Amidst all this talk of the global economic meltdown, Melbourne Cup and the Obama victory, yet another item on the Rudd Government’s national agenda has been buried: the initial report of the National OHS Review Panel, providing a framework for the development of national model laws for occupational health and safety (OHS).

Currently, Australian States and Territories each administer their own complex and differing OHS legislation. The resulting inconsistency and overlap have led to much confusion and compounding of costs for business, particularly for those operating nationally. These issues form the backdrop to the formal agreement between Federal and State workplace relations ministers on 23 May 2008 to commit to OHS reform, and Julia Gillard’s appointment of the National OHS Review Panel to canvass the optimal content for a model OHS Act for national implementation.

The 181 page Report, entitled the National Review into Model Occupational Health and Safety Laws First Report, became publicly available on Wednesday, 5 November 2008, fresh from having been tabled at the Workplace Relations Ministers Council (WRMC) meeting earlier that day. The Report’s 75 recommendations cover businesses’ duties of care for the health and safety of workers as well as the criminal prosecution of breaches of the legislation.

Interestingly, a full 24 hours after its release, a search of the National OHS Review Panel’s website (set up specifically for the Review) reveals no link to an electronic copy of the Report. With principles of transparency having been cast aside, the Report is buried deep within the cyber-labyrinth of the Federal Government’s www.workplace.gov.au website.

The potential reasons for the burial of the Report are many and varied. In tough economic times, the Report recommends a significant increase in penalties, with the maximum penalty increasing to $3 million for businesses convicted of serious breaches of the legislation. It’s hardly the olive branch the Rudd Government is looking to extend to Australian businesses at a time of global financial crisis.

The other major stumbling block is the diminishing likelihood of the harmonisation agenda being achieved at all. Several factors are at play. The most obvious is the fact that Labor has now lost Western Australia and with it the wall-to-wall Labor governments across the country. The battle ahead has been foreshadowed.

Earlier this week, Mark Skulley of the AFR reported the inimitable WA Treasurer and Commerce Minister Troy Buswell remarking that the Barnett Government had “significant points of difference” with the other State governments and the Federal government in relation to the Forward with Fairness legislation and that the West Australian Liberal Government is “highly unlikely” to refer its remaining industrial relations powers to the Commonwealth. Suffice it to say, the Burnett Government’s un-cooperative approach is likely to be repeated with respect to OHS.

While all has not been quiet on the Western Front, it appears the Labor Governments of Australia’s Territories have gone awol. Notably, the Workplace Relations Ministers for the Northern Territory and ACT were absent from Wednesday’s WRMC meeting. It is worth mentioning that the NT and ACT are the two jurisdictions to have introduced new OHS legislation in the period since OHS harmonisation made the national reform agenda. The ACT’s legislation was introduced as recently as September 2008 and is due to commence in 2009. One cannot help but surmise as to what the reasons were behind the Ministers’ apologies.

It all feels a little bit like history repeating. Harmonisation has been the mantra of law reform discourse in OHS for over 25 years. Little progress has been made since the Industry Commission identified greater scope for consistency between the jurisdictions on OHS, remarking in its 1995 report that “the need for coordination would be reduced if legislation were rationalised to simplify administration and compliance. This would be facilitated by, wherever possible, the adoption of common regulatory principles, the harmonisation of legal rules and the consolidation of legislation dealing with OHS, public health and safety, and the environment”.

With the above context in mind, it’s easy to see how the OHS harmonisation agenda has been buried for the time being. Here’s hoping the final report of the National OHS Review Panel, scheduled to be released in January 2009, is more widely received.

For a detailed summary of the findings and recommendations contained within the National OHS Review Panel’s Report click here.

Peter Fray

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