The Long and Winding Road to OHS Harmonisation
Publication: Labour History: A Journal of Labour and Social History
Number 104
Abstract
Australia’s harmonised occupational health and safety (OHS) regulatory regime was scheduled to commence 1 January 2012. Presently, however, only seven (out of nine) jurisdictions have enacted harmonised laws, most with differences. That the harmonisation initiative has not (yet) delivered on its promise should not have come as a surprise to those familiar with the history of OHS harmonisation in Australia - a history punctuated by moments of great hope followed by disappointing progress. This article examines this history through the lens of Australian federalism. In doing so, it illustrates the organic growth in the Commonwealth’s sphere of responsibility as matters originally defined as social issues become redefined as economic issues in that they negatively impact on business interests. It also demonstrates the tensions that arise when these economic values come into conflict with the values underpinning Australian federalism and OHS regulation itself.
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Footnotes
1.
The author thanks the two anonymous referees and editors for their helpful and constructive comments on an earlier version of this article.
1.
There are a number of excellent accounts of the development of early health and safety legislation in Britain and Australia, see for example:J. Hagan, “Employers, Trade Unions and the First Victorian Factory Acts,” Labour History, no.7 (November1964):3–10; B. L. Hutchins and A. Harrison, A History of Factory Legislation, 3rd ed. (London: Frank Cass & Co., 1966); Neil Gunningham, Safeguarding the Worker: Job Hazards and the Role of the Law(Sydney: Law Book Company Limited, 1984), 35-74. For case studies on the interplay of economic, social and political forces on the early development of OHS regulation in Australia, see: Bobbie Oliver, “‘Lives of misery and melancholy’: The Rhetoric and Reality of Industrial Reform in Post-World War I Western Australia,”Labour History, no. 73 (November 1997): 105-122; Beris Penrose, “The State and Gold Miners’ Health in Victoria, 1870-1910,”Labour History, no. 101 (November 2011): 35-52; Bradley Bowden and Beris Penrose, “Dust, Contractors, Politics and Silicosis: Conflicting Narratives and the Queensland Royal Commission into Miners’ Phthisis, 1911,”Australian Historical Studies27, no. 128 (2008): 89-107; Peter Sheldon, “Job Control for Workers’ Health: The 1908 Sydney Rockchoppers’ strike,”Labour History, no. 55 (November 1988): 39-54; Marcus James, “The Struggle Against Silicosis in the Australian Mining Industry: The Role of the Commonwealth Government, 1920-1950,”Labour History, no. 65 (November 1993): 75-95.
2.
For an example of the business prescription for good OHS regulation, see:Australian Chamber of Commerce and Industry, Modern Workplace: Safer Workplace: An Australian Industry Blueprint for Improving Occupational Health and Safety 2005-2015(:ACCI, 2005). For the union prescription, see: Australian Council of Trade Unions, Union Charter of Workplace Rights, accessed February 2013,http://www.ohsrep.org.au/storage/documents/actu_ohscharter2007.pdf.
3.
Interim National Occupational Health and Safety Commission, Interim National Occupational Health and Safety Commission Report(:Australian Govt. Pub. Service, 1984), hereafterInterim NOHSC Report;Industry Commission, Work, Health and Safety: An Inquiry into Occupational Health and Safety(Canberra: Australian Govt. Pub. Service, 1995), hereafterIC Report;Royal Commission into the Building and Construction Industry, Final Report of the Royal Commission into the Building and Construction Industry, Volume 6, Reform: Occupational Health and Safety(Canberra: Commonwealth of Australia, 2003), hereafterRCBC Report;Productivity Commission, National Workers’ Compensation and Occupational Health and Safety Frameworks(Canberra: The Commission, 2004), hereafterPC Report;Regulation Taskforce, Rethinking Regulation: Report of the Taskforce in Reducing Regulatory Burdens on Business(Canberra, Report to the Prime Minister and the Treasurer, 2006).
4.
Council of Australian Governments, Inter-Governmental Agreement for Regulatory and Operational Reform in Occupational Health and Safety(3 July2008), accessed February 2013,http://www.coag.gov.au/node/276.
5.
Nicholas Aroney, The Constitution of a Federal Commonwealth: The Making and Meaning of the Australian Constitution(:Cambridge University Press, 2009), 78; Geoffrey Sawer, Modern Federalism(Carlton, Pitman Publishing, 1976), 18.
6.
