Gavin Marshall (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

In normal circumstances, the spokesperson for the portfolio area would outline the Labor Party position at the commencement of the debate but, given some pressing commitments, I will make my contribution first, if that is suitable to the Senate. The Occupational Health and Safety (Commonwealth Employment) Act 1991 provides the legal basis for the protection of the health and safety of Commonwealth employees in departments, statutory authorities and government business enterprises.

The Occupational Health and Safety (Commonwealth Employment) Amendment Bill 2005, which is the bill we are discussing today, reintroduces a number of provisions that were removed from the government’s Occupational Health and Safety (Commonwealth Employment) Amendment (Employee Involvement and Compliance) Bill 2002 by the Senate. This bill, as you, Mr Acting Deputy President Barnett, would have noticed, was in fact introduced into the parliament in about August last year. It has been bouncing around this place as it has had a fairly low order of priority from this government—which is something that I welcome because the introduction of this bill will have a deleterious effect on the occupational health and safety of Commonwealth employees.

The bill is before us today because the legislation that we were going to debate about cross-media ownership, which was scheduled to take up most of the debating period this week, has been withdrawn by this government because they are in complete disarray and, as of today, do not have a common position to bring to this chamber. It is something that we are seeing more and more of, as the arrogance of this government deteriorates to such an extent that they cannot even hold all their own members together on that side of the chamber on a single issue. To fill in time, they have introduced this legislation today which, as I said, has been bouncing around the place as a very low order of priority for 12 months or so.

Approximately 480,000 Australian employees experience a work related injury or illness each year. That translates to approximately 2.8 million Australians suffering from work related long-term health conditions. Each year there are around 140,000 compensated work related injuries, resulting in an absence from work of one or more weeks. In comparison, there are over 13,500 road accidents involving casualties each year in Australia. There are around 3,000 work related deaths in Australia each year, more than the national road toll. Nearly 450 of these work related deaths—an average of nearly 10 per week—are the result of a traumatic incident at work, including work related road deaths, and a further 150 deaths occur while Australian employees travel to and from work, with another 200 people dying each year as a result of someone else’s work activity.

In 1996 National Occupational Health and Safety Commission researchers arrived at a conservative estimate that at least 2,300 people die each year as a result of work related exposure to chemicals. This does not reflect the current extent of death from occupational disease. In the near future, this figure may rise due to the expected increase in asbestos related deaths—a tragedy that for many decades has continued its macabre assault on working Australians, particularly through the Wittenoom disaster and the James Hardie disgrace. Australia has the highest incidence of asbestos related disease in the developed world, and the incidence in Australia has been rising steeply since 1970. It is estimated that the total number of asbestos related deaths will reach at least 40,000, and perhaps as many as 60,000, by 2020.

I give that brief background of the general state of occupational health and safety in this country as a backdrop to the changes that are being made by this bill. The government will argue that these are quite minor changes but, to those people that are actually outside of the safety of offices in parliament, who have to go to work in what may be very dangerous workplaces with dangerous work processes—being exposed to dangerous chemicals—the changes are in fact real and will have an incremental impact on the ability of workers not only to protect themselves but also to engage in strategies to protect the future of their occupational health and safety.

I also need, before I get into the detail of the bill, to talk about the history of how this sort of legislation came into being. The bill that governs occupational health and safety of Commonwealth employees at the moment was actually introduced in 1991—fairly late in respect of the modernisation of occupational health and safety laws. That occurred in the states first, commencing in Victoria in 1985 with what was considered to be the world-leading, cutting edge occupational health and safety of the day. It was introduced by the Cain Labor government in Victoria when they had a very small window of opportunity by having, for the first time ever in the history of Victoria, control of—or the numbers in—the upper house for a very short time back in 1985. History will tell us that, at the last state election in Victoria, for the second time in Victoria’s history, the Labor government managed to win control of the upper house. They have embarked on substantial reforms to give that archaic house true democratic values, where one vote in the upper house in Victoria now will have one equal value—quite an overdue reform. But the reforming nature of the Cain government in introducing the legislation in 1985 led to most other states copying that legislation very quickly and, finally, the Commonwealth doing so in 1991.

It did so by introducing a tripartite structure of cooperation between government, government agencies, experts in occupational health and safety, the employees, through their unions, and of course employers. The whole backbone or cornerstone of this new, modern approach to occupational health and safety was a collaborative approach of self-regulation and cooperation between government employees and employers. If we were going to move away from what was historically a very prescriptive regime—where there were lots of regulations that required people in different circumstances to apply prescriptive legislation that did not necessarily meet their needs or provide the necessary flexibility and optimum occupational health and safety outcome for employees—we needed to go to an approach where we shared the values to make workplaces safer. Of course, if we were going to move to a collaborative, tripartite approach, it was absolutely essential that everyone had an equal part to play and an equal responsibility and equal authority in determining those areas.

That is what modern occupational health and safety legislation did. It enabled and in fact compelled employees and employers to work together to solve occupational health and safety hazards and problems. It gave rights to employees through the election of occupational health and safety representatives to represent them to management and it gave those representatives some rights. Those representatives had rights to issue provisional improvement notices, in the case of Victoria. The terminology is slightly different across most states, but I understand that that is also the wording used in the Commonwealth legislation.

Those notices were able to be issued after discussion and consultation with the employer to put in place a legal obligation on employers to make the improvements specified in the notices. If the employer ultimately did not agree, there was an ability for the employee to appeal, and of course then the government agencies would come in and look at the issues and make a determination and issue their own legally enforceable notices in the form of improvement notices, directions or recommendations.

As someone who was working in a blue-collar industry as an electrician at the time of the introduction of that legislation, I can tell you, Mr Deputy President Barnett, that it was a revolutionary approach where, instead of simply having signs up in the workplace instructing workers to be more careful with their occupational health and safety, the signs said: ‘When you are lifting something heavy, mind your back,’ as though somehow, if you did mind it, that will make what you were lifting much lighter. Signs like ‘Watch out for hazardous objects’ made employers feel that they were doing something for their employees. But of course what it was saying to workers—I thought it was quite disgraceful—was either, ‘You are too stupid to look after your own occupational health and safety,’ or, ‘You care so little about your own occupational health and safety you need some sign up to remind you that your own safety and health in the workplace is important to you.’

Of course the reality at that time and much of the reality today is still that employees have little control over the workplace. They have little control over how it is designed, they have little control over how the process of work is designed and implemented by management, and they have little control over or say about what chemicals are used. They have little control over or say about the materials, the weights being lifted or the purchase of capital equipment to make the workplace safe. Employees do not have that control. One of the great things about the existing legislation is that it forced employers and employees together, with government assistance when necessary, into an arrangement where they had to look at those problems and resolve them together. The employees had rights that they could exert to ensure that injuries were either mitigated or reduced and engineered out of the workplace. That is modern occupational health and safety, and it only works if the employees also have some rights to implement these actions.

What we see, unfortunately, with this particular piece of legislation is a cutting back of those rights—I can only suggest it is due to the ideological hatred that the government have of unions. They seek to completely write unions out of this legislation. The role of unions in implementing occupational health and safety reform in this country has been exemplary. It is beyond reproach. The unions have invested a lot of money, a lot of research and have put an enormous amount of work into the occupational health and safety not only of their members but of workers generally across the country. Of course, many workers owe improvements in occupational health and safety to unions, even though they have not been members of unions; and, of course, that is something that the government would like to forget.

This government will tell us that this legislation still gives workers as individuals some rights. But, again, let me say that, if you do not equip people with the capability of exercising those rights and the knowledge to use those rights in a constructive way, those rights become quite meaningless. If unions are not able to help and assist their members in negotiating new agreements, new provisions, and organising—and using experiences which they have learnt elsewhere, applying them to each individual workplace and setting standards across industries—those rights become a mishmash of useless and uncoordinated activity which does not do anything for the general improvement of occupational health and safety throughout industry. That is to be regretted. It is a most unfortunate thing.

Unions organise and identify occupational health and safety hazards, sometimes investing enormous amounts of money in developing strategies to mitigate or eliminate that risk, and then they are able to apply those across the board. This legislation says: ‘We don’t want collectivism of any form.’ This is the government’s ideology in the extreme. ‘We want every individual to sit down and reinvent the wheel. If there is a hazard identified first, we do not want them having knowledge that that hazard is common across different parts of industry and that there are solutions that you could effectively purchase off the shelf. We want people to sit there in little cocoons—without any knowledge about what is happening in similar industries elsewhere or about similar hazards, and with no resources as individual workers, who most likely will not have the skills to enable them to research and find out what is a proper solution—and try to come up with what is an adequate standard to be applied.

I first entered the workforce as an apprentice electrician. When I first raised the issue of asbestos, because the unions were agitating and advising us that asbestos was dangerous, I was assured by the most senior authority figure with whom I had ever had any dealing in my workplace that the claims were a load of nonsense, that there was nothing wrong with asbestos, that he had used asbestos his whole life and that he was living proof that there was nothing dangerous about it. I sat down and thought of the logic behind that: someone who was not living proof, someone who had died of asbestosis, would not, logically, be there assuring me that asbestos was dangerous because they had already suffered the consequences.

We have always had management at different levels deny that things are actual health and safety problems, deny that there are solutions that can be implemented. Often they assure workers that what the workers say is a problem is not in fact a problem in their view. That has been proven wrong time after time. That is why the removal of the rights of unions and occupational health and safety reps to exercise those powers to readdress the balance of their negotiating ability within the occupational health and safety framework will lead to poorer occupational health and safety outcomes in this country—all because the government have an ideological hatred of unions and simply seek to remove them whenever they can regardless of the circumstances.

The government really should look beyond its own ideological agenda in this area and look at what occupational health and safety is all about. I know some may be sitting in their offices trembling about the next severe paper cut that they may have inflicted upon them, but the figures I read out at the beginning of my contribution reflect the seriousness of occupational health and safety in the workplace. It absolutely dwarfs accidents, injuries and deaths from motor accidents. We often see headlines about the road toll on the weekends. Yet we are averaging 10 deaths a week, week after week after week, in this country, from traumatic injuries at work. We know many of those accidents can be avoided and should be avoided. They are avoided in many instances. In fact, I would say, in most instances, where there is a genuine commitment to occupational health and safety and where both parties work together in a collaborative format we avoid serious accidents and injuries.

We know, as I have also indicated, that for many more decades we are going to suffer an increase—until a peak, probably in about 30 years time—in asbestos related deaths. Those deaths could have been avoided. Every single one of those deaths could have been avoided. If the employers who manufactured asbestos—and it is documented that they knew right back in the twenties, as I understand it, that asbestos was dangerous—had lived up to their obligations, tens of thousands of people would not be dead and tens of thousands of people would not die in the future.

This is a serious issue. This government really should get over its ideology about unions and recognise that occupational health and safety representatives need resources. Those resources are only going to be provided by unions. Employers are not going to do it; if they were going to do it they would be doing it already. The government clearly is not going to do it; they have already wound up the National Occupational Health and Safety Commission. The OH&S representatives need that and they need the support of the unions.

Penny Wong (SA, Australian Labor Party, Shadow Minister for Corporate Governance and Responsibility) Share this | Link to this | Hansard source

I first extend to the chamber my apologies for my late arrival to this debate and thank Senator Marshall for his excellent contribution indicating Labor’s position on the Occupational Health and Safety (Commonwealth Employment) Amendment Bill 2005. As the chamber will no doubt have discerned, Labor will be opposing the bill in its current form. We do so for a range of reasons.

The bill proposes the removal of the need for government agencies to negotiate occupational health and safety agreements with unions and employees through the introduction of so-called management arrangements. As Senator Marshall has identified, the bill removes references to unions and replaces them with a reference to employee representatives, defined either as a registered organisation or a workplace staff association, who are now required to be invited into the workplace by an employee.

The bill will require that an employee invite an employee representative to initiate an OH&S investigation, whereas previously a union could make a request to investigate a workplace direct to Comcare. Employee representatives involved in developing OH&S management arrangements must be issued with a certificate by the CEO of Comcare, valid only for a period of 12 months. And, finally, the bill empowers employers to conduct the election of employee health and safety representatives, a role previously conducted by a union or a person specified by the National Occupational Health and Safety Commission, which the government proposes to abolish.

Australia continues to have a very poor record with respect to work related death, injury and illness. It is estimated that there are around 3,000 work related deaths in Australia each year which, as Senator Marshall and others in previous debates related to occupational health and safety have indicated, is more than the national road toll. Broken down, nearly 450 of these work related deaths—an average of 10 per week—are a result of a traumatic incident at work, including work related road deaths. A further 150 deaths occur while Australian employees travel to or from work, with about 200 per year dying as a result of someone else’s work activity.

