- The Federal Government's review into the Commonwealth, State and Territory occupational health and safety laws, aimed at attempting to achieve a harmonised system within five years, is well under way.
On 4 April 2008 the Minister for Employment and Workplace Relations, the Honourable Julia Gillard, announced the commencement of a national review into model occupational health and safety (OHS) laws. A three party panel was appointed to make recommendations on the optimal structure and content of a model OHS Act capable of being adopted in all jurisdictions.
On 30 May 2008, the panel released an issues paper to assist interested parties in making submissions, based on its review of State, Territory and Commonwealth OHS legislation.
Submissions, due by 11 July 2008, are intended to assist the panel in making recommendations to the Workplace Relations Ministers' Council (WRMC) on the optimal structure and content of a model OHS Act.
The Government hopes that within a five year period, all States and Territories will have adopted the harmonised legislation.
Terms of reference of review
All Australian governments have taken a broadly similar approach to workplace safety laws. Despite this commonality there remain differences between jurisdictions as to the form, detail and substantive matters in OHS legislation, particularly in regard to who are duty holders, the nature of their duties, defence mechanisms and compliance regimes, including penalties.
The panel's Terms of Reference note that the Australian government has committed to work cooperatively with State and Territory governments to achieve harmonised OHS legislation within five years. The model legislation will consist of a model principal OHS Act, supported by model regulations and model codes of practice that can be readily adopted in each jurisdiction.
The timetable for the review and subsequent steps is:
- submissions from interested parties to the panel by 11 July 2008;
- report and recommendations provided to the WRMC on priority areas of duties of care and the nature and structure of offences by 31 October 2008; and
- report and recommendations provided to the WRMC on remaining matters by 30 January 2009.
The Council of Australian Governments (COAG) has committed to releasing a model OHS exposure draft and regulatory impact statement in March 2009 and to submit a model OHS Act to the WRMC by September 2009.
At its 23 May 2008 meeting the WRMC endorsed a governance framework for a uniform national workplace relations system which provides, among other things, that:
- States will be able to elect if and how they opt into the national system, by example by full referral of powers, text based referral, mirror legislation and/or harmonisation; and
- all governments will "commit to developing a governance arrangement to deal with any proposal to amend legislation after 1 January 2010 when the new workplace relations system commences operation".
The Federal Government has shown it is serious about the harmonisation plan by committing $27 million dollars to the reforms over four years in the 2008/09 Federal budget.
The panel is confident that the task can be completed within the timeframe with the Panel's Chairman, Mr Robin Stewart-Crompton stating "Our task is substantial, but we are confident that with continuing strong tripartite support we will meet the deadlines."
The final step, of course, relies on the States and Territories to adopt the model legislation and associated regulations and guidelines for education and enforcement, and potentially, range of penalty.
What are the arguments for uniformity?
Despite commonality of approach to OHS legislation there remains a lack of uniformity between the States, Territories and Commonwealth in relation to OHS laws, particularly in respect to sanctions and enforcement. Furthermore, there are currently ten principal pieces of OHS legislation in Australia and multiple workers' compensation schemes.
Some of the arguments for uniformity were set out in the Productivity Commission's 2004 Report into OHS entitled "National Workers Compensation and Occupational Health and Safety Framework", which recommended that national uniformity in OHS regulation should be established as a matter of priority. The report identified as significant difficulties, including:
- the number of issues with the national scheme, including the significant compliance costs imposed on multi-state employers due to the multiple schemes and administration of those schemes;
- the risk that workers working temporarily interstate may not be covered;
- the different penalties attaching to breaches of OHS laws in different jurisdictions;
- differing benefit schedules as among jurisdictions;
- different penalties attaching to breaches of OHS laws in different jurisdictions; and
- different rehabilitation and return-to-work requirements from scheme to scheme.
The harmonisation of OHS laws in Australia has been recognised by COAG, the Productivity Commission and the States, Territories and Commonwealth as an important step forward. When introducing the Review, the Minister stated that a national OHS system would "cut red tape, boost business efficiency and provide greater certainty and protections for all workplace parties". Given that there are a multitude of differences between the ten schemes, it will be interesting to see what the review recommends as a best practice approach for the national scheme.
While the Government has committed Australia to harmonisation of current OHS regulation, it is not clear however, whether or not OHS benchmarks are likely to be raised in any future national model. There are significant jurisdictional differences in respect to penalties for breach of OHS legislation, education and enforcement, and there is no direct correlation between range of penalties and safety performance.
Currently the OHS penalty regimes range from $180,000 in Tasmania up to $1,020,780 in Victoria. Indeed, one of the principles of the review is that to ensure that there be no reduction or compromise in standards for legitimate safety concerns when developing harmonised OHS legislation. While the panel's report has been careful to distinguish between size of penalty and safety standards and outcomes, many commentators suggest that a high watermark of regulation may be chosen and may be reflected throughout other states and territories.
The opt-in harmonisation model also allows for jurisdictional variation in the regulations that are adopted, in how the courts of each jurisdiction will interpret the local version of the model laws, and in how the local inspectorate will interpret and apply the laws according to its own education and enforcement policy. Each creates the potential for the administrative savings of such a model to be lost.
A lack of uniformity between jurisdictions is said to have imposed significant compliance costs on employers. It is not clear however that the proposed harmonisation model for a national scheme will increase uniformity and hence reduce costs or standardise the range or nature of potential penalties. Submissions are due by 11 July 2008.
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