Kirsten Livermore (Capricornia, Australian Labor Party) Share this | Link to this | Hansard source

I call on the member for Fraser to continue his remarks.

Andrew Leigh (Fraser, Australian Labor Party) Share this | Link to this | Hansard source

The laws that had previously developed for the Commonwealth jurisdiction were simply not equipped to cover high-risk industries. This meant that the Liberal Party put pressure not only on the workers who were forced into a new health and safety scheme but also on the public sector employees forced to cope with the additional pressure placed on an ill-equipped system.

The Liberal Party's expansion of the Comcare system also made things more confusing and less streamlined for employers and employees alike. The push to get employers to opt out of state and territory laws led to confusing situations with workers in the same workplace working side-by-side under different health and safety systems. It was a thinly disguised attempt to get more and more employers away from the state and territory systems and their well-developed involvement of unions in health and safety. All of this was because of their ideological opposition to worker representatives playing an active role in the development and enforcement of health and safety arrangements and their ideological opposition to union members being able to have an advocate to help them with a safety concern on short notice.

The Liberal Party cannot even stand by their claim to be operating in the interests of employers when it comes to health and safety. Their reforms increased confusion and made compliance more difficult, particularly in those high-risk industries that they had fought so hard to get away from state and territory schemes. Their industrial relations record also reduced the health and safety protections for workers. Meetings with unions to discuss genuine health and safety concerns became banned in agreements under Work Choices. The relationship with the Work Choices regime also meant that workers feared for their ongoing employment if they dared stop unsafe work. These reforms were all part of the extreme, ideologically-driven workplace agenda of the coalition.

We have seen evidence that the opposition continues in their ideologically-driven campaign against cooperation in the Australian workplace. The member for Bennelong recently said:

We have many examples in our region of coffee shops and the like not trading on weekends because of penalty rates.

It is something that must be addressed and it must be addressed without the position of the worker is king and must be given these rights.

The member for Bennelong is only concerned with the rights of businesses and employers. He has absolutely no regard for workers and no regard for the careful balancing act that is health and safety—that is, good industrial relations. The Leader of the Opposition has done absolutely nothing to silence those extreme voices in his own party demanding a return to the Work Choices era. Some of the main champions of Work Choices sit inside his own shadow cabinet. It demonstrates the Leader of the Opposition's commitment to continued ideologically-driven extremism within the Liberal Party, a tendency we see on every issue in modern politics from the mining tax to climate change.

The Labor Party has long known the confusion that arises when workers and employers need to get across 10 separate pieces of legislation. It is a confusion that it is all too evident in a place like the ACT, where a move from working in Queanbeyan or a switch between the private and the public systems might mean an entirely different health and safety system. A business operating out of the ACT but also servicing Queanbeyan has to be aware of compliance with two separate pieces of occupational health and safety legislation. These complexities add to the paperwork and costs for thousands of Australian businesses that operate across state and territory boundaries. This legislation is a historic change, supported by unions and employer organisations and which has had their input the whole way through the process. It has delivered a reform that the coalition was desperate to achieve but unable to do because of their extreme attempt to shut down unions and keep them away from members.

The Prime Minister has said time and time again that the Labor Party is the party of work and the party of workers. We have the interests of those workers in the forefront of our minds in everything we do. Whether it is protecting jobs, introducing paid parental leave, reinstating workplace rights or, in this case, guaranteeing safety in the workplace, the Gillard government has time and time again demonstrated its commitment to workers.

In closing, I would like to thank Louise Crossman, who deeply understands the issues of workers' health and safety and whose work in the union sector, in the public service and now as chief of staff in my office demonstrates her lifelong commitment to ensuring quality living standards and a quality workplace for Australian workers.

Dan Tehan (Wannon, Liberal Party) Share this | Link to this | Hansard source

I rise tonight to speak on this bill and I must say that I am a little bit confused because, if you believe what our Prime Minister has had to say, this bill has already been signed, sealed and delivered and has already been enacted. As a matter of fact, it is ironic that I am standing in the parliament tonight talking about this bill because it reminds me of something else which was said before the last election, which we dealt with today, in the most shameful and deceitful manner. Something was ruled out directly before an election and then, only 14 months later, we have legislation in this place which is completely contrary to what the Prime Minister said.

I would like to place on the record for all to be able to see what the Prime Minister did say before the last election about these OH&S laws:

Businesses have been complaining for 30 years that they have different obligations in different states and at the same time not every individual worker had the same safety standards. Now, I have delivered that.

Thirty years—on the day we delivered it there were some public servants that had tears in their eyes because they spent all their working life waiting for someone to deliver that reform. Wasn't easy, but I got it done.

Yet here we are in October 2011 and we are still debating this bill. So sadly it seems as if the Prime Minister saying that she got it all done—signed, sealed and delivered—will go down in history along the lines of 'there will be no carbon tax under a government I lead'. Anyway, enough of people saying one thing before an election and another afterwards. I think ultimately the Australian people will have their say on whether they think that is the way political parties should go about governing or not at the next election, and we can leave it up to them.

The harmonisation of the nation's numerous OH&S laws was started by the Howard government in October 2006. I would like to place on the record the very constructive way the coalition has dealt with the harmonisation of OH&S laws. Sadly, when we went to nationalise OH&S laws in 2006 and in 2007 those opposite were not as supportive of our efforts as they were once they got into government, which is very disappointing. It was the coalition who very much started this process in 2006, and it has been recognised on our side as an important regulatory reform. I think we would all agree that nationalising OH&S laws between states and taking a national approach can cut down the regulatory burden on businesses, especially those businesses who have operations between states like those who might have businesses which are operating in Victoria and New South Wales. You could get the very silly situation, especially if you looked at a place like Albury-Wodonga, where you had a business on one side of the Murray River operating on OH&S laws completely different from those operating on the other. So this model bill is intended to be mirrored in all jurisdictions, and I think that is something that is welcomed by all sides of this parliament. There are separate bills that will be introduced into each jurisdiction's parliament to give effect to that model bill.

