Graham Perrett (Moreton, Australian Labor Party) Share this | Link to this | Hansard source

I oppose the Safety, Rehabilitation and Compensation Legislation Amendment Bill 2014. This bill is a direct hit against the workplace health and safety of Australian workers. It takes away the rights of Australian workers to fair and reasonable cover when they suffer the misfortune of an accident at work. Before I get to the legislation in detail I want to tell a story through the prism of my brothers. I have five brothers—six but one has passed away—two who are basically clerks and three who work in the building and mining industries. The history of Comcare legislation is that it was basically directed to looking after clerks—not clerks like those at the table here but clerks generally; people not in high-risk industries.

For two of my brothers, if this legislation were agreed to and they were then taken into such a scheme, it would be an appropriate scheme. But for my three other brothers who work in the mining and construction industries, it would not be appropriate. My oldest brother works in the construction and mining industry and provides advice on occupational health and safety. The next brother works in the labour hire industry, supplying workers to the construction industry especially but also the mining industry. My other brother Tim is a labourer in the construction industry. I mention Tim particularly because it is his birthday today and I just wanted to send a happy birthday to him. That is a good thing. I am sure he is out celebrating with his family now, and that is a good thing.

But I want to take the parliament back to an incident that happened to my brother Tim at the Gold Coast, almost literally on the border between New South Wales and Queensland, on 29 November 1996, a few days after his birthday, when there was a big construction project at Twin Towns Services Club at Tweed Heads. If you know that facility, it is very close to the border of Queensland, but it was over in New South Wales that the accident happened. A huge tower crane where my brother working crumpled under the weight of a large cement container, the kibble, which was overloaded. Then a tonne of concrete collapsed—right beside my brother; he was standing on the platform—and it killed two people. I will name those work colleagues of my brother: Rodney Taula Masak, 37, a Brisbane dogman; and Wayne Master, 34, a Pottsville concrete worker.

My brother was standing right beside them. He was hit by the kibble but was not killed, as his two colleagues were, right beside him. It took him years and years and years to get over that—not only the physical injuries associated with that accident but also the mental anguish that comes with seeing your workmates killed right beside you. Then, actually, my other older brother came along to that construction site because he worked for Lindores Crane and Rigging, the crane hire company that was actually working for Leighton Contractors on that building project.

I want to tell the story of this legislation through the prism of my five brothers, particularly that brother Tim who experienced that horrific accident way back in 1996. Thankfully he is still around to celebrate his birthday, unlike the two gentlemen that died alongside him, Rodney and Wayne. I say a special hello to their families, and I am sure that they are still missed. I know that at Twin Towns there is a marker acknowledging their deaths.

This legislation, the Safety, Rehabilitation and Compensation Legislation Amendment Bill, basically has been considered by this parliament and many state parliaments because it has implications for workers in states as well. On 15 May 2014 the Senate Selection of Bills Committee recommended that the provisions of the bill be referred to the Senate Education and Employment Legislation Committee for inquiry and a report by 8 July 2014. The bill before the chamber tonight is comprised of five schedules. I am not going to go in detail to every schedule, but I will just give a quick run-through of the five schedules.

Schedule 1 extends the criteria applying to a corporation which is seeking a self-insurer licence. The amendments enable those corporations which are currently required to meet workers compensation obligations under two or more workers compensation laws of a state or territory to apply to the Safety, Rehabilitation and Compensation Commission to join the Comcare scheme. That is particularly of note for companies that operate over the border, and I go back to that initial example I gave of the Twin Towns jobs site, right on the border. The accident occurred literally 10 metres over the border from Queensland, but the Coroner's Court that dealt with that crane company and the courts that dealt with it—even though it was a Queensland based crane company, actually coming from my home town of St George—were all in New South Wales, because it was just over the border. I think at one stage the crane was in Queensland and its load was actually in New South Wales, so that is an example of how easy it is for corporations to go across the borders. We see it from the deaths, too—one Queensland worker, one New South Wales worker. I can understand why corporations would want to come into a simplified scheme rather than deal with two different jurisdictions. The joys of Federation! I understand that we are trying to get rid of costs wherever we can, but we also need to look after the people who will be affected by those decisions.

