not the issue. Safer workplaces require people to work together cooperatively. How can you have that sort of environment when one of the parties can prosecute the other?”

According to Fary, the union itself is demanding greater consultation of a different kind: “The ministerial council went off and reached agreement without consulting the unions at a national level. At that level, we were effectively told to ‘like it or lump it’.

“The consultation that’s taking place now should have taken place months ago. Harmonisation is a terrific opportunity to have a national system that includes the ‘best of the best’ rather than any one state’s model.”

Both unions and employers have threatened to boycott further harmonisation efforts if their demands are not met.

Pattison remarks: “If there are major changes to the thrust of the Review Panel’s recommendations as endorsed by the WRMC, then I would expect the whole harmonisation process would be put in jeopardy.”

Fary states: “The unions would cross that bridge if and when we get to it. Our commitment to support harmonisation has never been open ended - it has always been qualified by the proviso that there be no reduction in standards in any jurisdiction.”