The coalition does have some concerns about this legislation. Those concerns lie with the removal of the control test and the removal of the right to remain silent along with the regulations. We recognise that it is important that this bill be viewed in the context of the harmonisation of occupational health and safety laws being conducted under the auspices of the Council of Australian Governments. The IGA also expresses the commitment of each jurisdiction to enact or otherwise give effect to their own laws that mirror the model laws as far as possible by the end of 2011. That is something else which I think we need to address, because it is now October and we are still debating this bill. It is something which, as I said previously, the Prime Minister told the Australian public should have been enacted before the last election. The laws will come into place on 1 January 2012. Without us having seen the regulations, this is going to provide a lot of difficulties for business, particularly small businesses, because they need the necessary time to read the regulations in great detail to make sure they can comply with them. Sadly, under this government there is a real concern amongst business as to how strictly those compliance costs will be enforced as a potential way for unions to get onto work sites. That is something the regulations, hopefully, will deal with.

The model work health and safety act which underpins the Commonwealth Work Health and Safety Bill was informed by the national OHS review. The review was conducted over the period of April 2008 to January 2009. The review conducted extensive consultations with a broad range of stakeholders, including regulators, unions, employer organisations, industry representatives, legal professionals, academics and health and safety professionals. It received 243 submissions in response to an issue paper released in May 2008. The review panel completed its work with the submission of its second report in January 2009. The review panel made 232 recommendations, and those were responded to in May 2009. The responses to recommendations made by the review panel formed the basis for the model act. The model act itself was the subject of extensive consultation and was developed by Safe Work Australia with the involvement of all Safe Work Australia members. In September 2009, Safe Work Australia released an exposure draft of the model act for public comment and 480 submissions were received. In December 2009, after incorporating a number of amendments proposed as a result of consideration by Safe Work Australia, input from the parliamentary council's committee and the public consultation process, the approach was endorsed and the amended model act became the agreed model act.

I would like to express in a little bit more detail some of the coalition's concerns, especially when it comes to what may or may not be in the regulations. Training in occupational health and safety is always an important issue and something that on this side of the House we have always stressed. At this time of transition to new arrangements the availability of courses is vital. Unfortunately, the availability of accredited courses has been reduced by 26 per cent since restrictive changes were introduced by the Safety, Rehabilitation and Compensation Commission in 2010 in order to facilitate transition and ensure the availability of training courses.

I am reasonably confident that the coalition will be putting forward amendments to the transitional and consequential bill enabling the continuation of courses accredited under the 2006 and 2007 arrangements, and I would hope that the government would see this as a very constructive option being put forward and something the government could move to support, because I think this will be an incredibly important amendment. I do not think anyone on the other side could say that training is not vital, in particular when it comes to OHS training, given the consequences that we can see on the workplace floor if proper training has not been put in place.

So that issue of training is one thing we in the coalition would like to see addressed. We would also like to see the removal of the language regarding the right to silence and protection from self-incrimination. Prosecution under OHS laws are criminal matters. Under normal criminal law everyone has the right to silence and protection from self-incrimination. That is, you cannot be forced to say something to an investigator, the police, unless the investigator first obtains a court order and so on. This protection is a right we all have and is essential to community confidence in our criminal justice system and the rule of law. It stops abuse of power. I think that all of us in this place would recognise that that is a very important element that we estop this abuse of power. Protection against self-incrimination is currently available under OH&S laws in New South Wales, Queensland, South Australia and Victoria. The majority of the states already have that protection against self-incrimination; therefore, the model OH&S laws take away the right to silence and protection from self-incrimination. These provisions were already embedded in the existing legislation in New South Wales, Queensland, South Australia and Victoria. The amendment which the coalition is putting forward will be consistent with the law in those four jurisdictions, and I hope it is an amendment which the government will see fit to pass.

There is also the failure to include the term 'control' in identification of duties of care. The modern principles of OH&S safety were first created in the UK in 1972 under the Robbins Review. The principle holding the responsibility for safety is allocated according to what is reasonable and practicable to control—and that is an incredibly crucial element. These are the internationally accepted benchmarks embedded in International Labour Organisation conventions, to which Australia became a signatory in 2004. ILO Convention 155, article 16 states: 'Employers shall be required to ensure that, so far as is reasonably practicable, the workplace's machinery, equipment and process under their control are safe and without risk to health.' The national review into OH&S laws report of 1 October 2008 stated that there was much dissent in submissions over the inclusion of the word 'control' in duties of care.

Recommendation 8 called for the removal of the word 'control' from the definition of reasonable and practicable. This is implemented in the national model OH&S laws. The model laws also introduce a new and untested legal concept of connecting duties of care to a person conducting a business or undertaking. The removal of the word 'control' not only creates confusion over who is responsible for what in work safety but also is a major shift away from known OH&S principles in all Australian jurisdictions, except New South Wales. Sadly, what we will see here if this is not rectified is New South Wales Labor coming to Canberra and basically exporting its model across the country. I think we would all agree that that is an incredibly dangerous precedent, because most things that New South Wales Labor ultimately touched became an unmitigated disaster. Further, it removes a key element of the ILO OH&S conventions to which Australia is a signatory and creates a legal vacuum due to unknown application and interpretation of duties of care under a new concept.

I will not go into the amendment of the Greens in too much detail, but the coalition agrees with the Master Builders Association which strongly rejects union right of prosecution. I think we could all agree that all the reasons for this Greens amendment being opposed have been stated pretty clearly.

In conclusion, there are serious issues with the time frame of this bill. It also needs some serious amendments, but otherwise the coalition agrees with the principle. (Time expired)

Jill Hall (Shortland, Australian Labor Party) Share this | Link to this | Hansard source

I rise to support the Work Health and Safety Bill 2011 and in doing so I have to say that I think the member for Wannon was supporting the legislation. I am not too sure—there was a lot of ambivalence about what he was saying. It was very difficult to follow the train of his contribution to this debate. It is not hard to see that he is a member of the party that supports Work Choices and would have it back in force in Australia at the drop of a hanky. It was also interesting to hear him misrepresenting the Prime Minister's statements made at a time when there was an agreement with all the state governments through COAG to introduce model legislation. The Prime Minister was not saying that this legislation had passed through parliament. The fact that the member for Wannon comes down here to this place and misrepresents the Prime Minister's statements simply shows how genuine he is in supporting this legislation.

