Eric Abetz (Tasmania, Liberal Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

While certain documents are still finding their way around the chamber I might ask the Minister for Human Services as to the rationale for having a six-year review in relation to Safe Work Australia and whether my comments during the debate on the second reading are correct. That is, whilst the legislation says that the annual report of Safe Work Australia must deal with two specific matters, it does not preclude Safe Work Australia from reporting on an annual basis on the workings of the legislation and how that legislation might potentially be improved. The point I am seeking to get an assurance from the minister on is this: if certain difficulties come to light unforeseen by either government or opposition—or anybody else—in those circumstances it would be unwise to delay any consideration of those matters for a period of six years. I would be interested in getting a confirmation that it would not be beyond the power of Safe Work Australia to place in its annual report certain considerations that the parliament might wish to pursue.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

I will deal with a couple of issues in this way. The advice I have is that the provisions referred to by the opposition senators relate to ‘the review of Safe Work Australia’s ongoing roles and functions after a period of six years’. It is entirely appropriate that there be a review after six years. I think the opposition had proposed 10 years in some of their legislation when they were in government. We think six years strikes the right balance.

Proposed section 72 of the bill requires the minister to conduct such a review and to report to parliament about the review. This review of Safe Work Australia’s ongoing role and functions in no way derogates from the requirement that Safe Work Australia produce an annual report. Like any other body established by the Australian government, Safe Work Australia will be required to produce an annual report. Proposed section 70 of the bill requires the CEO to prepare an annual report on Safe Work Australia’s operations and to provide a copy of the annual report to the minister, to Safe Work Australia and to the ministerial council. Of course, the annual report will be a public document. As with any annual report, this government has placed no fetter on the contents of the report produced by the CEO of Safe Work Australia. For instance, if Safe Work Australia identify an issue that needs to be raised, they can put it in their annual report—that is one mechanism by which it can be aired. Alternatively, they can write to the minister. There are a whole range of ways. The Financial Management and Accountability Act 1977 provides specifically that a copy of an agency’s financial statements must be included in the agency’s annual report as tabled in parliament. All of those matters ensure that Safe Work Australia will meet its obligations in both an annual report and a review of its ongoing role and functions after six years.

Eric Abetz (Tasmania, Liberal Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

Thank you for that answer. Just so that we get this clear: is the annual report written at the complete discretion and volition of the CEO? Doesn’t it need to be approved by the board or the ministerial council prior to its submission to the minister?

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

I am advised that there is an obligation on the CEO to produce the annual report. It is his or her responsibility to produce that annual report. Whatever remarks the CEO wants to write in the annual report are a matter more broadly for the CEO.

Eric Abetz (Tasmania, Liberal Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

To nail this down perfectly clearly: it is not to be vetted by the ministerial council or by the membership of Safe Work Australia?

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

I think I have answered the question. You have now changed to a different language by using ‘vetted’. The CEO’s job is to assist Safe Work Australia. They would go through the usual process that the Financial Management and Accountability Act requires in terms of financials. They would have a similar role in the way an annual report would be produced. If some unforeseen circumstance were to arise, the CEO would have an obligation to raise it. They would raise it through the annual report, if it could wait. But if it were an urgent and unforeseen matter, I have no doubt that they would raise it through Safe Work Australia. The reporting arrangements are there. Hypothetically, if there were unforeseen circumstances those matters would come forward to be dealt with. We do not envisage any unforeseen circumstances. We expect Safe Work Australia to get on with the job of harmonising OH&S legislation.

Eric Abetz (Tasmania, Liberal Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

I thank the minister for those answers. We now have our running sheet and I think we can go to moving the amendments. I do not want to muck up the order of the amendments. In fact, one of the opposition amendments is the first one on the running sheet. The opposition believes that, for many pieces of legislation, it is indeed beneficial to consider what the objects of the legislation actually ought to be. I think it provides guidance to all those who need to operate within and under the legislation. In those circumstances, one wonders why there was not an objects provision in this particular legislation. What we as an opposition are proposing is an objects clause which is relatively simple but which makes that point very well. I move opposition amendment (1) on sheet 5611:

(1)    Page 5 (after line 6), after clause 5, insert:

5A Objects

                 The objects of the establishment of Safe Work Australia are, through a partnership of governments, employers and employees, to lead and coordinate national efforts to:

             (a)    prevent workplace death, injury and disease; and

             (b)    harmonise occupational health and safety laws and associated regulations and codes of practice; and

             (c)    improve national worker’s compensation arrangements.

I would have thought that this amendment should not provide any difficulties to the government. I note that Senator Xenophon has previously circulated a similar amendment. In discussions with Senator Xenophon, he has indicated that he would be withdrawing his proposed amendment. He has indicated—at least privately to me—his support for the coalition’s amendment, which is slightly more extensive. He had two subparagraphs and the coalition is proposing three. I submit to the minister and the government that there should not be any difficulty with or objection to this amendment. I will limit my comments, at this stage, subject to what the minister’s response might be.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

I hate, as always, to disappoint the opposition. There is, of course, no legislative requirement for a bill to have an objects clause. Section 3 of the legislation tells the reader what the act is about and in that sense it could be drawn to be similar to an objects clause. Section 3 explains to the reader of the legislation that the bill will create Safe Work Australia, whose role will be to ‘improve occupational health and safety outcomes and workers compensation arrangements across Australia’. The Commonwealth, states and territories agreed to establish Safe Work Australia in the Intergovernmental Agreement for Regulatory and Operational Reform in Occupational Health and Safety, and the recitals to the intergovernmental agreement contain the aspirations of the parties, namely that the parties are committed to improving the health and safety of Australian workers. The recitals also recognise that the prevention of workplace death, injury and disease is an object of the OH&S laws of each jurisdiction.

The issue of ‘leading and coordinating’ in the language of the amendment does have that overture of taking us back to the ASCC; therefore I put the reasons forward as to why we do not need an objects clause in this particular piece of legislation. More importantly, what underpins it is the Intergovernmental Agreement for Regulatory and Operational Reform in Occupational Health and Safety, and within that is recognised the important work that this bill will do—that is, the prevention of workplace death and injury. I do note that the numbers in the chamber might be agin me, but I will wait to see what Senator Xenophon may do in respect of your amendment, Senator Abetz.

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

I am indicating the Greens support for this amendment, so I think you are right in saying, Senator Ludwig, that the numbers are going to be agin you. We think it is good practice for all legislation—particularly for legislation that establishes a body such as Safe Work Australia—and we believe it is important for this legislation to have an objects clause. The objects can operate as a guide to the operations of this body. We support the objectives proposed by the opposition, as we believe they do capture the intent of the bill and the outcomes that we all want to see by the establishment of this particular body. We would have supported Senator Xenophon’s proposed objects but—for once—we are in agreement with the opposition. We believe that their amendment is more comprehensive so we will be supporting it.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

Following discussions with Senator Abetz, I wish to indicate that I prefer his amendment to mine on the issue of objects. Therefore I will not be moving my amendment (1). I think it is preferable to the amendment that I was proposing to move. I think it is important to have objects as an anchor for this important piece of legislation.

Trish Crossin (NT, Australian Labor Party) Share this | Link to this | Hansard source

Can I confirm, Senator Xenophon, that you are withdrawing your proposed amendment (1) on sheet 5612?

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

That is so.

