New OHS laws divide experts

New OHS laws based on a national Model Act will bring "a race to the bottom" or much-needed clarity for employers, say experts at the recent Safety Conference in Sydney. All agreed the changes will have a big impact on employers and unions in New South Wales.On October 27, a line-up of eight experts, including lawyers, Professor Ron McCallum, the chair of Safe Work Australia, WorkCover NSW's general manager and Comcare's general manager of prevention and rehabilitation discussed the biggest reform of OHS law in 30 years. Three issues dominated discussion: the burden of proof, personal liability of company officers, and the impact on prosecutions. Neil Foster, senior law lecturer from the University of Newcastle, believes personal liability is at the heart of the changes."The harmonisation process seems to have been driven by directors' fears ofpersonal liability and the hope that there would be some watering down ofthe laws," he says."In my view, the Model Act inappropriately waters down the personal responsibility of company officers, although I do support some of the proposed changes in this area, including the acknowledgement that the officer has obligations to exercise due diligence to protect the workers. But with the change to the current onus of proof provisions, it is quite possible that guilty people will now escape justice."Michael Tooma of Deacons law firm, who moderated The Safety Conference's harmonisation panel discussion, said that while current state laws differ in their approach to the approach to personal liability of officers, all will be reshaped by the proposed Model Act. "Despite the range of liabilities, all have one thing in common: the officer will be personally liable only if their company commits an offence," Mr Tooma says. "The new regime does not require this."