This is very important legislation that will make a difference to employers, to workers and to those bodies that represent both employers and workers. The bill will implement the model Work, Health and Safety Bill, the model bill, within the Commonwealth jurisdiction, forming part of a system of nationally harmonised work, health and safety laws as agreed to by COAG in 2008 and the Workplace Relations Ministers Council in 2009 when, I might add, the Prime Minister was the Minister for Employment and Workplace Relations. This bill will apply to businesses and undertakings conducted by the Commonwealth, a public authority or, for a transitional period, a non-Commonwealth licensee. Once again, I have to refer to comments made by the member for Wannon. When he says he supports the Master Builders, I do not think anyone in this parliament would be surprised that the member for Wannon supports the Master Builders Association. When I listened to this contribution to this debate, all I heard was a person arguing for businesses, not a person who was trying to give a rounded view of what this legislation is about. Even when he was talking about training and the reduction in the number of accredited training courses, he did not say why those courses had lost their accreditation. This government is committed to quality training that actually delivers to workers and workplaces. What the member for Wannon did not say is that there are a lot of providers of training courses that are of a lesser standard than is needed. The government is making sure that the training courses that are delivered are accredited courses.

Access Economics estimated that harmonising work health and safety laws will save 40,000 businesses that operate across the country around $179 million per annum. It said the model law will also enhance safety protection for workers and do it in a way that is simple and easily understood, and the same rights and protections will be afforded to workers regardless of where they work or where their work is carried out. Labour mobility will also be increased by providing recognition of licences and training across jurisdictions. That is really important because, as we all know, the way the labour market works is that a person can be employed in one state, work in another state this week and in a different state again in the following week. The duties contained in the model legislation will also ensure that all workers are provided with protection while at work, whether they are employees, contractors or labour hire workers—and we know there is an increase in contractors and labour hire workers in the workforce—outworkers, apprentices, trainees, work experience students or volunteers, through the expanded definition of workers supported by a new compliance regime. So there are three really important facts: first, it is better for business; second, it provides more protection for workers across jurisdictions; and, third, it extends the definition so that people who previously missed out on being covered by occupational health and safety legislation will be covered.

I will share with the House experiences I had in my previous working life when I worked with people who were injured in the workplace. Often they would be people injured in a different jurisdiction to where I worked. In one case that particularly stands out in my mind, I was working in New South Wales and an injured worker came to see me who had been injured in Western Australia and had come back to New South Wales. So I had to follow it through a system that existed in Western Australia as opposed to the system in New South Wales, looking at occupational health and safety issues and workers compensation issues and how they varied in the New South Wales and Western Australian systems, and then there was a different system operating at that time for the Commonwealth.

This legislation will bring all the different systems together. The occupational health and safety system will cover the Commonwealth, and the model legislation will then be introduced in all the states. I think this is not only good for business and workers but good for the whole of our country. The model legislation was agreed to by the WRMC and, as I said, will be implemented in the Commonwealth jurisdiction and mirror laws will be introduced in the states. This has only happened after widespread and lengthy consultation. The member for Wannon was very critical of the fact that this had taken so long. Sometimes it is better to spend a little bit more time getting things right, consulting widely, rather than pushing legislation through the parliament.

Michael McCormack (Riverina, National Party) Share this | Link to this | Hansard source

Hear, hear!

Jill Hall (Shortland, Australian Labor Party) Share this | Link to this | Hansard source

Thank you; I have support from the member for Riverina.

Michael McCormack (Riverina, National Party) Share this | Link to this | Hansard source

It comes with a hook, though.

Jill Hall (Shortland, Australian Labor Party) Share this | Link to this | Hansard source

Yes, I am sure it does. There has been widespread consultation. Employers covered by this legislation have commented, as have the ACTU and members of the Safety, Rehabilitation Compensation Commission. There have been 29 submissions received and comments were taken into account when this bill was finally put together. The reforms will repeal and replace the current Commonwealth Occupational Health and Safety Act. The coverage of this bill remains similar to the OH&S Act insofar as it will apply only to Commonwealth public authorities and for a transitional period, as I said at the beginning of my contribution, to non-Commonwealth licensees.

This has been a long time coming. For the majority of Australia's history, when it comes to occupational health and safety and many other issues the states and the Commonwealth have in effect operated as separate nations through operating separate jurisdictions. By implementing this agreed model there will be some very important changes to occupational health and safety regulations in the Commonwealth and they will be mirrored in the states. That will advantage all the parties I have already identified—businesses, employers, workers, unions; all those involved in occupational health and safety. The bill will also ensure that occupational health and safety committees operate in the same way in the Commonwealth and in the states and that both employers and workers have rights and know their rights. When the changes in the bill are brought in, they will provide for a wider range of contemporary work relationships: contractors, employees, contractors, subcontractors, labour hire workers, apprentices and volunteers.

Labour hire workers, contractors and subcontractors have fallen through the cracks on many occasions when they have been injured or when they have needed to undertake training in proper safety. Because of their status in the workforce—they do not really fit into any particular pigeonhole—they often have not been provided with the same sort of training, compensation, coverage and access to occupational health and workplace safety as other workers have. This legislation addresses this, and that is a very important aspect of the legislation.

There is a new statutory right for workers to cease unsafe work in certain circumstances. I know that most members of this parliament will have been approached by workers who have been forced to work in unsafe conditions. One case that was brought to my attention was of a person who was welding in the rain and was ordered to continue doing that. That person ended up having a serious accident, and the employer refused to call an ambulance because they did not want to have the accident reported to New South Wales WorkCover. But now, under this legislation, when it is mirrored in New South Wales and enacted in the Commonwealth, workers will be able to say, 'I'm not going to do that,' and they will be backed up by their right to say that.