In 1996, the National Occupational Health and Safety Commission in its research arrived at a conservative estimate that at least 2,300 people died each year as a result of work related exposure to chemicals. Clearly, that number does not reflect the current extent of death from occupational disease. In the near future this figure may rise due to the expected increase in asbestos related deaths—a tragedy that, unfortunately, for many decades has continued its assault on working Australians, particularly through the Wittenoom disaster and, of course, the James Hardie disgrace. Australia has the highest incidence of asbestos related death in the developed world. The incidence in Australia has been rising steeply since 1970 and it is estimated that the total number of asbestos related deaths will reach at least 40,000—perhaps as many as 60,000—by 2020. Approximately 480,000 Australian employees experience a work related injury or illness each year. That translates to millions of Australians suffering from work related long-term health conditions, and each year there are around 140,000 compensated work related injuries resulting in an absence from work of one or more weeks.

The bill before the chamber proposes to amend the Occupational Health and Safety (Commonwealth Employment) Act 1991. The principal act provides a legal basis for the protection of the health and safety of Commonwealth employees in departments, statutory authorities and government business enterprises. This bill is the third attempt by the Howard government to introduce the provisions it contains—namely, the removal of unions from workplace occupational health and safety institutions.

The principal act is similar to counterpart state and territory legislation in that it follows the Robens model. This model stems from the report of the Committee on Safety and Welfare at Work commissioned by the United Kingdom parliament in the early 1970s as a means of reducing the incidence of workplace deaths and injury. Essentially, that approach recommended greater self-regulation in the workplace through a collaborative approach between employers and employees, including through the relevant unions. The principle of freedom of association was an important aspect of the Robens approach.

The Robens model has largely been followed in subsequent and similar inquiries conducted both by the states and by the Commonwealth. Consequently, occupational health and safety committees have now become a familiar part of the industrial landscape across Australia. The effectiveness of the Robens approach has been supported by the National Occupational Health and Safety Commission, which said in November 2002:

... there is indirect but strong evidence that employee participation, either direct or representative, is an essential component of effective occupational health and safety management.

The government’s first attempt to remove the role of unions in occupational health and safety matters was its Occupational Health and Safety (Commonwealth Employment) Amendment Bill 2000. That lapsed with the prorogation of the parliament for the 2001 election. However, before the lapse of the bill, the Senate Employment, Workplace Relations, Small Business and Education Legislation Committee prepared a report on the bill’s provisions.

The essence of the Labor senators’ report on the bill was threefold. First, there was a rejection of the reduced role for unions under the proposed act. In particular, Labor senators were of the view that the government’s position was driven by ideological rhetoric associated with labour market opposition. Second, concern existed over the ‘vagaries’ of the proposed ‘safety management arrangements’, especially given the ongoing success of the existing policy approach. Labor senators gave qualified support for a more flexible, dual civil and criminal system of OH&S enforcement and compliance.

In their report on the bill, the Democrats took a slightly different approach, which Senator Murray may comment on in his contribution to this debate. The Democrats argued that the 2000 bill should be passed with amendments. Senator Murray’s report on that legislation stated, amongst other things:

A key area of concern to us is the place of unions in the maintenance and advancement of workplace health and safety. Unions supplement the regulatory and inspectorial roles of State H&S departments in an irreplaceable way. Unions as a whole sometimes get criticised as a result of the actions of some unionists in misusing the provisions of the various State health and safety Acts. Such unionists raise non-existent H&S issues to achieve other industrial objectives, and misuse entry and search provisions under the pretext of H&S. Such behaviour needs to be addressed. However the way to deal with those abuses is not to clamp down on legitimate useful or effective union H&S activity.

I want to emphasise that we have had the commission, the government’s own body—although the government is now seeking to abolish it, if it has not already done so—indicating that union involvement, ‘employee participation, either direct or representative’, is an essential component. The point made by Senator Murray, which has some cogency, is that you should not throw the baby out with the bathwater—that you deal with any inappropriate activity but you ought not ‘clamp down on legitimate useful or effective union H&S activity’.

The government’s second attempt to attack unions’ involvement in health and safety occurred in June 2002 with the Occupational Health and Safety (Commonwealth Employment) Amendment (Employee Involvement and Compliance) Bill 2002. The 2002 bill was referred to the Senate Finance and Public Administration Legislation Committee, with Labor senators again recommending the amendment of the bill to remove provisions designed to reduce or remove union involvement in health and safety outcomes. As I understand it, the Democrats’ position in relation to the 2002 bill remains unchanged. While some elements of the 2002 bill were subsequently enacted in the 2004 legislation—the Occupational Health and Safety (Commonwealth Employment) Amendment (Employee Involvement and Compliance) Act 2004, which introduced a more flexible compliance regime—Senate amendments supported by Labor and the Democrats significantly diluted the original intent and key provisions of the 2002 bill.

What we have before the chamber in the 2005 bill is essentially amendments modelled on provisions which have been unsuccessfully brought before parliament in 2002 as part of the 2002 bill. The bill before the chamber proposes the introduction of ‘management arrangements’ to replace occupational health and safety agreements traditionally developed through tripartite processes between unions, employers and employees. The arrangements replace the requirement for government agencies to negotiate health and safety agreements with unions and employees to govern occupational health and safety matters. Current legislation requires occupational health and safety committee meetings every three months, with minutes of the meetings to be kept for three years. These timeframes will now be decided by the ‘management arrangements’.

The bill also intends to remove all references to ‘unions’ and replace the term with ‘employee representatives’, defined as either a ‘registered organisation’ or a ‘workplace staff association’. The latter is defined as an ‘association of employees, a principal purpose of which is the protection and promotion of the employees’ interests in matters concerning their employment’.

Additionally, the bill indicates that, under the amended legislation, employee representatives must be invited into the workplace by an employee. And, under the provisions of the bill, an employee must invite the ‘employee representative’ to initiate any investigation into occupational health and safety matters. Under the current act, as I indicated earlier, a union is able to directly request that Comcare investigate a workplace. The bill also proposes that employee representative organisations request the right to be involved in consultations regarding occupational health and safety by submission to the chief executive of Comcare. The Comcare chief executive may, or may not, issue a certificate with whatever conditions are deemed necessary, with validity for a fixed period of 12 months.

Finally, the bill also provides for employers to conduct the election of employee health and safety representatives, a role previously conducted by a union or a person specified by the National Occupational Health and Safety Commission. In both 2000 and 2002 the government failed to outline a sound analysis as to why the current provisions and policy approach of the act needed to be changed. Nothing has changed with this bill, and the government has not put forward its analysis or evidence as to why the bill needs to be supported in its current form.

The fact is that occupational health and safety matters are most effectively developed through tripartite processes involving unions, employers and employees, based on the Robens model. This bill, as I have outlined, dismantles this tripartism, making it more difficult for employees to be adequately represented on these matters. The bill proposes to remove all references to unions in the act. This effectively means that the role a trade union currently fulfils may be replaced by a workplace staff association. This could be merely a social club and may not fulfil the requirements mandated to trade unions, such as their democratic processes and their independence.

The consequences of the bill are fairly plain to see. By devolving responsibility from unions to employee representatives, as the bill proposes, strong occupational health and safety processes and outcomes will be increasingly difficult to enforce. It appears from this legislation that the government’s intent is to throw employees back on their own resources instead of utilising the health and safety expertise built up over many years by trade unions and their membership. Employee representatives will lack the independent information and assistance currently provided by unions, while representatives themselves are less likely to be forthcoming in occupational health and safety negotiations with their employers. As well, the proposal that a union member must seek permission from a public official, who may or may not agree to involve the union representative in a health and safety matter, is not only counter to good public policy but is likely to be in breach of the terms of ILO convention 87, to which Australia became a party in 1973. Finally, the bill proposes that employers, not employees, control the elections of their health and safety representatives.

To characterise this legislation, it is fundamentally about shifting responsibility, power and access to information away from trade unions as representatives of employees towards the employer and towards individual employees without the support of their trade unions. The bill, as I have outlined, also creates a far more bureaucratic and difficult process for employees to advocate on behalf of health and safety issues and, perhaps more importantly, for trade unions to initiate investigations by Comcare. You have to wonder why the government would seek to play politics with occupational health and safety simply by virtue of its disregard and blatant hatred of the trade union movement. There is demonstrable evidence that involvement of trade unions through tripartite processes over many years has had a measurable and significantly positive effect on health and safety outcomes. The government does not worry about that; the government is more keen on attacking the role of unions and rights of unions to be involved in workplaces than on looking at what is the best public policy to minimise injury to Australian workers in Commonwealth agencies.

As I said, one of the aspects of the bill is that employers, not employees, will control the election of their health and safety representatives. You have to ask why it is that the Commonwealth wants to ensure that that occurs. What is so frightening about a trade union or an independent body determining and ensuring that elections of health and safety representatives are undertaken appropriately? What is the public policy argument for the government or the employer to control the representatives of employees in relation to health and safety? Frankly, this provision is nothing more than a blatant attempt to diminish and ultimately remove unions from the health and safety process within the Australian public sector. This bill represents the government’s third attempt to put legislation in place that seeks to deny Australian employees the basic and fundamental right to be represented by a union if they so choose. It is a piece of legislation driven by the Howard government’s extreme ideology rather than any sense of sound public policy outcomes.

The fact is Australian trade unions have a strong track record of protecting employees from unsafe work practices and unsafe workplaces. It is clear from the evidence in Australia and internationally that health and safety outcomes are highly dependent on high levels of worker participation and union support. If you look at this research, some of which was referred to earlier, you see that removing the role of unions and replacing them with management-driven processes is likely to lead to less safe and less healthy workplaces.

Unions have a legitimate role to play in the monitoring and enforcement of health and safety matters in the public sector. Unions exist as a very important and necessary safeguard to protect employees when a breakdown on health and safety issues has occurred between an employee and an employer. This view recognises, of course, the many examples where these health and safety issues arise on a daily basis and employees, between themselves or with their managers, resolve them efficiently and expeditiously. In such cases, the involvement of unions as a third party is not a prerequisite and often does not occur because it is often not required. There is no mandatory involvement of unions in such issues, despite the fact that the government would like to construe the argument in that way.

We already have both union and non-union employees working cooperatively with management and achieving results, so for the government to now attempt to ostracise unions completely from health and safety matters is comprehensible only if we appreciate the ideological war being waged by the Howard government. The changes contained in the bill are unashamedly anti-union, based as they are on the extreme ideological view of those opposite: that neither an individual trade union nor the organised trade union movement has a role to play in the workplace.

Workplace health and safety must be a priority. It must be adequately resourced for employers and employees to enforce effective occupational health and safety rules and regulations. This is incumbent upon all in the workplace because no-one wins if working conditions deteriorate or when workplace accidents occur. It is unfortunate that the government’s priority of its ideological attack on trade unions seems to outweigh the priority of good public policy to ensure good workplace health and safety in the public sector. The bill is ill-conceived; it is nothing more than an ideological attack on trade unions with no public policy benefit. We oppose this legislation.

Andrew Murray (WA, Australian Democrats) Share this | Link to this | Hansard source

The Occupational Health and Safety (Commonwealth Employment) Amendment Bill 2005 before the chamber, broadly speaking, aims to remove the automatic right of unions to provide occupational health and safety representation and is similar to bills introduced in parliament in 2000 and 2002. The government’s first attempt at these provisions was its Occupational Health and Safety (Commonwealth Employment) Amendment Bill 2000. That bill was subject to a Senate inquiry, and in the Democrats’ minority report to the report on that bill I said:

A key area of concern to us is the place of unions in the maintenance and advancement of workplace health and safety. Unions supplement the regulatory and inspectorial roles of State H&S departments in an irreplaceable way. Unions as a whole sometimes get criticised as a result of the actions of some unionists in misusing the provisions of the various State health and safety Acts. Such unionists raise non-existent H&S issues to achieve other industrial objectives, and misuse entry and search provisions under the pretext of H&S. Such behaviour needs to be addressed. However the way to deal with those abuses is not to clamp down on legitimate useful or effective union H&S activity.

Evidence was strongly expressed on this issue, and the Democrats will need to assess whether the intentions of the Bills goes too far in this respect. In my view union officials with expertise in H&S should continue to be involved as appropriate in workplace health and safety.

The 2000 bill was never dealt with in the Senate chamber as it turned out; instead it lapsed with the prorogation of the parliament for the 2001 election. The second attempt for this legislation was through the expanded Occupational Health and Safety (Commonwealth Employment) Amendment (Employee Involvement and Compliance) Bill 2002, which in March 2004 passed amended, without the offending provisions and with the support of all parties. The 2002 bill passed with the support of all parties because the Democrats successfully negotiated for the provision relating to changing the role of union involvement in occupational health and safety to be excised from the bill to ensure the passage of the remaining provisions through parliament.

