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Model OH&S legislation ‘flawed’

Model OH&S legislation ‘flawed’

New model occupational health and safety laws contain some significant flaws, Neil Foster, senior law lecturer at the University of Newcastle, told Lawyers Weekly today, 7 October.Foster said…

New model occupational health and safety laws contain some significant flaws, Neil Foster, senior law lecturer at the University of Newcastle, told Lawyers Weekly today, 7 October.

Foster said while the laws extended liability, the lowest common denominators from various state models seemed to have been adopted.

He said he was particularly concerned that NSW law would be changed: currently a reverse onus of proof exists in that if a workplace incident occurred, an employer is deemed liable unless they provide a satisfactory defence.

"The logic behind it is, generally speaking, if someone is injured in the workplace then the employer is the one that has control over the work systems, the state of premises, the fellow employees, a whole range of things ... so it seems reasonable to start with the assumption 'Well, probably it was part of the workplace environment that caused the accident'," he said.

"But, sadly, the new federal model doesn't have it and I think it will make it harder to prosecute people in the workplace and send the wrong signal - in my view - to employers to say we are getting a bit softer on safety in the workplace."

Meanwhile, Law Council of Australia president John Corcoran urged governments to set aside jurisdictional differences and enact a uniform model OH&S law.

"Despite the substantial differences in OH&S legislation across Australia, there is little evidence to suggest that the imposition of harsher penalties and evidentiary burdens in some jurisdictions has improved workplace safety performance. Nor has it been improved by the extension of prosecution powers to unions or other organisations," he said.

But Foster said he believed the prosecution of company officers will be made harder under the new laws, with the onus of proof placed back on the prosecution.

"I think ... the prosecution to make out its case beyond a reasonable doubt, will need access to stuff that is very hard to get in terms of internal workings of the company. It makes the task of prosecuting company officers more difficult under the model legislation," he said.

"Some of the business community thinks that is a good idea, I actually think it is a backwards step, because research shows that one of the key ways of improving safety in companies is bringing it home to company officers and making them aware that they're personally responsible.

"So that is a key driver of corporate safety behaviour and I think it's sad that we are watering that down in the new model legislation."

- Sarah Sharples

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