Under the legislation there will be tougher penalties for failing to meet the duty of care as well as a removal of the Commonwealth immunity from criminal prosecution and a wider range of enforcement options, including infringement notices, remedial orders, adverse publicity orders, training orders and orders for restoration. These are all very important changes which will make our workplaces safer and have a positive impact for both employers and workers.

The bill also includes provisions to deal with issues that are specific to the Commonwealth. It will extend the application of work health and safety laws to members of the defence forces and other persons currently deemed to be employees for the purposes of the current OHS Act. It will also enable the Chief of the Defence Force and the Director-General of Security to disapply specific provisions of the act and establish Comcare as the sole regulator of OHS in the Commonwealth. This is good, important, groundbreaking legislation that will change the way OHS operates not only in the Commonwealth but also throughout Australia.

Michael McCormack (Riverina, National Party) Share this | Link to this | Hansard source

I find myself in furious agreement with the member for Shortland when she says that the government should take more time on some of its legislation. Indeed the government should. It is a shame that the government did not take more time and put the clean energy bills to an election rather than put them through this parliament now—although it was not their idea to do so but the Greens', to whom the government is beholden.

Unions, to whom this government is also beholden, have warned that the lives of miners are being put at risk by this government, and the states are rushing through thousands of pages of new safety regulations without adequate consultation. The General Secretary of the Construction, Forestry, Mining and Energy Union's mining division, Andrew Vickers, said:

… national standards had been due for completion in February and were then to be open for public comment for six months before a start date of January next year.

He is quite concerned. He went on to say:

… incomplete and previously unseen codes were not released for public comment until—

July—

with the consultation period cut to eight weeks to meet the January deadline.

He continued:

… the union was concerned about a number of the proposals, including reductions in air and methane monitoring, inadequate provisions for escape routes, the banning of breathing apparatus, and a lack of provision for ventilation officers.

In Mr Vickers's own words:

"Mine safety laws have evolved over 100 years in this country, more often than not based on the hard and tragic lessons learned from mining disasters, and we currently have some of the best safety regulations in the world,"

That comes from the union, and I recommend to Labor that on this occasion they listen to the union and to the member for Wannon, who in his contribution questioned why the government was rushing this legislation through.

It is imperative that there be harmonised occupational health and safety laws. This has long been recognised as an essential area of regulatory reform, and this process was started by the Howard government. In February 2008, the Workplace Relations Ministers Council agreed that the use of model legislation is the most effective way to achieve harmonisation of OHS laws. The Commonwealth and each of the states and territories subsequently signed the Intergovernmental Agreement for Regulatory and Operational Reform in OHS, which dedicates jurisdictions to implement the model laws by December this year. The model bill is intended to be replicated in all jurisdictions, and separate bills will be introduced into the parliament of each jurisdiction to bring about the model bill.

The coalition holds some justified concerns about this legislation. There is genuine concern about the removal of the control test and the removal of the right to remain silent along with the regulations. This side recognises that it is important that this bill be viewed in the context of the harmonisation of occupational health and safety laws being conducted under the auspices of the Council of Australian Governments. The intergovernmental agreement expresses the agreement of each jurisdiction to enact, or otherwise give effect to, their own laws which mirror the model laws as far as possible by the end of 2011. This is a worthwhile objective; however, now there is considerable concern about the time frame.

The model Work Health and Safety Act which underpins the Commonwealth Work Health and Safety Bill was brought about by the National OHS Review conducted over the period April 2008 to January 2009. The review involved consultations with a broad range of stakeholders, including academics, employer organisations, health and safety professionals, industry representatives, legal professionals, regulators and unions. A total of 243 submissions were received in response to an issues paper released in May 2008. The review panel completed its work with the submission of its second report to the Workplace Relations Ministers Council in January 2009. The review panel made 232 recommendations to which the council responded in May 2009. The council's responses to recommendations made by the review panel formed the basis for the model act.

The model act itself is the subject of wide consultation. The model act was developed by Safe Work Australia in conjunction with all Safe Work Australia members. Safe Work Australia released an exposure draft of the model act for public comment in September 2009, and 480 submissions were received. After incorporating many amendments put forward after consideration by Safe Work Australia, input from the Parliamentary Counsel's Committee and the public consultation process, the Workplace Relations Ministers Council in December 2009 endorsed the amended model act which became the agreed model act.

But, if you go along with what the Prime Minister says, this piece of legislation has already been introduced and passed. In the leaders' debate in the 2010 election, when asked what her biggest achievement was, the Prime Minister said:

Perhaps less transparent to the Australian people: getting new occupational health and safety laws. Laws around the country. Businesses have been complaining for 30 years that they have different obligations in different states and at the same time not every individual worker had the same safety standards. Now, I have delivered that.

She continued:

Thirty years—on the day we delivered it there were some public servants that had tears in their eyes because they spent all their working life waiting for someone to deliver that reform. Wasn't easy, but I got it done. And what I think that shows is if you believe in something passionately, then you will work through.

So the Prime Minister did it all—signed, sealed and delivered.

We also know, however, that this great, mighty feat that the Prime Minister achieved, for which she was so quick to take credit, was in fact started by the coalition. The harmonisation of the nation's numerous occupational health and safety regulations was started by the Howard-Vaile Liberal-National coalition government in October 2006. The coalition said at the time:

The lack of consistency between the safety laws in each state has led to significant compliance costs on employers who engage people in more than one jurisdiction. The arguments for harmonisation appear compelling to many.

It is disappointing that the government has sought to bring on this legislation for debate when the regulations are yet to be finalised. The coalition believes that in fairness to all sides of the chamber the government should have provided a copy of the final regulations and final regulatory impact statements much earlier.

There are many issues of concern with the Work Health Safety Bill 2011. Training in occupational health and safety is paramount. At this time of transition to new arrangements, the availability of courses is critical. Unfortunately, the availability of accredited courses has been reduced by 26 per cent since restrictive changes were introduced by the Safety Rehabilitation and Compensation Commission in 2010. In order to smooth the way for transition and ensure the availability of training courses, the coalition will put forward an amendment to the transitional and consequential bill, enabling the continuance of courses accredited in 2006-07. The change made supports union training at the expense of a private provider, with no beneficial outcomes.