Eric Abetz (Tasmania, Liberal Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

Can I thank the crossbenchers—the Greens and Senator Xenophon—for their support. It makes me think that I should sit down and quit whilst I am ahead, because getting the Greens to agree with something that I am proposing is radical in itself. I do not want to push my luck too far. I would say to the minister that I can, to a certain extent, understand his argument. However, the intergovernmental agreement—whilst it is referred to in the legislation and, as I understand it, has to be posted on the internet—is, in fact, not an appendix to the bill. I am wondering in what way the inclusion of objects, as proposed, might damage or in any way cause uncertainty in relation to the interpretation of the legislation.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

The point will be when the legislation itself gets created and we can argue about what the objects might be in that. This will start the work for the facilitation of model OH&S legislation, in which case an objects clause can be considered by the government to be put where it will do best in providing the outcomes of prevention of workplace death, injury and disease—in the actual OH&S legislation itself. I think, quite frankly, that it is a small issue, in that you are arguing about the objects clause in the facilitative legislation. My focus is on the outcome, which is the harmonised OH&S legislation. We can have a serious debate then about what the objects clause may or may not look like should I still be in this role representing the minister—which I hope will be a short time. I hope it is a quick process, quite frankly, because it is important to get that through.

The fact is that we also tabled the Intergovernmental Agreement for Regulatory and Operational Reform in Occupational Health and Safety when we introduced this legislation. We made our intention plain; therefore, with due respect, we do not see a requirement for an objects clause in this legislation. The important point will be the outcomes. We are outcomes focused. I can recognise that I do not have the numbers in this place, but I would ask you to reconsider. The point that I am making is that the test will be the outcome—the OH&S legislation—and we can argue about the objects clause at that point and what should or should not be included in it.

Eric Abetz (Tasmania, Liberal Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

I do not want to delay this aspect too long but I specifically asked the minister what damage, what ambiguities et cetera might arise if it were included. I would like to think I and my coalition colleagues are reasonable. We have been invited to reconsider and we may reconsider but, quite frankly, we will only reconsider in circumstances where it can be shown that some very real damage might be occasioned. I do not think that case has been made out and in those circumstances the opposition will be persisting with the amendment.

Question agreed to.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

by leave—I move amendments (2), (3) and (4) standing in my name on sheet 5612:

(2)    Clause 10, page 9 (lines 10 to 13), omit paragraphs (1)(d) and (e), substitute:

             (d)    3 members nominated by the Australian Council of Trade Unions;

             (e)    3 members nominated by the Australian Chamber of Commerce and Industry;

(3)    Clause 15, page 11 (line 16) to page 12 (line 1), omit subclauses (2) to (5), substitute:

        (2)    The Minister can only make the appointment if the person has been nominated for the appointment by the Australian Council of Trade Unions.

(4)    Clause 16, page 12 (lines 8 to 21), omit subclauses (2) to (5), substitute:

        (2)    The Minister can only make the appointment if the person has been nominated for the appointment by the Australian Chamber of Commerce and Industry.

I move these amendments as I believe that they will ensure that the membership of Safe Work Australia will be more representative than what is proposed in the bill. Relating to amendment (2), it is important that the two peak bodies representing employers and employees in this country are represented. I note that by increasing the membership to three of each there will be a better balance between the two. I also believe it is appropriate that they be the ACTU and the ACCI, given the role they have had in relation to this. The peak employer and peak union bodies recognised by the ILO in this country are the ACTU and the ACCI. Amendments (3) and (4) are consequential in the sense that these appointments must be nominated by the ACTU and the ACCI respectively.

I urge honourable members to support these amendments. I believe they will make the membership of Safe Work Australia more representative, genuinely tripartite in its composition and therefore more effective in the important role it has.

Eric Abetz (Tasmania, Liberal Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

Can I indicate that the coalition had drafted similar amendments in relation to the numbers for the representative bodies being increased from two to three. We believe that that is important in trying to get the balance right, especially when you read the detail in the legislation as to the numbers and the strength of the vote that, in particular, the state and territory governments will have on this body. We as an opposition strongly believe that, rather than giving greater emphasis to state bureaucrats in this sort of legislation, there ought to be emphasis on those who actually have to deal with the legislation in the workplaces—that is, of course, the employers and the employees. Therefore, maintaining that sort of representation at the level of three each seemed to us in the opposition to be a worthy cause.

Seeing as Senator Xenophon kindly ceded to us in relation to the objects, we thought it would be a good idea if he moved this tranche of amendments. Agreement seems to be breaking out between us, Senator Xenophon and Senator Siewert, so we will have to be very careful that it does not become catching—

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

Don’t get too carried away!

Eric Abetz (Tasmania, Liberal Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

and, yes, that we do not get too carried away with it. In relation to the nomination of the organisations, the coalition had given consideration to an amendment indicating that the representatives had to be from the peak employee representative body and the peak employer representative body recognised by the International Labor Organisation, but it is cleaner, tidier and more definite to name the organisations so that there is absolute clarity. I think the Greens have given similar consideration to Senator Xenophon’s approach. The coalition on balance believe the Xenophon and Greens approach on this may be more beneficial than that which we had initially anticipated, so I can indicate the coalition’s support for Senator Xenophon’s amendments.

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

The Greens will also be supporting these amendments. As I articulated in my speech on the second reading, the Greens were planning, and in fact had drafted, exactly the same amendments. It was a bit silly putting up the same amendments, so we decided that we would support Senator Xenophon’s amendments. We think it is particularly important that there be three representatives of both employees and employers on this body, and in particular that the employer body and the employee body nominating these representatives should be named in the legislation. We believe both of these organisations have a track record in occupational health and safety and therefore they are the most appropriate bodies to nominate representatives to Safe Work Australia. Therefore, we support these amendments.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

There does appear to be a break-out, of sorts, of the coalition. What I am concerned about, though, is that the main point is really getting missed here. The main point is that, if you look at what has occurred to date, we have a significant advancement from where we have been in the last decade. We have an intergovernmental agreement to move forward on model OH&S laws.

What I am concerned about now, quite frankly, is that these amendments may put in jeopardy the agreement that has been reached. They may also assist in defeating future policy proposals by state or federal Labor to develop legislation right across the board, even legislation which is not directly related to OH&S and workers compensation. They mean that when you get an historic agreement, such as the one the Rudd government has, it will then be subject to an examination not in principle, which I think is fair to argue, but in process. We are now talking about unravelling some of the detail, which it has taken a significant amount of time for the parties to get to. Of course, you would expect that to be the argument from the government. It is important to recognise that this is a historic agreement, and we ask the chamber to respect that and to pass it. We think it is fair and it strikes the right balance.

The Intergovernmental Agreement for Regulatory and Operational Reform in Occupational Health and Safety provides for there to be two representatives from employer bodies and two from employee bodies. We think that strikes the right balance. One of the most important functions of Safe Work Australia will be the development of model OH&S legislation and codes of practice for approval by the WRMC and subsequent adoption by the Commonwealth and each of the states and territories.

If Safe Work Australia does not represent the collective views of states and territories there is, quite frankly, little prospect of model legislation being adopted by the states and territories. The intergovernmental agreement seeks of course to balance the interests of the jurisdictions which will be adopting the model OH&S legislation and the employers and workers who will be affected by the model legislation when adopted. Of course, I acknowledge that the membership levels agreed in the intergovernmental agreement involve a reduction of employers and workers members, when compared with the various bodies that preceded SWA. Both the National Occupational Health and Safety Commission and the Australian Safety and Compensation Council had three representatives from employers and workers. Having said that, it is difficult to see what benefits would accrue from increasing the worker and employer membership of SWA. I have not seen the argument articulated that raising the membership from two to three representatives would provide a benefit in bringing together model OH&S laws, supported by both the Commonwealth and the states and brought into reality—in other words, the outcome. The outcome of this legislation is that we end up with model OH&S laws. What you may be doing, in seeking to amend the bill, is to put in jeopardy that very position.

