Staving off an OHS catastrophe?

By: Robert Gottliebsen

Source: Business Spectator

Bad drafting by inexperienced Canberra public servants, which was not picked up by politicians, is causing chaos in Australia's drive to have uniform occupational health and safety rules. The wording in the proposed Commonwealth uniform laws is so bad that it threatens Australian volunteers, ranging from scouts to football administrators (OHS law tied in knots, January 17).

Fortunately wiser heads in Victoria, WA, South Australia and Tasmania have blocked the badly worded legislation and the Queensland opposition will amend the Sunshine State's legislation (which has passed) if it gets to power. That would leave NSW as the only state caught by Canberra's mistake.

Prime Minister Julia Gillard is threatening to withhold large sums from the states if they do not follow what I believe is bad Commonwealth legislation. States like WA and Victoria, plus the Queensland opposition, realise that the amounts the Commonwealth is offering are small compared to the dangers the Commonwealth proposal poses to their employment and volunteers.

I want to emphasise that the Commonwealth legislation has many defenders and when I first alerted Australia to the danger (Saying no to Canberra's IR dopes, May 23), I received counter views (A mockery of IR reason, June 2).

Because, in my view, only small changes are required to the Commonwealth wording, it is possible we will get uniform rules via state-driven legislation in all states with the possible exception of NSW, where the Shooters Party has already amended the Commonwealth legislation to allow unions to prosecute employers.

The new NSW government approved the Commonwealth legislation before the drafting mistakes were picked up and even with the drafting errors and the Shooters' amendment, it was better than what NSW had previously. However, most other states have good legislation, although everyone wants uniform legislation.

The Commonwealth public servants plus their academic advisers have limited knowledge about how the business and voluntary communities work.

Yet liability in OHS is fairly straightforward. International occupational health and safety rules are well established, with most legislation based on the UK principle that responsibility for safety is allocated according to what is 'reasonable and practicable to control'. According to the rules in the states (apart from NSW), if you were in control of a business situation then you were responsible for mistakes in occupational health and safety.

So what did the Commonwealth do? They chose a set of words with no proven local or international meaning which will add uncertainty to occupational health and safety for a decade while it is fought in the courts. The Commonwealth's proposed uniform legislation says liability rests with those who have the "capacity to influence the outcome." And it applies to a business and an 'undertaking'.

Arguably a person conducting a business or undertaking who has let a building contract might have the "capacity to influence the outcome" even though they might be in another state or country with no control. And the word 'undertaking'means volunteers may be caught in the net.

Just how "capacity to influence the outcome" squares with control is anyone's guess, but it is a recipe for long court cases and lower productivity.

There is another problem in the Commonwealth proposal. In all states, prosecutions under OHS laws are criminal matters and are treated as such. Under normal criminal law everyone has the right to silence and protection from self-incrimination. That is, you cannot be forced to say something to the police unless there is a court order and accordingly you have a right to silence.

The Commonwealth removed the so-called 'silence protection' in OHS even though it is available to all others accused of criminal behaviour, including those accused of murder.

The states are much closer to the business and voluntary body action than the public servants in Canberra and most have woken up to how dangerous the legislation is. In Tasmania and South Australia, the Labor governments have been blocked in the upper house while Victoria is using outsiders to examine the damage likely to the state's businesses and volunteers. WA believes it's another case of Canberra not understating their state, but they will be watching the Victorian inquiry closely.