Despite broad areas of consistency there remain separate
safety laws in every state and territory in Australia. In
addition, there are two statutes at the Commonwealth level, and
state-based industry specific safety laws, such as those
covering the coal mining industry in Queensland. While state
and territory OH&S laws are broadly consistent there remain
some fundamental differences that create headaches for
employers who operate across more than one state.
The Government has indicated that it will harmonise safety
laws within five years. Harmonisation is likely to mean common
standards across jurisdictions including reporting arrangements
and procedural requirements. It may lead to a model for uniform
safety laws. In an early statement of its position, the ACTU
has expressed the view that Government should selectively pick
the state safety laws, such as New South Wales' reverse
onus of proof, to create a new national standard giving the
toughest protection for employees. It has also drawn attention
to the need to improve a union's right of entry to
enter workplaces for health and safety reasons. How this
process develops in conjunction with the broader workplace
relations reform agenda will be a matter of keen interest to
employers. Comcare is not likely to be seen as the vehicle for
a national system.
As part of the new focus on safety laws the Government has
also announced the proposed terms of reference for the review
of the Comcare scheme. The review follows claims made that
Comcare is not suitable for covering employees who are not in
the traditional white collar areas. The review that was
foreshadowed in the lead up to last year's election
will look at the safety, workers compensation, consultative,
financial and access issues of the scheme. The review is
expected to be complete and a report provided to the Minister
by the end of July this year. The Government has invited
stakeholders to submit their views and recommendations. It will
also undertake national consultation with stakeholders prior to
the review finalising its recommendations.
Right of entry & safety laws
An issue that has caused a concern for employers over the
past couple of years is right of entry purportedly under safety
laws. This includes how that right is to be exercised with the
limits introduced by the Work Choice amendments to the
Workplace Relations Act 1996 (Cth) (WR
Act). A case that highlights the difficulty this can
cause is the proceedings initiated by the Australian Building
and Construction Commissioner in the Federal Magistrates Court
(Hogan v Riley & Ors CAG57/2007) that will
determine whether a head contractor breached the WR Act in
allegedly preventing CFMEU organisers from investigating a
suspected breach of OH&S laws in Canberra.
The matter arose at a construction site when the head
contractor refused to allow two CFMEU organisers to enter the
site without notice. The CFMEU organisers held right of entry
permits under the WR Act. They were also authorised
representatives under the ACT's Occupational Health
and Safety Act 1989 which allows entry to a site without
notice for the purposes of inspection where there are
reasonable grounds to suspect a contravention of the safety
laws. It is alleged that on the day the organisers sought entry
they were refused entry apparently because they had not
provided 24 hours' notice to enter the site.
The case highlights the need to understand the interaction
between a state's safety laws and the right of entry
provisions in federal legislation.
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reference and should not be relied on as a substitute for
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