Tuesday 26 October, 2010
With the NSW Government indicating that it will not support the existing model Work Health and Safety Act, OHS harmonisation in its current form “is dead in the water”, according to OHS legal expert Michael Tooma.
NSW Premier Kristina Keneally recently said she would only support a national OHS regime if it allowed unions to retain the right to prosecute employers for work safety breaches and that the onus of proof remain on employers to show they exercised due care.
These are two key issues that have driven OHS reform in the first place, according to Tooma, who heads up the national OHS practice of law firm Norton Rose.
There can be no harmonisation across Australia if NSW and WA have opted out of the reforms, he said.
“There isn’t going to be consistency across the board. This is something that the business community has been lobbying for, for about three decades. It’s quite a significant blow to the reform agenda,” said Tooma, who was speaking during a boardroom radio broadcast.
Tooma added that the process for delivering harmonisation has been flawed from the outset.
“It’s always been vulnerable to precisely these developments – people changing their minds, opting in or out of the regime – despite the appearance of delivering uniformity in legislation.”
However, he said the federal government had the option right at the outset – and still does – to introduce one set of federal OHS laws across Australia by using its external affairs power and corporations power, as set out in the constitution.
“I call on the federal government to rescue the process of harmonisation to deliver on the benefits promised to the business community through the reforms in this area, by introducing in the federal parliament, federal laws that cover the field that reflect the model that has been agreed to by the states and territories in this area,” Tooma said.
“It’s the only way you deliver lasting, stable reform in relation to occupational health and safety.”
Tooma said he can’t see Premier Keneally backing down at this stage, so the only thing that would change NSW’s position is a change of government.
“I’m not entirely sure that the existing model can deliver harmonised OHS laws that withstand the tests of change of government and change of policy,” he said.
“I’m afraid I’m a pessimist and I think the whole process is doomed to failure,” said Tooma, who noted that there were numerous precedents for failed attempts to introduce national model laws in other areas.
“I hope that I’m wrong on this issue, I hope that despite what appears to be a fatal flaw in the model, that is pulls through and we have harmonisation,” said Tooma.
“But I’m afraid that it doesn’t look good for harmonisation.”
Interesting times ahead!
