With a national OHS regime on the horizon, OHS lawyers are set for an increasingly busy time. Lawyers Weekly looks at how OHS practice groups have fared over the past 18 months.
Lawyers who specialise in occupational health and safety (OHS) have had a busy time of things in recent years, despite the global financial crisis knocking the wind out of many other practice groups. With the national harmonisation of OHS laws and the introduction to model OHS laws slated for 1 January 2012, many companies are already looking at how they will comply with the new laws, according to a number of experts.
Michael Tooma, head of the Australian health, safety and security practice at Norton Rose, says he is currently working with a number of clients nationally to identify the impact of these changes on their business and prepare them for the new laws. "The new positive duty imposed on officers by the new laws in particular has generated a lot of interest. We are currently working with companies on developing corporate governance arrangements to meet that new obligation," says Tooma, who also serves as an adjunct professor of law at Edith Cowan University, senior visiting fellow of the University of New South Wales School of Safety Science and member of the Department of Defence Occupational Health Steering Committee.
Graeme Smith, employment relations practice group head at Freehills, says another big development for OHS lawyers has been the recognition of their expertise as a necessary input in the development of commercial contracts, whether those contracts are for major infrastructure projects, services agreements, supply contracts and the like. Further, given the state-based variations of OHS legislation, lawyers engaged in one state (such as NSW or Victoria, where many corporate head offices are located) do not have the expertise to advise on risk allocation and then draft those clauses for works that often occur in other states (such as Queensland or Western Australia).
"There is also an increasing recognition that assisting in post incident responses have a key risk management role to play," says Smith, who has more than 20 years' experience in all facets of industrial relations and employment law and advises major companies in the manufacturing, transport, food, banking, paper and timber industries as well as several significant public sector bodies.
"It is not simply about the interaction between the business and the safety regulator, but also managing broader commercial risks which often will have much greater commercial consequences such as common law or contractual claims flowing from the incident."
OHS strong despite the GFC
Most companies understand that the protection of the health and safety of people is a legal requirement. As good OHS is a "need to have" rather than a "nice to have", OHS practice groups have generally fared well over the past 18 months.
Neil Napper, a partner in workplace relations and safety at Lander & Rogers, hasn't noticed any impact from the GFC in this area. "We're busier than ever, particularly in defending prosecutions relating to allegations of serious statutory breaches. I don't think it's a case of tough economic conditions mean employers cut corners. It's more to do with our focus on safety and the growth of our practice," says Napper, who has more than 20 years experience advising employers in both the private and public sectors and served as the former head of PricewaterhouseCooper's employment and industrial relations group.
He says the practice at Lander & Rogers "continues to go from strength to strength ... Our numbers have increased significantly and we anticipate that continuing given our projected growth".
Smith notes that there was a tightening of clients' legal budgets for a period, which impacted proactive advice type work for the early stages of 2009, but he says it is now business as usual. "Single firm appointments for OHS to ensure consistency and avoid duplication (of advice for instance) is emerging as a trend. That is simply a more efficient use of external lawyers by in house counsel," he explains.
He adds that Freehills' OHS practice has grown in almost every office, both in terms of the number of lawyers working in this area and revenue. "It is certainly a key growth area and is integral to the commercial offerings of the other practice groups. An increasing proportion of our OHS work is done for clients internal to the firm such a projects or property partners."
Tooma joined Norton Rose in 2002 (then Deacons), and promptly embarked on setting up a dedicated OHS practice - which has now grown to a 27-strong team across Australia. The team growth was boosted last year with the recruitment of leading OHS expert Barry Sherriff as a partner in Melbourne. "We now have our sights very much on the international stage, linking up Norton Rose's strong London capability with its Australian capability to provide one seamless global service to clients around the world," he says.
The future of OHS law
OHS is now well and truly core business requirement for boards and senior executives, according to Tooma, who says that corporate firms can ill-afford to ignore that trend. "We are often called in to provide briefings to Boards on OHS issues. Boards often require regular updates on OHS legal developments and their personal liability.
"Other Boards seek out our expertise in facilitating safety leadership sessions where we explore the personal role of Board members and the senior executive team in relation to driving better safety performance," says Tooma, who adds that he has been called upon to explain the model OHS legislation and its impact on businesses more recently.
Napper has noticed an increased tendency, especially among larger clients, to take a more strategic and proactive approach to safety and building this into their management planning and systems. "It's this strategic approach, rather than reactive 'firefighting' that we find very exciting and the real future of this practice area," he affirms.
The days of corporate managers sharing HR and OHS roles is fast disappearing, according to Smith, who says that OHS is now recognised as a separate and standalone discipline, being given increasing recognition by boards.
In the mid-term, Smith believes national harmonisation will raise the profile of OHS, and in the long-term, OHS will find itself established as a discrete but integral aspect of corporate governance, compliance and risk management - and will require lawyers to respond accordingly. "This will lead to a much greater need to provide front end advice, not just incident response and the consequent litigation," he predicts.