This government is focused on the outcomes of developing that—through the intergovernmental agreement, through this bill—into practice; that is, model OH&S laws. Any suggestion that increasing worker and employer representation on SWA will increase the expertise available to SWA or improve the quality of decision making by SWA might be one argument but, as I have said in my summation, it simply does not stack up. SWA can have and will have advice, but it is about the outcomes of providing OH&S model laws. SWA can also engage in the harmonisation process through participation advisory committees and through any consultation process undertaken by SWA, so there is a means available for the parties to move in the direction that the legislation wishes them to go.

The Prime Minister signed the intergovernmental agreement in good faith and, in so doing, committed the Commonwealth to establish SWA in the form outlined in the agreement, which means having two representatives each from employee and employer groups. In the light of that commitment the government is simply not in a position to accept the proposed amendment. Even if you can find merit in it—and I suggest there is none—we are now arguing about the process rather than the outcome, and that is what concerns me most of all in respect of this. The proposed amendment invites the government to renege on its commitment to the states and territories. The government cannot vote in favour of this amendment, without first consulting the state and territory governments. If the amendment is made, the government will need to discuss the revised composition of SWA with the states and territories. The only thing this amendment will achieve is to delay the harmonisation process.

On that basis alone, notwithstanding the argument I have already put, the government, quite frankly, does not think this process should be delayed one jot. It is important to move this legislation forward. When the Rudd government was in opposition, when for years we argued for better protection for workers, we did not accept delay then and say, ‘No, we’ll argue it again tomorrow; tomorrow might be a better day.’ We argued for better protection for workers as to occupational health and safety for today. This starts the process. I would ask you to reconsider the position that you are now putting.

In respect of picking the Australian Council of Trade Unions or, alternatively, the ACCI, the difficulty is always that, when you pick favourites, difficulties always present themselves. I was surprised that the opposition would pick the ACCI. There are a number of other substantive employer organisations which might have claim to represent the interests of employers on occupational health and safety. In so doing, the opposition have shown their hand to be, perhaps, in favour of the ACCI over others such as AiG and the like. But that is their position, not mine.

By not naming the bodies in the legislation, the minister is able to seek nominations from bodies which are the most representative organisations of employers and workers at the time nominations are sought. In this way, the minister is able to ensure that a balance of worker and employer interests are represented on SWA. Naming the representative bodies in the bill will not provide any flexibility for the future. Bodies may evolve, amalgamate, change their name or provide new identities and over time some organisations wax and others wane. When you pick the actual legislative name or the business name of an organisation, it might state that you can only have a person who is from that organisation or who is picked by that organisation. Then you get into difficulties of that organisation either delaying or frustrating the outcomes.

I am sure everyone will come with good intentions, but the point in this instance is that it is much easier and more convenient and, most importantly, it provides the best position for ensuring that you have the most representative organisation of employers and workers at the time nominations are sought. Allowing the minister the flexibility to seek nominations from a range of representative bodies gives them the opportunity to have representatives from different sections of the workforce sit on Safe Work Australia. Of course, depending on the projects Safe Work Australia is engaged on at the time, the minister might wish to have representation from particular areas of employment. Naming bodies in the legislation would again take away that flexibility. It in fact locks you into only two representative bodies irrespective of the issue that is alive at the time. With that, I would ask you to reconsider the position that you are putting.

Eric Abetz (Tasmania, Liberal Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

Can I ask the minister: which body in Australia today does he believe is the most representative of Australian workers? Come on, you know what you have to answer.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

You might tempt me there, Senator Abetz, and I may not agree with you. My view is not the relevant point here; the legislation is the relevant point. The bill that is before us provides for a choice by the Australian Council of Trade Unions. I do not know what circumstances would arise that would require another area to be chosen, but the bill does allow flexibility in the decision, it does ensure that the minister can have the flexibility in choosing the most representative body for the particular issue that is alive at a particular time. I think the legislation being put forward provides the flexibility that is needed. It is a sensible position, one whereby the minister can ensure that, from both the employer’s perspective and the employee’s perspective, all the issues are dealt with appropriately.

As I said, I am surprised that you would pick one employer organisation over another. That is the choice that we would be faced with in this legislation. I am sure that if the shoe were on the other foot you would be asking why I had picked one employer organisation over another and you would be saying that the flexibility should be there for the relevant minister to choose—or we would be in a convoluted position of having a list of employer representative bodies so that we did not embarrass one or the other. Both circumstances are really second-best solutions. I am surprised that you have picked one against others that could represent the interests of employers in this area. Be that as it may, it is your choice.

Eric Abetz (Tasmania, Liberal Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

I would have thought, under the International Labour Organisation arrangements, which the minister continually tells us we are all beholden to, the peak representative body for employees would be the ACTU. The minister’s reluctance to even acknowledge that the ACTU is the peak body representing Australian workers is, quite frankly, astounding. Of course, the reason that he did not want to answer that one is undoubtedly that he did not necessarily want to answer in relation to employer groups either. The International Labour Organisation, as I understand it, acknowledges the ACCI as the peak employer group and, if that is the case, then I think the amendments that were proposed by Senator Siewert and Senator Xenophon make a lot of sense.

Of course, what it also means is that the Minister for Employment and Workplace Relations cannot play favourites and pick and choose people whom she thinks might be subservient to her particular whims at any particular time. That is why I am attracted to the position that, rather than giving the minister complete choice in this regard, there be some acceptance that within the Australian community there are such peak bodies.

One thing I would ask the Minister for Human Services is in relation to the agreement with the states. I have been kindly provided with the relevant page by some of the officers, and I thank them for it because I have not brought with me the intergovernmental agreement. Schedule 1 refers to matters to be included in Commonwealth legislation establishing the ASCC replacement body. In it, there is discretion for the minister to specify:

i. an independent chair, nominated by the Commonwealth Minister in consultation with WRMC;

ii. a member nominated by the Commonwealth Minister;

It also says:

iv. 2 members representing bodies which, in the Commonwealth Minister’s opinion, represent the interests of workers across Australia;

Would it unravel the agreement if this parliament were to say that, within the parliament’s view, the body that represents the interests of workers across Australia is in fact the ACTU?

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

I will just correct something you were referring to earlier. You asked me a question about the peak bodies. The legislation, as you correctly identify, talks about representative bodies; it does not talk about peak bodies. That is plain within the legislation. Of course, you then asked my personal view. This is in respect of the legislation and my answer was in respect of that, so I would kindly ask you to desist from verballing responses that you may think you have heard. My answer was quite succinct.

In respect of the decision, as I stated at the outset and continue to state, the legislation provides the best course of action for the minister to be able to select the representative body for both the employer and the employee, for the reasons that I have argued. It provides the flexibility for the minister to ensure that at any particular time and place they can choose the best organisation to represent the interests of the employer or employee on the particular issue that is before Safe Work Australia. That is the logical position to adopt.