James Bryce, The American Commonwealth, 2nd ed.(:MacMillan and Co., 1890). For a contemporaneous treatment of these attributes, see Anne Twomey and Glenn Withers, Federalist Paper 1: Australia’s Federal Future(A Report for the Council for the Australian Federation, 2007), accessed February 2013,http://www.caf.gov.au/Documents/AustraliasFederalFuture.pdf; Eric Windholz, “Federalism in Australia: A Concept in Search of Understanding,”The Journal of Contemporary Issues in Business and Government17, no. 2 (2011): 1-18.
7.
Windholz, “Federalism in Australia”;Brian Galligan, A Federal Republic: Australia’s Constitutional System of Government(:Cambridge University Press, 1995), 192–203.
8.
Windholz, “Federalism in Australia,” 8. See also Brian Galligan, “Processes for Reforming Australian Federalism,” University of New South Wales Law Journal 31, no. 2(2008): 640.
9.
Robyn Hollander and Haig Patapan, “Pragmatic Federalism: Australian Federalism from Hawke to Howard,” Australian Journal of Public Administration 66, no. 3(2007):290–91. See also Alan Fenna, “The Malaise of Federalism: Comparative Reflections on Commonwealth-State relations,”Australian Journal of Public Administration66, no. 3 (2007): 303.
10.
J. N. Keddie and R. F. I. Smith, “Leading from Below: How Sub-National Governments Influence Policy Agendas,” Australian Journal of Public Administration 68, no. 1(2009):67–82; Andrew Parkin, “The States, Federalism and Political Science: A Fifty-Year Appraisal,”Australian Journal of Public Administration46, no. 2 (2003): 101-12.
11.
Committee on Safety and Health at Work, Report of the Committee on Safety and Health at Work 1970-72(:HMSO, 1972).
12.
Barry Durham, “A Model of National Facilitation: The National Occupational Health and Safety Uniformity Program”(paper presented at the First National Conference on Injury Prevention and Control, Sydney, February 17-28, 1995), 61. See also Warwick Pearse and Chloe Refshauge, “Workers’ Health and Safety in Australia: An Overview,”International Journal of Health Services17, no. 4 (1987): 640-43.
13.
Interim NOHSC Report, 5-6, 98. See alsoMargaret Lee and Michael Quinlan, “Co-ordinating the Regulation of Occupational Health and Safety in Australia: Legal and Political Obstacles and Recent Developments,” Australian Journal of Labour Law 7(1994):47–49; James, “The Struggle Against Silicosis.”
14.
Pearse and Refshauge, “Workers’ Health and Safety in Australia,” 638; E. J. Micallef, “Worker Participation and Occupational Health and Safety: A Union View,”inThe Industrial Relations of Occupational Health and Safety, ed.B. Creighton and N. Gunningham(,Croom Helm Australia, 1985), 205.
15.
Pearse and Refshauge, “Workers’ Health and Safety in Australia,” 638-40; Micallef, “Worker Participation and Occupational Health and Safety.”
16.
Kit Carson and Cathy Henenberg, “The Political Economy of Legislative Change: Making Sense of Victoria’s New Occupational Health and Safety Legislation,” Law in Context 6, no. 2(1998):9–10; Lee and Quinlan, “Co-ordinating the Regulation of Occupational Health and Safety in Australia,” 50; Michael Kirby, “Occupational Health and Safety: Time for Reform” (paper presented at the National Safety Council of Australia Occupational Health and Safety Seminar, Canberra, July 27, 1984), 9; Gunningham, Safeguarding the Worker, 364.
17.
Ralph Willis, MP, “Ministerial Statement: Establishment of National Occupational Health and Safety Commission,” Commonwealth Parliamentary Debates(House of Representatives, October 11, 1984), accessed February 2013,http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22chamber%2Fhansardr%2F1984-10-11%2F0134%22.
18.
R. J. Hawke, “Towards a Closer Partnership”(address to the National Press Club, Canberra, July 19, 1990).
19.
Premiers and Chief Ministers, “Communiqué”(Adelaide, November 21-22, 1991), 3.
20.
National Occupational Health and Safety Commission, National Uniformity for Occupational Health and Safety Standards: Policies and Procedures(Worksafe Australia, August1992).
21.
The first six priorities were determined by the National Taskforce. The seventh was specified by the Premiers and Chief Ministers.
22.
IC Report, xxvii-xxviii, Appendix H.
23.
See for example, Tasmania v Commonwealth(1983) 158Commonwealth Law Reports (CLR)1 (Tasmanian Dams case). At the time there were a number of International Labour Organisation Conventions and Recommendations which, if ratified by the Commonwealth, could have formed the basis of national OHS laws, most notably Convention 155 Concerning Occupational Safety and Health and the Working Environment 1981.
