AGREEMENT FOR NATIONAL OHS FRAMEWORK

Thursday, 28 May 2009

Austraia will move to a national system of workplace safety laws after a recent meeting of state and territory governments agreed to harmonise their laws.

Participating state Ministers released a communique which said the changes would "address the disparate and inconsistent OHS laws across jurisdictions".

They agreed to a framework for uniform OHS laws including placing the onus of proof for alleged OHS breaches onto prosecutors (the reverse applies in NSW) and will require employers to do everything ‘reasonably practicable’ to ensure safety.

Business groups say the decision finally paves the way for the development of a genuinely national workplace safety system. They argued that safety is too important to have rules rewritten in every state, a situation that also makes compliance too costly.

According to business groups the decision to agree on the content of the Model OHS Act was welcomed because the current ‘raft of overlapping OHS laws, standards and requirements' result in ‘inefficiency, complexity and uncertainty and above all sub-optimal safety and health performance'.

Unions have criticised the changes saying that health and safety standards would go backwards without unions being able to prosecute for breaches of health and safety laws.

They say they are concerned that some of the rights and powers of union representatives and health and safety officials will be reduced under the recommendations.

Safe Work Australia will commence drafting the model OHS laws in accordance with the decision reached by the ministers.

Overall, the provisions that will be included in the model OHS Act will lead to enhanced safety protections for Australian employees and greater certainty for employers.

The ministers considered and responded to the recommendations of the National Review into Model OHS Laws and in so doing, decided on the optimal structure and content of a model OHS Act to be adopted by the Commonwealth, state and territory governments.

The model OHS Act will;

• include enhanced duty of care provisions so that all persons who conduct a business or undertaking will owe a duty of care to all workers and other persons. This will ensure that OHS legislation applies to all hazards and risks arising from the conduct of work.

• maintain that breaches of duties of care are criminal offences to reflect the seriousness of non-compliance with a duty of care and will provide for significant penalties in OHS legislation.

• recognise the importance of consultation in securing safe workplaces and provide for consultation obligations on the person conducting the business or undertaking

• provide protections from discrimination, victimisation and coercion over OHS matters which will go beyond what is currently available through anti-discrimination and other laws.

Key decisions reached during the meeting included:

o Prosecutors will have the onus of proof rather than employers.

o Business operators have a duty of care to do everything that is ‘reasonably practicable’ to ensure a safe workplace and workers will also have a duty to take care of their own safety.

o Union right-of-entry rules will be aligned with the new Fair Work laws, whereby union representatives must give 24 hours notice to enter a workplace on OHS business and must be qualified in OHS.

o OHS representatives will be able to order the cessation of work if there is an immediate threat to health and safety.

o Union prosecutions will be banned.

o Prosecutions can be appealed at the High Court.

The communiqué and the minister’s response to all 232 recommendations of the National Review into Model OHS Laws can be accessed through the Safe Work Australia (www.safeworkaustralia.gov.au ) or the TMA.

The proposed changes backed the Victorian model of occupational health and safety laws which will provide the building blocks for the new national scheme.

NSW Finance Minister Joe Tripodi has said the progress made towards national harmonisation in the latest meeting was ‘historic’ but would come ‘at a cost’ because ‘key’ state laws would not be retained as the basis for national legislation.

He described as ‘important’ the retention of unions’ right of entry and said he was ‘disappointed’ that other states did not adopt the NSW laws which allow unions to prosecute breaches of OHS legislation.

NSW also failed to convince the other states that an altered reverse onus of proof on employers should be adopted nationally.

'We attempted to retain this key aspect of the NSW legislation by offering a compromise where reverse onus would only apply to corporations but this was rejected by the majority of jurisdictions,' he said.

Despite these concessions, Tripodi said the NSW Government was still committed to OHS harmonisation.

West Australian Treasurer Troy Buswell said that while Western Australia remained committed to harmonisation, it reserved the right to ‘withdraw’ from a national OHS system and would not commit to the system proposed.

He disagrees with the use of conciliation to resolve OHS issues, the onus of proof for discrimination claims, the level of penalties and union right-of-entry rules.

Decisions on this issue were made in accordance with the historic Inter-Governmental Agreement for OHS Reform. The Inter-Governmental Agreement expresses the commitment of all governments to work together to harmonise OHS legislation, including through agreed procedural and voting arrangements. These provide that decisions on the Review recommendations can be carried by a two thirds majority of members.