Again, I am surprised that the opposition would choose one organisation over a range of organisations that may claim to be representative of employers. We could get into that argument between employer and employee organisations in particular areas, but in this instance the solution is to ensure that the agreement is met—and passing this legislation gives effect to the agreement. The legislation provides for the best outcome—that is, that the minister chooses the employee and employer representative bodies. That provides for the necessary flexibility, as I have said and will not reiterate again.

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

One of the arguments being put here is that we have reached an agreement with the states and therefore the parliament cannot alter it, which I have a great deal of difficulty with. I am particularly concerned because the Commonwealth and the states have reached a nice cosy little agreement about the make-up of this body. Firstly, they expect the Senate to be just a rubber stamp. Well, I am sorry, but that ain’t what we are here for. We will deal with that in another amendment. Secondly, when it comes to voting, for example, at meetings, they have cosily given themselves a majority of votes of all the voting members who represent the Commonwealth, states and territories. Here we are as a Senate, expected to support willy-nilly any agreement that is made between the Commonwealth and the states. So the states and the Commonwealth have cosily got themselves together, drafted this legislation—overall, we do support Safe Work Australia—and given themselves these powers that override the tripartite nature of this body, and they expect the Senate to agree with it: ‘Let’s all get together, decide on the rights that we’re going to have that override the other two members of this tripartite body and the Senate will wear it.’ Well, I am sorry, but we do not. We will talk about that obvious anomaly in the legislation when that amendment comes up, but for the same reason we do not support it here. We do not think this is a good approach to take to a tripartite body.

I would also point out that this amendment has another important element to it: it removes the ministerial veto on nominations from employee and employer representative organisations, which they currently have under this particular bill. So this amendment has two very important functions: not only does it increase representation and name the specific employee and employer bodies but it also removes the ministerial veto on nominations. We believe—or the Greens certainly believe; I am not speaking on behalf of the coalition or Senator Xenophon here—that that particular element also undermines the independence of Safe Work Australia. So there are three important issues that we are dealing with here: the removal of the veto, the increase in the number of members and the naming of the employer and employee organisations. But if the argument is going to continue to be put forward that ‘We agreed it with the states; therefore it stays’ then what is the point of bringing it to the Senate? What is the point if the government thinks it will be able to reach a cosy agreement with the states all the time, bring it in here and have it rubber-stamped? I am sorry, it does not work that way.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

That is probably the best argument for supporting the legislation, and I thank the senator for that submission. What we are trying to do is ensure that when this model legislation goes into state and territory parliaments they do not tinker with it, quite frankly. If we can get an agreement at federal level on SWA, and it can go forward as model OH&S legislation, it will require the cooperation of states and territories to pass the laws as promulgated at the federal—

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

Well, you should’ve got it right in the first place!

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

You will get an opportunity to respond in due course. What you are arguing for is being able to tinker with the agreement here, which will give the opportunity to the states and territories to say, ‘Look, the Commonwealth tinkered with it; why can’t we as well?’ You then immediately move right away from model OH&S legislation at the start gate—you do not even get out of the gate with model legislation that is uniform. That is what you are now sentencing us to. Do not expect the Rudd government to say, ‘We don’t want our legislation up in the form that we have put it forward.’ I do not have to support your amendment in this place. I can put my best foot forward, put the bill forward and put the reasons forward as to why we want it passed in the form that the intergovernmental agreement agreed upon. Of course this place is not a rubber stamp—the Senate can do what it wants. You can pass an amendment that you put up, but do not expect me to support it. We are not expecting the Senate to be a rubber stamp, but do not expect the government to support your amendments. The reason I am asking the Senate to support the legislation in the form that we have circulated is that the Commonwealth does not want to be the first to breach the IGA when we come to model legislation. We do not want numerous amendments to be made at the state level, because uniformity would be lost even before it started. That is the position that you are putting to us now—and I reject it, as is this government’s right and as is your right to amend it and start this process of what I would call the ring-around. That is what it will start. I ask you to reflect upon that.

Eric Abetz (Tasmania, Liberal Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

If the Prime Minister spent a bit more time in the country and was able to tell Australian senators and the parliament how to vote, rather than going over to the United States and trying to tell the congress how to vote on issues, we might not be in this position. I think what we have in the intergovernmental agreement is somewhat arrogant. In schedule 1, clause 3, we are told ‘the legislation will’ and it then sets out certain matters. What that basically suggests is that six Labor premiers, two Labor chief ministers and, I would assume, the Labor Deputy Prime Minister got together to make a deal and will now try to foist it on all their parliaments without having a sensible discussion. I suppose the question that arises is: would it unravel this agreement, Minister, if any amendments whatsoever were to be proposed? Would the inclusion of objects unravel this legislation and, if so, would that start the ring-around? If it would, you might as well do a job lot and do a ring-around on all the amendments that this Senate might be minded to pass.

Quite frankly, I would defy any Labor Deputy Prime Minister, Premier—indeed, Premier Barnett in Western Australia—or Chief Minister to explain to the people of their state why there should not be three representatives of workers organisations and three employer representatives on Safe Work Australia. On my maths, that would make a body of 16 rather than 14 people, and the ‘social partners’, as they are called in this politically correct language, would only have six—

Jacinta Collins (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

What would you call them?

Eric Abetz (Tasmania, Liberal Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

Senator Collins, do not get me started—you would be one of the least politically correct on that side, and I welcome that. Those six social partners would still be a minority in the 16. I would be gobsmacked if any state Premier or Chief Minister were willing to get up and say that would somehow stand in the way of preventing workplace deaths, injuries and diseases, of harmonising occupational health and safety and of improving national workers compensation arrangements. I really cannot see, with great respect, how that would change any of the objects of this legislation.

I think the minister and I may have been talking past each other in relation to the ‘peak body’ definition. The ‘peak body’ definition, as I understand it, is a definition employed by the International Labor Organisation, and the ILO does not seem to have any difficulty in saying that ACCI and the ACTU are the two representative bodies to be taken into account. I understand that Australia is a signatory to that body—it was one of the initial signatories in 1913 or something, if my history does not elude me. In those circumstances, I cannot see why the Greens amendment nominating the bodies and stopping the minister from playing favourites would in any way derogate from the benefits that we hope this legislation will have.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

There are two points I wanted to raise. One goes to the substantive issue that you went to first, Senator Abetz, which is—I will see if I can be plain about this—whether, if there is inconsistency with the IGA in the legislation, we are technically in breach of the IGA. What that would mean is that we would have to go back to the states to talk through whether there was going to be a change. That would cause delay and it could also cause the argument to be had again. As with most things, when you reach agreement and sign on the dotted line, you want it reflected in the legislation as agreed. Having reached agreement, that is our desire. If we had to go back, it could potentially put that IGA in jeopardy without having at least gone back and spoken to the states about it. Therefore, as the government, we are putting it up as an agreement and asking the Senate consider passing the bill in an unamended form.

In respect of the second issue, there is nothing in the legislation that contravenes ILO Convention 155. The convention stipulates that consultation must occur ‘with the most representative organisations of employers and workers’. Worker and employer representatives will be directly involved in the development of draft model legislation and draft model codes of practice by virtue of their membership on Safe Work Australia. In addition, the draft model legislation and model codes of practice will be subject to the broader consultation requirements of the Australian government before they are recommended to the Workplace Relations Ministers Council for approval. The bill, as I have said, requires a minister to appoint two members who represent the interests of workers and two who represent the interests of employers in Australia. These appointments can only be made following nomination by bodies that the minister considers represent the interests of workers and employers across Australia. There is nothing in the legislation that would impede the independence of the employer and worker representatives on the SWA.