The removal of the right to silence and protection from self-incrimination is a concern. Under normal criminal law, everyone has the right to silence and protection from self-incrimination. In other words, you cannot be forced to say something to an investigator, the police, unless the investigator first obtains a court order, and so on. This protection is a right we all have and is essential to community confidence in our criminal justice system and the rule of the law. It stops an abuse of power. Protection against self-incrimination is currently available under OHS laws in New South Wales, Queensland, South Australia and Victoria. The model OHS laws rip away the right to silence and protection from self-incrimination. This will apply not only to employers but also to all managers and workers in workplaces. It will give powers to OHS inspectors not available to the police. An amendment to the Work Health and Safety Bill will remove this provision.

There is a failure to include the term 'control' in identification of duties of care. The modern principles of occupational health and safety had their genesis in the United Kingdom in 1972 under the Robens review. In 1972 a British government committee of inquiry into health and safety at work, chaired by Lord Alfred Robens, released a groundbreaking report calling for a fresh approach to the regulation of occupational health and safety. The principles hold that responsibility for safety is allocated according to what is reasonable and practicable to control. These are the internationally acceptable benchmarks embedded in International Labour Organisation conventions to which Australia became a signatory in 2004. ILO convention 155, article 16, states:

Employers shall be required to ensure that, so far as is reasonably practicable, the workplaces, machinery, equipment and processes under their control are safe and without risk to health.

The National Review into Model OHS Laws report of 1 October 2008 stated that there was much dissent in submissions over the inclusion of the word 'control' in duties of care. Recommendation 8 called for the deletion of the word 'control' from the definition of reasonable and practicable. This is implemented in the national model OHS laws.

The model laws also introduce a new and untested legal provision of attaching duties of care to a person conducting a business or undertaking. Taking out the word 'control' not only creates confusion over just who is responsible for what in work safety, but is also a massive shift away from known OHS principles in all Australian jurisdictions except New South Wales. Also it removes a key element of the ILO OHS conventions to which Australia is a signatory and creates a legal vacuum due to unknown application in the interpretation of duties of care under a new concept.

It is reasonable to expect that by removing the word 'control' legal uncertainty will occur and will require many years of judicial testing before clarity is accomplished. OHS legislation must not just operate with legal clarity; the wording of the act must give unambiguous signals in clear, everyday, easy-to-understand language to every person involved in workplaces. People understand in a practical sense that if they control something, or even insomuch as they have joint control, they are responsible. With the word 'control' removed, clarity and focus on personal responsibility for safety is reduced and becomes confused. This works against the aim of producing safe workplaces.

The Greens intend to put forward some amendments similar to what we have seen in New South Wales in relation to unions' right to prosecute. The coalition agrees with the Master Builders Association which 'strongly rejects union right of prosecution. The authority to prosecute and begin criminal proceedings should rest solely with the state'. The Master Builders Association rightly pointed out in its submission to the Senate committee:

A prosecutor represents all members of the community and cannot, therefore, act as if representing private or factional interests. Unions, by their very nature, represent the interests of employees and therefore cannot represent the entire community. To empower them with the ability to prosecute is akin to empowering employers with the ability to prosecute employees for a breach of health and safety, an issue that would be viewed as inappropriate by the community.

In addition, the expert review panel considered and made recommendations in this area. The review panel identified three major concerns with private prosecutions: one, there are serious practical difficulties, such as a lack of resources, which may undermine the evidence base; two, private prosecutions are not subject to the same safeguards as prosecutions brought by the state, such as application of prosecution policies, review of decisions and other public sector accountability measures; and, three, private prosecutions can disrupt other enforcement activities, such as enforceable undertakings or other measures that the regulator considers as more appropriate or proportionate in the circumstances of a particular case.

That begs the question: were the same public servants with tears in their eyes, to whom the Prime Minister referred, equally as upset to see John Robertson's Labor Party vote with the Greens to change the model legislation in New South Wales? Further, it was New South Wales Labor which helped the Greens to stop the Prime Minister's nationally harmonised laws. Thanks to New South Wales Labor, the laws will not be harmonised amongst states which are signed up. New South Wales Labor was rightly jettisoned at the 26 March state election after 16 years of the worst government this country has been forced to endure—fast being matched by Gillard federal Labor, which governs at the behest of the Greens and the whim of three Independents.

The coalition is deeply concerned about the January deadline. With people around Australia needing to learn about the new laws and regulations before they come into effect, it is outrageous to implement these laws from 1 January not having had the regulations signed off as yet in October. The government needs to ensure that employees and employers around Australia have a reasonable amount of time to get accustomed and to transition—that word we hear so often used by those opposite—to the new laws. What we do not want to see is the final regulations and codes of practice being released in November with small business, the engine room of the economy, being expected to know every intricacy before 1 January. We so often hear the government talking about evidence based policy, but the reality is that the Access Economics regulatory impact statement that those opposite are referring to is now so far out of date it is not funny. The consultation regulatory impact statement does not take into account the final regulations.

The coalition will put forward some common-sense amendments. The regulations will be determinative of the benefit of this change. Model regulations were circulated and are exceptionally restrictive. The final regulations have not yet been released and nor has the regulatory impact statement. The decision regulatory impact statement which is currently doing the rounds offers some very real areas of concern. I note that in answers from Senate estimates to the shadow minister for employment and workplace relations, Senator Eric Abetz, the department could not clearly say that the harmonisation will be achieving the clear goals laid out from the outset.

Ed Husic (Chifley, Australian Labor Party) Share this | Link to this | Hansard source

I take a different view on the issue of the use of prosecutions in OH&S matters, which I am happy to discuss later in my contribution. I will pick up, in argument, points that would oppose some of the matters that have been raised by the honourable member for Riverina. With respect, I just disagree with them. It is important to note at the outset that I certainly speak in support of the Work Health and Safety Bill 2011 and related bill now being considered, primarily because OH&S is one of the critical protections offered to employees in any workplace. Regardless of the industry that they work in and regardless of the jurisdiction they are in, there should be a degree of comfort that there is a safety net of laws protecting them in the way that they work, both now from an immediate threat and in the future from longer term disabling injuries or conditions that are brought about by systems of work that are inherently unsafe and have not been attended to.

