The national harmonised OHS laws are due to start on 1 January 2012. But will they will be effective in reducing red tape and making the workplace safer? Justin Whealing reports

When does a harmonisation process leave people far from calm and relaxed? Evidently, when it involves workplace safety.

While the notion of bringing together Australia's nine separate pieces of federal, state and territory workplace safety legislation has been talked about for many years, the harmonisation process under the current Federal Government kicked off in earnest in 2008 when the Council of Australian Governments made a commitment to adopt a uniform national occupational health and safety model.

Although there is consensus that OHS laws need to be simplified, plenty of complexity and ambiguity has arisen from the harmonisation process. Union groups are grumbling in NSW because it might take away their powers to commence prosecutions, while large businesses such as Rio Tinto argue the new laws are too complex, with the proposed new regulations numbering 580 pages in length, and that unions will have too much power in the formation of workplace policy.

The harmonisation process has also resulted in some strange political bedfellows. When she was premier of NSW last year, Kristina Keneally said her government would not support the model OHS legislation, putting her at odds with Prime Minister Julia Gillard and NSW Liberal Party leader Barry O'Farrell, who both supported the legislation. Just last week, the O'Farrell Government introduced the harmonised work, health and safety laws into NSW Parliament, describing it as a "win for workers and business".

"There are nine different WHS regimes operating across Australia, and this once-in-a-generation change will see thousands of pages of different state-based legislation simplified into a single set of national laws," says Greg Pearce, NSW Minister for Finance and Services.

While there is a long-held notion that if both sides are grumbling, then you've got the right compromise, is anyone other than politicians happy with the proposed new laws?

"People think that harmonisation conceptually is a really good idea, and I agree with that" says Blake Dawson partner and national OHS head Lea Constantine, whose client base includes some of Australia's largest national employers across a wide range of industries.

"Ultimately it should streamline OHS policy and make it easier for everyone in terms of compliance, but we are not there yet," she says, refuting the notion that the new laws will usher in a new era of workplace safety overnight. "If people think that come 1 January 2012, these laws will be perfect, they won't - they will be far from perfect."

There is no doubt that corporate Australia is behind the harmonisation process philosophically, as it will bring all these different pieces of OHS legislation under the one umbrella. However, each state and territory will stay retain a degree of independence in how they monitor and interpret those laws, and that has the business community worried.

"I think there is still some uncertainty about the model that has been adopted, insofar as whether it will deliver something that is truly harmonised, because each state has to adopt the Act, and there is capacity for the states to put their own twist on the laws," says Gadens senior associate Stephanie Nicol.

"For example, there will be capacity for the states to nominate their own regulator and to refer the matters to their own courts, and the concern from my clients is that the capacity to introduce some of their own variables could potentially undermine some of the consistencies these harmonised laws are meant to be achieving."

The conjecture about how the proposed model laws will function is magnified by the fact that there are still significant gaps in the legislation. For instance, the mining industry is still waiting for further updates on aspects of the proposed legislation, while the mining sector in Queensland could continue to be subject to a different safety regime.

"It is not clear what will exactly happen in Queensland in the long-term," says Brisbane-based Minter Ellison partner Samantha Betzien, who has many clients in the energy and resources sector, as well as a suite of government clients and businesses operating in the manufacturing and construction sector.

"Queensland, for example, will retain specialised safety legislation including in relation to mining. As a result, the mining sector will be harmonised with the rest of the states and territories. It remains to be seen whether the specialised mining legislation is amended to reflect the duties under the model legislation.

White-collar OHS crimes

Much of the harmonisation debate has centered around traditional blue-collar issues such as the right of union access to worksites and the extent of personal liability for board directors following a serious incident in the workplace.

However, issues such as harassment and bullying are becoming an increasing concern for professional and service industries, and OHS and employment lawyers are increasingly being sounded out for advice.

"Bullying is a really big area of concern at the moment. We hosted a seminar at the firm a few weeks ago that was really well attended and was all about trying to identify and prevent bullying," says Gadens senior associate Stephanie Nicol.

"The thing about bullying is that it is not very well defined. We all know it can be a risk to safety and can give rise to a lot of other claims, but thus far, its legal definition has not been clearly defined as it can be quite subtle as well as overt."

It has been mooted that a code of practice centered around bullying will be drafted before 1 January as one of up to 16 codes of practice that have yet to be released.

With lingering ambiguity about what does or doesn't constitute bullying and whether it is a code of conduct or a safety matter, many OHS lawyers report that their clients are not certain which basket this increasingly problematic workplace issue sits.

"Bullying has always been a tricky issue," says Betzien. "There are schools of thought that bullying is not dealt with best in an OHS context."

Betzien says that although "white-collar issues are becoming an increasingly important part of traditional workplace health and safety issues", the current OHS system was not designed to interpret many of these increasingly pressing modern issues. "It is very difficult to deal with under the current workplace safety regime," she says. "Workplace harassment might be better dealt with in discrimination legislation as opposed to a workplace health and safety context, but there are some exceptions to that, such as if there is a physical aspect to the bullying, which makes it more suitable to deal with in the workplace health and safety framework.

"OHS legislation hasn't traditionally worked well in terms of dealing with psychological injury; it is just not set up that way," she adds.

At the coalface

There are few areas of the law that are more confronting for private practice lawyers than OHS. They are often called almost immediately after a catastrophic workplace incident has occurred, and have to deal with confronting and traumatic situations. "Some of this work is not for the faint-hearted," says Constantine. "Sometimes you are exposed to some pretty awful things."

Constantine is often called shortly after an incident occurs, assisting with the investigation process and any prosecution that might arise. "I am constantly dealing with issues and incidents, and how to best respond to them," she says.

Her duties after an incident often include liaising with the media and union groups, and ensuring that affected employees and family members have access to counselling services. She says that dealing with such matters naturally takes an emotional toll on the lawyers involved. "I am conscious of this as a partner in terms of how I manage my staff," she says. "I constantly check in with them, and make sure they are OK."

Increased awareness of safety issues in the workplace and the reputational fallout for companies with a poor safety record has led to OHS issues playing a far more prominent role in the development of workplace policies. This means OHS lawyers are often called upon by the private practice colleagues in areas such as project finance, employment law and property and construction matters.

"I do quite a bit of work with our property, infrastructure, projects, construction and insolvency groups," says Constantine. "There is no doubt that OHS issues feature much more in infrastructure projects now, and that is due to the elevation of safety as a major corporate issue. Today in large corporations, it is often the first item to be discussed on the agenda in board meetings."