FOCUS □ AUSTRALIA Modernising Workplace Health and Safety Laws: An Australian Perspective I -the duty on the new surrounding two by for of right extent 'PCBU's Much controversy Act trade key care officials of centred issues of of union owed entry and the the the controversy surrounding the new Actcentred on two keyissues -the extentofthe dutyofcare owed by'PCBU's and the right ofentry fortrade union officials DR. KEVIN PURSE Iswith Central Queensland University and NEVILLE MTCHIN (pictured on page 25) isthe Assistant General Secretary of the Public Service Association of South Australia. Both were extensively involved in negotiations that culminated In the passage of the South Australian Work Health and Safety Act In workplace lythe Australia, subject health as ofintense elsewhere, andsafety contestation laws efforts arefrequentto between enact workplace health andsafety lawsarefrequentlythesubjectofintense contestation between thelabourmovement andemployer interests. Thishascertainly beentheexperience inSouth Australia bothhistorically and morerecently. In thelatestepisode theLaborgovernment's Work Healthand Safety legislation, passedbythestate parliament inNovember 2012,was thesubject of extended delays, drawnoutnegotiations andpersistent , butintheendfutile, attempts byitsopponents , bothinsideand outsidetheparliament, to derail themostsubstantive setofchanges toSouth Australia's health andsafety lawsinmorethan two decades. Ironically, theimpetus forthenew legislation came not fromthe labour movement, as has almost invariably beenthecase inthepast,butas a resultof demandsby thebig end of townCorporate Australia - as partofan agendatoshift businessregulation from thestates andterritories andreposition itwithin a national framework. In turn, thisreflected thedramatic transformation of Australia'seconomic landscape over recent decades,exemplified bytherapidexpansionof nationalmarketsand the country's increasing integration intotheworldeconomy. A further stimulus toCorporate Australia's businessregulation agendawas provided bytheHigh Court inits2006decision whichupheldthevalidityof the federalLiberal-National government's highly contentious industrial relations legislation. Theeffect oftheCourt's decision was todecisivelyextendtheconstitutional reachof thefederal government. In doingso itundermined a century old interpretation of the Australian constitution whichheldthatprimary responsibility forindustrial relations and,byimplication, otherforms of business regulation suchas workplace health and safety lawsresided withthestates andterritories. It was againstthistransformed constitutional backdrop that theincoming federal Laborgovernment sought tobring aboutthe'national harmonisation ' ofworkplace health andsafety laws.This policywas badgedas an exercisein'cooperative federalism', inlinewith Corporate Australia's push fora 'seamless' national economy. Despitetheprominence ofCorporate Australia in thenationalharmonisation process,itshould notbe concludedthattherewas no benefit for workers inthisexercise. Therewas. Ofparticular significance fromthe labour movement's perspective was theneed forstronger dutyof care obligations, an enhancedrolefortradeunions, improved consultative arrangements alongwitha raft ofnewsanctions todealwithbreachesofthe law- allofwhichweresubsequently incorporated intotheharmonisation agenda. Withwall to wall Laborgovernments in place throughout the country, an intergovernmental agreement on national harmonisation was signed withthestates andterritories in2008.Following a consultation period,a Model Work Healthand Safety Actwas finalised in2010,with theexpectationitwouldbe implemented bythefederal, state andterritory governments no later thantheendof 2011. In practice, thenational harmonisation project hasnotturned outas anticipated byfederal Labor despitetheModelActhavingbeen endorsedby moststateandterritory jurisdictions as wellas the majoremployer associations and thepeakunion body,theAustralian CouncilofTradeUnions.In largepart, thishasbeendue tothere-emergence ofconservative stategovernments alongwiththe splintering ofsupport fornational harmonisation byseveralemployer groups. Nevertheless, theModelActhas been enacted, albeit with somevariations, bythefederal governmentas well as those of New SouthWales, Queensland, Tasmania, theNorthern Territory, the AustralianCapital Territory and, now, South Australia. OnlyVictoria and Western remain outsidetheharmonisation tent. KeyLegislativeChanges ThenewSouth Australia's Work Health and Safety Actisderived from theUKbasedRobens style legislation , initially adoptedin Australia during the 1970sand 1980s.Under theRobensarrangements, a general duty ofcareisimposed on employers to takeall reasonably practical stepsto ensurethat workers are provided witha healthy workenvironment and safesystems of work.In addition, provision is madefortheinvolvement ofworkers in decision-making on healthand safety issues through their electedhealth andsafety representativesand via jointhealthand safety committees. Thesearrangements aresupplemented bygovernment basedinspections that can result inemployers beingissuedwithstatutory noticesfornoncompliance orprosecuted forcriminal offences in caseswheremoreserious breaches occur. Thereare,however, a number ofdistinguishing featurescontainedin the new legislation not foundinthestandard Robensmodel. One ofthemostimportant is theprovision for a new category of dutyholder- a personconducting a businessor undertaking, or ('PCBU'). Traditionally, theprimary duty ofcareobligation in workplacehealthand safety has been predicated on the employment relationship. This approach, however, hasfailed tokeepabreast of seismicchangesin the natureof workwhich have occurred in recentdecades.The proliferationoflabourhirearrangements and increasingly complex subcontracting and outsourcing INTERNATIONAL union rights Pa9e 24Volüme 19lssue 42012 FOCUS □ AUSTRALIA arrangements means thatmanymore workers now perform their dutiesunderthedirection of bossesother thantheir immediate employer. The basic principleunderpinning the PCBU concept isthat thosewho createhealth and safetyrisks and direct theworkshouldbeartheprimary duty ofcareobligation formanaging those risks. In mostworkplaces and forthemajority of workers notmuchwillchange.However, forthe rapidlyincreasing numberof workingpeople engagedin non-standard employment arrangementsthe new legislation should afford them...