24.
Ralph Willis, MP, “Second Reading Speech: National Occupational Health and Safety Commission Bill 1985,” Commonwealth Parliamentary Debates(House of Representatives, April 23, 1985), accessed February 2013,http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22chamber%2Fhansardr%2F1985-04-23%2F0073%22.
25.
Pearse and Refshauge, “Workers’ Health and Safety in Australia,” 647–48.
26.
Kirby, “Occupational Health and Safety,” 10.
27.
IC Report, 195–205.
28.
I borrow the term used by Clayton to describe state responses to Ministerial Council directives for greater harmonisation of workers’ compensation schemes.Alan Clayton, “Current Issues in Australian Workers’ Compensation,”inReview of Workers Compensation and Occupational Health, Safety and Welfare Systems in South Australia: Report, ed.B. Stanley, F. Meredith and R. Bishop(Adelaide, 2002), 47.
29.
Agreed at the May 1990 meeting of the Labour Ministers Council; seeReview of Occupational Health and Safety in Australia: Report by the Review Committee to the Minister for Industrial Relations(hereafterRCMIR Report), (Canberra: Australian Govt. Pub. Service, 1990), 26, and at the April 1993 meeting of the Labour Ministers Council, IC Report, 15.
30.
RCMIR Report;Peter N. Grabosky, Impediments to the Adoption of National Occupational Health and Safety Standards: Consultants’ Report to the Minister for Industrial Relations(:Worksafe Australia, 1991);IC Report.
31.
Grabosky, Impediments, 7.
32.
Ibid., 4, 15.
33.
Albert Breton, Competitive Governments: An Economic Theory of Politics and Public Finance(:Cambridge University Press, 1996). See also Cliff Walsh, “The Economics of Federalism and Federal Reform,”University of New South Wales Law Journal31, no. 2 (2008): 553-82.
34.
Bob Charles, “Workplace Health and Safety: A Coalition Perspective,” Health and Safety at Work 10, no. 5(1992):7–11.
35.
In 1993-94, NOHSC expenditure was $26.8 million and it employed 236 staff; seeIC Report, 199. In 2002-03, NOHSC had a budget of $16.2 million and staff of 89; seePC Report, 56, 87.
36.
Peter Reith MP, “Continuing Workplace Relations Reform”(media release, November 27, 1998).
37.
National Occupational Health and Safety Commission, National OHS Strategy: 2002-2012(:NOHSC, 2002).
38.
Clayton, “Current Issues in Australian Workers Compensation,” 55; Richard Johnstone, “Harmonising Occupational Health and Safety Regulation in Australia: The First Report of the National OHS Review,” Journal of Applied Law and Policy 1(2008):37.
39.
RCBC Report, 30.
40.
SafeWork Australia, Comparative Performance Monitoring Report: Comparison of Work Health and Safety and Workers’ Compensation Schemes in Australia and New Zealand, 13th ed.(:Safe Work Australia, October2011), 3.
41.
Liberal Party of Australia, “Federal Platform”(adopted April2002), accessed February 2013,http://www.liberal.org.au/sites/default/files/PlatformV11version3.pdf. See also: Robyn Hollander, “John Howard, Economic Liberalism, Social Conservatism, and Australian Federalism,”Australian Journal of Politics and History53, no. 1 (2008): 85-103; Andrew Parkin and Geoff Anderson, “The Howard Government, Regulatory Federalism and the Transformation of Commonwealth-State Relations,”Australian Journal of Political Science42, no. 2 (2007): 295-314.
42.
During this period, each jurisdiction commissioned a review of their OHS legislation. For NSW, see Standing Committee on Law & Justice, Final Report of the Inquiry into Workplace Safety(Sydney: The Committee, Report, no. 10, 1998). For SA, see Stanley, Meredith and Bishop, eds, Review of Workers’ Compensation and Occupational Health.For Qld, see J. Crittall, Review of the Workplace Health and Safety Act 1995: Issues Paper(Brisbane: Division of Workplace Health and Safety, Queensland Department of Industrial Relations, 2001). For WA, see R. Laing, Review of the Occupational Health and Safety Act 1984: Final Report(Perth, 2002). For Vic., see C. Maxwell, Occupational Health and Safety Act Review(Melbourne: State of Victoria, 2004). For ACT, see ACT Occupational Health & Safety Council, Occupational Health and Safety Act 1989: Scope and Structure Review(Canberra: Chief Minister’s Dept, 2005). For NT, see A. Shaw, V. Blewett, N. Gunningham, R. Johnstone and H. Baker-Goldsmith, Review of the NT Work Health Act and Mining Management Act: Final Report(NT WorkSafe, 2007). For Tas., see D. Brown and S. Hyam, Safe from Injury and Risks to Health: Review of Workplace Health and Safety in Tasmania 2006: Interim Report(Hobart: Dept. of Justice, 2007).
