Here is the text of the article (OHS Professional June 2012).
How to Promote Innovation in OHS Law
The state of play with the harmonization was summarized by Michael Tooma, Alena Titterton and Melissa Carnell in the previous edition. In the meantime the Victorian Treasurer announced that “The Government will not sign up to the current proposal for harmonised legislation for occupational health and safety. It offers little benefit for Victoria to offset the $3.4 billion of estimated costs, the majority of which falls on small business. Victoria will continue to work towards best practice legislation.” (Budget Paper # 1, 1 May 2012).
The decision in Victoria is a sensible one. Harmonization was never particularly important with little likely practical impact on health and safety. The Council of Australian Governments (2008) connects it with phrases such as “Seamless National Economy” which might sound appealing but it never held much promise of revolutionizing practical exposure to risk. The key issue at the moment is not how much of it has been done but the possibility that the presence of the intergovernmental agreement and accompanying documentation could be a handbrake on innovation.
Why harmonization was never a revolution
The first is about the laws in occupational health and safety. There are two main sources of law; one the statute law which was already harmonized even before the so-called process of harmonization began; and the second is the common law which was more than harmonized, it was the same. So in this discussion I use the word harmony (and therefore harmonization) as meaning the arrangement of things that is are the same but not clashing either; thus working together.
The statute law was already harmonized before the process began. So you wouldn’t think that harmonizing something that was already harmonized would cause so many arguments or worries over whether it was finished or not. We already in-effect had a “model act” which by and large every place in Australia had implemented. The model act has been the Health and Safety at Work etc. Act 1974 (UK). The UK act was based on the reforms recommended by the review known as the Robens report (Committee on Safety and Health at Work 1972). These reforms introduced in the UK a codification of common law into statute and collaborative problem solving. All of the Australian jurisdictions subsequently followed much the same style. Thus we have had a model for years and therefore laws throughout Australia that have been the same in style and similar in substance and I would say generally in harmony.
Even more remarkable than the desire to harmonize a set of statutory arrangements that largely were already harmonized has been the overlooking of the common law. The common law applies across jurisdictions and provided a consistent law in occupational health and safety. The common law was already an Australia-wide system. Access to remedies under common law varies but the duties themselves are the same. Thus the duty of care from one party to another potentially affected person is consistent throughout Australia. If you are looking for consistent law then look no further than the common law.
The second point is about the relevance of any inconsistency. Most people work in small businesses. Some small business, especially those near borders may have some interest in two jurisdictions but most do not. Many larger businesses have interests in more than one place but some do not. The end result is that most people work in places that have no interest in multistate affairs. Your local hairdresser in Glenelg in South Australia has no concern about the tiny differences in legislative matters covering a hairdresser in Bendigo in Victoria any more than they would be worried by a difference in rules governing a hairdresser in Auckland or Los Angeles. The differences throughout Australia in statute law are at the edges rather than the core and these minor differences are of no relevance to most people.
The third point is that law is of only some importance in driving change. Law is only one motivation for actions on health and safety. Law is not all-important. It is possibly not even very important. Actions are motivated by many other things. Law establishes a minimum set of actions, a reasonable set of actions, not a high quality set of actions. Think about a health and safety improvement that you have seen or helped create at a workplace. Was it that bad that it was illegal at the outset? If it was not then the law provided no motivation for the change. By observation of practical problem solving activities at workplaces it seems as though the great majority of health and safety improvements does not occur in order to cross the illegal-legal threshold. They are done for the purposes of further improvement for other reasons. This work in health and safety is in the “optimization” space. Once beyond the legal minimum what motivation does the law create? None. Therefore, thankfully, people who can influence health and safety are motivated by other things; otherwise everything would be at the legal minimum. So if the law is not particularly important in driving many, and I would say most, health and safety improvements, it follows that small differences in it are not particularly important.
A more targeted response
The harmonization approach was a case of using a broad spectrum solution to a narrow problem. The approach taken was to address the whole system to deal with a small number of organizations with concerns. Some large organizations may have found differences on the fringe of regulation to be of some burden. Hence it sounded sensible to iron out those differences. However it meant changing the laws for everyone for the benefit of a arguably a fairly small group. A lateral and simpler approach would be to not change the laws for everyone to suit a few but rather allow the few for whom it mattered to choose one set of laws and follow those. An agreement could have been made between jurisdictions that organizations in multiple places could nominate one or the other set of laws by a declaration. Most organizations have no interest as it does not affect them. And it is doubtful whether those that do cross borders would have ever made the nomination. The thinking behind this is that once they tried to compare the laws side by side they would not be able to see any real difference or advantage or would see minor points one way and some the other and would not have bothered choosing. Nevertheless the option to choose would have addressed complaints about differences being burdensome. This would be an example of a targeted solution rather than a blitz; a bit like pulling a weed out of your garden rather than attacking the whole thing with a bulldozer.
The downside to harmonization at this point
For the above reasons, the harmonization process was never going to radically change on a vast scale exposure of risk at work. It probably had the prospect of some improvements here and there, but with that also came the prospect of some diminution in other places. At best then the intergovernmental agreement is of little practical relevance but what could be a problem is that it could be harmful. Whatever value you ascribe to legislation, whether it is a lot, some, or a little, if it is to be of more benefit, it needs to innovate. That is self-evident. If it is to be better it must change. The intergovernmental agreement could be harmful by making innovation in law more difficult. Innovation does not come from making sure every jurisdiction is perfectly ordinary. Innovation springs from being imperfectly great in some places. Innovation does not come from consistency. Innovation comes from inconsistency. The approach of refining the philosophical base for legislation might have been worthwhile but the hundreds of pages of detail necessarily reverted to the lowest-common denominator that could be agreed and if left in place makes change difficult. In terms of idea evolution, the harmonized approach was bound at the outset to ensure the survival of the most acceptable ideas, not necessarily the best ideas. In Sweden roll over protection on tractors was mandatory on new tractors from 1959 and on tractors in use from 1965. Imagine if the Swedes had to wait until we decided to agree? The same is true of the danger of not allowing experimentation and innovation within Australia.
What we need to do now.
As I think Mark Twain said “I didn’t have time to write a short letter, so I wrote a long one instead”. That seems to be what has happened with harmonization. It seems as though the simple philosophies were too difficult and so instead we have reams of detail. The harmonization documents are long and detailed which is ironic for a set of arrangements that are supposed to be principle-based. The danger of this is that it is a large anchor discouraging forward innovative movement. The agreed harmonization approach, if it was needed, should have been written on a few pages and that still should be done now. What we need to do now is to move on from the 2008 agreement with a new 2012 agreement that sets out the agreed philosophies so that the system is enabling of legislative innovation. This would allow progress and for law to complementary but not necessarily the same. It probably should contain common philosophies, an encouragement to innovation, and a willingness to share these ideas so that the Australian system changes and grows. I think we still should do it. Even if it is a bit harder.
Committee on Health and Safety at Work 1972, Safety and Health at Work: Report of the Committee 1970-72, HMSO, London.
Victoria 2012, Victorian Budget 2012-13 Treasurer’s Speech Budget Paper No. 1 Presented by Kim Wells MP Treasurer of the State of Victoria, Department of Treasury and Finance, Melbourne, http://www.budget.vic.gov.au/budget.html.
Council of Australian Governments 2008, Inter-Governmental Agreement for Regulatory and Operational Reform in Occupational Health and Safety, COAG, Barton, http://www.coag.gov.au/intergov_agreements/index.cfm.
Tooma, M., Titterton, A. & Carnell, M. 2012, ‘The End of Work Health and Safety Harmonisation?’, OHS Professional, March 2012.