Question put:

That the amendments (Senator Xenophon’s) be agreed to.

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

I move Greens amendment (1) on sheet 5593:

(1)    Clause 26, page 16 (lines 18 to 19), omit “Division 4 allows the Ministerial Council to direct Safe Work Australia to amend either of the final plans.”

This amendment relates to strategic and operational plans. As I articulated in my contribution to the second reading debate, this legislation allows the ministerial council to direct changes to strategic and operational plans of Safe Work Australia. We do not believe it is appropriate that the ministerial council should be able to directly alter strategic and operational plans.

The members of the ministerial council will have representation on Safe Work Australia and will be participating in the formulation of these plans. We believe that it is unnecessary for the Commonwealth, states and territories to have direct interference in these plans. We believe that it undermines both the independence and the tripartite nature of Safe Work Australia.

This amendment should be read in conjunction with Greens amendment (2), which I will move later. It also deals with strategic and operational plans and their finalisation. Basically, it takes out division 4, which allows the ministerial council to direct Safe Work Australia to amend either of the final plans. As I said, we do not believe it is appropriate to allow the ministerial council this level of interference in the operation of SWA. As I said, it undermines both the independence and tripartite approach of SWA. I can already hear the minister thinking aloud that this amendment is contrary to the agreement that was made under the IGA. The same argument stands for me, and that is that the Commonwealth, states and territories have given themselves a nice little cosy arrangement whereby, even if these matters are approved by their representatives, the ministerial council can knock them off. We do not believe that that is an appropriate way to run occupational health and safety in this country and, therefore, we put this amendment to the chamber.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

This amendment requires an agreement too. Clearly, we oppose this amendment, and I will provide the specific reasons shortly. However, as a general outline of our opposition, the amendment is not in accordance with the IGA. Therefore, the substantive position that I put earlier remains, which is that the Greens refrain from seeking to amend an existing agreement. I know that I am not going to be successful in getting you to refrain from doing that. We would divide in respect of the amendment, but in the interests of the chamber I will not seek to do that. However, I would ask the opposition and the Greens to look at the next four amendments to see whether or not they could seek leave to put them as a job lot. They all require that the particular provisions stand as printed, as I understand it. I am sure the clerks could organise a way for us to go forward with the debate on those individual matters and, by leave, effectively put them as a job lot. We would then seek to divide in respect of them. I do not know whether we would then have separate divisions. I am open to suggestions on the best way to proceed. I make the point that they depart from the IGA, for reasons that I will outline shortly.

With respect to the Greens amendments, I can talk to them now or reflect upon the amendment that has just been moved. I am really in your hands, Senator Siewert, and those of the opposition as to how to proceed. I will sit down and give you an opportunity to add to the debate.

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

I am happy to debate all the amendments, depending on what the opposition feels about that. As you rightly point out, Senator Ludwig, this amendment omits words. The other amendments also omit words. I am happy to have the substantive debate now. We understand where the government is coming from in terms of not wanting to alter the IGA. I think the government understands very clearly where we are coming from. We wish to amend this legislation as agreed to by the Commonwealth, states and territories. As I said before, it is unfortunate that they have got together and voted themselves a nice cosy little arrangement on some of these issues. I should not be surprised that the government is quite concerned about altering the IGA. On the flip side, the government should not be surprised that we have some concerns about the legislation before us.

Eric Abetz (Tasmania, Liberal Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

Can I indicate to the government that we believe the Senate has a very vital role to play in scrutinising legislation. That federal Labor have come to an agreement with all the state Labor premiers and chief ministers and determined what they would do is interesting; but, at the end of the day, I listened very, very carefully to the admonitions of the Labor Party before the last election about how the Senate should not be taken for granted, how it should not be treated like a rubber stamp and how it should exercise its independent mind and scrutinise legislation very carefully.

And of course now that we are listening to the sound advice of people like Senator Ludwig and others we are being told that possibly this is not such a good idea after all because Mr Rudd knows best and if he has come to an arrangement, or indeed his deputy has come to an arrangement, with the state Labor governments then that should be paramount. We on this side have a differing view. We believe that there are certain matters that are quite fundamental and therefore the Senate should be looking through these matters very carefully.

I make those preliminary comments because I would not want a cognate debate on this to descend into a situation where the minister does not deal specifically with all the issues that are raised by senators. So whilst it makes, I think, good sense to have a cognate debate I would nevertheless expect that the government would deal with each question and the merits in relation to each amendment in some detail so that we can have a clear position put by the government as to why they are not supportive of the raft of amendments. If that were to be the agreed approach to be taken by the minister, there should be a clear indication given at all times. I think to a large extent we would be guided by you, Mr Chairman, as to which amendments should be seen as being taken together so that they are in a job lot. And undoubtedly, Mr Chairman, you will be advised by those clever clerks that sit next to you as to how that might best be achieved.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

While the chair is working through the subtleties of that, the position that I will put will be really in answer to the strategic and operational plans put forward by the Greens. As I understand it the Greens have amended their proposals to allow the opposition to also include some of the issues that would have otherwise been dealt with in amendments (4) to (19) by the Greens. That is as I understand it. I will put the position that the government will take and if there are additional points that you want drawn then it is really for the opposition to draw them out. In response to that the government will provide additional information. So in this instance I will put our position in front of the opposition’s, only so that they can then have an opportunity of hearing the position we are putting and pulling out any other salient questions they may have.

The government does not make any apology for Safe Work Australia reporting directly to the ministerial council. The government recognises that the states and territories have an important role in regulating occupational health and safety. If Australia is to have a harmonised set of OH&S laws, then it can only do so with the cooperation and agreement of the states and territories. One of the most important functions of Safe Work Australia will be the development of model OH&S legislation and codes of practice for approval by the WRMC and their subsequent adoption by the Commonwealth and each of the states and territories. If Safe Work Australia does not represent the collective views of states and territories, there is in truth little prospect of model legislation being adopted by the states and territories.

The states and territories are providing 50 per cent of the funding for Safe Work Australia, so it is appropriate that the WRMC has an oversight role in relation to Safe Work Australia’s strategic and operational plans. It is still Safe Work Australia’s responsibility to develop the plans, with the WRMC having a right to review and if necessary amend the plan. For the WRMC to have an effective role it needs to be given explicit powers to approve or reject a plan as well as the power to give directions to make specific alterations. If the bill is not drafted to give the WRMC such powers, the WRMC would have to rely on its informal authority rather than having a legislative authority. There is of course nothing stopping the WRMC from making informal suggestions or providing comments to Safe Work Australia outside of its legislative power to give directions.

The position put forward by the opposition is that, unlike when the opposition were in government, we are in the hands of the Senate to get the legislation up. The numbers are not on this side of the chamber. What we are asking, though, is that you give consideration to the position that I am putting. It is sensible to put the position that the intergovernmental agreement is a significant step forward. We need the facilitative legislation to ensure that we then arrive at the outcome—that is, model OH&S laws. It is a valid argument to put that we do not want to see the states starting to depart from model OH&S legislation arrived at through a consultative process as soon as it ends up in their parliaments. We want them to ensure that we have model legislation that reflects truly right across Australia. That is the position we are arguing for.

