Playing chicken with OHS reason

Two recent events have further sealed the fate of the Gillard government's harmonised work safety laws. The probability of the laws becoming operational in every state or even a majority of states now seems close to zero. It's high time the design of the laws was totally revisited because the harmonisation failure is a consequence of bad design.

I've explained why the election of the Newman government in Queensland is likely to reverse the harmonisation process (Striking out Gillard's OHS harmony, March 30). Their election commitment was to drastically change the laws. Queensland could even repeal the laws. In the event of that occurring it will leave New South Wales as the only state to have adopted Gillard's laws (and even then with modifications). I've tracked why this is so.

The position of the Victorian Baillieu government against the laws has hardened with the release last week of an economic impact statement prepared by Price Waterhouse Coopers. The report observes that the national regulation impact statements allegedly supporting the Gillard laws provide insufficient information to make a proper assessment.

In summary, the PWC report found that the cost to Victoria of moving to the Gillard OHS model would be $3.44 billion over five years. And it would be small business people that suffered most of the cost.

Included in small business is the not-for-profit volunteer sector that would also be hit hard. For example, Anglicare Victoria estimated an additional $382,000 in cost of having to include foster care volunteers' homes as workplaces. This is because the very strange idea of a ‘person conducting a business or undertaking', under Gillard's model, replaces the known relationship of employer-employee and related definitions used in the current Victorian OHS laws.

This cost could be acceptable if it were to reduce workplace deaths and injuries. But Victoria has been posting good improvements under their 2004 laws. The PWC report concludes that increased OHS compliance is unlikely under the Gillard laws. It's no wonder that Premier Ted Baillieu has slammed the Gillard model stating that "Victoria already has … the lowest rate of workplace injuries and deaths of all the states..."

Expect the PWC report to be used as a benchmark by other states in their assessments.

Further, in conjunction with the PWC report was the coincidence of the release shortly before Easter of a High Court ruling that cuts to the core principles of OHS law. The ‘Baiada Poultry' High Court ruling puts legal cement to the principle that under OHS law people must be held responsible for matters over which they have ‘reasonable and practicable control.' Further, that because OHS law is criminal law, ‘control' must be proven ‘beyond reasonable doubt.'

The case involved a chicken processing business, Baiada, that purchased chickens from a chicken farm. A separate transport company collected the chickens for delivery to Baiada. Baiada did not own or control the farm or the transport company.

While loading crates of chickens onto a truck using an unlicensed forklift driver, crates fell and killed a worker standing near the truck. The Victorian prosecutor prosecuted Baiada even though Baiada did not own or control the chicken farm or transport company or employ any of the workers.

What I find particularly concerning about the case is that the wording of the Victorian OHS Act specifically requires OHS accountability to be against people who had ‘reasonable and practicably control.' Yet the prosecutor seemed to have ignored the Victorian Act. Baiada only achieved justice because it was prepared and able to fight the issue through to the High Court. The High Court quashed Baiada's conviction and ordered a retrial.

Here's where Gillard's OHS harmonised laws becoming truly concerning. The model legislative prescription intentionally excludes the word ‘control' from the allocation of responsibilities. The model laws supporters, including (strangely) several peak big business associations, say this is merely a technicality. I suspect otherwise.

It's hard not to suspect that OHS prosecutors have a desire to expand their reach of prosecution to individuals and businesses whose ‘control' of situations is imaginary rather than real. I ask, what are prosecutors up to? In their desire to secure legal ‘wins' have they lost sight of the fact that the integrity of the legal system and people's confidence in it depends on the application of justice?

The Gillard OHS laws are being rejected because these deep design flaws are being recognised.

High Court Justice Heydon explained justice in the OHS context with a practical example. He said that if a householder engages an electrician to do rewiring, the householder is entitled to assume the electrician knows about electrical safety. To hold the householder responsible "…would demonstrate an extreme harshness in the legislation.”

With the High Court's comments in mind, the harmonised OHS laws should be remodelled.

Ken Phillips is executive director of Independent Contractors Australia and author of Independence and the Death of Employment.