Schedule 2 of the bill enables the Safety, Rehabilitation and Compensation Commission to grant group licences to related corporations and makes consequential changes to extend the coverage provisions of the Work Health and Safety Act to those corporations that obtain a licence to self-insure under the SRC Act. Schedule 3 excludes access to workers compensation where a person engages in serious and wilful misconduct, even if the injury results in death or serious and permanent impairment. Schedule 4 excludes access to workers compensation where injuries occur during recess breaks away from an employer's premises—and I should stress that that is not the case in most state based schemes. Schedule 5 contains minor technical corrections to the Work Health and Safety Act.

There is no requirement that an employer have a minimum number of employees in a particular Australian jurisdiction in order to qualify for a self-insurer licence. In the example I gave, if it was a bricklayer or something, it might have two employees—one based in Queensland, one based in New South Wales. They could actually apply to be a part of this scheme. Obviously, it could be a completely different entity that has thousands and thousands of employees scattered all around Australia, and they can see the benefits in having one scheme. But we have to remember, with scale, that it could be a very, very small entity that is trying to extract maximum advantage and put their employees at a disadvantage. In particular, group licences could be granted to small employers which are not equipped to administer a self-insurance scheme. That would be my big concern, and obviously one of the big concerns for the union movement and for every state government and territory government that is interested in making sure their citizens have the best possible scheme.

It is clear that Comcare is not adequately equipped to monitor performance or hold self-insurers to account on a national scale if a self-insurer does not meet injury management and return-to-work obligations. Who would have thought it, but every now and then employers are prepared to lie, especially in some trades where people regularly go out of business. That, unfortunately, is the reality of the construction industry. People are prepared to lie and if the government or the regulator is not prepared to look at the books and ensure that best practice is occurring at building sites, construction sites or even normal workplaces then, unfortunately, employers who are prepared to lie will exploit their employees and leave them hanging in the loop.

There are also privacy concerns relating to the administration of workers compensation by self-insurers. The Comcare scheme was established to cover workers who undertake low-risk work in the Australian Public Service, such as the example I gave at the start of my speech of my two brothers, who are basically clerks. This scheme was not designed to cover other types of work such as construction, manufacturing or mining where there is a very real risk that you might end up dead at the end of your day at work. They are high-risk industries. A lot has been done to make them safer. However, with respect to my colleagues in front of me, they are still nowhere near as safe as sitting at a desk and doing a clerk's job. You know what I mean: a paper cut is not quite the same as a wall falling on top of you or a kibble or a crane collapsing right alongside you.

Comcare performs at a lower level than many state and territory workers compensation schemes, because there are no statutory processing times. In particular, there are no time frames on employer obligations to make medical and other compensation payments when a worker is injured. That often makes all the difference. If someone can be afforded the right rehabilitation and right treatment, they can go back to work, particularly when they do not have a sick leave scheme or the like to cover them during a bad time.

The scheme before the chamber offers fewer benefits than many state and territory workers compensation schemes, has limited access to common law compensation and the amount payable in that case is capped at only $110,000. This concern has been raised with me, certainly in Queensland. I personally believe that Queensland has the best scheme. It has been administered under Labor and Liberal governments. It is a good scheme, run by professionals.

Terri Butler (Griffith, Australian Labor Party) Share this | Link to this | Hansard source

Hear, hear!

Graham Perrett (Moreton, Australian Labor Party) Share this | Link to this | Hansard source

We should not be going to this lesser scheme, with all respect to those people covered by the Commonwealth scheme. Queensland has set the standards and we should be maintaining that current process. I take that interjection from the member for Griffith. She worked in this area as a lawyer and saw the horrors that can be visited on workers if they are not treated appropriately.