For the sake of the media, the public, the unions and industry groups I want to take a minute to expand on what I have just said and to emphasise the valuable role the Democrats played in the balance of power in the Senate from 1996 to 2005 and in the years before and what it now means without it. On industrial relations in particular, the portfolio I have held since 1996, the Democrats have played a balancing role between two often ideologically opposed parties. We are not beholden to big business and we are not beholden to the unions. We do judge legislation on its merits and we try to take a practical, pragmatic and sensible view even while trying to be consistent in terms of our principles.

During the Howard government’s first three terms, 18 industrial relations bills passed the Senate. Six were passed by the coalition, Labor and the Democrats all voting together; 11 were negotiated and amended by the Democrats and opposed by Labor. The 2002 bill, eventually supported by all parties, had two goals: one was to remove the automatic right of unions to provide occupational health and safety representation, and the other goal was to introduce a new penalty and enforcement regime. The new penalty and enforcement regime had the strong support of the unions and industry groups, and both sides were keen for the regime to be implemented. Not surprisingly, the unions were opposed to removing the automatic right of unions to provide occupational health and safety representation.

Whilst the government’s proposal was along similar lines to those that existed in the states, and it is obviously desirable to harmonise legislation on occupational health and safety wherever possible, the Democrats were concerned that the intention of the bill went too far. As noted in the Democrats’ minority report to the 2002 bill, in which I included a comparison of state legislation, the various state legislations still included a role for unions. For example, the New South Wales Occupational Health and Safety Act 2000 allows and allowed for a union representative to be present at inspections, and that principle had been present throughout both Liberal and Labor governments.

It was and still is our view that union officials with expertise in occupational health and safety should continue to be involved as appropriate in workplace health and safety. We raised our concerns with the government and suggested some alternative provisions. The government undertook to consider our suggestions and, for the sake of facilitating the passage of the remaining provisions in the bill—and, remember, they were wanted by all the parties—the government agreed to set aside the contentious provisions. The Democrats were able to, in the balance of power, negotiate the passage of legislation supported by all parties and stakeholders while delaying those controversial provisions for further consultation.

Within a month of the government taking control of the Senate, the government reintroduced the contentious aspects of the original 2002 legislation. Not only has it failed to address any of our previous concerns; it has introduced new provisions which further impinge on union representation. It is difficult to treat this bill with any credible feeling given its track record and the fact that the current bill was introduced in the House of Representatives over 12 months ago and we are only now getting round to dealing with it in the Senate. Such a long delay can only lead one to conclude that the occupational health and safety procedures as they currently stand in Commonwealth workplaces are not really a problem and do not need urgent revision. What one can conclude is that, when you get round to it, having a smack at the unions can be done in your own time!

Statistics suggest that the current Commonwealth occupational health and safety act has resulted in a better, perhaps the best, safety record of all jurisdictions. The Workplace Relations Ministers Council reports from 2002 and 2004 show that, in 2000-01 and 2002-03, the Commonwealth jurisdiction resulted in fewer injuries resulting in five or more days compensation per 1,000 employees than the state jurisdictions. And injuries have been decreasing: claims accepted per 1,000 employees reduced significantly in the Commonwealth, from 61.8 in 1996-97 to 51.7 in 2001-02. I do not have any updated figures since then, but I expect the trend will have been maintained.

I would go so far as to suggest that, rather than address any real problems, the sole purpose of this bill remains to further undermine the role of unions. This is despite national and international evidence that shows that union involvement in occupational health and safety is beneficial. If that turns out to be true, what you are doing is playing with people’s welfare for political reasons, and no government should have that on its conscience. Having said that, it is the case that Australia continues to have a poor record with regard to work related death, injury and illness. The question must be, then: will this legislation actually improve that record or worsen it? If it does not improve that record it will, of course, be failed legislation.

A relatively recent study by Access Economics estimated that there are 4,900 work related deaths—‘work related deaths’ means including from work related diseases—each year in Australia. As Senator Marshall pointed out, this is higher than the national road toll; it is double. The Australian Bureau of Statistics reports that half a million Australians suffer from a work related injury or illness each year. Approximately 2.8 million Australians have long-term work related conditions. It is also estimated that 3.9 million work related problems and 1.1 million new work related problems are handled each year by general practitioners. Frankly, when I first came across those figures, the quantum surprised me. The point is that, if this country dedicated as much public exposure and attention—that is, the same level of media exposure and the graphs and tables and so on that go with it—to workplace injuries and deaths as it does to road tolls, we could considerably improve the understanding of the extent of this problem.

The government has not produced any evidence to suggest that its amendment bill will improve these sorts of statistics. However, there is evidence that suggests that reducing or excluding the role of unions will have a negative impact. The Bills Digest to this current bill notes that leading occupational health and safety experts, Johnstone, Quinlan and Walters, have recently argued that there:

… is no reliable evidence of the effectiveness of arrangements to represent workers’ interests in OHS in which trade unions are not involved in a supportive and enabling capacity.

Rather, as noted in the Bills Digest, they argue the opposite:

... the analysis of international research suggests that consultative arrangements and union representation:

on health and safety at the workplace are associated with better health and safety outcomes than when employers manage OHS without representative worker participation.

A group of British researchers analysed the relationship between worker representation and industrial injuries in British manufacturing. They found that those employers who had trade union health and safety committees had half the injury rate of those employers who managed safety without unions or joint arrangements. In Canada, a study by the Canadian ministries of labour found that union supported health and safety committees have a significant impact on reducing injury rates. A report by the Ontario Workplace Health and Safety Agency found that 78 to 79 per cent of unionised workplaces reported high compliance with health and safety legislation, with only 54 to 61 per cent of non-unionised workplaces reporting such compliance.

In Australia, unionised workplaces are three times as likely to have a safety committee and twice as likely to have undergone a management safety audit in the previous year than non-unionised workplaces. A 1995 World Bank report stated:

Trade unions can play an important role in enforcing health and safety standards. Individual workers may find it too costly to obtain information on health and safety risks on their own, and they usually want to avoid antagonizing their employers by insisting that standards be respected.

What has changed since then? That was 11 years ago. I follow these issues reasonably carefully. The United Kingdom’s Robens committee report, which led to Australia’s occupational health and safety laws being revolutionised after the 1970s, recognised the unique role of the representatives of employees—namely, unions—and stated that, whereas individual employees may not have had personal experience of health and safety adversity, collective organisations acquired what now may be called ‘corporate knowledge’ of OH&S issues, particularly those specific to an industry.

The evidence suggests that union involvement in occupational health and safety is beneficial, yet the bill before us reduces this significantly—if not eliminating union involvement altogether—in many workplaces. Specifically, the bill will remove the need for government agencies to negotiate occupational health and safety agreements with unions and employees through the introduction of management arrangements. The bill will remove all references to unions and replace them with references to ‘employee representatives’, defined as either a ‘registered organisation’ or a ‘workplace staff association’, which must now be invited into a workplace by an employee. The bill will require that an employee invite an employee representative to initiate any occupational health and safety investigation, whereas previously a union could make submissions directly to Comcare for a request to investigate a workplace.

The bill will require employee representatives involved in developing occupational health and safety management arrangements to be issued with a certificate by the chief executive officer of Comcare, valid for only a 12-month period. The bill empowers employers to conduct the election of employee health and safety representatives—a role previously conducted by a union or a person specified by the National Occupational Health and Safety Commission, which, as we know, no longer exists.

I note that, in the inquiry to the 2002 bill, the department stated that the bill did not exclude unions from involvement in OH&S, although any involvement required a request to be made by one or more of their members. My impression then and now is that this approach does not seem to put a high enough value on union activity in this field. The Bills Digest, in respect of the bill before us, warns that new provisions—specifically the more stringent certification process involving an administrative decision-maker and the possible reluctance by employees to request representation without the assurance of anonymity—may prove to be a strong deterrent for seeking employee representation. The Bills Digest further notes that even the unintended exclusion of unions from representing employees in OH&S consultations may have the effect of weakening OH&S for Commonwealth employees overall.

The question before me is how, on behalf of the Democrats, I should handle this bill, given that, on the one hand, evidence suggests that union involvement in occupational health and safety is beneficial and, on the other, the government has demonstrated that they are not interested in negotiating a workable solution which is acceptable to all parties with respect to that issue. We could just oppose the bill based on its explicit intention of reducing union involvement in occupational health and safety, or we could try to amend the bill to an ideal level, knowing that the government has rejected our previous suggestions. Instead, I have approached a number of people and got some assistance, including from the CPSU, and have put together some amendments which I think maintain the intent of the bill but improve the transparency and integrity of the proposed new process.

On this occasion, the Democrats believe that it is better to try and achieve a reasonable outcome and appeal to the government’s reasonable side, if that exists. Given that the government have only supported four non-government amendments since 1 July 2005, compared to the 115 they accepted in 2004-05 which still exist, I will not hold my breath. I think it is to the great discredit of the government to now take the view that all wisdom resides on their side, that they are perfect, that they always know best and that everything they do is right. If they can accept a couple of hundred amendments every year from 1996 onwards, which are still in legislation, and realise that those amendments actually improved the circumstances of the bills before them, I find it very odd that, to date, only four non-government amendments have been accepted. Hopefully, the Australian people will get the message and will take control of the Senate away from them. I will discuss the detail of the amendments in the committee stage, but I indicate now that the Democrats will not support the bill without our amendments being accepted.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

The Australian Greens will oppose the Occupational Health and Safety (Commonwealth Employment) Amendment Bill 2005. We see this as yet another attack on Australian workers. In the last 12 months, the Howard government has fundamentally changed the way Australians are employed, and this is yet another go at watering down safety standards for workers of Australia. The bill proposes to dramatically reduce the role of unions in relation to occupational health and safety arrangements in Commonwealth workplaces. It will affect the powers of Comcare and those of health and safety representatives in Commonwealth workplaces. As has already been stated by other senators, this government has had three separate attempts to pass this legislation. Now that the government has the numbers in the Senate, it unfortunately seems that it will be successful this time.

We do not believe there is a need to change the system. On any real measure of health and safety performance, the current Commonwealth OH&S system is effective and efficient. It has a good track record of protecting employees and costs less than other similar compensation schemes. It has the best safety record in Australia: 30 per cent fewer injuries than New South Wales and 24 per cent fewer than Queensland, for example. Workers compensation premiums for the Commonwealth are much lower than those paid by the states; for example, compared to New South Wales they are three times lower, and Western Australia, Victoria and South Australia pay twice as much.

The existing Commonwealth system is the best in Australia. We believe that short-changing safety will cost us dearly. International research and experience clearly shows that when employers manage occupational health and safety without worker representation the results are much worse. This costs the employers in lost time and productivity and ultimately in increased payouts for disability and damages. Of course, it also costs the workers and their families through added dangers in the workplace and the consequences of them on their health, wellbeing and livelihoods. It costs the nation in lost productivity in our economy, in the burden of caring for those made sick or disabled in the workplace and in our international reputation. These are ideologically motivated decisions that, to my mind, make no sense.

As has been articulated previously, this bill empowers employers to control the election of employee health and safety representatives. This is a role which would have previously been undertaken by a union or by a person specified by the National Occupational Health and Safety Commission. The bill makes it much harder for Commonwealth employees to get union assistance on OH&S issues. This is likely to lower health and safety standards in some areas of great importance to the national interest—for example, the defence forces, the Federal Police, scientists, researchers and technicians, and the staff of government departments and agencies.

The bill removes all references to unions in OH&S and replaces them with references to employee representatives, defined as either a registered organisation or a workplace staff association, which will now be required to be invited into the workplace by an employee. The bill goes further to remove the need for government agencies to negotiate occupational health and safety agreements with unions and employees, replacing them with what it calls ‘management arrangements’. The bill requires that an employee must invite an employee representative to initiate an occupational health and safety investigation before a dangerous or unhealthy situation can be dealt with. Previously a union could make a request directly to Comcare to investigate a workplace where they had safety concerns.

The bill also requires employee representatives involved in developing occupational health and safety management arrangements to be issued with a certificate by the CEO of Comcare. The certificate will only be valid for a 12-month period and will require the employee to be re-registered when it expires.

The bill includes changes to introduce ‘in writing’ requirements, meaning that health and safety management arrangements which are developed by an employer in consultation with an employee will now have to be in writing. The in-writing provisions of the bill mean that these written instructions resulting from the safety management arrangements will not be legislative instruments. Once they are written, they are immediately in effect. As a result these written instructions will not be subject to parliamentary scrutiny—they will not be disallowable.

What are the implications? The more stringent certification process is likely to be a strong deterrent to employee occupational health and safety representation. In the past, all OH&S representation was—by virtue of being through a union—confidential. Now a third party has been imposed—that is, Comcare—which decides whether or not this representation can be confidential and then issues a 12-month certificate. What happens if they decide that the representative cannot keep their identity confidential? What happens if they lose their job as a result? What happens when 12 months is up—will the certificate be renewed?