Surprisingly, in this day and age 290 Australians are killed each year at work, which is simply an unacceptable number. Many more will die as a result of work related disease. Each year about 135,000 Australians are seriously injured at work. It has been estimated that work related injury and illness cost our economy about six per cent of gross domestic product, and the cost is far greater because you simply cannot put a dollar figure on the injury, suffering and pain that people have to experience because there are not safe systems of work and they are poorer for it.

It has been a long ambition of successive Labor governments to achieve harmonisation of these laws across all jurisdictions. Nationally harmonised laws were first raised in 1974 by the Whitlam government and remained a priority through the intervening years. As long ago as the 1970s it was clear that having different laws across states and territories created a regulatory maze and was a burden on businesses operating across jurisdictions. Almost 30 years on, here we are in a day and age where businesses are much more global and the workforce is a lot more portable. Our laws that are intended to provide protections to the safety and wellbeing of workers have to reflect the present operating climate.

These bills implement a 2007 election commitment to establish nationally harmonised OH&S laws. The reforms that they bring forward have come about because of agreements that have been reached through the Council of Australian Governments and the Workplace Relations Ministers Council. For those who doubt the ability of the federation of work on a range of different areas, it has been demonstrated that federal and state governments, regardless of political hue, can, particularly in terms of the national interest, find a way to work through issues that have bedevilled their predecessors in trying to come up with good law, harmonised law, that reduces regulatory burden and provides uniform protections across the country. The government worked in partnership over the past three years with the states and territories, the ACTU, the union movement and business groups to achieve a new legislative framework. The framework seeks to replace nine separate OH&S acts and more than 400 pieces of related regulations which in the past have created unnecessary confusion, complexity and higher costs for many businesses. I refer to the process of reaching these reforms started 30 years ago through successive governments. We have been trying to work out how to get these reforms done and we have been able to achieve them. The opposition made some comment—particularly the member for Wannon—which the member for Riverina reflected on. With all due respect, the member for Riverina was wrong in the way he characterised the contribution of the member for Wannon because the member for Wannon was criticising us on two counts. He criticised us for not supporting their reforms back in 2006 when they tried to change OH&S laws. Frankly, there were a lot of us. I had the honour of being able to represent working Australians in a trade union where we would not have been comfortable in any shape or form with the reforms put forward by the Howard government. Bear in mind that they ripped away workplace protections for people and brought in a system of O&HS that was dictated a lot by employer preference rather than by what a lot of people would say is important—that is, that employers and employees build not just systems and not just processes but a safety culture where people work together. I recall designated workgroups where employers were able to choose key OH&S reps if employees were unable to select them. It was a great concern that employers had a great deal of influence in the way that workplace safety was rolled out in workplaces when, as I said before, it is much more successful to build consensus in workplaces and build a commitment to workplace safety.

So we were criticised for not supporting their reforms and now we are criticised because we are getting this matter debated. It was not the case, as the member for Riverina said, that the member for Wannon was claiming we were rushing this through. That is not the case at all. He actually wanted us to move quicker on it. We are here getting the job done in terms of OH&S and we have had a difficult process getting that achieved. New South Wales, the state that I come from, under the Carr government reformed industrial relations laws and turned back the 1992 IR reforms brought in by the Greiner-Fahey governments which saw people lose workplace rights and over the course of those years made improvements to OH&S laws. One of those improvements was that, when push came to shove, if an employer was not taking seriously their safety responsibilities there could be recourse to prosecution.

We have heard the member for Riverina today claim that this is not right. In fact, he quoted the Master Builders Association, claiming that prosecutions initiated by unions may conflict with prosecutions being done by other bodies. It is very hard to get other bodies to undertake those prosecutions. I remember trying to get Comcare to deal with serious workplace safety issues where they do not act and where if a union is prepared to put forward its views on behalf of members in trying to represent issues of workplace health and safety—and they are willing to take the stand—they do it because they are sufficiently concerned about the health and wellbeing of the people that they represent. So prosecutions would not cut across other jurisdictions or other bodies, because more often than not that would not be the case. There were celebrated cases in New South Wales where the financial sector union had to take on banks that were not taking seriously the issue of armed hold-ups and a range of safety concerns. I will not name the bank that they took on, but they were able to see improvements.

The New South Wales Labor government decided that it would not defend this provision early on, but suddenly it backflipped. The COAG process, if you can get things agreed to across states and across the Commonwealth, works. New South Wales did not really push hard for that protection—that is, for prosecutions to be enabled—but in the end a deal was done. If there is agreement and certainty reached, you have to honour the deal. As much as I am supportive of New South Wales—and I thought it would be a good feature at the national level—it did not come to pass. There was uniform agreement through COAG and the Workplace Relations Ministerial Council about how to do this. The deal was done. I was surprised through the course of the year to see a backflip by New South Wales Labor leading into the election and it undid the certainty that was reached where we had been able to get unified laws. The fact is that this has been satisfied. I do not think it is good enough to just backflip in the way that it was done. It was good enough to defend in the first place. It was not defended. We had a deal done and then they went back on it. National laws are important. I think it is critical for people, regardless of jurisdiction, to have uniform securities in place and I commend that to the House.

The reforms that stem from this new framework will repeal and replace the Commonwealth Occupational Health and Safety Act 1991. There will be no change to the coverage of the bill compared with the current act in respect of its application being only to the Commonwealth, Commonwealth public authorities and, for a transitional period, non-Commonwealth licensees. The definition of worker will be extended to include persons who are currently deemed to be employees of the Commonwealth, such as members of the ADF and holders of Commonwealth statutory office. The bills no longer rely on employer duties but, rather, assign primary duty of care to the 'person conducting a business or undertaking'. The Work Health and Safety Bill takes into account the changing nature of modern work and does not rely on the traditional employer-employee relationship, expanding the definition of 'worker' to include contractors, employees of contractors, subcontractors, labour hire workers, apprentices and volunteers. It places a positive duty on officers to exercise due diligence to ensure compliance by that organisation.

