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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