Model OH&S legislation ‘flawed’

by 19 Oct 2009

New model occupational health and safety laws contain some significant flaws, Neil Foster, sen ior law lecturer at the University of Newcastle, told HR Leader.

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 em ployer is the one that has control over the work sys tems, 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 [that onus of proof] and I think it will make it harder to prosecute people in the workplace and send the wrong signal – in my view – to em ployers 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.


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