What is Wrong With Harmonisation of WHS Laws

The following is an excerpt from a paper written on the problems with the Harmonisation Laws. 

Contrary to the rhetoric we hear from Model OHS Law proponents, the Model, its regulations, codes of practice and the guildelines add up to an incredible amount of material to be digested.  The Model OHS Laws are, in short, unknowable.

HARMONISATION AS A “GOOD”

The Model OHS laws have sacrificed fundamental rights and liberties on the alter of workplace safety for nothing more than the less than convincing goal of harmonisation. It is not as if every Australian State and Territory did not have existing workplace safety laws.   Indeed, to a greater or lessor extent all the existing laws were based on the 1972 Robens Report and therefore already had many fundamental similarities.

Many of the Model OHS Law’s advocates have used the politics of fear along with the untested presumption that the harmonisation of law in a federation is a “good” in and of itself. In my view, this is nothing more than a disingenuous, if not a mischievous disguise to disarm  otherwise right thinking people to accept truly Draconian law without justification.

At the risk of being cynical, harmonisation has become the new political euphemism for “central government – Plan B”.

If you can’t control everything directly from Canberra (Plan A) because that pesky Constitution keeps getting in the way or you just can’t afford it, then move to Plan B. Attempt to make an offer to the States and  Territories which they cannot refuse and call it harmonisation.

Lets be clear from the outset, harmonisation does not mean national or uniform law across Australia. In a federal system such as Australia’s, the various areas of law making responsibility are set out in a constitution which, in the case of Australia, specifically gives powers to the Commonwealth leaving the balance of powers to the  States. Under such political conditions, harmonisation has become a euphemism for incentivising the States to do what the Federal Government thinks is best policy in an area of law making that the Constitution does not otherwise allow them into. 

The options for Federal governments in such situations are difficult.   If all States agreed, they could collectively refer their powers on the issue to the Federal government, a course rarely taken. If the Federal government thought strongly enough about the need for a national approach to the issue at hand, they could attempt to claim the power under one of the provisions of the Constitution as was done in the case of the Howard Coalition government industrial relations legislation in 2005.

However, that option would probably mean protracted High Court litigation with the States, or at least some of them, in order to enforce their claim. In either option, (if successful) the responsibility for administering the law in the chosen area then falls to the Federal government. That, of course, means the Federal government also picks up the tab for the financial cost of administering that law.

No doubt the Federal Government would deduct such costs from the States annual financial grants, but nevertheless they would still have to set up another Federal government department with all the necessary resources to administer and enforce the law.

As the law becomes Federal law, that would also place an additional strain on the Federal courts and as the offences under the Model laws are criminal, there would be the additional burden and budgeting for jury trials for the hundreds of prosecutions currently brought by the States and Territories across Australia every year.

You might think that that is a burden the Federal government is not willing to take on and clearly you would be right. So, in my opinion the concept of Harmonisation was invented by the Canberra spin doctors and, in the case of the Model OHS Laws, the Labor State governments of the day fell into line. Of the nine signatures which grace the Inter-Governmental Agreement for Regulatory and Operational Reform in Occupational Health and Safety, not one of their owners remains in the position they held at the time of signing. On top of the list of signatories is one K. Rudd.

Harmonisation as a “good” in itself has in fact not been explained nor justified. In the case of Model OHS Law, harmonisation has been used to create a smokescreen for the implementation of bad law.  If you dare like me to be critical of the Model OHS Laws, you are, amongst other things, labelled as being opposed to harmonisation, the implication being that that is somehow bad. We are left to be told to accept that harmonisation is obviously good for Australian business and Australian workers.

In reality, the harmonisation of an area of law in Australia that, like OHS law, can only affect that proportion of Australian businesses (and workers employed in those businesses) that operate across at least one state border. 

At the time that the harmonisation of OHS laws was put on the national political agenda as a “good thing to do”, the Productivity Commission had estimated that only 1% of Australian businesses operated across at least one border. As that 1% was made up of Australia’s larger businesses, it’s not surprising that the percentage of Australian workers who work for business that operates across borders is much greater than 1%. In fact, at the time that harmonised OHS laws were put on the national political agenda, that figure was 28%. That, of course is not to say that those employees work in more than one State or Territory but merely that they are employed by a business that operates across at least one jurisdictional border.

So at best, even if a success, the millions of dollars spent on the OHS law harmonisation agenda to date, could have only ever affected 28% of workers in Australia’s private sector (State and Territory public servants don’t generally work across borders).

So what has all of this been for? What was the real purpose of the push for OHS law harmonisation? What has the cost been to governments, business and tax payers since 2008 to get us to the position we now find ourselves?

 The Writer:

This is an excerpt from a paper being written by Mike Hammond of Mike Hammond Consulting addressing the Harmonisation and model OHS laws.  Mike is recently retired from his career in law as a partner at the prestigious law firm Norton Rose.  He is a leading Victorian Solicitor having worked in the area of OHS law for many years.   Mike is writing a paper on the problems with the “Harmonistaion” laws and has kindly allowed us to publish this snapshot.  The model OHS laws have been adopted in most states of Australia with the exception of Victoria, and 12 months on we re-visit the reasons why the State of Victoria are against it.