Striking out Gillard's OHS harmony

The crushing defeat of Labor in Queensland has immediate policy consequences for the Gillard government in many areas. One is the death of Julia Gillard’s model of national harmonised occupational health and safety laws. Harmonisation could, however, re-emerge through a state-driven rather than centralised Canberra-driven process.

When she was workplace relations minister, Julia Gillard proudly conducted the negotiations for a model national harmonised OHS law. She had formal ‘buy in’ seemingly from all the states, although Western Australia reserved the right to make changes. Like the passage of the Fair Work Act, agreement on the OHS laws was promoted as a demonstration of Gillard’s outstanding negotiation and leadership skills.

The process was that each of the states, territories and the commonwealth would pass the agreed model OHS laws in their respective jurisdictions. This was supposed to have happened by January 1, 2011 but it has fallen over.

The model OHS bill has been rejected twice in South Australia in the upper house. The South Australian Liberal opposition and key independents remain firmly opposed. The Western Australian government has ignored the model laws, making it clear it is not happy with them.

The Victorian premier canned the laws early this year, saying they would "take Victoria backward”. The Tasmania upper house also rejected them, delaying any further consideration until 2013. New South Wales passed the model laws but the upper house amended them, creating inconsistency.

Queensland was the key state where Gillard had the full package passed under the Bligh Labor government. However, the laws were rejected by the LNP opposition last year. The shadow minister Ted Malone, labelled the laws "a disaster", saying: "The LNP has reserved the right to amend the laws should we win government at next year's election". That has come to pass.

The prospect that Gillard faces is a major dismantling of the Queensland ‘harmonised’ OHS laws, even their potential repeal. If this occurs, which seems almost certain, the harmonised model devised under Gillard’s direction is effectively dead. With it disappears part of Gillards claim to national leadership as a great negotiator.

The problems relate entirely to the structure and details of the model laws. They are not only odd and confusing but threaten to remove key human rights.

OHS law is a form of criminal law. But unlike normal criminal law a person can be guilty of an OHS breach even if no harm has been caused. This means the law must be carefully framed to avoid abuse of legal process and justice. The international conventions, to which Australia is a signatory, state that an individual can only be prosecuted for matters over which they have ‘control.’ Gillard's model laws remove the word ‘control’, opening the prospect of people being prosecuted for something over which they had no control. The possible abuse of justice is a design feature.

Added to this is the fact that Gillard's laws remove the right to silence. Remember, this is criminal law. That such a basic human right should be removed under a Labor government shows a political culture that has lost its way. At the heart of the Labor ethos is a passionate commitment to social justice, yet their model OHS laws trash that principle.

I’ve put together a full analysis as to why the laws are failing to proceed. This includes what the strange concept of a ‘person conducting a business or undertaking’ means at law. This PCBU, is a new legal ‘invention’ with no case law to support it, yet it identifies who is responsible under the model laws. There is already legal dispute over the meaning, which will inevitably be replicated in the courts.

This is where the Scout Association came into play. They released advice in January this year to all their volunteers saying that under the model OHS laws every volunteer faced the prospect of personal prosecution. The now workplace relations minister, Bill Shorten, responded, declaring this to be scare mongering and misrepresentation.

But the Scout Association is not known for releasing information without obtaining high-quality legal advice. The Scouts were supported by a wide range of volunteer groups including the Surf Life Savers, Uniting Church and many others.

Now the trigger exists in Queensland for a complete shift. The LNP government are committed to changing the OHS laws. The next step is to consider whether to drastically amend Gillard’s model or look for an alternative. For example, Queensland could look to Victoria for a model.

Victoria’s OHS laws are the most up to date in Australia, having been reviewed and modernised in 2004 under the Bracks Labor government. They’ve proven highly successful. The Victorian Liberals are committed to retaining these. And if Queensland were to duplicate the Victorian laws this could generate a harmonisation cascade through the other states.

Harmonised OHS laws make great common sense. But they have to be good laws, not backward, damaging laws.

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