I cannot see what these arrangements could possibly hope to achieve other than to make representation more difficult and to give the Commonwealth the power to administratively interfere in health and safety representation—to reduce the number of investigations and complaints. Is there any evidence that spurious occupational health and safety investigations are costing us time and money? Is it anything like the amount of time and money bad occupational health and safety costs us in lost productivity, lost workdays, lost limbs and lost lives? This can only be bad for the safety of our workplaces and the health of Australian workers.

The exclusion of unions from occupational health and safety consultation, irrespective of whether this is an indirect consequence or deliberate intention of the legislation, can only weaken occupational health and safety for Commonwealth employees. International research and experience clearly shows that when employers manage occupational health and safety without union representation the results are much worse. In the past unions have played a significant role in occupational health and safety training and education. Now what will happen? Who will do the training? Will they have enough knowledge and ongoing connection to our workplaces to make it relevant?

The impact on the economy of time lost to health and safety problems versus time lost to industrial action is 20 to one. The very minor gains the government may hope to make through the wider Work Choices agenda—possibly through reducing the already low levels of industrial action in Australia, by world and OECD standards—are far outweighed, even overwhelmed, by even a small increase in occupational health and safety costs. Anyone doing a rational cost-benefit analysis of these changes would be aghast.

As has been stated in this debate, there are around 3,000 work-related deaths a year in Australia. There are at least 2,300 deaths per year as a result of workplace exposure to hazardous chemicals. That figure does not take into account the impact of asbestos—estimated to cause 40,000 to 60,000 deaths by 2020.

Each year, 480,000 Australians experience a work related illness or injury. Each year, 140,000 Australians are compensated for work related injuries that result in their missing more than a week of work. When you compare the Commonwealth occupational health and safety system with the state systems, you see that quite clearly the Commonwealth has the best record. If you look at the figures for injuries resulting in five or more days compensation per 1,000 employees, you see that in 2000-01 the Commonwealth had 12, New South Wales had 18.1, Queensland had 15.4 and Western Australia had 14.8. There are similar figures for the year 2002-03. The Commonwealth system is by far the most cost-effective system in Australia. Workers compensation premiums for 2000-01 as a percentage of payroll were: the Commonwealth, one per cent; New South Wales, 2.8 per cent; Queensland, 1.8 per cent; and Western Australia, my home state, three per cent. Again, for the following year, 2002-03, there were very similar relationships between costs. Quite clearly, this is a safe, cost-effective system. Why change it?

Union participation in occupational health and safety, as I mentioned earlier, is extremely important. The current best practice Commonwealth occupational health and safety system clearly benefits from the role of unions. Under current arrangements, all employees elect their occupational health and safety representative in a union-run ballot. Given that Commonwealth OH&S reps have the power to issue their employers with an improvement notice to rectify unhealthy or unsafe situations, equipment or practice, there would be a potential conflict of interest if the employer were to conduct the elections as this bill proposes.

The union has access to the names of these reps and plays an active role in supporting the reps and occupational health and safety committee members. Unionised workplaces are twice as likely to have undertaken a health and safety audit within the last 12 months and are much more likely to have a health and safety committee—59 per cent of unionised workplaces versus only 19 per cent where there is no union support.

Research shows that workplaces with occupational health and safety committees have fewer compensation claims and the intentional or unintentional exclusion of unions can only weaken OH&S for Commonwealth employees. This government has a clear agenda to do away with employee representation in the workforce. If this is not simply union bashing, I do not know what is. This is a slippery slope for Australian workers. Their hard-won rights and conditions are at risk and now, again, so is their safety.

Unions play a significant role in improving occupational health and safety and have done so since organised workplaces began. As the most representative and independent organisations of workers they can seek to change policies and practices of both employers and governments. Unions seek to safeguard the occupational health and safety of their members and other workers by negotiating with employers to eliminate occupational health and safety risks and by conducting education and training programs for workers and job delegates. They protect workers who have the courage to stand up and bring a safety issue to the attention of their employer. They campaign for improvements to occupational health and safety programs and work practices. They take part in the administration and enforcement of occupational health and safety legislation. Unions have also devoted considerable energy to ensure injured workers are properly represented in workers compensation and common law damages claims, as seen in recent high-profile cases.

We are concerned that the rights of the 250,000 employees working in federal government departments to obtain help from unions on health and safety issues will be watered down. The National Occupational Health and Safety Commission in their April 2001 review of the effectiveness of OH&S management systems identified that independent representation of employees being encouraged and supported is a significant factor contributing to the effectiveness of these systems.

These unnecessary changes to occupational health and safety laws also appear to violate Australia’s ILO obligations including the Occupational Safety and Health Convention 1981 and the Right to Organise and Collective Bargaining Convention 1949.

The existing Commonwealth occupational health and safety system is the best in Australia. The current system is efficient and cost-effective. Changing the system will cost the Commonwealth and the community. There is much to be risked and nothing to be gained by changing the system. The current best practice occupational health and safety system benefits from the role of unions. These changes are ideologically motivated and wrong-headed and will not improve the system; they will make it worse.

Guy Barnett (Tasmania, Liberal Party) Share this | Link to this | Hansard source

I stand to speak in favour of the Occupational Health and Safety (Commonwealth Employment) Amendment Bill 2005. I will be making some arguments in favour of the bill, I will respond to and rebut some of the allegations and concerns that Labor—and, indeed, the Democrats and the Greens—have expressed regarding the bill and I will share two significant examples from Tasmania which I think underline the need for this type of legislation.

The bill contains amendments to the Occupational Health and Safety (Commonwealth Employment) Act 1991, which provides the legal basis for the protection of the health and safety of Commonwealth employees specifically in departments, statutory authorities and government business enterprises. The Howard government believes strongly that safe and productive workplaces rely on a cooperative approach between employers and employees to identify and eliminate hazards that may cause injury or death.

In my view and in the government’s view, the bill not only improves protection for employees but actually improves workplace democracy, and I will speak more about that shortly. It removes the privileged role of unions in the workplace, specifically workplace health and safety arrangements. Labor has claimed during this debate and on the public record that if employers do not reach an agreement with a union this will weaken occupational health and safety protection for employees. This is totally and utterly false.

The amendments made by the bill do not affect existing occupational health and safety policies. These policies are preserved. Indeed, in no way do they diminish the Australian government’s duty of care to its employees. Under the bill, employers are required to develop health and safety management arrangements in consultation with their employees rather than and specifically with involved unions. The amendments do not remove unions from the consultation process; they just remove the privileged role that unions presently enjoy. They also reflect that employers owe a duty of care, as I have indicated, to their employees, not to their unions.

The requirement for employers to develop health and safety management arrangements in consultation with employees as part of their general duty of care means that if an employer did not develop adequate health and safety management arrangements or if they did not undertake suitable or reasonable consultation with employees then the employer may be in breach of its duty of care to the employees under the act. That is reasonably simple, but Labor refuses to acknowledge the arguments put and to accept them as true.

Labor has also claimed that the powers for the unions to request an investigation, make appeals and request the institution of proceedings for occupational health and safety breaches are being removed. I want to make it clear that under the bill the powers for unions to request an investigation, make appeals and request the institution of proceedings for OH&S breaches are not being removed. Only Comcare and investigators presently have the power to institute prosecutions for offences against the act. This will not change.

The most significant amendments to the act involve removing the mandated right of ‘involved unions’ to intervene in occupational health and safety matters to the exclusion of other employees and their representatives in workplaces covered by the Occupational Health and Safety (Commonwealth Employment) Act. The bill also removes the requirement for employers to implement prescriptive and detailed OH&S policies.

So what are the main reasons for removing the mandated role for unions? You might think, as a prima facie case, that it is just a good idea, but let us look at the reasons behind this move by the government. Firstly, we believe strongly that safe and productive workplaces rely on a cooperative approach between employers and employees to identify and eliminate hazards that may cause injury or death. Secondly, it is an imperative that Australian government employers be required to consult with all employees, not just with the unions, specifically about the development and implementation of occupational health and safety arrangements.

Why should unions be given a mandated and privileged role as is currently the case? That is wrong, and we are going to remove that once this legislation is passed. And why should they have a mandated and privileged role specifically with respect to OH&S matters in those workplaces covered by this act? So, consistent with the government’s belief that there should be greater cooperation between employees and employers at the enterprise level, the bill aims to enhance consultation and cooperation between employers and employees by facilitating a more direct relationship between them to address OH&S issues at their individual workplaces.

The removal of a mandated role for unions will simplify the process for the establishment of designated work groups. It will also simplify the election of health and safety representatives. I want to stress that, currently, that is limited to those employees nominated by the involved union. Why would that be the case? Because there is a history of Labor legislation and Labor union control of the workplace. That will change, and is changing, and we are seeing the benefits flowing through to the Australian community in terms of an increase in the number of jobs—175,000 new jobs since Work Choices came into being—and an increase in real wages of 16.4 per cent over the last 10 years under the Howard government. I will mention more about that in due course. It will also simplify the prescriptive requirements for the operation of health and safety committees.

We are looking at the end result of occupational health and safety of the employees. We are not looking at entrenching union involvement; we are not looking at entrenching certain procedures. We are looking at outcomes: what is in the best interests of employees.

Employees still retain the right to nominate to be represented by an employee representative—read ‘the union’—or an association in respect of their dealings with employers on OH&S matters. Employee representatives will have to be certified by Comcare and satisfy Comcare that an employee has chosen to be represented by that representative or association. The identity of the employee will remain confidential.

In terms of some of the arrangements, I wish to make it clear that the bill will also remove the requirement for the implementation of detailed health and safety policies and the requirement that these be developed in consultation with an involved union. Why on earth would you prescribe such an arrangement where the involved union has to be part of the process? Why is that a requirement? I will tell you why. It is because of the Labor-union relationship, where the unions have donated over $46 million to the Labor Party since 1996—and no doubt that figure is rising fast. They have an intimate relationship, and that is the reason they have entrenched the role of the union in this arrangement.

I have a couple of other comments about Labor’s opposition to the bill. I believe it is doing the bidding of the Community and Public Sector Union. I know that Labor claims that the bill is evidence of the government’s wish to diminish the rights of workers and to reduce the influence and role of unions in the workplace. Labor also believes that the unions should have a mandated and preferential role. That is Labor’s position. That is the position on the other side of this chamber. But it is not in the best interests of the workers and the employees around this country. In fact, Labor supports that view regardless of the wishes, in many respects, of the employees, the workers and their families. That is a point that I will be coming to very shortly, because there is evidence of that in Tasmania.

The Australian government believes workers and businesses should have the freedom to choose working arrangements which best suit their needs—the freedom where workers choose whether to belong to a union or engage directly as an individual or workplace with their employer to set workplace agreements without third parties. Both the Labor Party and our government believe workers should have the right to be represented by unions. There is no argument about that. There is no debate about that. But the fundamental difference between the two parties is that Labor want union membership to the exclusion of all other options. In fact, they see that there is no alternative. I will give you a good example of that. Labor have opposed Australian workplace agreements as part of the framework for our industrial relations arrangements here in Australia. Why do they do it?

Nigel Scullion (NT, Country Liberal Party) Share this | Link to this | Hansard source

They want to scrap them!

Guy Barnett (Tasmania, Liberal Party) Share this | Link to this | Hansard source

That is what they want to do. Senator Scullion is entirely correct. They want to scrap them. They want to get rid of them. The Prime Minister proudly announced the one millionth AWA in Adelaide just a few days ago. I can advise the Senate that in Tasmania we have over 24,000 AWAs currently operating. In Tasmania at least, people on AWAs on average are earning 48 per cent more than people on an award. Why would you want to deny that of those working men and women and their families? Why would you want to do it?

It is because the Labor Party have a view which is ‘one size fits all’. The Leader of the Opposition, Mr Kim Beazley, has made it clear: he just wants awards or collective agreements. Collective agreements, really, are where the unions have control. They have a dominance in such agreements. He is listening very carefully to Greg Combet and is in fact doing the bidding of Greg Combet for and on behalf of the union movement. As I say, you know that link: it is there with the $46 million. Just follow the money. He who pays the piper calls the tune. With respect to the Labor Party, that is exactly what is happening.

In terms of AWAs in Tasmania, I want to make one point as an aside. Work Choices came in in March. In April, there were 150-odd AWAs. And what has happened since then? They have increased. There were 750 in the month of August and they are on the increase. We have over 24,000 now. People who are on AWAs are earning more, on average—48 per cent more in Tasmania—than those on an award. So why does the Labor Party want to deny those people that extra money?

