New OHS laws ‘under a cloud’


NSW's threat to withdraw from national OHS law harmonisation could have wide sweeping implications for employers, according to safety experts.

Employers attending the Safety Show in Sydney will be brought up to date with the proposed changes at free harmonization workshops.

NSW Premier Kristina Keneally says NSW will “go it alone” unless unions retain the right to prosecute employers for work safety breaches and that the onus of proof remains on employers to show they exercised due care.

Safety Show, lawyer and Deacons Partner, Michael Tooma says Ms Keneally’s comments highlight the "inherent vulnerability in the model adopted for harmonisation which requires each state and territory to introduce laws consistent with the model".

Prime Minister Julian Gillard said earlier this year the harmonisation of OHS laws would be among her greatest political achievements.

“With WA and NSW now opting out of the process for opposite reasons, this 'mission accomplished' declaration may seem premature in hindsight," Mr Tooma says.

"The current regulatory framework adopted for harmonisation is at the mercy of every change of policy direction by a state or territory government as has occurred in this case or indeed a change of government as occurred in WA during the harmonisation process which lead to that state opting out of the reforms. The so called 'jurisdictional notes' in the Model Act and the intergovernmental agreement allow a great deal of wiggle room for governments seeking to put their own policy spin on the 'harmonised laws'."

The Safety Show's principal sponsor, WorkCover NSW, will also host workshops on harmonisation during The Safety Show Sydney.

The topic will be discussed in more detail at The Safety Conference, to be held by the Safety Institute of Australia concurrently with The Safety Show.

Conference speaker and general manager (workplace solutions) of the NSW Business Chamber, Greg Pattison said he hoped NSW’s decision was not “a fatal blow to the harmonisation process."

"The two issues which the unions hold dear are also critical for employers as they go to the fairness and credibility of the system, Mr Pattison said.

 "I expect there will be a resolution and harmonisation will proceed with NSW as part of the process.  The system will be under scrutiny once it starts in 2012 – employers will be looking to see if it does deliver on the promise.

"The real test will be whether or not the harmonised laws are translated into consistent action across jurisdictions. Will regulators go about their task consistently, will the courts interpret the legislation the same way, and will breaches be treated in broadly the same way and result in comparable penalties?

"If the answers to those questions show unacceptable levels of divergence, it seems almost inevitable the value of harmonisation will come under question and the credibility of the new system will be substantially undermined."

The Safety Show and Sydney Materials Handling will run during Safe Work Australia Week at the Sydney Showground from October 26 to 28.

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