The ABA has called for the implementation of nationally consistent OHS legislation in its submission to the National Review of Model Occupational Health and Safety Laws, which is being conducted by an advisory panel for the Federal Government.

David Bell, Chief Executive of the ABA, said: “Inconsistency between State-based OHS regulation contributes to unnecessary and additional costs for businesses, in particular, companies such as banks which operate throughout Australia.”

“Harmonising OHS laws and reducing unnecessary red tape is critical to developing OHS management systems that strive for best practice.”

“Greater consistency across jurisdictions will reduce the unnecessary administrative and compliance burden on businesses that operate across jurisdictions, as well as reduce complexity associated with understanding the various OHS duties across jurisdictions.”

“Employees are also prejudiced as a result of the lack of national consistency. It is vital we have an OHS regime that establishes and articulates clear responsibilities, is fair for employers and employees, supports best practice OHS standards, and above all, follows due process and maintains procedural fairness.”

Not all jurisdictions maintain OHS laws that establish a practical, equitable and efficient OHS regime. In NSW, for example, the law imposes an absolute duty of care on employers, which coupled with the reverse onus of proof is unrealistic, unachievable and undermines the concept of promoting workplace safety cultures.

In addition, in NSW there is a lack of prosecutorial independence. WorkCover NSW and unions are able to make decisions relating to the investigation, evidence gathering and prosecution of OHS matters as well as receive a financial benefit (‘moiety payment’¹ ) in the result of a successful prosecution taken before the NSW Industrial Relations Commission.
 
In summary, the ABA supports:

• Implementation of OHS legislation that is nationally consistent. Greater consistency across jurisdictions provides significant benefits to both employers and employees.
  
  
• Articulation of the legislative objectives, duties, rights and responsibilities. OHS legislation should clearly articulate the policy objectives of the system; ensure that the system is structured in a manner that can deliver these objectives through an explicit set of general duties; and recognise the rights and responsibilities of all parties.
  
  
• Introduction of OHS legislation that adopts a risk management approach. OHS legislation should seek to allow employers greater freedom to determine how health and safety risks are best controlled within their workplaces, as long as the objectives of the law are achieved.
  
  
• Adoption of fair and reasonable offence and defence provisions. OHS legislation should provide duty holders with adequate defences, and where the law imposes penalties on individuals, that it must be demonstrated that they were accessories in the misconduct, rather than simply imposing strict liability. Model OHS legislation should establish clear, fair and reasonable offence and defence provisions, and contain the concept of ‘reasonably practicable’.
  
  
• Implementation of procedural fairness and prosecutorial independence. One of the fundamental tenets of a fair and open criminal justice system is that prosecutors are independent. Model OHS legislation should provide for procedural fairness and prosecutorial independence.
  

Note for editors:
The ABA submission can be found on the ABA website: www.bankers.asn.au under Policies and Submissions, Occupational Health and Safety.