The two incidents in Tasmania I want to refer to relate to occupational health and safety arrangements at the Beaconsfield mine. In today’s Australian, on page 3, a certain Bill Shorten is reported making certain comments. I am going to read those comments and then respond to them. The article is headed ‘Shorten demands reports on mine’ and says:

Australian Workers’ Union boss Bill Shorten has demanded the public release of safety reports and other technical documents relating to the Beaconsfield gold-mine tragedy after reports that management was warned of a potential disaster.

On Saturday, The Weekend Australian revealed that an independent expert’s report warned mine management three months before the Anzac Day rockfall that its mining method may have been inadequate.

Well! It goes on:

Greg Mellick is holding a closed-door inquiry into the disaster at the Tasmanian mine, which killed worker Larry Knight.

It talks a little bit more about Bill Shorten and his role. You see that Mr Shorten was involved in the preparation and signing off of the state government inquiry into the safety of the Beaconsfield mine. I just ask the question: is Bill Shorten doing this for the purposes of grandstanding over the Beaconsfield tragedy? He says he is calling for the public release of those reports. But I find it bizarre because, on the other hand, he was involved and helped draft the terms of reference for the inquiry, and the reports are being subjected to that inquiry. Mr Shorten actually signed off on the inquiry. He had meetings with the Labor Premier of Tasmania, Paul Lennon. Now he is calling for the public release of the documents, when he has actually signed off on a closed door inquiry headed up by Greg Mellick, whose competence and capability I have the utmost respect for.

But I believe that it is double standards at work and that, if Mr Shorten has an issue with any of those reports or advice relevant to the inquiry, he should convey those concerns to those charged with determining the cause of the tragedy—Greg Mellick and his inquiry—and he should spare the people actually affected by the disaster any further anxiety and suffering. Beaconsfield and the people of Beaconsfield have had enough—they have had a kick in the guts, and the families concerned have had enough indeed—and it is not for Bill Shorten or anybody else to be grandstanding over this particular matter. I note that the Australian story quotes Lauren Kielmann, who is the late Larry Knight’s daughter. It says she:

... told The Australian yesterday she did not blame mine management for the rockfall that killed her father.

“It would have been better that they did follow up ... recommendations. But I think they did the best they could. It was just a horrible accident.”

So Bill Shorten is playing it up, and I would ask him to stop that and to actually apologise for any concern or offence that he might be causing.

I come to the other incident. The incident relates to a matter instigated by the state Labor government, being the appointment exclusively of four unionists in Tasmania—two from the AWU and two from the CFMEU—to undertake the work of the independent workplace standards office of Tasmania. It is a state government agency. The government has appointed those four unionists exclusively to undertake occupational health and safety inquiries in the workplace. Why would that be? Steven Kons, the Tasmanian Attorney-General, actually announced it publicly by putting out a media release saying that these four unionists have been appointed and that the industry associations involved were ‘comfortable with the arrangements’, implying that they were supporting the arrangements. As soon as I heard about and saw that, what did I do? I rang the associations. I said, ‘Is that right? Is it true that you’re supporting these arrangements?’ ‘Absolutely not’ was their response.

So the Attorney-General has named three organisations publicly—and I will tell you who they are: the Australian Mines and Metals Association, the Master Builders Association and the Minerals Council of Tasmania—saying that they were okay with these arrangements. I rang them, talked to them and of course they are opposed. Not only are they opposed; the Tasmanian Chamber of Commerce and Industry are also totally opposed. In fact, they put on the front page of their business report and of their monthly newspaper their opposition. They are not happy. Indeed, the Housing Industry Association are entirely unhappy with the state government arrangement to appoint four unionists exclusively to undertake occupational health and safety arrangements in Tasmania.

So why do you think they are going down that track? I have contacted the Minister for Employment and Workplace Relations, Kevin Andrews—and I thank him for his leadership in this area and across the board—asking him to consider blocking the state government’s exclusive appointment of these four union officials to conduct workplace safety inspections. It is a recipe for union intimidation and it would compromise the independence of workplace standards in Tasmania. Mr Kons, in his public statement to the media, also said that this particular proposal of appointing four unionists exclusively to undertake these inspections was ‘modelled on similar systems existing in mainland states’. I thought that was strange—would that be true? He was saying it was true; it was based on ‘systems’ in other states. I made some inquiries, and do you know what: it is an utter furphy. He has not even publicly apologised for putting out that inaccurate and wrong information. No such models exist.

Rod Kemp (Victoria, Liberal Party, Minister for the Arts and Sport) Share this | Link to this | Hansard source

Disgraceful!

Guy Barnett (Tasmania, Liberal Party) Share this | Link to this | Hansard source

Disgraceful behaviour! I want to pay a tribute to Michael Hodgman QC, MP, shadow Attorney-General in Tasmania, for exposing the state government’s behaviour and indeed the three recent incidents where two of these four unionists have been apparently caught out breaching their responsibilities. The Australian building and construction commissioner is undertaking inquiries at the moment with respect to those three incidents. I hope that an inquiry is undertaken quickly and that we find out why they are in these arrangements. At the end of the day it is a special deal for special mates. (Time expired)

Carol Brown (Tasmania, Australian Labor Party) Share this | Link to this | Hansard source

I rise to speak on this important and continuing debate before us concerning health and safety. OH&S is a vital issue in the Australian workplace and it is imperative that the Occupational Health and Safety (Commonwealth Employment) Amendment Bill 2005 be opposed. Much of this bill has already been rejected or amended by the Senate. Labor has opposed these provisions twice before and does so again for a third time. We do so because we believe this is bad legislation for Australian workers.

The bill proposes changes to the Occupational Health and Safety (Commonwealth Employment) Act 1991. This act provides a legal basis for the protection of the health and safety of Commonwealth employees in departments, statutory authorities and government business enterprises. The bill reduces the safety of Commonwealth employees at work, which is exactly why senators need to reject this bill. Any bill which reduces the safety of Australian workers should be opposed outright by this chamber.

The proposed legislation argues that there is no case for government agencies to negotiate occupational health and safety arrangements with employee representatives from the trade unions; they do this through the introduction of management arrangements. This is a bad bill because it will remove the right of trade unions to conduct elections for health and safety representatives. In fact, such is the hatred of the Howard government for the trade union movement that the bill seeks to remove any—all—references to unions.

The government introduced these provisions in the 2000 bill, which was referred to the Senate Employment, Workplace Relations, Small Business and Education Legislation Committee. I would like to take a moment to remind senators of the view of Labor senators on that particular bill. As they pointed out:

... an ideological stance on matters relating to occupational health and safety is neither a constructive policy development nor a prudent one.

Such a policy disregards the main issues at stake. As the Committee was advised:

despite any government or anybody’s ideological position or thinking whether unions are irrelevant or not, the academic research shows that even in countries like the United States, where the level of unionisation was 15 per cent, actively involving unions in occupational health and safety processes in workplaces and consultation improves the occupational health and safety outcomes.

It improves the occupational health and safety outcomes!

I think it would be really important that this government notes that, in fact, that is the role that workplace representatives have and that we are about getting occupational health and safety outcomes. It is not an adversary situation; it is about working together to get good occupational health and safety outcomes and decrease our toll. That is what we are on about.

Senator Murray in the Australian Democrats report from the same inquiry said:

A key area of concern to us is the place of unions in the maintenance and advancement of workplace health and safety. Unions supplement the regulatory and inspectorial roles of State H&S departments in an irreplaceable way.

This bill is wrong because it ignores the clear truth that trade unions have an excellent record in representing their members in matters of health and safety and in providing sound education and training on OH&S matters. Later I will detail the argument that trade unions have been central to the development of safe systems of work and that to remove them from direct access to the workplace would turn the clock back to the bad old days where, you will recall, safety was an all too regular battlefield. We should not lose the momentum we gained and bridges that were crossed in recent decades that have made the workplace a much safer place to be. Employers benefited from these gains. Lost time was reduced, accidents were reduced, death and serious injuries were reduced and workplaces became more productive as a result. Safe workplaces are important to both workers and employers. It is a win-win result.

It is quite alarming that this bill has clearly been designed to sweep aside more than 30 years of excellent occupational health and safety practice. This bill seeks to remove one of the cornerstones on which both Commonwealth and state legislative practices stand so firmly—that is, trade union involvement in the OH&S workplace practices and processes. How any government could seek to legislate away such a fundamental workers’ right is almost beyond my comprehension. But such is the extreme ideological view of trade unions held by the Prime Minister that this government is willing to compromise the health and safety of the workforce. If it takes that to get one over on the unions, then so be it.

Not one Australian worker expects to die at work today as a result of illness or injury sustained through their work. Yet, the heartbreaking reality is that, as we debate this bill, somewhere in Australia there is likely to be a family grieving the loss of a loved partner, son, daughter, mother, father or friend. We are still never fully prepared for that tragic day when another worker loses their life through serious injury at work. So why would any government put workers’ lives at risk? It simply defies belief and no amount of argument from the senators opposite will persuade me that this bill does not potentially increase risk in the workplace.

The place of trade unions in the safety equation is well established by fact, and government sophistry will not change these facts. The mortality rate from industrial accident and disease is one of every nation’s greatest tragedies. It has been said many times before but it is worth saying again that there are more deaths at work in Australia than there are deaths on Australia’s roads. We are all too well aware of the latter and spend millions each year attempting to reduce those figures, while as a nation we hardly notice industrial accidents and diseases. Internationally, it is estimated by the International Labour Organisation that each year more than two million people die as a result of occupational accidents and work related diseases. Death and injuries at work come at great cost. Aside from the tragic human cost, workplace fatalities and injuries, as reported in the Australian, are estimated to cost the Australian economy over $34.3 billion a year or around five per cent of GDP.

World Day for Safety and Health at Work, which stresses the need for the prevention of illness and accidents at work, fell on 28 April this year. So what are the Howard government doing to reduce workplace accident and the cost to the community? They take the backward step of reintroducing provisions designed to make Australian workplaces less safe and do nothing to stop deaths, reduce injuries and reduce the cost to the community and to business.

This bill has only one possible reason for being before the Senate today, and that is to remove trade unions from various aspects of occupational health and safety in the workplace. How will all this come about? The Howard government has attacked one of the cornerstones on which occupational health and safety legislation has been built for more than 30 years, the Robens model of OH&S, by seeking to remove the unions from the original model. Lord Robens’s recommendations were for their time revolutionary. The centrepiece of his proposal was that parties—management, labour and trade unions—were required to talk to one another on equal terms. In modern management parlance the stakeholders were to come together in a common purpose for the common good. Robens knew full well that good OH&S practice required cooperation and dialogue, not hostility and silence. This exciting new workplace safety model was supposed to take the politics out of OH&S and replace previously adversarial models with a model based upon cooperation. Robens recognised the employee was clearly disadvantaged when it came to discussion between employee and employer. To quote my colleague in the other place Mr Stephen Smith:

... the Robens model recognised the role unions play as employee representatives. As such, the principle of freedom of association was an important part of the Robens approach.

Robens recognised and acknowledged that freedom of association was vital if the employees were to be adequately represented, as they do not have access to the knowledge and resources that management does. Employees cannot be expected to be across the vast array and at times complex information and skills that are required to provide a safe workplace in 2006 and beyond without access to union resources. It is exactly these sorts of resources and current knowledge that the Howard government now seeks to deny Australian workers.

The primary planks of the Robens approach have never been seriously challenged before, as far as I am aware. It is true that Canada and Britain have both made changes to the model. However, those changes were designed to strengthen the model by introducing the concepts of industrial manslaughter and industrial killing. The Robens model has strong academic support. Wherever one looks in the literature one finds support for the Robens model. The National Occupational Health and Safety Commission in November 2002 said:

... there is ... strong evidence that employee participation, either direct or representative, is an essential component of effective occupational health and safety management.

If the government’s own principal advisory body thought that representative participation was essential and that employees could not necessarily represent themselves in this increasing complex industrial, medical, and legal field, on what new advice does the government base its so-called reforms? Clearly academia does not support the removal of the trade unions from the Robens model.

In their 2004 work Statutory OHS Workplace Arrangements for the Modern Labour Market, professors Johnstone, Quinlan and Walters reported on a range of international and Australian studies and stated that all the research lends:

... support to the notion that joint arrangements, trade unions and trade union representation on health and safety at the workplace are associated with better health and safety outcomes than when employers manage OHS without representative worker participation.

Johnstone et al also noted that unions provide important contributions to OH&S training. Professor Walters, in his 2003 paper Workplace Arrangements for OHS in the 21st Century, stated:

... in workplaces, in which joint arrangements were in place and especially where trade unions were involved, injury rates were considerably improved.

Walters went on to say:

Conversely, objective measurement of health and safety outcomes possibly suggest links between rising levels of accidents and the declining influence of trade unions.

