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Is this "Clayton's harmonisation"?

In a recent “webinar” presentation, Nichola Constant, Director, People and Culture Strategies, questioned whether the use of jurisdictional notes in the model Work Health and Safety Bill (WHS Bill) could lead to “Clayton’s harmonisation”, referring to the non-alcoholic drink which was billed as the “drink you are having when you’re not having a drink” popular in the 1990s.

The WHS Bill contains a number of “jurisdictional notes” which specifies the areas in which a jurisdiction enacting the WHS Bill is permitted to deviate from the provisions of the WHS Bill. The jurisdictional notes are all collated in an appendix to the WHS Bill.

While many of the jurisdictional notes are relatively insignificant in nature (e.g. jurisdictions are permitted to use a name other than the Work, Health and Safety Act 2010 to describe the WHS Bill), Ms Constant highlights two particular areas where jurisdictional variation are permitted which could have important ramification for OHS harmonisation.

Firstly, Constant raises issue with the fact that each jurisdiction is able to determine the extent to which offences in that jurisdiction have extraterritorial reach. Constant uses a practical example to highlight the problems which could ensue from this permitted deviation:

“Let’s use the example of a trucking company based in Brisbane but engaged in operations around Australia. Let’s say for argument’s sake that there is a workplace incident on a NSW road and Queensland’s Work Health and Safety Act states that offences under it have extraterritorial application. This could lead to the hypothetical employer in this scenario being investigated by WorkCover Queensland and WorkCover NSW. If different prosecutorial guidelines operate, then a different decision as to prosecution could be made in different states regarding the same incident.”

When asked about the Heads of Workplace Safety Authority’s “WHS Regulators in Harmony” project to develop a uniform compliance and enforcement policy, Constant responded:

“We are yet to see what the uniform compliance and enforcement policy will look like. Given the very different histories and institutional cultures operating at the various workplace safety authorities, absolute uniformity may be quite difficult to achieve.”

Constant also sees the fact that the jurisdictional notes permit the various jurisdictions to determine the relationship between the principal WHS Bill and other laws in that jurisdiction as problematic. Although the breadth of coverage of the Work Health and Safety Regulations will no longer necessitate numerous other pieces of legislation regulating OHS in particular industries or in relation to specific OHS issues (e.g. Dangerous Goods Act 1985 (Vic)), according to Constant:

“We are yet to see whether the different jurisdictions will retain their industry/issue specific legislation. Although the WHS Regulations will have a bearing on this question, we shouldn’t forget the political and industrial landscape.”

Constant adds, “practically speaking, 2012 could be the best political environment for OHS harmonisation to commence”.

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