For the sake of greater accountability and responsibility for safety outcomes, the Commonwealth will no longer enjoy immunity from criminal liability resulting from offences under this legislation, which I think is an enormously positive move. The bills establish Comcare as the single regulator on these matters in the Commonwealth jurisdiction, with Comcare operating under the oversight of the Safety, Rehabilitation and Compensation Commission, which will continue to provide consultative and advisory functions. There will be a wider range of enforcement mechanisms under these bills, including infringement notices, remedial orders, adverse publicity orders, training orders and orders for restoration. In a measure that will be significant for workers, these bills will include stronger protections from discrimination, victimisation and coercion over work health and safety matters which go beyond what is currently available through these and other laws.

However, in the case of GBEs, government business enterprises, that have transitioned from being wholly publicly owned as agencies to having independent boards set up to oversight their operations, I am concerned that a historical anomaly allows some of them to sit outside OH&S laws. For example, Australia Post still operate by what I call principal determinations. Those allow them to make decisions about employment matters within the GBE. They are an anachronism from the Public Service days of years past. The principal determination system allowed Australia Post to introduce, for example, a system of referring injured employees to a group of company doctors, I would call them. If they had an injury, these employees could not go to a GP of their preference—that is, a family doctor—but would be referred to 'company doctors', who were set up through tender processes. Basically, nine out of every 10 workers who went to see them would be sent back to the job, with a huge risk of misdiagnosis. There were cases where injured employees of Australia Post were sent back to work with broken ankles simply because the KPIs and management bonuses tied to those KPIs required improving workplace attendance, and, if that meant sending people who were injured back to work, then so be it. The principal determinations could never be investigated by Comcare because Australia Post did not come under the Occupational Health and Safety Act in the Commonwealth's jurisdiction. I think it is completely unacceptable for a GBE to be entitled to operate by those means.

Now Australia Post, under Ahmed Fahour, has moved to bring in improved workplace health and safety laws and address this issue. But it is still unacceptable because the principal determinations, as they guide employee conditions in that organisation, still provide for a system of workplace health and safety that sits outside the act. That certainly needs to be addressed. It is an area for future reform that needs to be tackled by this government or any subsequent government, because it is not right to have Commonwealth legislation and harmonised workplace laws in operation yet have a government business enterprise that can operate outside of that process due to an anachronism, a loophole, that exists. I would certainly urge further reform there. These bills are important, and I commend them to the House.

Luke Simpkins (Cowan, Liberal Party) Share this | Link to this | Hansard source

It is good to have the opportunity this afternoon to speak on the Work Health and Safety Bill 2011 and the cognate bill. I take this opportunity because bills such as these greatly affect the employees and the businesses of Cowan. Within the electorate, the outer northern metro area of Perth, there are a number of suburbs that house the businesses of Cowan and, of course, many of those employees are my constituents. Malaga, Landsdale, Wangara and Gnangara are areas where there is much light industry being undertaken. We have a Volgren bus factory in Malaga and we have galvanising works in Landsdale; we have a number of those sorts of businesses where workplace processes can be risky for the employees. There is no doubt that we would welcome any harmonisation of occupational health and safety rules.

Sadly, it is not uncommon in this country for accidents and, unfortunately, even deaths to occur in work situations. It was not too long ago that a constituent family of mine from Wanneroo suffered the loss of their husband and father after he fell from a cherry picker in Kalgoorlie, where he was working. Those sorts of events really bring home to us as representatives of our electorates the realities of getting things right. When deaths and injuries occur in the workplace, they are absolute tragedies, and it is my view that these can always be avoided. There can always be more thought and more common sense put into these processes that would make these accidents avoidable.

The fact remains that workplace health and safety is a matter that is everyone's responsibility. It is not just the responsibility of the owner of a building, it is not just the responsibility of the manager of a business and it is not just the responsibility of an employee, not in any of these cases. The reality is that all levels of a business or any organisation need to be responsible and they need to accept their responsibility for occupational health and safety through these processes. As has often been said, common sense is not very common and risk is not foreseen by all. Therefore sometimes safety must be strongly engineered into both the physical facility of an organisation or business and into the processes that form part of any workplace.

At times there seems to be quite a bit of paranoia on the other side. When you look at the websites of organisations such as the Victorian Trades Hall Council there seems to be a bit of paranoia about people being out to get them. There is suspicion about motives all over the place with regard to occupational health and safety when the reality is, whether you are a business owner or manager or an employee, everybody wants a safe workplace. We do not want productivity undermined by having to deal with an accident. We do not want to have the problems following an injury or death inflicted on a worker's family. It is in no-one's best interest. No-one can conceive of that as a desirable outcome for anyone. It is wrong on every level and it is against everyone's intrinsic view of what is right and what is best. What we need to consider in all these matters to do with occupational health and safety is that we should assume there is goodwill on all sides. We should not be too worried about or too intent upon looking for misplaced motivations in the businesses of this country. As I said, it is in no-one's best interest that we undermine or do not take occupational health and safety seriously.

What we know about the model laws for occupational health and safety that this legislation goes to is that a review was conducted in 2008 into 2009. The review examined inconsistencies in occupational health and safety laws across the country. It has been said not only people by in this place but also by other commentators that one of the great motivations for this review was the stark problems in what was being done in New South Wales. The previous speaker, the member for Chifley, spoke of what was good and right in the New South Wales laws. According to these commentators, New South Wales had a set of laws with a default position of automatic guilt for employers regardless of the consideration of the control they had over the workplace processes. Because that was so different from the International Labour Organisation's accepted conventions, it highlighted the need for this sort of review to examine those inconsistencies across the country.

