NECA concerned over government's OHS review

NECA, through its NSW chapter, is to make formal written submissions to the review panel established by the Australian government to examine how to harmonise Australia’s OHS laws.

The review panel has released an issues paper to assist people in the preparation of their submissions, as well as releasing 152 questions for interested parties to respond to as part of the submission process.

According to James Tinslay, chief executive officer of NECA National Office, while NECA considers there are a number of areas of the legislation requiring review and standardisation, the association is most concerned that the review panel will simply follow the NSW legislation and use it as a template for harmonisation purposes.

“NECA’s primary concerns relate to duties of care including the scope and limits of duties and the nature and structure of offences and defences,” Tinslay said. “The risk for industry is that the provisions of the NSW legislation will be taken up across the board when, in fact, they should be substantially redrafted to give effect to operational reality while ensuring that the overriding concept of safe workplaces is maintained.

“Three aspects of the NSW legislation illustrate the point. The first relates to the power of the unions in prosecution matters. In NSW, there is a unique right of unions to mount their own prosecutions against employers who fail to meet legislative requirements. Any accident, no matter how small, is in effect conclusive evidence that the employer failed under Section 8 to ‘ensure the health, safety and welfare at work of all the employees of the employer’.

“A win in the courts means the union prosecutor not only recovers from the employer reasonable costs for running their case, but the union also shares in the proceeds of the substantial fines imposed on the employer. A loss is expensive and the retention of the absolute duty for employers to ensure the safety of the worker is vital for any union that might contemplate a prosecution.

“The second fundamental issue relates to the need to embrace the internationally accepted principles of risk management right at the outset. All risk cannot be eliminated and the employer’s duty must include the term ‘as far as is reasonably practicable’ to reflect this fact.

“The third aspect is that the absolute duty imposed on the employer and other duty holders stops the regulator from agreeing to deem-to-comply codes and guidelines. In jurisdictions where it is permitted, such codes or guidelines can be developed for an activity or industry. They are incredibly useful in creating certainty for a business and the benefits can be likened to those derived from using the AS/NZS 3000 wiring rules when undertaking electrical installation work.

“The above, and a range of other provisions of the NSW legislation, do not provide a higher standard of safety than other jurisdictions, so why should the NSW legislation be the template for a national approach to harmonisation that adds massive cost and difficulty to the fundamental issue of workplace safety.”

NECA will argue in its submission that these and similar provisions should not have any place in any new legislative regime for occupational health and safety at workplaces in Australia.