43.
See for example: Australian Chamber of Commerce and Industry, Modern Workplace;Ken Phillips, “Guilty until Proven Innocent,”Australian Financial Review, November 23, 2004, accessed February 2013,http://ipa.org.au/news/851/guilty-until-proved-innocent/pg/7.
44.
For a balanced examination of the business groups’ criticisms, seeAndrew Hopkins, “An Evaluation of Certain Criticisms of the NSW OHS Act,”inWorking Paper, no. 40 (National Research Centre for OHS Regulation, 2005).
45.
PC Report;Australian Government, Response of the Australian Government to the Productivity Commission Inquiry Report No. 27, 16 March 2004: National Workers’ Compensation and Occupational Health and Safety Frameworks(Canberra, 2004), hereafterGovernment Response.
46.
PC Report, 57–58.
47.
Ibid., 75.
48.
Ibid., 96. Interestingly, the Commission did not place great weight on the external affairs power as a source of Commonwealth legislative power notwithstanding favourable advice from the Australian Government Solicitor; see Appendix C.
49.
Ibid., 96–113.
50.
Government Response, pars 28-36.
51.
Ron McCallum and Cameron Roles, “Harmonising Occupational Health and Safety Systems,”inRemaking Australian Industrial Relations, ed.J. Riley and P. Sheldon(:CCH Australia, 2008), 70. See also Business Council of Australia, Business Regulation Action Plan for Future Prosperity(The Council, 2005); Australian Chamber of Commerce and Industry, Modern Workplace.
52.
Kevin Andrews, “Speech to the Safety, Rehabilitation & Compensation Safety Awards,”Canberra, July 28, 2005, accessed February 2013,http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22media%2Fpressrel%2FI7TG6%22.
53.
Kevin Andrews, “Main Committee: Second Reading of the OHS and SRC Legislation Amendment Bill 2005,” Commonwealth Parliamentary Debates(House of Representatives, March 29, 2006), accessed February 2013,http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22chamber%2Fhansardr%2F2006-03-29%2F0270%22.
54.
SeeAttorney-General (Vic) v Andrews(2007) 230CLR369.
55.
John Lenders, “Victoria and NSW WorkCover Schemes to Slash Red Tape”(media release, August 28, 2006), accessed February 2013,http://franklin.dpc.vic.gov.au/domino/Web_Notes/newmedia.nsf/b0222c68d27626e2ca256c8c001a3d2d/a65b40cc123d7f49ca2571d90004bfef!OpenDocument.
56.
Council of Australian Governments, Communiqué(April 13, 2007), accessed February 2013,http://archive.coag.gov.au/coag_meeting_outcomes/2007-04-13/index.cfm.
57.
Council for the Australian Federation, Communiqué(October 13, 2006), accessed February 2013,http://www.caf.gov.au/meetings/meeting-13-10-2006.aspx.
58.
Hollander, “John Howard.”
59.
John Howard, “Australia Rising to a Better Future”(speech delivered at the Millennium Forum, Sydney, August 20, 2007).
60.
Australian Labor Party, “Workplace Health and Safety”(Canberra, 2007), accessed February 2013,http://parlinfo.aph.gov.au/parlInfo/download/library/partypol/DFRO6/upload_binary/DFRO6.pdf.
61.
Gareth Griffith, “Managerial Federalism: COAG and the States,” NSW Parliamentary Library Research Service, Briefing Paper, no. 10/09 (2009); Geoff Anderson, “Whither the Federation? Federalism under Rudd,”Public Policy5, no. 1 (2010): 1-22.
62.
Council of Australian Governments, Communiqué(December 20, 2007), accessed February 2013,http://archive.coag.gov.au/coag_meeting_outcomes/2007-12-20/index.cfm.
63.
Council of Australian Governments, Communiqué(March 26, 2008), accessed February 2013,http://archive.coag.gov.au/coag_meeting_outcomes/2008-03-26/index.cfm.
64.
Council of Australian Governments, Communiqué(July 3, 2008), accessed February 2013,http://archive.coag.gov.au/coag_meeting_outcomes/2008-07-03/index.cfm.