Decisions which are the subject of appeal as to the choice of workers compensation scheme are made by the employer, based on financial savings, and employees are not consulted about what this means to them if they are injured. I know from my time working for unions that if you do not look after the employee, you can create extra heartache and it will also mean that you have a less productive employee.

This bill did not form any part of the coalition government's election policy. Therefore, there is no mandate at all for this bill. It is not like those rolled-gold promises such as 'no cuts to education, no new taxes, no cuts to health, no cuts to the ABC and SBS'—those things that are sacrosanct to those opposite! This was not mentioned during the election at all. It is not in the glossy brochure, with a picture of the ministers on the front page. Real Promises, I think it was called.

Eric Hutchinson (Lyons, Liberal Party) Share this | Link to this | Hansard source

Real Solutions.

Graham Perrett (Moreton, Australian Labor Party) Share this | Link to this | Hansard source

That is right. I have never seen a bigger misnomer. Nevertheless, it was not mentioned at all. This bill has no sound policy justification whatsoever. In fact, it undermines all the existing workers compensation schemes in Australia, including the one in Victoria which, under former Premier Jeff Kennett, had moved towards the Commonwealth scheme.

This is an ill-conceived bill that ignores the founding principles of Australian workers compensation schemes and why they were established in the first place. It is more about ideology rather than about producing something productive for workplaces. It is the Liberal government, once again, looking to aid small savings for big companies, while injured workers and their families will bear inestimable financial and emotional costs and hardship by being excluded from workers compensation schemes, particularly as the pension age goes up to 70, where in these industries like construction and mining it is so much harder for people to do their job right up to age 70. It is different if you are sitting at an office desk or perhaps a teacher.

For example, the bill proposes the re-introduction of an exclusion from eligibility for compensation during recess breaks, which could be that of simply leaving the worksite to go and get some food. These construction sites can often be in an area where there is no food available at all. Many workers use breaks to complete employer business and to carry out extra duties.

This amending legislation would assist unethical employers to avoid their responsibilities. If not for their employment, the worker would not be taking the break in that location and would not be exposed to the risk.

There would be no organised sports events and other team-building activities because workers would not be covered if they were injured during these activities. In 1985 the Commonwealth government legislated for the formation of the National Occupational Health and Safety Commission, which has gone on to do great work. The history behind this legislation should be looked at by those opposite. As a Queenslander I would especially say that this legislation does not apply. Queensland has set the standards in terms of looking after workers when they are injured. We are doing it at a low cost to employers, compared to other states and territories, and we are able to cover a range of workers in a range of activities. The Comcare scheme that is being proposed would allow for unethical employers to do the wrong thing by their employees. And, as I said in the example I gave at the start of my speech, this is a scheme designed for workers in safe environments, not in those risky environments.

Eric Hutchinson (Lyons, Liberal Party) Share this | Link to this | Hansard source

I do acknowledge the member for Moreton's contribution to the debate on the Safety, Rehabilitation and Compensation Legislation Amendment Bill 2014 and the examples that he gave. But I guess with all of these issues, whilst safety in the workplace is absolutely and should be at all times paramount, it is also about getting the balance right between productivity within the workplace in a country like Australia where we have challenges in respect of that. One of the fundamental commitments that we did make before the election of 2013 was to be a government that would get out of the way of business wherever it was appropriate to do so in the form of superfluous red tape. Nobody could argue that we have not embarked upon an aggressive deregulatory process to make things easier.

I acknowledge the passion with which the member for Moreton spoke. I will respond directly to some of the suggestions he made. The Safety, Rehabilitation and Compensation Act 1988 absolutely requires that in its decision to grant a licence the Safety, Rehabilitation and Compensation Commission take into consideration whether:

… the applicant has the capacity to meet the standards set by the Commission for the rehabilitation and occupational health and safety of its employees.

So there are safeguards in place. The legislation also requires that the commission must not grant a licence if the applicant's past or likely future performance in complying with workplace health and safety legislation reveals that it has not met standards of state regulation in the past—the member for Moreton described the fine standards that obviously exist in his home state of Queensland—and is not likely to meet those required by Comcare, as the regulator for Work Health and Safety Act 2011, and the commission in the future. That is the framework. The safety net is there. I think all of us in this place believe that nothing in the workplace is more important than safety.

