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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.

Unscrambling Gillard's OHS hash

Tuesday, November 13, 2012

The Gillard government's attempts to harmonise Australia's work safety laws continues to crash around them. Even in South Australia, where the ALP holds government the failure is complete.

In late October, the South Australian parliament passed new OHS laws allegedly based around Gillard's harmonised model. But amendments made to the SA Labor government bill has resulted in a vastly different piece of legislation. It needs to be different. I last discussed the collapse of the harmonised OHS process late last year (The business of OHS disharmony) a process which has continued in gridlock since then.

Key problems with the Gillard model include the fact that people who do not control work situations can arguably be prosecuted and convicted over OHS incidents. I've explained in detail before, why tying OHS responsibility and liability to 'control' is so important.

The new SA Act, incorporates 'control' stating, "A person must comply ... (with safety responsibilities) ...to the extent to which the person has the capacity to influence and control the matter..." This is an important correction to the Gillard harmonised model.

Also significant is that the SA act secures the right to silence. OHS law is a form of criminal law. Surprisingly the Gillard model denies this normal right to criminal justice.

Further, union entry rights have also been restricted in SA in comparison to the model OHS law.

SA has also removed the risk of volunteers being prosecuted. Volunteers' exposure blew up as an issue early this year following a Scout Association memo in New South Wales. Analysis I wrote for Business Spectator earlier this year (OHS law tied in knots) clearly showed the Gillard OHS law exposes volunteers to prosecution in a way not seen before.

This package of SA amendments (summarised and referenced here) makes common sense. However it means that SA has not implemented Gillard's harmonised OHS push. In fact, the SA laws now look more like the Victorian OHS laws rather than the harmonised laws. (Victoria is not implementing the harmonised laws.)

An interesting question is whether Gillard will deny SA the cash (some call it a bribe!) it's promised state governments who implement her model laws?

But SA has gone even further. The development of the codes of conduct that are to accompany the harmonised laws have been bogged down in controversy. This has happened because of the impracticality and excessive prescriptive detail contained in the codes. Much of this comes from the fact that in lacking a structure around 'control' the model harmonised law sends confusing signals to code framers. This results in drafters believing they must be highly prescriptive. SA has in part fixed this because with 'control' inserted, codes can be drafted knowing that people at work are required by statute to exercise higher judgment, therefore requiring less prescription.

SA is reinforcing this by inserting into its act that the SA small business commissioner has an oversight role on the approval of codes. Given that some 96 percent of businesses are small (one to seven people working in them) this legislative structure is a welcome initiative. It will force code developers to consider the practical, small business realities of work as the starting point for code design. If they don't the small business commissioner will seek changes. I'd suggest that several of the codes already drafted will need major review as a consequence.

It's impressive that SA, a Labor, state has shown a lead. But it happened because the Upper House in SA is not controlled by the government. A combination of Liberals, Family First and independents (headed on this issue by John Darley MP) negotiated the changes described above. There's more that's needed, namely clarifying what a 'person conducting a business or undertaking' means under the act. This continues as a major flaw in the model harmonised laws. Hopefully it's an issue that will be considered in the SA review of the act required in 2014.

The SA departure from Gillard's OHS agenda further cements that the type of harmonisation pushed by Gillard is dead. The Commonwealth, Northern Territory, Queensland and New South Wales have implemented Gillard's laws. Victoria, Western Australia, Tasmania and now South Australia have rejected the laws.

But expect step back to occur. Both Queensland and the Northern Territory are not happy with Gillard's OHS model and are reviewing and considering their positions. There's a strong possibility of major amendments perhaps even repeal in both those jurisdictions. Who says eggs can't be unscrambled!

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