In perhaps the most telling statement in his 2003 paper, Professor Walters stated:

What all this evidence suggests is that where worker representatives are supported by trade unions directly ... they are more likely to be able to engage meaningfully ... in ... dialogue with employers ...

In fairness to the government, I have read not only previous Senate reports and the work of experts in the OH&S field but also Minister Andrews’s speech on this bill. I was looking for the evidence on which Mr Andrews bases his amendments and the arguments that rebut the work of experts, but I could find none. Nowhere in any of the pages of government rhetoric could I find a single example of evidence to support their position. There was not one example to be seen anywhere in the minister’s speech.

Minister Andrews relies on long-outmoded Liberal mantras to support a false premise—that is, that employees and employers together will make for a safer workplace without trade unions. There is no attempt to provide factual examples of how his proposed changes will help anyone at work, nor is there any quoted academic research that validates the government’s position. The minister and the government have failed to produce any evidence to support the removal of trade unions from occupational health and safety in the workplace. They cannot produce any. There is not any to be found that is in any way credible.

It is clear to anyone looking dispassionately at the government’s bill that they have failed to make a case for change. However, many times government members and senators stand and argue that this bill is about freedom of choice, removing union bureaucracy and improving employee-employer communications. It just does not add up. This bill is simply another attack by the Howard government on Australian workers and the trade unions that represent them.

As if this lack of any academic support was not bad enough, the technical, supervisory and administrative division of the Australian Manufacturing Workers Union have suggested that this bill could be a violation of International Labour Organisation conventions. They state:

The Amendment Bill is in breach of ILO Convention 87:

The Bill provides that any employee representative organisation can request the right to be involved in consultations by submission to a public official (the CEO of Comcare) in the prescribed form. That official issues a certificate with whatever restrictions are deemed necessary which then has validity for a fixed period of twelve months.

The proposal that a union member must seek permission from a public official (who may or may not agree) to involve his/her union representative in OHS matters is preposterous. It is almost certainly in breach of the terms of ILO Convention 87 (Freedom of Association) and/or Convention 98 (Collective Bargaining) to which Australia became a party in 1973.

These proposals, coming as they do on top of the extreme Work Choices changes, leave little doubt that the legislation lowers the standard on occupational health and safety by seeking to remove trade unions from this critical area. Section 8.5 of the Work Choices IR regulations lists various matters that are banned or deemed ‘prohibited content’ in a collective agreement or individual contract—an AWA. It states:

A term of a workplace agreement is prohibited content to the extent that it deals with the following:

                 …         …         …

(c) employees bound by the agreement receiving leave to attend training (however described) provided by a trade union;

(d) employees bound by the agreement receiving paid leave to attend meetings (however described) conducted by or made up of trade union members;

And section 365 of the Work Choices law provides that a person who seeks to include prohibited content in a workplace agreement can be subject to government fines and penalties of up to $6,000 for individuals and $33,000 for unions. Clearly, it is one unfair and repressive act used in support of another unfair and unnecessary bill—Howard’s way.

This bill is the Howard government flying directly in the face of the available evidence by tampering with good legislation based on a sound industrial and legal model. It is yet another glaring example of the long-held desire of the Prime Minister to destroy trade unions. Based on the evidence, this government is prepared to risk seeing an increase in injuries and related increases in costs. This bill is all about further diminishing the legitimate role of trade unions; it is about weakening, not strengthening, the position of Commonwealth employees.

In the case of the Commonwealth, it is worth noting that unions run OH&S courses and that these courses have to be accredited. Who accredits such courses? The accreditation is done for the government by Comcare. The Safety, Rehabilitation and Compensation Commission report list of accredited providers of training for health and safety representatives as at 30 June 2005 includes the ACTU/TLC, Australia Post/CEPU, the Australian Taxation Office, Centrelink, CPSU Advantage Ltd, CSIRO, the National Safety Council of Australia, Occupational Safety and Health Associates, Parasol EMT and Telstra. There are three union courses, one joint Australia Post-union course, three employer courses and three private sector courses—10 courses in all, of which 3½ are trade union based. The 10 providers in 2004-05 were also the 10 providers in 2002-03. By reasonable standards, that is a sensible balance of training providers.

This bill seeks to reduce the health, safety and welfare of each and every Commonwealth employee. Why? Simply because the Commonwealth government is obsessed by the obsolete conservative belief that trade unions are not good for employer relationships with employees and that ridding the workplace of them is a positive thing.

In conclusion, this bill tampers with the fundamental premise of the Robens model by removing the rights of a trade union, so employees will be left either to their own resources and knowledge in countering hazards and reducing risk in the workplace or to the goodwill of their employers. Australian public servants know all too well just how much goodwill this government has towards them—that is, somewhere between zero and nil. This bill will weaken long-established safe systems of work in most, if not all, workplaces.

As if this were not bad enough, this bill reduces employees’ opportunities to gain the training and knowledge that are necessary for them to work in safety. This bill will put pressure on employees to toe the line in employer dominated health and safety representative elections, as the union will no longer be able to support employees during elections for OH&S representatives.

Before senators vote, please think long and hard about the men and women who have been injured at work this year, this month, this week, this day and every other day of this and every other year. I ask honourable senators not to vote to make Australian workplaces less safe. We should not make the people who work for the Commonwealth government less safe at work. If passed, this bill will do exactly that.

Dana Wortley (SA, Australian Labor Party) Share this | Link to this | Hansard source

Labor is opposed to this bill in its current form. We opposed it last year during its passage through the lower house, and we opposed a very similar bill in 2000. We will continue to oppose bills that include changes that are not in the best interests of Australian workers and their families. This bill—the Occupational Health and Safety (Commonwealth Employment) Amendment Bill 2005could be about updating and ensuring safety in the workplace, but it is not. It could be about reducing work related death, injury and illness, but it is not—and it will not be.

When you read through it, it does not take long to realise that it is just another one of the Prime Minister’s ideological grabs on the rights of Australian workers. It is about disempowering workers and removing unions from the workplace occupational health and safety arena. If we need any more proof that this and all of the Work Choices related legislation is about ideology and not public interest, here we have it. All references to unions have been removed from this bill. The amendments to the Occupational Health and Safety (Commonwealth Employment) Act 1991 are, again, just like the Work Choices legislation rammed through this place less than 12 months ago. This is not in the best interests of Australian workers and their families, and not in the best interests of the more than 256,000 Commonwealth employees covered by the act.

However, it is not just a change in who will be involved in occupational health and safety in the workplace but a change in how the involvement will occur. The proposed management agreement in this bill essentially eliminates the requirement for government agencies to negotiate occupational health and safety agreements with unions. The bill shifts from what is regarded as a formal approach to occupational health and safety agreements—developed through tripartite processes between employers, employees and unions—to so-called health and safety management arrangements.

Under this bill, employee representatives who become involved in developing the management arrangements must be issued with a certificate to do so by the CEO of Comcare. This certificate will be valid for only 12 months. The bill before us today also empowers employers to conduct the election of employee health and safety representatives—a role previously conducted by a union or person specified by the former National Occupational Health and Safety Commission.

There is a very serious problem with this type of scenario. The keyword central to the problem is independence. You could potentially end up with a situation that sees the employer regulating its own observations and actions. In this case, that poses a problem in itself. It does not end here. It lacks independence not only on the corrective side but also on the preventative, when all of the independent information pertaining to incident prevention has the potential to be ignored and overlooked. And when there is a health or safety problem in the workplace, a worker will need to request that the relevant employee representative—the one with a 12-month certificate—ask that Comcare initiate an occupational health and safety investigation. Currently a union, acting on behalf of affected workers, is able to make this type of request direct to Comcare to investigate a workplace.

So what is the difference? What is the real impact of the changes? The difference is in going from a situation where the employee who raised the issue is not required to be named and, therefore, risk retribution to one where the employee’s identity is not guaranteed protection. And what of the employee who fears retribution for raising occupational health and safety concerns? What of the employee who fears that under the government’s new Work Choice legislation he or she can be dismissed without reason? Raising a workplace safety issue may be just the trigger for the boss to initiate such a sacking—maybe not the next day, but soon after. And how does the employee prove that this was the reason for the sacking? With great difficulty. It would be an unfair sacking without a genuine pathway to unfair dismissal provisions and without a real pathway to the possibility of reinstatement.

It has been argued that in cases where the employee considers it preferable to remain anonymous, as they currently can, there are provisions in this bill to enable this to occur. But the provisions to remain anonymous are really only a smokescreen. The provisions in this bill that are supposed to enable a representative to represent employees during discussions with the employer, without revealing their identity, will not satisfy employees’ concerns. Why? Under the changes proposed by the government, the employee representative must apply to the CEO of Comcare to issue a certificate to keep confidential the identity of the employee so that they can remain anonymous.

However, before the Comcare officer can issue such a certificate to keep the employee’s identity confidential, the employee’s representative must satisfy the officer, firstly, that they were in fact asked by the employee to represent the employee in consultations, and secondly, when that has been satisfactorily established, that the employee has requested that his or her identity remain confidential. So how does an officer establish these two points without revealing the identity of the employee? And what happens in the case where the Comcare officer decides not to keep anonymous an employee’s identity? The employee who raised the issue will then have to rely on the integrity of their superiors and, of course, this government’s draconian Work Choices legislation. And there is no prize for guessing where that can leave Australian workers.

The very existence of this requirement will result in less reporting of workplace occupational health and safety concerns and workplace incidents and, consequently, more injuries and illness. These changes demonstrate a total lack of understanding by those across the chamber of the concerns and issues facing workers in Australia today, and specifically of occupational health and safety issues, procedure and the reality of how some workplaces operate.

The current Occupational Health and Safety Act is based on the Robens model. The state of South Australia was the first to adopt this model. It was developed in the UK in the early 1970s and was seen as a revolutionary step in the advancement of workplace accident prevention. Aside from many other important guidelines, the model recognises the role that unions play as employee representatives. It considers them to be very much a part of the collaborative approach. The value of the Robens approach was maintained by the National Occupational Health and Safety Commission when it stated in November 2002:

There is indirect but strong evidence that employee participation, either direct or representative, is an essential component of effective occupational health and safety management.

The proposed amendments contained in this bill will weaken the whole process, reducing the amount of control held by the employee over their own wellbeing. An employee knows full well that some employers are potentially not going to be receptive to issues relating to occupational health and safety. Therefore they rely on their representative body to assist them when there is an occupational health and safety issue that they feel needs addressing but fear ramifications from their employer or from a manager for having raised the issue. This legislation just leaves them on their own. It denies them the right to be organised and unified and simply gives them one more thing to worry about at work.

I would encourage all senators to consider this when deciding whether union involvement in workplace safety is to the advantage of employers, including the Commonwealth. In the winter session of 2005, at around the same time as the bill was being debated by the House of Representatives, a workplace incident occurred on a building site in Narrabeen and was reported by the media. A young labourer was airlifted to hospital after falling from a two-storey building site. Immediately after he was removed from the site with both of his shoulders broken, two broken ribs and wounds that required stitches, the work colleagues left behind scrambled to erect a makeshift barrier before safety inspectors arrived. Pictures accompanying the article showed the makeshift scaffolding being held together by a few nails at one end and a piece of rope at the other. The reporter wrote:

There is no toe barrier at the bottom and no middle rail, allowing anyone to slip through. The whole barrier can be swayed a foot from side-to-side.

While being interviewed later in hospital, the young labourer injured in the accident—speaking about his employer—stated that his bosses were ‘good people for sure’. The comments by the victim that he quite liked his employer, and I am sure he did, highlight that there is nothing personal about occupational health and safety. It is not about friendship; it is about common sense displayed by both employer and employee and about strong input from unions representing workers. It is about everyone doing their bit for a central cause. Yet this bill has the potential to compromise safety, not improve it; the potential to hinder the reporting of workplace health and safety issues, not encourage it—and the losers once again, just like with the Work Choices legislation, are Australian workers and their families.

We have seen throughout this country’s history that unhealthy workplaces can engulf a generation and, unfortunately, become the most defining part of one’s life. The devastation resulting from the mining and milling of blue asbestos at Wittenoom in Western Australia and the suffering of the James Hardie victims and their families are marks on our nation that should never be repeated and never be forgotten. Australia has the highest rate of asbestos related disease in the OECD, and by 2020 the number of deaths relating to asbestos in Australia is expected to exceed 40,000. Who comes to the assistance of these people? Who are the ones who have stood by them all the way? It is not the Howard government. It is certainly not James Hardie. It is the unions that have stood up for them and represented them.

The prevention of accidents and deaths in Australian workplaces should be a joint responsibility of employers, workers and unions. And, of course, government has a significant role in ensuring that the best possible legislation is in place so that, at the end of each working day, workers return to their families without being affected by workplace injury or illness. This legislation does not do that. We need to recognise that, when it comes to workplace safety, every person who can help and who can be accountable should have the right and be duty-bound to do so.