We are not asking the Senate to rubber-stamp anything. The opposition, when last in government, had the numbers to simply invoke their will. We are clearly not in that position. We are arguing the position that the best way forward to achieve the outcomes that we have put forward is to ask the Senate to approve the legislation unamended. And of course already we find that we are behind the eight ball in respect of a couple of amendments, and the numbers in this place might also mean that we are disappearing out the back door in respect of these amendments as well—if I look around the chamber and see what the numbers are.

Nevertheless, that does not deter me from arguing our case. We think it is a sensible position that we have put forward. We think it is consistent with the direction we are heading, which is to concentrate on the outcomes of ensuring that we have model OH&S laws for the prevention of accidents in the workplace. It is an important goal not to lose sight of in the arguments that we are having here this evening.

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

I find it a strange point that the government is not asking the Senate to be a rubber stamp but wants us to approve this legislation unamended. They want us to review the legislation and find the problems but not do anything about them. I reiterate that the Greens support strong, effective OH&S laws in this country and support a strong body to oversight those laws. We also very strongly support a true tripartite approach. This particular legislation puts a group in that so-called tripartite arrangement above the other two groups. Already the legislation gives that group stronger voting rights. But above all, it then gives the ministerial council the ability to reject, send back or make alterations to the strategic and operational plans outside the approval process. We do not believe that is good governance. We do not believe that that is an effective way for this tripartite body to operate, when all the good thoughts and processes around OH&S show that you have to have a good, strong tripartite approach to these issues.

It is deeply concerning to me that we have been presented with a piece of legislation, which the government has agreed with the states and territories, that we are not to do anything with even when we see faults and problems with it. I can see why the government feels like it has its hands tied behind its back, but that is the way it is. We do not think this is as good as it could be, so we are trying to amend it to make it better. That is what I see as the job of the Senate and that is what I see as my job on this issue and that is what we are doing. You will have to go back and explain to the states that you could not con the Senate into it!

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

I am sure they will read my transcript.

Eric Abetz (Tasmania, Liberal Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

I think Senator Siewert summarised very succinctly what this Rudd government is all about. On the one hand they will say, ‘The Senate should examine legislation. We are not going to treat you like a rubber stamp.’ But then, when you identify problems, the government says, ‘You might have identified problems but pass the legislation anyway.’ It is indicative of the Rudd government saying one thing and then doing another. That has been the hallmark in the nine or 10 long months that they have been in government.

The simple fact with this legislation is that we believe there should be some degree of independence for Safe Work Australia. We believe that, as Senator Siewert has said, consultation is absolutely vital. It would be very interesting to know from the minister, in coming to the arrangement of the intergovernmental agreement, who did you consult with? I reckon it was the Labor state and territory bureaucracies.

Unfortunately the people that have the most skin in the game in this, namely the workers and the employers, are not part of the signatory block. Sure, it is an intergovernmental agreement, so they should not be on that, but it is interesting. It is a matter of great concern, I must say, when ACCI and the ACTU jointly write to us about this. Usually they oppose each other, but on this matter they have to deal with the issues of occupational health and safety not from a bureaucratic but from a practical point of view. They both have a view about extra representation—no, I withdraw the words ‘extra representation’—or maintaining the representation to the level to which they had been accustomed and were afforded by the previous coalition government.

It is interesting, isn’t it? When Rudd Labor have an opportunity to consult with those that actually deal with workplaces, who do they prefer? It is the state Labor government bureaucracies—the John Della Boscas of this world, who really know how to look after the workers, especially at Iguanas! He is the same minister that did not come, as I understand it, to one of these workplace ministerial councils. Indeed, as I understand it, state Labor ministers did not come to these Workplace Relations Ministers Council meetings on a number of occasions, so they were, in fact, not able to be held. But in all those circumstances they still wanted to shift the power to these state Labor ministers and state Labor bureaucracies at the expense of those people that actually have skin in the game.

Those that have skin in the game are the workers and those who provide the work. The most representative body of the organised workforce in Australia is, of course, the ACTU. From the employer point of view, according to the ILO at least, it is ACCI. It is difficult making choices, but at least there is some objective test—which previously has been alluded to in Senator Xenophon’s amendment—which we believe is preferable to the minister playing favourites, because then the appointees and the organisations that are allowed to appoint or recommend people do not have to worry about their conduct and their vote for future reappointment et cetera.

It is the same with this Greens amendment dealing with strategic and operational plans that seeks to delete these words from clause 26, ‘Division 4 allows the Ministerial Council to direct Safe Work Australia to amend either of the final plans.’ What we have is supposedly an independent body that will help make all these decisions but, just in case they get it wrong, they need the John Della Boscas of this world to be sitting around the table to make sure that all their mates are looked after, that all the ducks are in a row and that things are in order. If you want a genuine occupational health and safety reform agenda in this country you have to ensure that that sort of tactic is not employed. I think the Greens amendment in relation to what is being proposed is an appropriate amendment, and we as an opposition will be supporting it.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

I do not want to delay the debate too much longer in respect of this point but, if you want an answer in respect of consultation, I will give you one. In the time that the Rudd government has been in government we have had five rounds of workplace relations ministers councils, WRMCs. For the period when the opposition were in government and dealt with Work Choices—I will play the game that Senator Abetz has occasionally played in this place—guess the number.

Eric Abetz (Tasmania, Liberal Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

No, it was not guess the number.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

Guess the number of WRMCs that the opposition had when they were in government during Work Choices. It will not be hard for those on this side to know the answer. I am sure Senator Abetz might recall that the answer is zero—none. It begs the question: why would the opposition argue for a better position than what they themselves provided? We, on the other hand, have sought to consult through the WRMC, as the appropriate place for that consultation. In fact, when Mr Hockey was the workplace relations minister during the 18-month period of Work Choices, there were how many WRMCs—if we play that game again? The answer, and I will relieve everyone of the burden of guessing, is exactly the same answer that I provided before—zero. What we are putting forward is consultation with social partners through the NWRCC, the National Workplace Relations Consultative Council. It is the position that we can provide you with the answer because we are about consulting. We are about ensuring that there is consultation in respect of this—unlike Work Choices which had a one-day Senate hearing to boot.

Eric Abetz (Tasmania, Liberal Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

We can canvass past history as much as we want, and that is all well and good, but it really seems as though the mantra of the Rudd government now is: ‘Having condemned the coalition for its former approach, we now somehow see some merit in it.’ You can chop us off at the knees as much as you like, but it does not make you stand any taller in relation to the issue of lack of consultation and why you would want to limit and to actively decrease the number of union and employer representatives. It does not make sense.

In relation to the Greens amendment, we would be having direct ministerial influence in relation to Safe Work Australia and the council amending the final plans. It just seems to me that if you are going to have an independent body it begs the question: why would you have the ministerial council being able to direct Safe Work Australia to amend those plans? That is the difficulty that I confess the coalition has. Consultation is vitally important. If the ministerial council can ram things through, then I am not sure it will make those organisations represented on Safe Work Australia feel confident that their views will be taken into account and taken heed of. When you go through the membership of Safe Work Australia set out in clause 10, you note there will clearly be a very strong representation of state ministers through their bureaucracy. Safe Work Australia will have eight members, each of whom represents a different state or territory. So you will have those officials representing their state ministers, undoubtedly being told by their state ministers what the agenda ought be, should be, and how those agenda items ought be prosecuted or dealt with in each particular circumstance. I would imagine that those officials would have some fairly detailed marching instructions given to them by the eight individual ministers.

