: OHS Harmonisation: the more things change, the more they stay the same

OHS Harmonisation: the more things change, the more they stay the same

Eric Windholz
Federal

Recent amendments to Queensland’s occupational health and safety (‘OHS’) laws are yet another hesitant step in the faltering process towards OHS harmonisation.

1 January 2012 was the date by which all Australian jurisdictions agreed to introduce uniform OHS laws. This was to be achieved by each jurisdiction enacting identical model legislation. Four years after the January 2012 deadline, however, and the goal of uniformity remains as elusive as ever.

Two jurisdictions are yet to enact the harmonised OHS laws (Victoria and Western Australia) and, of those that have, a number introduced state-specific variations in response to local stakeholder demands. For example, the New South Wales parliament responded to the concerns of unions and others by including union right to prosecute provisions; the Australian Capital Territory responded to union concerns and retained its asbestos and hazardous chemicals regulations in preference to those contained in the model laws; the South Australian government responded to business concerns by ‘clarifying’ the primary duty of care, modifying union right of entry powers, and preserving a person’s right to silence and protection from self-incrimination.

 

The Queensland LNP government had also responded to business concerns and deviated from the model laws by removing the right of health and safety representatives (‘HSR’) to direct the cessation of unsafe work, and requiring HSRs and union officials to give 24 hours’ notice before a person can enter a site to address OHS issues. These deviations were reversed by the recent amendments introduced by the Queensland ALP government, which amendments were part of the ALP’s election commitment made in response to union concerns.

For all the effort that went into developing the model OHS laws — they were many years and millions of dollars in the making — the result is greater consistency, not uniformity. One set of differences has been replaced by another set of differences. Moreover, the ‘harmonised’ regime remains vulnerable to the pressure which local stakeholders can bring upon responsive state legislatures. Calls for a federal takeover of the area are already being heard.

That this is the case, however, should not come as a surprise. OHS is an issue on which employers and unions have competing interests and significant ideological differences. The existence of two tiers of government involved in setting OHS policy creates the opportunity for them to re-litigate at the state level aspects of national agreements with which they disagree.

Whether this is a good or bad thing is also a matter about which there are significant ideological differences. For advocates of strong central government and uniformity, OHS harmonisation’s limitations evidence the weaknesses of our federal system — one in which local interests and parochial state governments undermine the pursuit of the national interest. However, for proponents of a robust federal system, the status of Australia’s harmonised OHS laws is a product of Australia’s federal system working as intended, one that is: flexible and adaptive to changing needs and circumstances; values choice, diversity and responsiveness; and creates multiple points at which people can access and influence it.

ERIC WINDHOLZ teaches law at Monash University.

(2015) 40(4) AltLJ 284
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