While the NSW Government has currently put OHS harmonisation plans on ice, a national OHS system will prevail in one form or another, according to a number of legal experts.
Cormack Dunn, a senior associate in the employee relations practice at Freehills, said the movement for OHS harmonisation is “gathering significant pace” and he believes the model WHS Act will pass into law in all applicable jurisdictions on 1 January 2012.
The federal government will not need to resort to using its constitutional powers to bring in national OHS legislation, “because once cool heads prevail the threat to the state [of NSW] of losing all influence in its jurisdiction is likely to be of greater concern than the perceived loss of some powers”, Dunn said.
NSW Premier Kristina Keneally announced on 17 October that she would not sign up to the model Work Health and Safety (WHS) Act in its current form, unless unions retain the right to prosecute employers for work safety breaches and that the onus of proof remains on employers to show they exercised due care.
However, numerous polls indicate that the NSW Labor government will lose the upcoming state election in March 2011.
A Newspoll published in late August, for example, showed that Labor’s primary vote is sitting at a record-low of 25 per cent, against 46 per cent for the coalition (which supports OHS harmonisation).
Gerard Phillips, head of Middletons workplace relations and safety group, said that the business community is working on the assumption that OHS harmonisation will come to pass.
“If I was a betting person I’d say it’s going to go through,” said Phillips.
On the off-chance the Labor government is returned to power in NSW, he predicted a “very, very serious consultation with the federal government some time after [the election] because the federal government can’t back down on this.
“All the other states who have signed up to it are not going to change that agreement because NSW has had a nervous breakdown over it – it just won’t happen,” he said.
The next issue of OHS Professional magazine will feature a comprehensive news report on OHS harmonisation as well as a ten-step action plan for OHS professionals.