In the event that they are sitting around the table and the organisational representatives, or ‘social partners’ as they are referred to—some of us would just call them the employer and employee representatives, but that is no longer fashionable in 2008—are able to convince these bureaucrats and officials from the various state governments that the path they were going down was wrong or impractical from the point of view of those who have skin in the game and actually know how these things work in workplaces, and Safe Work Australia therefore adjusted its plan accordingly, then guess what? Even if the organisational representatives, or social partners, could convince those bureaucrats, you would still have the ministerial council able to override the decision—a decision on which these representative bodies actually had the opportunity of having input. It seems to me that the proposed approach really does minimise the value the government is placing on these representative organisations, and I believe the Greens amendment is therefore worthy of support.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

I would like to make two short points. Firstly, the NWRCC is the consultative group, which includes employee representatives, which Safe Work Australia went through. It was discussed there—which is the consultative process. I reject the argument that it was just the state government officials who were spoken to; it was significantly broader than that. My second point is in relation to the substantive amendment that has been put forward. In respect of the three-year strategic plan, we do not have a crystal ball to tell us what might happen in 18 months time. Therefore, what we have proposed, which was agreed to through the IGA, was that, if there were circumstances which warranted an amendment to that, a change to that, a modification to that, then this was the best way forward to do that—if there was a significant change in circumstances which required an amendment to the strategic plan. The IGA put forward this position as being the most sensible way of ensuring that it continues to be relevant—a strategic plan that can be used by Safe Work Australia.

I do not know the circumstances in which it would be invoked. It was a position that was agreed to so that we could have flexibility to ensure that the strategic plan would remain relevant and continue forward. Be that as it may, I am asking the chamber to agree to the position that I have put forward. I think it is a sensible position. It does take into account the state and Commonwealth position of getting to the outcome—and the outcome is model OH&S laws. It is not going to be an easy process. The Rudd government does not want to see it stalled at this early point in the process. It is not about putting a fait accompli to the Senate in committee. It is about asking the Senate in committee to see the merit in the IGA, approve the framework and move forward to get the outcome.

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

I do not see the merit in some of these provisions. I do not see the merit in the ministerial council being able to direct Safe Work Australia to make specified alterations to its strategic plan. This is not just about putting something in place to deal with unforeseen circumstances in the future. I would have thought you could have written that particular clause differently if that was the intent. But this is clearly designed to override the final strategic and operational plans of Safe Work Australia.

Admittedly, the Greens were planning to move stronger amendments in terms of dealing with the draft. But we thought, no, let us give the opposition their due. The opposition did not want to go as far as that, and we thought that was fair enough. On some of the amendments the opposition are making, we were prepared to not go in as hard on the draft process as we had planned. But, when it comes to these final strategic and operational plans, it is quite clear that a cosy deal has been done between the states and territories and the Commonwealth to allow the ministerial council to override Safe Work Australia whenever it feels like it. There are no riders on this particular clause. It allows for specified alterations to Safe Work Australia’s strategic plan and requires that they give the altered plan to the council within the period specified in the direction. It is quite clear about the way it overrides Safe Work Australia. We do not think that is appropriate legislation. We do not think it should be given a tick. We do not think that particular clause is merited. The coalition seem to be agreeing with us.

Stephen Parry (Tasmania, Liberal Party) Share this | Link to this | Hansard source

We do; we are; we agree.

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

They are agreeing with us. Quite clearly, the majority of the Senate in committee does not think this clause has merit.

Michael Forshaw (NSW, Australian Labor Party) Share this | Link to this | Hansard source

The question is that Greens amendment (1) on sheet 5593 be agreed to.

Question agreed to.

The Temporary Chairman:

We now have opposition amendments (2), (3), (4), (5) and (6) and Australian Greens amendment (2), which is identical to opposition amendment (6). In relation to the discussion that occurred earlier, Senator Abetz, where you sought advice from the clerks, I would put to you that the opposition could proceed to move, by leave, the three sets of amendments, (2) to (6). The questions will need to be put separately. As the Australian Greens amendment (2) is exactly the same as the opposition amendment (6) it would presumably then not need to be proceeded with, depending upon the outcome of the vote. So I now invite you, Senator Abetz, to move your three amendments together by leave, if that is the wish of the chamber.

Eric Abetz (Tasmania, Liberal Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

by leave—I indicate that the opposition opposes the bill in the following terms:

(2)    Clause 28, page 17 (line 24) to page 18 (line 24), subclauses (2) to (5), TO BE OPPOSED.

(3)    Clause 28, page 19 (lines 1 to 4), subclause 8, TO BE OPPOSED.

(4)    Clause 30, page 21 (lines 1 to 31), subclauses (2) to (5), TO BE OPPOSED.

(5)    Clause 30, page 22 (lines 8 to 11), subclause (8), TO BE OPPOSED.

(6)    Division 4, clauses 31 and 32, page 23 (line 1) to page 25(line 27), TO BE OPPOSED.

I thank the Senate and I would like to thank Senator Siewert for what is, in effect, the withdrawal of the Australian Greens amendment (2) because the wording and the intent is identical, as indicated in the notation to opposition amendment (6). The amendments that we are moving deal with clauses 28, which is the approval of the strategic plan, and 30, dealing with the approval of the draft plan, and then clauses 31 and 32, dealing with the ministerial council’s directions to alter the strategic plan and the ministerial council’s directions to alter the operational plan. As I indicated earlier, it seems to us in the opposition that in charging an organisation such as Safe Work Australia with what is a very onerous responsibility in reforming occupational health and safety law and this country it will be dealing with issues that are of genuine concern to all of us in this place. Undoubtedly we have all dealt with issues that are related to occupational health and safety. I remember, in my former life as a lawyer, dealing with the issue of an industrial death at what was then known as the ‘zinc works’ and now operated by Nyrstar. In acting for the widow of that worker I became aware of the impact that industrial deaths—and, indeed, injuries—have on families, extended families and the community, and, of course, the huge impact it has on the employer as well. It is something that we should pursue with as much vigour as we possibly can to ensure that we get the right sorts of outcomes.

Occupational health and safety has largely been a state government issue. It would be fair to say that in the last decade or so it has become an issue of greater and greater concern within the Australian community. As a result of that, the Howard government introduced some measures to try to harmonise the state laws and to ensure that we had a fair and appropriate set of laws. New South Wales went way over the top in relation to its legislation in that organisations can be fined and the money finds its way, as I understand it, into some within the trade union movement. It seems to me that those sorts of interferences within the state regimes by Labor operatives ultimately act to the detriment of sensible occupational health and safety standards in this country. But all that aside, more and more employers are now dealing with workers across state boundaries, or they are sending a worker from their home state into another state or territory for a particular job. Therefore it stands to reason that we should have standardised and harmonised legislation. That is why in general, and in principle, we support this legislation.

That is why a body such as Safe Work Australia—as we have now amended it to make it more representative of those that actually have skin in the game—should be listened to, and their views on the plans for the future strategic plans and operational plans should be listened to. To allow on top of that the ministerial council to amend and direct Safe Work Australia in relation to those plans potentially puts us back into the situation that we are trying to get away from—that is, the strangulation of the process by individual state governments that have other interests other than simply good occupational health and safety laws. It seems to me that providing this quite substantive power to the ministerial council in relation to the capacity to alter strategic plans and operational plans is not something that is warranted. That is why the opposition is moving these amendments, and we urge the Senate to support them.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

What I have done in respect of the first Greens amendment, the area dealing more broadly with the strategic and operational plans, is outline the government’s position. As a way forward, if there were particular issues that you wanted to take up I have given you an opportunity to draw questions out of that. I have dealt with all of the issues that you have raised. I do not want to take up the time of the chamber by reiterating them in full again.