Previous speakers have gone into some of the details of this bill. I would like to focus a little bit on balance. I emphasise that in no way should we discourage or diminish safety in the workplace, but it is one of the biggest areas of regulatory burden and has become a self-perpetuating industry. As the member for Moreton highlighted, much of this regulation is state based. I give the example of an oyster farmer in my electorate. In running his oyster leases he runs 40-horsepower four-stroke outboard motors on the punts that he uses to access the oysters. I have a 125-horsepower, two-stroke motor on the back of my boat. I can assure you that his motors are a lot quieter than mine. He is required to provide his employees with Australian standard ear protection, which is fair and reasonable. But every six months he is obliged to send his employees to get their ears tested at his cost. That does not take into consideration whether on not on the weekend they enjoy loud music in a pub or they use chainsaws inappropriately. Last week I was in St Helens. I was stopped in the street by a fellow who assured me that he did not vote for me at the last election. Nevertheless, he wanted to get off his chest an issue he had about getting the NBN connected to his property. On the first attempt, the contractor who had been engaged by NBN Co. to do the installation was unable to get up his ladder because he did not have someone to hold the ladder. A subsequent appointment was made and the contractor came back with a chap who was able to hold the ladder, but he was still unable to get up on the roof, because the chap did not have the right certificate. It goes on and on. We have heard stories about things that are adding cost and that, frankly, are a disincentive to people employing other Australians. That is where the balance is out of kilter.

In my home state of Tasmania we have seen the demise of the forest industry, which is a relatively high-risk workplace where occupational health and safety is as important as in any other workplace. I will not go into the reasons for the demise of the industry; I have done so before in this place. The people who monitored and were responsible for the maintenance of occupational health and safety standards have moved into the agricultural space. There are increasingly requests that the owners of shearing sheds that have been functional, safe and adequate, in some cases for many years, pay frankly exorbitant amounts of money to bring them up to a standard that is deemed now to be the minimum requirement.

I spoke also recently to a fisherman. As a small-businessman, he is one of the foundations of our economy. His issue is around compliance. He has had a limited coxswain certificate for 30 years. When it was issued it was done so in perpetuity. He operates a small vessel by himself. He also has with his wife a quite successful business where he value-adds to the seafood that he catches. With changes made in respect of the Australian Maritime Safety Authority, the national regulator, and to the state regulations his certificate is not acceptable. They require him to have greater certification. He is required to do a refresher course every three years if he is operating offshore. He is required to have a first-aid certificate. He said to me, 'I'm not quite sure how I'm going to administer first aid to myself.' He operates a one-man vessel. He is 59 years old. There are other people who are of a similar age and in their mid-60s who also are being obliged to upgrade their limited coxswain certificate to a restricted coxswain certificate. They are being asked to jump from a height of three metres into water in the dark. He said, 'Look, my body is old. I've been a fisherman all my life.' On top of that, it cost him $1,500. These are disincentives for people to get on and run businesses. These are people who have operated safely for all their lives. In this case, I think provisions need to be made for grandfathering these sorts of things.

These are examples of the overreach of the whole system of occupational health and safety in our country. Again, I acknowledge the contribution from the member for Moreton, because he spoke very well and passionately about something I think we all should acknowledge. But we have created an industry in and of itself. We have lost those fundamental drivers that were motivation for people and which, at the end of it all, made this a great country where people were prepared to take a risk, start a business and employ people. The excessive compliance means we are losing that.

We are seeing increasing costs in so many aspects of our lives, whether it be in building a house or whether it be for food. It has this compounding effect on the cost of everything we do. It is, quite frankly, insidious. Not just low-income earners but middle-income earners around this country are often doing without food because of the cost-of-living increases that we are seeing.

