OHS harmonisation "dead", as NSW opts out

Thursday, 14 October 2010 11:05am

The harmonisation of OHS laws could be dead in the water, with NSW on the verge of withdrawing from the process.

In an astonishing move, NSW Premier Kristina Keneally has told Prime Minister Julia Gillard that NSW would only implement the proposed Commonwealth Work Health and Safety Act if it could retain union-led prosecutions and reverse onus of proof laws.

The NSW Government agreed in December last year to adopt the model Act, without these provisions.

But Keneally said that as "modern safety laws focus on employers identifying and controlling the risks in their workplace", and recognising that they should "know the risks better than anyone", it was "entirely fair" that the onus should be on them "to prove what is and isn't reasonably practicable" in the event of a safety prosecution.

She also said the right of unions to initiate prosecutions, which had been in place in NSW since 1943, "provided workers with an important avenue of redress".

"NSW has the highest standards in safety in our workplaces and we won't compromise on that," Keneally said.

High-profile OHS lawyer Michael Tooma said harmonisation "in its present form is dead".

Tooma, who has in the past expressed doubts that harmonisation would succeed, said Keneally's move highlighted the "inherent vulnerability" of the model Act adopted.

"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 [and] in Western Australia [following a change of government]," he said.

"The Federal Government must intervene to rescue harmonisation by introducing Federal legislation covering the field on this critical issue.

"We must abandon this inherently unstable approach of relying on model legislation. The Federal Government has the power to do this. It must show leadership on this issue."

Keneally swayed by "minor matters": McCallum

Labour-law expert Professor Ron McCallum told OHS Alert that it would be a "great pity" if NSW reneged on its commitment to enact the model Act based on two "rather minor matters".

McCallum, of Sydney University, said that while he approved of NSW's reverse-onus provision, it "doesn't make a difference in most cases".

He also said "there are mechanisms in the Federal law which allow for calls to review any decision [by a regulator] not to prosecute" an employer for an alleged safety breach.

But all is not lost, according to McCallum. He said he "would hope" that if the NSW Labor Government didn't pass the Act, the Opposition would if - as is widely expected - it won the State election in March next year.

"Harmonisation will help both employers and workers have a safer environment," he said.

Prime Minister Julia Gillard in July described the harmonisation of OHS laws as one of the most important reforms she "delivered" in her three years as Federal Workplace Relations Minister.

In June, OHS academic Neil Foster opined that it was "entirely possible that between now and the end of 2011 some or all of the jurisdictions who have signed on to the process will lose the political will to carry it through".