One of the best summaries of the current status of the new Australian Work Health and Safety laws was published in The Australian newspaper on 27 January 2012 (not available without a subscription). Lawyers from Norton Rose, Michael Tooma, Alena Titterton and Melissa Cornell, express doubts that harmonisation of national safety laws is possible. They write:
"At this point in time, it looks unlikely that harmonisation will be achieved at any time during 2012, if it is ever achieved at all."
The question needs to be asked whether the whole harmonisation process has been waste of time of whether some good has resulted from all the effort. Prior to Christmas 2011, some legal commentators were satisfied that the harmonisation process had "lifted" several States' OHS laws to a contemporary standard but the aim of harmonisation, indeed the "promise" of harmonisation was so much more.
Australian businesses that operate over multiple jurisdictions are justified in pointing the finger of blame at the ultra-conservative business groups, lobbyists and alarmists for stifling a very promising reform. The administrative process could have been handled much better but each government had signed commitments to reform from which many are now weaseling out of. Regardless of subsequent changes of government, these commitments should have been upheld.
Tooma, Titterton and Cornell summarise by writing:
"For legislative reform that was meant to be about providing clarity to a complex area with differing standards across multiple jurisdictions, after four years of significant effort, it appears we may have been merely gifted more confusion and simply a different set of differences.
Unfortunately, we know that it is the safety of our people that will ultimately suffer when confusion over such requirements reigns."
Safety law is set to become more confusing and more complex. Increased reliance on legal advice,with the subsequent increases in business costs, is likely. However this does not necessarily mean that the management of safety is any more onerous. An employer's duty of care to workers is an established obligation that has been integrated in business standards, corporate obligations and community expectations. The social expectation that workers will not place themselves at risk of harm has substantially increased.
What has changed, if harmonisation does fail, is that safety professionals and business operators must not rely on OHS laws for change and compliance but must look to other reference points for safety compliance. There are already international safety and risk Standards that provide a framework for compliance and which have been provided some legal legitimacy through the OHS regulators. Where these are not sufficiently specific, safety organisations, such as the Safety Institute of Australia, the Institution of Occupational Safety and Health and SIWA, must show leadership.
If the Norton Rose comments are correct, it is time to ask who will reduce the confusion and who will clarify the "different set of differences"? If the reference point for lawyers is the law, what should be the reference point for safety professionals? If the OHS law reform process has fallen over, it is time for Australia's safety organisations to "piss or get off the pot".
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