The harmonisation of workplace health and safety laws across the country, while reducing red tape and arguably improving safety for workers, could prove costly.

Legislation to mirror national model legislation was introduced into the Queensland Parliament earlier this month, (10 May) and, once passed, is expected to be made effective on 1 January, 2012.

The long awaited harmonisation of the patchwork of State-based workplace health and safety legislation will no doubt bring benefits to both workers and employers who operate across State borders.

But the lack of 'true' harmonisation means that there will still be differences between state systems that national employers will need to accommodate. In addition, changes in jurisdiction and the removal of privilege against self-incrimination could see workplace health and safety prosecutions drag through the higher courts, potentially costing industry more in legal fees.

While there is a system for harmonisation, it is not a case where we will have one system and one regulator across Australia. Instead, we will have at least nine different regulators and there will still be separate safety laws retained outside of the Bill.

National employers are therefore still going to be faced with the challenge of meeting these different requirements, which will obviously involve time and cost to monitor the changes in each jurisdiction and to implement compliant systems.

Employer groups and industry have welcomed the removal of the reverse onus of proof. The onus of proof had rested with executive officers, meaning they were required to prove that they did not commit a breach of safety law, but will now be transferred to regulators, requiring them to prove that a breach has been committed.

However, the broadening of the definition of worker and the increase in penalties for serious breaches increases the obligations and responsibilities of any business or undertaking.

The new definition of 'worker' will include labour hire, contractors and subcontractors, and penalties have risen, including the maximum penalty that can be applied to a corporation which has risen from $1m to $3m.

When coupled with the prospect of a jail term for individual company officers, the incentive to implement optimum risk management, ensuring workplaces and workers are safe, is extremely high.

The legislation also changes the jurisdiction in which cases are heard, with prosecutions to be heard before Magistrates, rather than Industrial Magistrates.

This will mean that appeals will no longer be heard by the Industrial Court of Queensland, but will instead go to the District Court and then on to higher courts in the general system.

The changes potentially mean that business, company directors or executives finding themselves involved in a prosecution, or subsequent appeals, will need more and higher level legal representation.

Taking all of this into account, any savings brought about by a reduction in red tape and compliance costs, could well be consumed by a prosecution, should a company find themselves in that position.

About the author

Cameron Dean is a partner at McCullough Robertson. He can be contacted on (07) 3233 8619 or via email at cdean@mccullough.com.au.