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.