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From the Desk of the Executive Director

Ken Phillips is co-founder and Executive Director of Independent Contractors of Australia. He is a published authority on independent contractor issues and directs research on related commercial and trade practices issues. Through his numerous articles in newspapers and think-tank and academic journals, Ken is known for approaching issues from outside normal perspectives and is frequently sought out for media comment.

OHS law tied in knots

Tuesday, January 17, 2012

There's no doubt there's a significant battle occurring over national harmonisation of occupational health and safety laws. I've written extensively over why the laws are badly flawed, almost dangerous. But now the Scouting Association of New South Wales has blown the lid on the laws in a memo they've just released to their volunteer leaders.

The scouts have not criticised the laws but rather explained to their volunteers the implications and new policies that must be followed. What they explain applies to every volunteer in every church, sporting and Rotary club, environmental group and so on. It's not an overreaction to say that the result could well be the gutting of volunteer community work in Australia.

The problem has risen because the new laws are structurally different to what has been in place for many decades. Until now, OHS responsibility existed between businesses and the people who worked in them. But the framers of the harmonised laws have invented a new concept, that of a 'Person Conducting a Business or Undertaking' (PCBU). It's unclear and untested at law as to what this precisely means. In fact, the legislation defines a PCBU as a 'PCBU'. No help there!

The scouts have explained the practical outcome, however. For them, the number of NSW 'workers' for whom they are now responsible has grown overnight from 40 (the number of employees) to 7,000 (employees plus volunteers). The number of workplaces has gone from 16 to 700. I'd expect that this has been a bit of a shock to them.

Their memo explains that scout headquarters has had to quickly put in place new processes and procedures to comply with the new laws. If they had not done this they would be liable in the event of a safety incident. Scouts have always been safety conscious but they haven't had the broadened liability they now have under the harmonised OHS laws. Activities that were once considered at law to be private activities have now been caught within the new OHS laws.

The outcome is that every game scouts play in their local hall must be vetted and authorised as safe. Camping and bushwalking activities likewise must have declared work safe procedures suitably checked and documented. This creates a liability way outside of the traditional idea of the employer-worker situation that OHS sought to regulate.

In effect, every volunteer scout leader and all parents on the local scout committee are now expected to have the same OHS expertise and resources required of a senior manager at BHP or some other corporate giant.

But here's the real rub. The volunteer leaders can now be held responsible if something goes wrong. The Scouting Association's memo states that volunteers will be defended and covered by the Scout Association if the volunteers follow Association policies and procedures. But it also says that, "If you (a volunteer) do not follow directives, policies and procedures, you may be fined." That is, a volunteer can face personal prosecution and conviction by OHS authorities resulting from their community work.

What the memo doesn't tell its members is that OHS prosecutions are criminal in nature and that the new laws remove their right to silence, a right normally available to them under standard criminal law.

The memo also doesn't cover the tricky question of whether the volunteers can be held liable for safety incidents over which they had no control. Say a scout hall caught fire while a scout meeting was in session. The new OHS laws have left open the question as to whether a 'responsible party', whoever that might be, could be prosecuted even if they had no control over the circumstances. Volunteers are exposed. I've explained this core design problem extensively in the past.

In response to this explanation, I can almost hear the Gillard government claiming this is nonsense and that volunteers have nothing to worry about with the proposed laws. But tell that to the Scout Association. They've presumably had good legal advice and on the basis of their memo, they are worried. They are not overreacting.

Further, legislation means what it says and if it's badly designed and written, the warm assurances of politicians looking after their political ambitions will not change the facts of the law.

The facts are that this new OHS law is fundamentally flawed. It's bad law, so bad it has the capacity to near destroy the willingness of Australians to be involved in their communities as volunteers. It needs to be fixed, and urgently.
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