The process of harmonisation and trying to achieve uniformity in the occupational health and safety laws of this country did not just emerge in the last three years. This was acknowledged by the Howard government back in 2006. In this place, those on the other side give the impression that they are the only ones who care about the health and safety of workers in this country. It seems to be one of the great fallacies that there is only one side that cares for workers. There are often statements about 12 long years of neglect, a common phrase that has possibly not been used so much in the last year or so, but one of the great catchcries of the last parliament was how we allegedly never did anything. Of course, that always proves to be false. There is no doubt that the Labor Party have a strong interest in workplace safety laws. If you look at this legislation, it seems one of the things they are very keen on is making sure that union organisers get the opportunity to enter workplaces. Of course, that requires more jobs in the unions which means there are more jobs to be handed out. That is another reason they are keen on these sorts of laws.

Under the Howard government a number of occupational health and safety laws were introduced. I did a quick search and found the Occupational Health and Safety (Commonwealth Employment) Amendment Bill 2000, the Occupational Health and Safety (Commonwealth Employment) Amendment (Employee Involvement and Compliance) Bill 2002, the OHS and SRC Legislation Amendment Bill 2005, the Australian Workplace Safety Standards Bill 2005, National Occupational Health and Safety Commission (Repeal, Consequential and Transitional Provisions) Bill 2005, to name a few. There were plenty of occupational health and safety laws before parliament in recent history. I would describe that as a long and dedicated commitment by the coalition to occupational health and safety. As I said, we are most definitely keen to progress the interests of employees and businesses in this country to make sure that people remain as safe at work as possible. We should always pursue this specific objective. As I said before it is in no-one's best interest to take shortcuts that can result in great tragedies. What we do see in these laws is that both sides apparently are committed to making occupational health and safety laws the best they can be. I do not think there is any doubt about that. Amendments have been foreshadowed by the shadow minister and I certainly support those. This is a time when we must look to the experiences of the past and then examine what the government has brought here on this occasion and see what can be done to improve it. There are other things that, as we all know, are not able to be saved as far as this government's legislation goes, but on this occasion there are things that can be improved.

I am running out of time but I wanted to cover the aspect of control. Again, this has been mentioned by previous speakers and it has to do with the great principles of workplace safety. Coming out of the 1972 Robens review in Great Britain the principle I want to speak to is that dealing with what is reasonable and practicable to control. That benchmark was taken up under the International Labour Organisation conventions to which Australia became a signatory in 2004. Of course, we know who was in government in 2004—a further clear and present commitment by the Howard government. Article 16 of convention 155 from the ILO states:

Employers shall be required to ensure that, so far as is reasonably practicable the workplaces, machinery, equipment and process under their control are safe and without risk to health.

The aspect of control is a very important matter.

I know that there were various submissions put to the OH&S review that railed against the aspect of control but control is a very important point. It is a requirement for people to accept a bit of personal responsibility in these matters. An employer or even an employee has a lot of dangerous functions within their control. Within this legislation unfortunately the term 'control' has been removed, so in a lot of respects that makes it a lot harder and a lot less clear in the ownership and establishment of a person's responsibility for safety. I think this could have a tendency to create a legal vacuum that may require case law in the future to try and fathom. The opposition's amendment to do with replacing the term 'control' is an important element that should be put back into the legislation and it will make it a better piece of legislation. I commend the amendment to the House. (Time expired)

Darren Chester (Gippsland, National Party, Shadow Parliamentary Secretary for Roads and Regional Transport) Share this | Link to this | Hansard source

I appreciate the opportunity to participate in the debate in relation to the Work Health and Safety Bill 2011 and related legislation. In the short amount of time available to me this evening I would like to speak more generally on some of the issues that have been raised by speakers on both sides of the House most recently by my good friend and colleague the member for Cowan, who I think adopted a very common-sense approach to his presentation to the House this evening particularly in his recognition that issues of occupational health and safety matters are of great concern for members on both sides of the chamber. The member for Chifley also approached this debate in a very bipartisan way and made some points that I think reflected very well on the House that really no party and no member in particular owns this issue. It is an area where the former Whitlam government, as I understand from the contributions of members opposite, and also the former Howard government started the process of harmonisation of occupational health and safety laws.

I would like to make the point from the outset that while legislation and regulations are extremely important when it comes to occupational health and safety it must be stressed that workplace safety is everyone's responsibility. I think there is a broad recognition now in the community and I do give credit where it is due. The union movement is not always a topic of great enjoyment for me and I am not a great supporter of some of their tactics but I think the union movement has played a very important role in raising safety issues.

Richard Marles (Corio, Australian Labor Party, Parliamentary Secretary for Pacific Island Affairs) Share this | Link to this | Hansard source

Hear, hear!

Darren Chester (Gippsland, National Party, Shadow Parliamentary Secretary for Roads and Regional Transport) Share this | Link to this | Hansard source

I take the support I have been given from the honourable member opposite but there is always a question of making sure that we get the balance right. We need to make sure, in any regulations we impose on business and industry, that there is a recognition that there has to be a common-sense balance. I think business owners in the modern era very much recognise their important responsibility for their workers in the workplace.

My electorate of Gippsland is one of those which is probably very much a microcosm of some of the hazards that workers may face in the workplace. The regional industries that exist in Gippsland are probably some of the most potentially hazardous that you will face anywhere in Australia. We have the timber industry, we have the fishing industry, oil and gas, defence operations at East Sale, open-cut coal mines and the power generation sector, heavy vehicle operators, a significant construction sector and, of course, the agriculture sector, which has been one of those areas where it has been very difficult to drive improvements in occupational health and safety.

I think the sad part about this debate tonight is the fact which many members have already raised that 290 Australians are killed in the workplace every year and around 135,000 Australians are injured at work. It is one area where I do not think we can ever relax our guard. It is an area where we need eternal vigilance. It is a huge economic cost, obviously, but also the social impact of workplace injuries and deaths is something that is immeasurable. In making my brief contribution to the House this evening I recognise that the members on both sides have a very strong interest in occupational health and safety and that the harmonisation of these laws is something that there is broad support for across the chamber. Having said that, I will foreshadow that the coalition does intend to move some amendments at a later stage in the debate. We have some significant concerns that bear further consideration by the government.