65.
See:Julia Gillard, “Gillard Launches National OHS Review”(Media Release, April 4, 2008), accessed February 2013,http://ministers.deewr.gov.au/gillard/gillard-launches-national-ohs-review; Commonwealth of Australia, National Review into Model Occupational Health and Safety Laws, First Report to the Workplace Relations Ministers’ Council(October 2008) andSecond Report to the Workplace Relations Ministers’ Council(January 2009), both accessed February 2013,http://www.foi.deewr.gov.au/documents/national-review-model-occupational-health-and-safety-laws-first-report; Workplace Relations Ministers’ Council, Communiqué(December 11, 2009), accessed February 2013,http://www.deewr.gov.au/WorkplaceRelations/WRMC/Documents/11Dec09.pdf; and Workplace Relations Ministers’ Council, Communiqué(August 10, 2011), accessed February 2013,http://www.deewr.gov.au/WorkplaceRelations/WRMC/Documents/10Aug2011.pdf.
66.
Council of Australian Governments, “National Partnership Agreement to Deliver a Seamless National Economy”(November 29, 2008), accessed February 2013,http://www.federalfinancialrelations.gov.au/content/npa/other/seamless_national_economy/national_partnership.pdf; Workplace Relations Ministers’ Council, Communiqué(June 11, 2009), accessed February 2013,http://www.deewr.gov.au/WorkplaceRelations/WRMC/Documents/110609.pdf.
67.
See for example, the submissions made by business groups to Safe Work Australia on the draft Model Work Health and Safety Act and Regulations, accessed February 2013,http://www.safeworkaustralia.gov.au/sites/swa/model-whs-laws/public-comment/pages/public-comment-whs-regs-codes.
68.
See for exampleHousing Industry Association, “Independent Review: New Safety Bill to Severely Impact SA Economy”(media release, September 28, 2011); Ken Philips, “Harmony Lacking on Nation’s Work Safety Laws,”The Australian, December 2, 2011, accessed February 2013,http://www.theaustralian.com.au/business/legal-affairs/harmony-lacking-on-nations-work-safety-laws/story-e6frg97x-1226211746507.
69.
See for example, the submissions made by unions to Safe Work Australia on the draft Model Work Health and Safety Act and Regulations, accessed February 2013,http://www.safeworkaustralia.gov.au/sites/swa/model-whs-laws/public-comment/pages/public-comment-whs-regs-codes.
70.
Victorian Budget, 2012-13 Treasurer’s Speech, Victorian Government, Budget Paper, no. 1 (Melbourne, 2012); Troy Buswell, “Western Australia Reserves Position on OHS Harmonisation” (media statement, May 18, 2009), accessed February 2013,http://www.mediastatements.wa.gov.au/pages/StatementDetails.aspx?listName=StatementsBarnett&StatId=1097; “Roundtable Considers Impact of New WHS Laws,” Queensland Government, updated October 2012, accessed February 2013,http://www.deir.qld.gov.au/workplace/publications/safe/construction/sep12/whslaws/index.htm.
71.
Sawer, Modern Federalism, 104.
72.
Eric Windholz, “Evaluating the Harmonisation of Australia’s OHS Laws: Challenges and Opportunities,” Asia Pacific Journal of Public Administration 32, no. 2(December2010):137–62; this article identifies 14 categories of objectives for the harmonisation of Australia’s OHS laws.
73.
G. Banks, “Regulation for Australia’s Federation in the 21st Century” (speech delivered at the Melbourne Institute/The Australian Economic and Social Outlook Conference, Melbourne, November 2-3, 2006), 9. See also Regulation Taskforce, Rethinking Regulation.
74.
Hollander and Patapan, “Pragmatic Federalism,” 291.
75.
Martin Painter, “Public Sector Reform, Intergovernmental Relations and the Future of Australian Federalism,” Australian Journal of Public Administration 57, no. 3(September1998):52–63.
Biographies
Eric Windholzis an Associate with the Centre for Regulatory Studies, Faculty of Law, Monash University where he is undertaking his PhD examining the harmonisation of Australia’s OHS laws. Prior to joining the Centre, Eric was General Manager, Strategic Programs and Support with WorkSafe Victoria (the state’s OHS regulator and workers’ compensation insurer). <[email protected]>
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Published In
Labour History: A Journal of Labour and Social History
Number 104 • 1 May 2013
Pages: 169 - 188
Copyright
Copyright 2013 Australian Society for the Study of Labour History.
History
Published in print: 1 May 2013
Published online: 24 October 2022