THE SAFETY Conference will see unions and employers debating face to face over Australia’s new national occupational health and safety laws.
Most of the argument to date has centred on who should carry the burden of proof. Currently, employers in New South Wales and Queensland must prove they have taken reasonable steps to ensure safety. Under the draft national model law, this becomes the prosecutor's responsibility.
According to Greg Pattison from the NSW Business Chamber, current NSW laws with their onus of proof put the employers at a disadvantage.
However, Geoff Fary from the Australian Council of Trade Unions claims removing the burden of proof from the employer reduces the rights and entitlements of workers.
On 27 October 2009, Pattison and Fary will join WorkCover NSW general manager John Watson and Professor Michael Quinlan on a panel debating harmonisation at The Safety Conference in Sydney.
The panel will be moderated by OHS legal expert and author Michael Tooma, who claims reversing the onus of proof will be largely irrelevant.
Tooma says in most cases, it is obvious what practicable steps should have been taken prior to the incident. In clear-cut situations, for example, it becomes clear that there was no machine guard installed, even though there should have been one.
Both Mr Tooma and the Business Chamber say the regulator's approach, rather than the law itself, has the greatest real impact.
According to Pattison, NSW has seen more prosecutions and fines than in all other Australian jurisdictions combined, but the state does not have the best OHS results.
Pattison attributed recent improvements to injury statistics to WorkCover NSW’s new approach, focusing on helping people understand and meet their OHS obligations.
Tooma says the law also does not affect safety regulators’ discretion to prosecute. Safety regulators are largely responsible for each jurisdiction’s rate of prosecution, as well as who is prosecuted, be they employers or culpable employees.
Tooma claims the uneven rate of prosecution can only be fixed by either having a unified safety regulator, or putting into law reviews on the decision to prosecute.