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!
Thursday, November 4, 2010
Wednesday, October 27, 2010
"Common-sense" approach to safety set to lift "bureaucratic burdens"
Tuesday, 26 October 2010 1:25pm
The UK could be on the brink of shedding some of the heavy obligations applied to low-hazard workplaces, in an attempt to free employers from "unnecessary bureaucratic burdens" associated with safety obligations.
The Prime Minister's health and safety advisor, Lord Young of Graffham, who has drafted a series of "common-sense" safety recommendations, says the standing of health and safety in the eyes of the public has never been lower.
"Last year over 800,000 compensation claims were made in the UK... and there is a growing fear among business owners of having to pay out for even the most unreasonable claims," he says in the "Common sense, common safety" report.
"The incentives for claiming compensation have to change. The system must be fair and proportionate without placing an excessive financial burden on the losing party."
A key to reform is the insurance industry, says Lord Young. "Insurance companies should draw up a code of practice on health and safety for businesses and the voluntary sector. If the industry is unable to draw up such a code, then legislation should be considered."
Further, companies and personal injury lawyers should be prevented from advertising in a way that suggests people "can easily claim compensation for the most minor of incidents and even be financially rewarded once a claim is accepted".
Consultants adopt "overcautious" approach
According to Lord Young, risk-based principles contained in UK safety legislation have been "eroded" by an overly-prescriptive, compliance-driven approach.
A "climate of fear" has been compounded by health and safety consultants - many without any professional qualifications - "who have a perverse incentive to take an overzealous approach to applying the health and safety regulations", he says.
"As a consequence they employ a goal of eliminating all risk from the workplace instead of setting out the rational, proportionate approach that the Health and Safety at Work etc Act [1974] demands."
Lord Young says there should be a system of accreditation for health and safety consultants and a web-based listing for employers.
Processes should also be put in place to ensure their assessments are proportionate, he says.
Low-risk workplaces should have fewer obligations
Only about three per cent of all workplace injuries in Great Britain involve offices, and no office workers died as a result of accidents at work in 2009, says Lord Young.
Even so, low-hazard workplaces are obliged to carry out the same written risk assessments as high-hazard workplaces.
The UK should take the lead in ensuring EU health and safety rules for low-risk businesses "are not overly prescriptive, are proportionate and do not attempt to achieve the elimination of all risk", he says.
Further, employers should be exempt from conducting "unnecessary and intrusive" risk assessments for employees working from home in a low-hazard environment.
Self-employed people in low-hazard businesses should also be exempt from conducting risk assessments, he says.
Welcoming Lord Young's report, the Prime Minister said "good, straightforward legislation designed to protect people from major hazards" was all too often "extended inappropriately".
"We simply cannot go on like this," he said, pledging to carry out all of the recommendations.
Well this would be a welcome certainly to SME with low risk within Australia. Let's hope it catches on very quickly and we can get back to managing risk in a practical manner and not through the administrative wonderland which is what has been created.
The UK could be on the brink of shedding some of the heavy obligations applied to low-hazard workplaces, in an attempt to free employers from "unnecessary bureaucratic burdens" associated with safety obligations.
The Prime Minister's health and safety advisor, Lord Young of Graffham, who has drafted a series of "common-sense" safety recommendations, says the standing of health and safety in the eyes of the public has never been lower.
"Last year over 800,000 compensation claims were made in the UK... and there is a growing fear among business owners of having to pay out for even the most unreasonable claims," he says in the "Common sense, common safety" report.
"The incentives for claiming compensation have to change. The system must be fair and proportionate without placing an excessive financial burden on the losing party."
A key to reform is the insurance industry, says Lord Young. "Insurance companies should draw up a code of practice on health and safety for businesses and the voluntary sector. If the industry is unable to draw up such a code, then legislation should be considered."
Further, companies and personal injury lawyers should be prevented from advertising in a way that suggests people "can easily claim compensation for the most minor of incidents and even be financially rewarded once a claim is accepted".
Consultants adopt "overcautious" approach
According to Lord Young, risk-based principles contained in UK safety legislation have been "eroded" by an overly-prescriptive, compliance-driven approach.
A "climate of fear" has been compounded by health and safety consultants - many without any professional qualifications - "who have a perverse incentive to take an overzealous approach to applying the health and safety regulations", he says.
"As a consequence they employ a goal of eliminating all risk from the workplace instead of setting out the rational, proportionate approach that the Health and Safety at Work etc Act [1974] demands."
Lord Young says there should be a system of accreditation for health and safety consultants and a web-based listing for employers.
Processes should also be put in place to ensure their assessments are proportionate, he says.
Low-risk workplaces should have fewer obligations
Only about three per cent of all workplace injuries in Great Britain involve offices, and no office workers died as a result of accidents at work in 2009, says Lord Young.
Even so, low-hazard workplaces are obliged to carry out the same written risk assessments as high-hazard workplaces.
The UK should take the lead in ensuring EU health and safety rules for low-risk businesses "are not overly prescriptive, are proportionate and do not attempt to achieve the elimination of all risk", he says.
Further, employers should be exempt from conducting "unnecessary and intrusive" risk assessments for employees working from home in a low-hazard environment.
Self-employed people in low-hazard businesses should also be exempt from conducting risk assessments, he says.
Welcoming Lord Young's report, the Prime Minister said "good, straightforward legislation designed to protect people from major hazards" was all too often "extended inappropriately".
"We simply cannot go on like this," he said, pledging to carry out all of the recommendations.
Well this would be a welcome certainly to SME with low risk within Australia. Let's hope it catches on very quickly and we can get back to managing risk in a practical manner and not through the administrative wonderland which is what has been created.
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