OH&S - Soon, same state, same laws

3 June 2011 | Stephen Price

Business has been calling for it for a long time - harmonised OH&S laws. Soon national businesses won’t have to consider different rules for their employees in different states. But let’s hope they’re not the ones caught out by the changeover.

Australia has got a number of really significant changes going in workplace relations. Perhaps the most significant of all of them at the moment, is the harmonised occupational health and safety laws.

Up until now there’s been a rail gauge approach to OH&S laws. Each state has had different laws with different penalties applying to different people. Now Australia has introduced these OH&S laws which have to be harmonised and this is something which has been called for by business for a long time. So from 1 January 2012 in all States with the exception (unfortunately) of Western Australia, there are going to be a model set of laws. Now these are going to apply primarily to those people who conduct a business or an undertaking.

Up until now there’s been for most States a recognition of the importance of identifying an employer/employee relationship. With the breakdown in Australia that the importance of that relationship with greater use of casualisation and contract labour, there has been a move away from that importance in things such as OH&S law and the laws now recognise this and place an importance on those people who conduct a business or an undertaking. So that has real significance for head contractors, for franchisors and for people who use labour hire, they will now be caught by the new laws.

But it is a good news story for officers of companies and in a couple of states and territories, namely, New South Wales, Queensland and the ACT, there has been a deemed liability. So if the company was found liable, so was the officer unless they could prove they are innocent. There was a reverse onus which is very rare for criminal law. Now there will simply be an obligation upon them to exercise due diligence to make sure that their company doesn’t breach the OH&S laws. It is very important for companies to support those officers in doing this, they’ve got to make sure they’ve got systems and records kept to show that the director has carried out his or her obligations. But if those things are done and the company has a robust occupational health and safety system, it is going to be in a better position than ever to withstand scrutiny of any prosecution and any court examination.

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Stephen Price

Partner. Sydney
+61 2 9210 6236