Ms Butler interjecting—

I know you have spent a lifetime in this space, Member for Griffith, and I hear you. I am sure your contribution will be worthwhile. But it is about getting the balance right. Again, I emphasise that this is not about compromising safety. For years, roofers wore sandshoes. They are now obliged to wear steel capped boots with rubber soles. Sandshoes were a perfect tool for the job, but they are not allowed any more. The regulatory burden is pushing up the cost of living, it is increasing the cost to business and it is a disincentive to people to employ other Australians.

What is driving all this? I do not know the answer, but it is clearly about vested interests. There are training organisations. They are important and workplace safety is important, but this is getting to a point where small businesses are suffering. I think of the electrician who is doing work done at the Port Arthur historic site. They are licensed contractors. They do everything by the book. The electrician down there, though, cannot afford to put on a man to hold the ladder when he goes up one. He just cannot afford it. This is the sort of thing that is happening all around our country every day. We need to work together in this space to get the balance right between productivity and red tape in what has become an insidious industry around occupational health and safety.

I think I have made my points. In essence, as I have said, the details of the bill our wide-ranging, but effectively it is providing a framework under Comcare with those safety provisions that I mentioned at the start of my contribution. It is about getting some coordination for businesses that are operating across multiple state jurisdictions around Australia with different workers compensation schemes and different work health and safety regulations. I think we all appreciate where we can save that regulatory compliance cost. That money can be used more effectively by those employers to create new jobs and, indeed, improve overall the safety standards within their enterprise. I think these are absolutely achievable objectives.

This red tape is a disincentive to employ Australians. I think that the bill strikes the right balance between reducing red tape and giving employers the opportunity to compete and be productive. Also, I emphasise this: everyone in this place acknowledges that occupational health and safety and workplace safety is critical, but the balance is wrong. I hope some of the examples I have given tonight are food for thought.

Terri Butler (Griffith, Australian Labor Party) Share this | Link to this | Hansard source

When I think about the fact that there have been 159 workplace deaths this year, it really makes my blood boil to hear occupational health and safety regulation described as red tape. When I think about having been one of the first people on the scene at a workplace accident where two people lost their lives, hearing the suggestion that occupational health and safety laws are 'overreach' makes me very angry. When I think about the working people who have lost limbs, suffered psychological injury or been rendered unable to work in the only occupation for which they are skilled, I become quite angry when I hear the phrase 'insidious industry' in relation to work health and safety laws. So I would be quite concerned by any suggestion in this place that somehow we need to weaken occupational health and safety protections in this country, that somehow occupational health and safety protections are a choke on business when in fact the real choke on business is poor workplace safety and the lack of capacity—the injuries, illnesses and the deaths—that can arise from lack of appropriate workplace safety.

This move to bring employers from state based workplace health and safety regulations and workers compensation systems into the Commonwealth system is very concerning for people who care about workplace health and safety because there are a lot of differences between the state based systems and the Commonwealth system. I speak particularly about Queensland as it is where my knowledge is. I am particularly aware of the Queensland systems.

It is clear, when you look at the workplace health and safety regimes, that necessarily the Commonwealth system is less equipped to enforce compliance of workplace health and safety laws. Think about the fact that there are only some 44 workplace health and safety inspectors in the Commonwealth system, whereas there are hundreds in the state based system, and they still can only do so much with the resources that they have. That in and of itself is sufficient to give you pause to make you wonder whether moving people into the Commonwealth system is really going to be in the best interests of working people.

When it comes to Comcare—and we are really talking here about legislation aimed at encouraging employers to move from their state based systems into the Comcare system—it is just a fact that the Comcare system offers less protection and less support for injured workers than systems like the Queensland workers compensation system. It is an important incentive for employers to ensure workplace safety, to incentivise care and diligence—a lack of negligence—to know that if you are negligent and your negligence causes harm, there is a prospect of legal recourse against you. Yes, that can be insured for and that is insured for quite properly, but that fact—the risk that needs to be managed—is a powerful incentive for safer workplaces. That is why systems like the Queensland system, which still has access to common law damages for injured workers, are superior to a system like Comcare where there is really no practical access to common law damages for injured workers.