This bill puts a burden of responsibility on the shoulders of all who vote on it in this place. To vote in favour of this bill and the changes it contains is to vote against safer workplaces. It is merely another example of the Howard government getting its extreme agenda up at any cost. It is a bill put forward by an arrogant and out-of-touch government—a government out of touch with the needs of working Australians and of their families who wait for them to return home at the end of each working day. Workplace safety is paramount: it is not negotiable; it is not for sale; and it should never be compromised.

Judith Troeth (Victoria, Liberal Party) Share this | Link to this | Hansard source

It is a great pleasure for me to speak tonight on the Occupational Health and Safety (Commonwealth Employment) Amendment Bill 2005. The bill will amend the original 1991 act. It is to cover new categories of employers and employees called non-Commonwealth licensees and employees. It is interesting that, after all the accusations made by the opposition about this being part of the Howard government agenda, these amendments actually respond to a recommendation made in the Productivity Commission’s report National workers’ compensation and occupational health and safety frameworks. The Productivity Commission recommended:

... that the Australian Government amend the Occupational Health and Safety (Commonwealth Employment) Act 1991, to enable those employers who are licensed to self-insure under the Australian Government’s workers’ compensation scheme to elect to be covered by the Australian Government’s occupational health and safety legislation. This legislation would be extended to cover those insuring under any future alternative national premium-paying insurance scheme.

So the amendment is not something that the government has thought up in the dead of night. It is responding to a recommendation by that august body the Productivity Commission. The bill will also ensure that all Commonwealth authorities licensed under the Safety, Rehabilitation and Compensation Act 1988 are covered by the Occupational Health and Safety (Commonwealth Employment) Act and it corrects some drafting errors made in 2001 as well as other matters.

I am very proud to be a member of the government that has brought in the Work Choices legislation. It is most unfortunate that recent campaigns against the Work Choices legislation have incorrectly asserted that workplace safety will be compromised by promoting greater flexibility in the workplace. As we know, ultimately the Work Choices legislation will result in more workers moving to the federal industrial relations system, although the reforms will not impact on state and territory jurisdiction over workers compensation and occupational health and safety.

We all realise that the economic cost of workplace accidents to workers, employers and the community—and we all regret that there are still far too many—is estimated to be in excess of $30 billion annually or five per cent of GDP. That is too high in anyone’s language. The responsibility for these workplace accidents must be shared by all stakeholders—by employers, by employees and by the community. We must all act to make continual improvements. Introducing laws that are punitive towards employers is not the answer. The best way to address the issue is to promote a culture where there is greater cooperation between employers and employees.

The Australian government is committed to improving OHS outcomes in all Australian workplaces. We demonstrated this commitment by initiating the development of the National OHS Strategy in 2002. Signatories to the strategy include the Australian government and all the state and territory governments, including the ACT, as well as the ACTU and the Australian Chamber of Commerce and Industry. The strategy seeks to improve Australia’s OHS performance over the next decade and to foster sustainable, safe and healthy enterprises that prevent work related death, injury and disease. There are five national priorities: reducing high incidence and severity risks; improving the capacity of business and workers to manage OHS; preventing occupational disease more effectively; eliminating workplace hazards at the design stage; and strengthening the capacity of governments to influence better OHS outcomes.

There are 10 million workers in Australia. Many employers ask—and many did when we conducted the committee hearings on this bill—why there are eight different and quite separate OHS and workers compensation jurisdictions. What makes things worse is that there is little in the way of consistency and uniformity across the various schemes. Indeed, the National Australia Bank has complained that the current state based systems have resulted in the bank dealing with eight different sets of legislation. That then means that there are eight different levels of benefits, eight different definitions of injury and so on.

In order to improve national frameworks for OHS and workers compensation consultation, the government undertook to establish the Australian Safety and Compensation Council, known as the ASCC. That body includes representatives from federal, state and territory governments as well as employee and employer groups. It provides a new opportunity to coordinate workers compensation on a national level. Unlike the old National Occupational Health and Safety Commission, the ASCC will consider both OHS and workers compensation matters. Its main role will be to provide policy advice to the Workplace Relations Ministers Council, which comprises the federal minister and his state and territory counterparts.

What are some of the detailed reasons for this amendment? Currently, the former Commonwealth authorities and licensed private sector corporations who operate under the Commonwealth workers compensation schemes are covered by state and territory occupational health and safety legislation. This makes it very difficult for many firms to develop a national approach to occupational health and safety and it may result in the requirement that they comply with their own separate state or territory OHS regulations.

I want to look at some of the ramifications of this. The New South Wales government recently passed the New South Wales Occupational Health and Safety Amendment (Workplace Deaths) Bill. If an employer is convicted of causing death through ‘recklessness’ they face up to five years in jail and a $165,000 fine. Breaches of such serious and punitive laws are dealt with by the New South Wales Industrial Relations Commission, not by a court. That will continue, as the New South Wales Court of Appeal has found that there is nothing to prevent the New South Wales Industrial Relations Commission from hearing such matters.

It is very disturbing that, under the New South Wales OH&S laws, unions can prosecute employers for OH&S breaches, and if they are successful in their action the unions can receive up to half of the fines awarded and have their legal bills paid by the employer. That is a very iniquitous situation. The New South Wales Industrial Relations Commission has in the past fined the ANZ Bank over armed robberies at their branches, after action bought by the Financial Services Union. Patrick Stevedores, similarly, was subject to an MUA prosecution for work practices that risked repetitive strain injury. New South Wales coalminers have also been hit for using misleading maps, prepared by the New South Wales government.

As my colleague Senator Barnett remarked, there is no doubt that the New South Wales Labor Party is financially beholden to the union movement and that it relies on donations from unions. Both the Financial Services Union and the MUA have donated over $350,000 to New South Wales Labor alone since 1995. That extreme situation exists only in New South Wales, where the perverse situation may arise in which a union could abuse such processes and in turn prosecute employers for financial gain over an alleged breach.

Other states and territories are different in the sense that only the relevant workers compensation authorities can prosecute for alleged breaches of work safety laws. The Victorian government has introduced the offence of ‘reckless endangerment’ under the Victorian OH&S Act, which carries a potential prison sentence and large financial penalties. The ACT has introduced the criminal offence of ‘industrial manslaughter’, which singles out employers for punishment despite the fact that some factors may be outside an employer’s control.

These approaches will serve to discourage employers and employees from being closely involved in safety issues. Both those groups will focus on defending themselves rather than on progressively moving forward to cooperatively ensure safer workplaces. Governments at all levels, whether federal, state or territory, must be wary of seeking to amend or impose legislation which serves only to create uncertainties for employers and, in many instances, will only discourage employers and employees from being closely involved in health and safety issues, to which they all should be contributing.

The Australian government introduced the Occupational Health and Safety (Commonwealth Employment) Amendment (Promoting Safer Workplaces) Bill to exclude Commonwealth employers and employees from the application of ACT industrial manslaughter laws or similar laws enacted in the future by other states and territories. The bill that we are discussing tonight reinforces the Australian government’s approach to workplace health and safety, which is to ensure that the main focus is on preventing workplace injuries rather than on punitive punishment after the event.

Let us turn to workers compensation. The Commonwealth Safety, Rehabilitation and Compensation Act allows eligible non-government corporations that meet stringent criteria to self-insure through the Commonwealth workers compensation scheme, administered by Comcare. Self-insurance through Comcare allows businesses to be covered by one set of workers compensation regulations across Australia. That is a very attractive prospect for companies that employ people across a number of different jurisdictions. The Australian government workers compensation scheme is the only scheme that provides single self-insurance arrangements, reducing costs and the compliance burden. This benefits the employees by giving them access to a consistent benefit regime, irrespective of work location across Australia. For instance, Optus was granted a self-insurance licence, allowing them to self-insure through Comcare, which commenced on 30 June 2005. This was in spite of considerable opposition from the Victorian state government, which tried on several occasions to stop Optus from self-insuring through Comcare. More recently, it mounted a challenge on constitutional grounds, which is now headed to the High Court. South Australia and Queensland will join Victoria in this action.

A number of states have sought to discourage corporations such as Optus from joining the Comcare scheme, through imposing large financial penalties on them. Victoria, again, has passed legislation requiring exiting corporations to pay an ‘exit fee’ when leaving the state scheme to self-insure with Comcare. The biggest concern, though, is arrangements in South Australia, where the South Australian WorkCover Corporation sought to impose a fee of $1 million on Optus to exit the South Australian WorkCover scheme. This fee is substantially higher in South Australia than in Victoria, even though Victoria employs more Optus staff than does South Australia. Queensland has introduced a bill which provides for WorkCover Queensland to extract funds from a self-insurer under the Comcare scheme for 12 months after a licence is granted. WorkCover Queensland claims that the levy is required to cover costs incurred by the Workers Compensation Regulatory Authority to monitor the non-scheme employers for compliance with their obligations for rehabilitation.

It is legitimate for state authorities to make proper provision to cover outstanding liabilities for corporations leaving their schemes, but exit fees which are inflated and which cannot be justified by independent actuarial analysis appear to be designed purely to discourage eligible corporations from joining the Comcare scheme. State and territory governments have to face the fact that, while there are eight separate workers compensation jurisdictions that provide very little in the way of consistency and uniformity, more and more state employers will seek to move to the Commonwealth scheme. That is the way of the future, and that is the aspect of these matters that this bill covers. I commend it to the Senate.

John Hogg (Queensland, Deputy-President) Share this | Link to this | Hansard source

I rise in this debate on the Occupational Health and Safety (Commonwealth Employment) Amendment Bill 2005 because I think it is terribly important to discuss workplace health and safety in a proper context. I cannot challenge the figures that Senator Troeth just quoted on the cost of accidents to GDP and to people at large in the community. I have no doubt that those figures are pretty much on the mark, and they are frightening. However, this legislation is designed—not surprisingly—to cut the union movement out of the issue of workplace health and safety.

I have a long experience in business and industry in dealing with employers. When it comes to workplace health and safety, some employers are very good; but some are very bad. There are some employers whose track record you would not put up anywhere for the shame that it would bring not only to the employer but to the people who are generally associated with them in driving the agenda in a particular workplace.

In my first speech here, I spoke about three things: the dignity of people in their youth, the dignity of people at their work and the dignity of people in their retirement. This legislation affects the dignity of people at work. Key elements of a person’s dignity at work is their capacity not only to earn a fair and reasonable wage in return for a fair and reasonable day’s work but also to earn that wage in a safe and healthy environment. As with all these things, it is never the good employers whom one is confronting on the issue of safety and health in the workplace; it is generally the bad employers.

In my 30-year association with the retail industry, there were some very good employers in terms of health and safety but there were also some bad employers who were generally dragged kicking and screaming to the table on the issue of workplace health and safety. They tended to avoid the issue of occupational health and safety—and I think this is fairly typical of a number of employers who do not have a good track record in this area—like the plague, because they saw it as a cost to their business. They saw it as an impediment and a nuisance—one of those things that got in the way of their doing business. In many instances, they saw it as having no social value and as an inconvenience. I do not claim for one moment that that is the view of the majority of employers; nonetheless, there are employers who do see it in that light.

The thing about the laws that we make in this country is that, invariably, they are not made for honest people; they are made for people who, at the end of the day, want to stretch the law to its limit or to transgress it for their own personal or corporate gains. Of course, nothing is more true when one thinks of what happens with occupational health and safety. As I said, this legislation is designed to cut out a key element in giving advice to employees. The legislation seems to be premised, particularly from the spin in the second reading speech, on some equality of understanding of what is health and safety in the workplace. No matter where employees work, they need to have a very basic understanding of the health and safety issues that apply to their place of work. If they do not have that knowledge—and many of them do not—then they need education in these issues to gain an understanding of the problems, remedies and processes associated with them.

I should have sufficient time in my contribution to go to some parts of the second reading speech on the bill and point out where the jargon wheel has been at work. The spin doctors have been at work trying to create a vision of this legislation being about equality in the workplace—a sharing, caring and loving workplace where no-one suffers any discomfort or injury as a result of the conditions that apply there. I am not saying that it is necessarily all the responsibility of the employers; I am not saying that at all. There is also a role for employees in workplace health and safety. They need to accept their responsibility for it as part of their employment. But if they do not know or understand what that role is, what their responsibility is and what the dangers are in the workplace, they will be exposed to personal health risks. To say that one should just trust the employer is a highly naive way of dealing with workplace health and safety.

