Harmonisation has a benign sound. However, the reality is something entirely different. The Model Act, if not amended will become law in December 2011. The Model Act includes:
- broadening the obligation from employers to any person (can be more than one person as there will be concurrent liability) who conducts a business or undertaking and includes a duty to workers (whether employed by the person or not) who that person directs or influences. That means all persons on a site irrespective of employment;
- a due diligence requirement upon directors and senior managers to ensure the business complies with the Model Act - even if no injury has occurred;
- a massive increase in penalties and sentencing options, a removal of the right to claim privilege against self-incrimination (must tell the inspector but can't be used in prosecution against you); and
- a requirement for consultation, including with unions.
The obvious benefit of one system Australia wide is sadly undermined by the political anti-employer bent of the Model Act.
- The objects of the Model Act include the principle that workers should be given the highest level of protection. This means that every court involved in a prosecution will look at the highest standard of behaviour. The phrases "due diligence and reasonably practicable" will have a higher bar for compliance.
- The structure of the Model Act means all directors and senior employees will need a deep knowledge of OH&S just to avoid prosecution. At the same time a union official entering a site on OH&S grounds will need less skill than the factory Health and Safety Representative. How can that be right?
- Business compliance will involve a deforestation process as each level of management carefully creates paper armour against prosecution. More time will be spent learning and documenting safety - than safely producing.
The Model Act properly dispenses with the rights of unions to initiate proceedings and the reverse onus of proof found in NSW/QLD (in these jurisdictions you presently must prove you are not guilty). But the undermining of the privilege against self-incrimination, expanded union rights of entry and onerous and expensive business and officer duties are backward steps. This is the land of big government with big government friends, the unions, pulling the levers.
It is a truth that the more complex, onerous and document driven safety becomes the less safe the practice is. The Model Act was an opportunity to grow safety in our workplaces in a manner that business could embrace. Inevitably, business will now turn to the last barricades that have not been eroded - legal professional privilege.
Business will and must circle the barricades around OH&S to protect itself, its directors and employees. Hardly the result that was sought - but the inevitable result of a punitive, onerous and complex regime - that fell from Labor governments and unions lips.
Andrew Douglas is the founder, principal lawyer and managing director of Douglas Workplace & Litigation Lawyers. Andrew is an experienced commercial litigation and workplace lawyer, who acts both as a solicitor and advocate.
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