In a crucial step towards meeting the December 2011 deadline for the harmonisation of health and safety laws, the Workplace Relations Ministerial Council approved the release of the exposure draft of model laws on 28 September 2009.

Proponents of harmonised health and safety laws claim a national system will improve safety outcomes, reduce compliance costs and improve efficiency. There can be little doubt that a harmonised system will decrease red tape, however a demonstrable improvement in safety outcomes will be more difficult to assess.

Whilst there will be some changes on a day-to-day level for businesses in many of the jurisdictions, overall the model legislation is unlikely to dramatically effect the way safety is actually achieved. The bulk of changes to normal business from a health and safety perspective will be contained in the detailed regulations and any supporting material yet to be drafted.

Initially businesses will need to review their systems and procedures from a compliance perspective. There is also likely to be significant work required in respect of the detailed aspects of the regulations, for instance reviewing and consolidating existing processes for licensing and registration requirements.

The controversial aspects of the model laws centre on considerations that demand attention when systems have failed, such as the positive duty on officers to exercise due diligence, penalty increases and the removal of the privilege against self-incrimination for individuals.

The imposition of a positive duty on officers to exercise due diligence to ensure the company complies with its health and safety duties means companies may need to review their current arrangements with a view to assisting their officers in achieving this higher threshold. The definition of officer includes people who influence or make decisions that affect the whole or a substantial part of the business.

Given this, large businesses will need to ensure their senior management are adequately supported and provided with the tools to assist them in exercising due diligence. It will be important for managerial roles and responsibilities to be clearly defined and properly executed.

Small to medium businesses will need to be particularly conscious of these changes as management structures in these organisations are often more condensed, increasing the likelihood of middle management being caught by the officer provisions.

Compliance and enforcement policies will also have an important role to play in determining consistent regulation across borders. As many of the key changes will pose challenges in the context of regulatory activity, the uniform application and enforcement of the harmonised laws will be a fundamental measure of success of the new regime.

By Penny Stevens, Partner, Occupational Health and Safety, Hall & Wilcox Lawyers and Nicole Fauvrelle, Special Counsel, Occupational Health and Safety, Hall & Wilcox Lawyers