As far as the employer goes, there is—and has been, over a long period of time—a responsibility, in my view, to provide training. An employer who is responsible in the occupational health and safety area would provide some reasonable training to their employees so that their employees would understand what the issues are. But again in my experience, where there has been an attempt to get a cooperative approach through the union movement with particular employers, that has been denied. Of course, unless that training is provided there will be a gap in the knowledge of the employees and also, unless the employers are subjected to training, there will be a gap in the knowledge there as well. Also, the employer—with the employee—needs to be able to educate themselves, identify the problems, identify the issues and identify the remedies, not just in a process if they cause inconvenience to the business but as part of an integral contribution towards greater productivity within the particular business. So it is a bit disturbing in some ways that this legislation, which has done the rounds before and has not successfully passed through this chamber, comes back once again.

I find it difficult to see why the legislation is coming forward at this time, when I think that it is not so long ago—as a matter of fact, it was May this year—when we all sat in awe at what was happening at Beaconsfield in Tasmania and at the peril that the miners at Beaconsfield were placed in at that stage. It is interesting to note just some of the comments that have been attributed to the Prime Minister about the unions at Beaconsfield. At a press conference on 3 May, the Prime Minister, Mr Howard, said:

Everybody is working together, the mine management, the unions—

and so on. In an interview with Neil Mitchell on 3AW on 5 May 2006, the Prime Minister said:

It’s been a great cooperative effort to see the community, the unions, everybody working together. I think it’s great.

And then you go to the press conference by the Prime Minister on 8 May 2006, where he said:

It’s just been terrific to see the way that community has worked together. The mayor, the churches, the union leaders, all of them have come together.

And so on. Yet the spirit enunciated there by the Prime Minister in the wake of what was a tragedy does not seem to have lasted terribly long, because, if one reads the second reading speech, one sees that the spin doctors have been at work. I will just turn to that in the few minutes that I have left now. On the first page of the copy that I have, the second reading speech says:

The focus of occupational health and safety regulation must shift away from imposing prescriptive processes and towards enabling those in the workplace to work together and make informed decisions ...

There we are starting off straightaway with the idea that prescriptive processes are not warranted. I challenge that. There are times when there is a need to have prescriptive processes, such that both sides of the equation—that is, the employer and the employee—understand exactly what this is about. The idea of having some form of self-regulation just does not work. The speech says that these people are to make ‘informed decisions’. They cannot make informed decisions by osmosis or through something that might be drifting around in the air conditioning in the workplace that will enable these people to become aware of the workplace health and safety dangers and hazards at that place of work. The premise there is not followed up anywhere that I could see in the second reading speech other than in a very nice phrase, a nice turn of words, that says that this will enable ‘those in the workplace to work together and make informed decisions about how best to reduce risks to workplace health and safety’.

As I said, you cannot make informed decisions unless you have the knowledge, unless you have the expertise, unless you have the capacity. To expect that to rest with the average employee at a place of work is totally naive. But there is nothing wrong with people working together to try and minimise the hazards. That is quite proper, and that has always been the approach and the path that I have sought to go down. You cannot minimise these problems simply from one side or the other; it must be a cooperative spirit—but a cooperative spirit where there is a vacuum on the part of the employee in terms of their knowledge and understanding of the hazards and where there is the firm whip hand that the employer has as the employer just does not add up. The second reading speech goes on:

A cooperative approach to occupational health and safety in individual workplaces will lead to improved outcomes.

I have no problem with that at all. When you go to the next page, the jargon flows thick and fast. It says:

The OHS Act therefore requires amendment to modernise and streamline outdated provisions ...

Once people start talking about ‘modernising and streamlining outdated provisions’, I really get the shivers up my spine, because that presupposes that everything else that has gone before in occupational health and safety was wrong, was bad or was improper. In most instances, what has been improper—what has been wrong—is that there has been no health and safety regime put in place by the employer where the employee could participate and where the employee understood what was taking place.

The second reading speech talks in that same sentence about modernising and streamlining:

... outdated provisions which are currently inhibiting its effectiveness and denying the right of more employees to be involved in occupational health and safety at their workplace.

I find that quite offensive because I have found that, when employees are confronted with the idea of being involved in protecting their health and safety at the workplace over a long period of time, they have never been backward in coming forward to do so. They have been willing participants in the process but they have craved assistance and guidance that is independent of the employer. Not every employer, unfortunately, can be trusted to tell the truth or to not hide things that will affect the health, safety and wellbeing of employees.

So, whilst the spin on that sounds good, if this is the whole motive behind the legislation—and I have no doubt it is—then it misses the point that the employees in an industry, any industry, will not of their own volition have the knowledge, the understanding and the capacity to deal with their employer on health and safety issues unless they have the right to seek third-party advice. That third-party advice has traditionally been provided by the trade union movement. They will not be able to go out and engage their own occupational health and safety adviser. They have traditionally sought to get that advice through the trade union movement. I turn to page 3 of the second reading speech and more spin comes out at me:

Employers and employees will be able to make informed decisions about how best to reduce any risks to workplace health and safety at their own workplace. This will ensure that there is a more integrated and focused approach at the workplace level because the health and safety management arrangements will be tailor-made to the needs of particular workplaces.

Whoever strung those two sentences together needs to get out in the real world and find out what happens. That is complete nonsense. To put this up as supporting this piece of legislation and as the reason to have the Senate pass this legislation is appalling indeed. There is no way that, based on the model that is being put forward, people will make more informed decisions. That is not outlined anywhere in the second reading speech or, as I can see, in the explanatory memorandum.

As to saying that it will ‘ensure that there is a more integrated and focused approach’, that is just pipe dreaming. There is no foundation, as any shop steward would know, to that claim. Saying that it will lead to health and safety arrangements that will be ‘tailor-made to the needs of particular workplaces’ is just not logical. None of that follows at all. What we have is a nice piece of spin put on this piece of legislation to give it a degree of presentability and make out that it is somehow the saviour of employees in the workforce.

As I said, the focus needs to be not on those good employers—and there are good employers; I am the first to admit it—but on those employers who are not good. And it does not need to be on those employees who are good in terms of their responsibility in workplace health and safety; it needs to be on those employees who have no knowledge or understanding at all. Taking out the role of unions in this area—whilst this bill does not seek to do it exclusively, it will nonetheless achieve that—is unfortunate indeed. I believe this bill should be committed to the same fate that it has received on previous occasions.

Eric Abetz (Tasmania, Liberal Party, Minister for Fisheries, Forestry and Conservation) Share this | Link to this | Hansard source

I thank senators for their contributions during this debate on the Occupational Health and Safety (Commonwealth Employment) Amendment Bill 2005. This bill reflects the government’s commitment to improving health and safety outcomes in Commonwealth workplaces and follows amendments to the OH&S act in 2004, which introduced a strong new compliance regime.

The Australian government strongly believes that safe and productive workplaces rely on a cooperative approach between employers and employees to identify and eliminate hazards that may cause injury or death. The focus of occupational health and safety regulation must shift from imposing prescriptive processes towards enabling workplaces to make informed issues about how best to reduce risks to health and safety in the workplace.

Federal Labor has suggested that this bill is an attack on unions and that it removes unions from involvement in OH&S in the workplace. This simply is not the case. The bill not only improves protection for employees but improves workplace democracy. Possibly that is why those on the other side think it is an attack on unions. Under this bill all employees can participate in OH&S matters at their workplace. Employers will be able to negotiate directly with employees, who may be represented by unions or other representative organisations.

The amendments proposed by this bill reflect the reality that unions no longer represent the majority of public sector employees. In 1991, when the Occupational Health and Safety (Commonwealth Employment) Act was enacted, unions were a significant force in most government workplaces. However, this is no longer the case. Today, unions represent less than half of public sector employees. Some workplaces will be union free or have no active union members and rarely see a union official. In these circumstances, it makes no practical sense to give a union a monopoly over the representation of workers’ OH&S interests in workplaces covered by the OH&S(CE) Act.

The majority of public sector employees—that is, those public sector employees who are not represented by unions—should be entitled to participate in improving OH&S in the workplace, either directly or by choosing their representatives from as wide a field of candidates as possible. Removing the privileged role for unions in workplace health and safety arrangements and giving prominence to the interests of employees will only bring Commonwealth laws into line with most state and territory OH&S laws.

Interestingly, none of the equivalent state or territory laws give the unions a monopoly of the kind that this bill removes from the Commonwealth act. What that does in fact is highlight the extreme position of federal Labor. Most of the other jurisdictions do not even guarantee a union role in formulating enterprise OH&S policies and agreements, representation in designated work groups or involvement in OH&S committees or in electing workplace health and safety representatives.

The coalition agrees that workers should have the right to be represented by unions. Federal Labor, notwithstanding the current approach in the majority of the states and territories, wants union representation guaranteed to the exclusion of all other options. Federal Labor appears contemptuous of a worker’s right to choose an alternative to union representation simply because, for federal Labor, there is no other alternative.

Federal Labor has suggested that under the amendments proposed by this bill unions will be unable to directly request Comcare to investigate an OH&S breach. Once again, Labor is wrong. The existing powers to unions to request Comcare to investigate OH&S breaches are not being removed. Under this bill, employee representatives, including unions, can request an investigation by Comcare provided it is at the request of an employee.

Any suggestion that employees are not in a position to raise OH&S issues with their employer ignores the important role of health and safety representatives who are elected by their fellow employees to investigate these issues at their workplace on their behalf and raise any problems with their employer. Health and safety representatives are required to undergo appropriate training and therefore have the appropriate knowledge and skills to undertake this role. The act also gives health and safety representatives statutory rights and powers to enable them to carry out their functions and ensure OH&S issues are addressed.

Federal Labor also laments changes affecting the election of health and safety representatives. Currently, where there is an involved union, the act gives that union an exclusive role in the conduct of elections for health and safety representatives. This has had unsatisfactory results. Unions can prevent a non-union member from becoming a health and safety representative, because they control the nominations. It sounds a bit like the Senate here—for the Labor Party. This can mean that persons with relevant qualifications, expertise or an interest in health and safety in their workplace do not have an opportunity to take on the role.

Penny Wong (SA, Australian Labor Party, Shadow Minister for Corporate Governance and Responsibility) Share this | Link to this | Hansard source

Senator Wong interjecting—

Eric Abetz (Tasmania, Liberal Party, Minister for Fisheries, Forestry and Conservation) Share this | Link to this | Hansard source

I just threw that in to see if you were listening, and it is good that you are. Positions can also remain vacant for extended periods where no union member is nominated. There is nothing sinister about the employer arranging the elections for health and safety representatives. New South Wales, for instance, has a similar provision. Employers are under a duty of care to ensure that workplaces are safe. Having health and safety representatives is an important component of having safe workplaces. It is therefore reasonable to place an obligation on employers to make sure that elections for health and safety representatives are conducted. In the event that employees are not happy with the election arrangements proposed by employers, the bill enables elections to be conducted in accordance with processes prescribed by regulation.

Section 16 is being amended to replace the current prescriptive elements which require an employer to develop an occupational health and safety policy in consultation with involved unions. Instead, section 16 will be more outcomes focused. This will allow employers, in consultation with their employees, to develop health and safety management arrangements tailor made to the needs of their particular workplace. The bill gives employees a wider choice as to who may represent them, including another employee, a registered association such as a union, an association of employees which has a principal purpose of protecting and promoting the employees’ interests in matters concerning their employment such as a staff association or an unregistered union.

Finally, I would like to assure senators that the measures proposed in this bill, in particular the proposed new section 16B, do not violate any implied constitutional freedom of association or Australia’s ILO obligations. It has been suggested that the mechanisms for ensuring employee anonymity proposed by new section 16B may prove to be a strong deterrent to employees seeking representation in consultation with employers about safety management arrangements. These concerns totally misunderstand and misrepresent the intended operation of section 16B.

Section 16B enables the CEO of Comcare to certify that a union or staff association is entitled to represent an employee who wishes to remain anonymous. A certificate issued by the CEO of Comcare guarantees that employee’s anonymity. Section 16B provides a mechanism to protect an employee’s identity if the employee wishes to keep his or her choice about their representation confidential. It is not a precondition to unions or staff associations representing their members. If section 16B were to be deleted, there would be no mechanism to provide employees with confidentiality.

The key amendments in this bill relate to the employer’s duty of care and the workplace arrangement provisions. They will improve health and safety arrangements for Commonwealth employers and employees by enabling them to work more closely together to develop arrangements that suit the needs of their particular workplace. Current workplace arrangements, such as the requirements to have health and safety representatives and committees, remain.

In short, the amendments aim to remove prescriptive requirements, introduce flexibility and ensure employers and employees are free to develop appropriate health and safety arrangements to apply to their workplace. The amendments will not in any way diminish the Commonwealth’s duty of care as an employer to ensure the health and safety of its employees at work or of others who may be at the workplace. I commend the bill to the Senate.

Question agreed to.

Bill read a second time.