Independent Contractors say national OH&S laws should be reviewed

Independent Contractors Australia have called for harmonised occupational health and safety laws to be revised before they come into law next year, arguing the proposed changes are confusing, strip employers of their right to silence and allow OH&S authorities to seize businesses and their property without court oversight.

The contractors’ association argues the proposed laws will make workplaces less safe, rather than improve safety. It also says the laws will mean employers will unfairly assume responsibility for the behaviour of their employers, rather than leaving individuals responsible for their own conduct.

But Macpherson + Kelly principal and OH&S expert Andrew Douglas says the new laws don’t change the normal position that there is concurrent responsibility on a worksite.

“It has never been the case that a person on a site has no responsibility. It has always been the case that each person has a responsibility,” Douglas says.

Douglas agrees that the new laws will “heighten the level of responsibility for employers”, but says changing safety into a mainstream corporate activity will benefit us all.

He agrees that stripping employers of their right to silence is a problematic one. Under the new legislation, individuals will not be able to sign a certificate to ensure their comments can’t be used against them.

“The idea behind that is it’s become too difficult to prosecute,” Douglas says.

“I agree that’s going too far, but that’s a Parliamentary issue and we also need to balance individual rights versus the social good.”

Under the new laws, dangerous workplaces and objects are able to be seized without court permission but subject to court review.

Douglas says this is “broader than a prohibition notice that stops something”.

The ICA argues harmonised laws will “create confusion in workplaces about who is responsible for safety, thereby undoing much of the clarity that currently exists.”

In particular, it says the laws:

• Create confusion over who controls workplaces and hence who has safety responsibilities.
• Remove the right to silence and the protection from self-incrimination – key rights under criminal law.
• Enable OHS authorities to seize businesses and their property without court oversight.

“Given these shortcomings, the laws should be rejected until fixed,” the ICA says.

But Douglas says the new laws won’t have a great impact on contractors’ day-to-day lives.

“As a contractor how will this change my life? Not greatly,” he says.

“As an employer, it will increase my exposure to risk if I do not have a safety management I enforce.”

“And as an officer of any employer, I need a governance structure that tells me: what are the business risks and how are they addressed, do I have a safety management system with integrity, and do I have way of measuring that?”

“If have those things, it doesn’t matter if there are contractors or employees on site. The place will be safe and I will be protected from legislation.”