A leading workplace lawyer says the Rudd Government’s push to nationalise occupational health and safety laws is unlikely to reduce red tape and could expose companies to higher OH&S costs and penalties.
Jamie Robinson, partner at Brisbane firm Harmers Workplace Lawyers, says the push to nationalise OH&S rules has fallen short of the objective of creating a single OH&S regulatory framework. Instead, the Commonwealth and the states appear to be heading towards harmonisation rather than nationalisation, with the states unlikely to hand over control of OH&S laws to the Federal Government.
“It does seem quite clear that the states are going to hang on to the enforcement powers and the power to make regulations,” Robinson says. “We seem to be going to end up with a system where the detail is going to be different from state to state.”
Robinson fears companies that work across state borders will still have to spend time and money interpreting state regulations. “In my view, there’s definitely not going to be the cut in red tape we’d hoped for.”
Indeed, OH&S costs could rise, depending on which state regulations are adopted in the harminisation. For example, OH&S laws in NSW and Queensland allow unions greater access to worksites than other states. NSW penalties for some OH&S offences are also far greater than in other states. “We could actually find some companies exposed to higher penalties,” Robinson says.
He is also worried about the penalties courts could apply for breaches of OH&S laws. Typically, companies can claim a reduced penalty in each state for a first offence, which effectively means a company can have eight first offences across the eight states and territories. But Robinson fears courts will start taking into account previous breaches regardless of the state they occurred in. The “first offence” rule will disappear and penalties for OH&S breaches will increase. “The nationalisation of records puts increasing pressure on the courts for higher penalties.”
The one light at the end of the tunnel? Companies with good national records will be able to advertise the fact. “Whilst the changes are going to put the pressure on some employers, the good employers will take advantage and promote their OH&S records,” Robinson says.
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