I think it is a really curious move to move away from common law protection for injured workers. What you are really saying to the community is that the taxpayer will bear the loss that is occasioned through employer negligence. In other words, we will socialise the loss so that, if someone is injured because of an employers negligence, there will be a statutory lump sum or possibly a long pension. But, other than that, the person will have to rely on taxpayer funded Medicare and social security systems—versus a classical common law approach where the working person will be able to seek recourse against the employer whose negligence occasioned the loss and damage.

As you can see, there is a question of fairness here; it is one that really should not be ignored. In Queensland, as I say, we have a very good workers compensation system. Unfortunately, the Newman government recently took away some of the rights for working people in the Queensland workers compensation system, but nonetheless it remains one of the systems in this country where people can have access to common law damages, which entitles the working person to seek loss of earnings, future medical expenses and to receive compensation for the loss of a career—in other words, to put a person in a position where, though no money is ever sufficient to compensate for the loss of a limb or a serious medical condition that prevents you from working, they can at least be in a position where they can live with dignity and can recover from the injury or illness to the best extent possible, in a dignified manner with the assistance that they need. This is instead of relying on a long system like Comcare where conflict is built into the system, because it is ongoing support on a pension basis largely, without access to compensation for injury occasioned by fault, negligence, or carelessness—by a failure to give the care that you owe to your neighbour. That is really the heart of negligence when we talk about negligence rights.

A lot of people in our community have concerns about this bill. I am certainly one of them. As someone who has attended from time to time the international day of mourning for workers who have been killed, I have to say I have heard enough stories in my time to know that it is never enough to think that workplace health and safety legislation is just red tape or overreach. This year I attended the Workers' Memorial Day service convened by the Queensland Council of Unions. My good friend from the Transport Workers Union, Bob, gave an address on behalf of another official whose son had been killed that week in a truck driving accident. It was a really poignant and moving story. It was all the more poignant for me because, as someone who has worked with transport workers previously, I have been to meet with union delegates to talk to them about their rights at work. One issue that has come up consistently has been their concerns for those people who were employed by employers where Comcare, rather than the Queensland WorkCover scheme, is their workers compensation scheme.

One of the grave issues of concern for them is what is known as journey claims—in other words, whether or not they can get compensation if they are injured on their way to work or their way home from work during transport. Of course, Queensland being a highly decentralised state, one of the issues—an important issue—in any discussion about the relative benefits of WorkCover versus Comcare is that there is a lot of travel; there is a lot of transport required. The consequence of that is that journey claims are extremely important to working people in Queensland. So much so that, when the Newman government was moving to water down the workers compensation scheme, to take away some of the rights, it seemed that they intended to take away journey claims. There was such a sustained community backlash that they had to desist from that push and continue with journey claims.

The Queensland Council of Unions has written to me about that attempt to water down workers compensation protections in Queensland. What they said to me was: 'Concern about the Newman government's agenda triggered union campaigns and the establishment of community coalitions. In particular, the removal or reduction in employees' common law rights, as well as the removal of journey claims, were the subject of public debate and campaigns. Following this union community activity, there is heightened awareness about the loss of such coverage and protections in Queensland.' They went on to say, 'The Newman-LNP government eventually rejected the removal of journey claims, but did restrict common law damages.' And they said, 'Journey claims survived because of the likely impact in regional and rural areas.' They went on to make a comment about the restriction of common law rights. What they then told me was the following: 'Polling shows that a significant majority of Queenslanders are opposed to the reductions in the coverage outlined above. There is little doubt that the decision to restrict common law damages contributed to the dramatic reduction in support of the Newman LNP government that has been continually evident in opinion polls and manifested in the Redcliffe by-election won by the phenomenal Yvette D'Ath MP, now the state member for Redcliffe.' That is my editorialising. They wanted to say that any decision by the Abbott government to impose—

Debate interrupted.