Simon Crean (Hotham, Australian Labor Party, Minister for Regional Australia, Regional Development and Local Government) Share this | Hansard source

he government opposes these amendments too. In moving these amendments, the member for Melbourne has suggested that their purpose is to align the discrimination provisions in the Work Health and Safety Bill with those in the Fair Work Act. I note that the passage of this bill was recommended by the Senate Education, Employment and Workplace Relations Legislation Committee.

Whilst it is true that there is overlap between the provisions of the Work Health and Safety Bill and those of the Fair Work Act, the provisions of each operate differently. Discriminatory conduct under clause 104 of the Work Health and Safety Bill is a criminal offence; the provisions of the Fair Work Act are subject to civil penalties only. The penalty in the Work Health and Safety Bill of $100,000 is substantially greater than the civil penalty under the Fair Work Act of 60 penalty units—that is, $6,600. In fact, the penalty to be paid to Fair Work Australia under the WHS Bill is 15 times greater.

In addition, a person found guilty of an offence under the Work Health and Safety Bill will have the stigma of a criminal offence conviction, which is not the case under the Fair Work Act's civil penalty provision. The provisions of the Work Health and Safety Bill do not replace or displace the Fair Work Act provisions. Discriminatory conduct for a prohibited reason under the Work Health and Safety Bill may also breach the adverse action provisions of the Fair Work Act. Proceedings may be brought under either act; however, a person cannot bring civil proceedings under both acts.

In relation to the amendments to the criminal offence aspect, in the context of imposing criminal liability it is appropriate that a prohibited reason be a dominant or sole reason for discriminatory conduct. Whilst the test is different to the standard required by the civil remedy provisions of the Fair Work Act, the dominant reason test is necessarily reserved for the more serious offences with significant penalties attached. The bill also recognises the right of a person to be presumed innocent of a criminal offence until proven guilty, but the amendments proposed today would in effect reverse that onus of proof.

The civil penalty provisions in the Fair Work Act and the civil proceedings provisions under the Work Health and Safety Bill operate differently. The Fair Work Act provisions are part of the compliance regime of that act. Under that act, a civil penalty is provided because a person has breached the law, but under the Work Health and Safety Bill breaches of the law are dealt with as criminal rather than civil matters.

The Work Health and Safety Bill civil proceedings provisions are not intended as punishment for breaching the law but rather to provide for additional mechanisms for the person who is the subject of the discrimination to remedy the breach. The Work Health and Safety Bill enables an eligible person—that is, the person affected by the contravention or their representative—to bring civil proceedings in relation to discriminatory conduct. The court can grant a range of civil remedies, including compensation and reinstatement, but unlike under the Fair Work Act it cannot order a civil penalty. The requirement in the model bill that the discriminatory reason must be the substantial reason for the civil cause of action was an explicit decision of the Workplace Relations Ministers' Council.

They are the reasons, but in effect this too would cut against what was recommended after exhaustive consultations. We oppose this group of amendments.

Question negatived.

Bill agreed to.

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