The main points we make are that if you want model laws, model outcomes and codes of practice that deal with and prevent work related injuries and tragedies, such as death, then this legislation does provide the facility for that outcome to be attained. Even if you want moieties—I think that is the word—to be removed from New South Wales, this is the vehicle to get rid of legislation that could be described as outdated and out of kilter with modern OH&S thinking, not only in that clause but in others that might exist or subsist. If you want to achieve an outcome you have legislation before you. For some reason, the historic nature of this sometimes gets lost in people arguing around some of the detail. An outcome was reached with the IGA. There are always going to be arguments, such as: we could have got a better deal, the states could have got a better deal, the particular interests of a territory may not have been adequately dealt with. The fact is to move to an outcome we got the signatures on a document which provides us with the best opportunity to achieve that outcome, the model OH&S laws.

An important function of Safe Work Australia will be the development of those model OH&S legislation codes of practice for approval. There is little prospect of model legislation being adopted by the states and territories without their agreement, without a framework, without the IGA and without our ability to get them around the table and move the debate forward. The WRMC has an important role to play. To be effective, it needs to be given explicit powers to approve or reject the plan, for the arguments that I put forward earlier—that is, that it provides the greatest flexibility and will ensure that the IGA and Safe Work Australia will develop a strategic plan that will meet the WRMC’s approval. Otherwise, it would have to rely on its informal authority to achieve that. In most cases, I suspect the practical reality of the circumstances will be that those types of discussions will ensure the strategic plan becomes a living document that really reflects the strategic nature that Safe Work Australia wants to achieve—that is, model OH&S laws, codes of practice and the like. But I cannot foresee every circumstance, and this clause is designed to ensure that there is that flexibility—no more than that.

I ask again in respect of these matters that the chamber agree that the bill does stand as is. It is, in fact, reverse logic. The question before us is that the relevant clauses stand as printed. We ask you to reject the other position and accept the position that the government is putting forward. The best way forward is, having reached agreement with the state and territories, to achieve an outcome in a relatively short time.

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

As I indicated earlier, the Greens will be supporting these amendments. They actually do not go as far as ours would have gone, so we think they are a fair compromise in terms of still allowing the ministerial council to approve a draft plan so that that plan becomes final. The ministerial council therefore does have a role in approving plans. The specific role for the ministerial council in approving or refusing the draft plan is one of oversight and does not allow them to direct the draft plans. The last opposition amendment, which was exactly the same as the Greens amendment, specifically relates to those final plans by not enabling the ministerial council to effectively override Safe Work Australia and undermine the tripartite nature of that body. We believe these are sensible amendments and we will support them.

Alan Ferguson (SA, Deputy-President) Share this | Link to this | Hansard source

The question is that subclauses 28(2) to 28(5) and 28(8), subclauses 30(2) to 30(5) and 30(8) and division 4 of part 4 stand as printed.

Eric Abetz (Tasmania, Liberal Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

I indicate that the opposition opposes clause 38(2) and also clause 42(2) as on sheet 5611, in the following terms. They canvass the same matters:

(7)    Clause 38, page 28 (lines 21 to 29), subclause (2), TO BE OPPOSED.

(8)    Clause 42, page 31 (lines 15 to 29), subclause (2), TO BE OPPOSED.

Clause 38(1) of the legislation says:

At a meeting, a question is decided by a two-thirds majority of the votes of the voting members present and voting.

In relation to this legislation we think it is important that there be a general consensus in relation to matters, and therefore a matter being decided by a two-thirds majority seems to have some merit. But the legislation then goes on to say:

(2)

However, if the question relates to the model OHS legislation or model OHS codes of practice, the question is decided by—

the two-thirds majority that I referred to before, and—

(b)

a majority of the votes of all of the voting members who represent the Commonwealth, States and Territories.

I am assuming in my numerical calculation that the chair is in fact deemed not to be a representative of the Commonwealth and I think that would be right. In those circumstances, you would have nine votes representing the Commonwealth, states and territories—that being six for the states, two for the territories and one for the Commonwealth—and a majority of that number would of course be five out of the nine. Therefore, in the event that you had six out of the nine voting against a proposal, you could in fact have six members out of the total 14 able to defeat a matter. We believe that that will potentially give too much power to those state Labor bureaucracies that have been part and parcel of the problem, for the past decade or so, of getting good OH&S legislation in this country.

Moving briefly to clause 42 of the legislation, that deals with decisions without meetings, and a similar structure is suggested. The opposition’s view is that the provision ‘a majority of the votes of all the voting members who represent the Commonwealth, states and territories’ should not be given that benefit. We are therefore of the view that clause 42(2) should be opposed. The questions are that the various clauses stand as printed, so we are recommending to the chamber that the two clauses that I have outlined, clause 38(2) and clause 42(2), be opposed.

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

As I articulated earlier in the chamber, the Greens will be supporting these amendments. We are very concerned about these provisions because they are another example of the bill’s provisions for favouring governments over the key stakeholders. As I said before, it is no surprise that the government does not want the IGA fiddled with, because the states and the Commonwealth have conveniently agreed to give themselves extra voting rights under this clause in the legislation. While we do support the legislation, as I have said a number of times, we believe there are some problems with it and that these particular clauses have some significant problems. We believe that it would be a fairer and more effective tripartite organisation if the Commonwealth and state governments did not have the extra voting rights applied under this provision. We therefore support the coalition’s amendments opposing these clauses in the legislation.

Eric Abetz (Tasmania, Liberal Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

In my previous presentation I omitted to mention the consequential amendments (9) and (10). I am seeking that the chamber agree to those, but they are consequential in relation to the matters I referred to previously.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

These are the last substantive amendments that we will ask the chamber to divide on. To get to the germane point, the intergovernmental agreement provides for the ministerial council to agree to the model OH&S legislation proposed by SWA by consensus. Unless at least a majority of jurisdictional representatives on Safe Work Australia support the proposed model OH&S legislation, it is unlikely that the ministerial council would reach agreement by consensus. We can put the numbers down the way you have let them fall. We are not going to cavil as to the way the opposition has put them.

Can we bear in mind, though, that the voting rules are intended to avoid unnecessary delays that would result from SWA recommending to the ministerial council model legislation that has no chance of gaining agreement. It is about ensuring that you have them all on board so you can move forward. This is a simple way of ensuring that you have them on board before you move out of the station. It also underpins the point that we are trying to make in all of this, which is that it is about getting to model OH&S laws through a consensus. Where we find that we cannot get the majority of states on board, given that we have to ask them to amend their legislation, this recognises the reality that you are not going to get model OH&S laws without consensus. We want to be able to get consensus and move forward to get good OH&S model laws in place and codes of practice to provide for the outcomes we have mentioned.

Trish Crossin (NT, Australian Labor Party) Share this | Link to this | Hansard source

The question is that opposition amendments (7) and (8) on sheet 5611 be agreed to. Therefore the question is that clause 38(2) and clause 42(2) stand as printed.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

Just so we can be clear, what we are trying to do, Chair, is avoid having two divisions. We wanted to divide on amendments (7), (8), (9) and (10) as a job lot, which means we might have to put them slightly differently than the way you are expressing them. The point is to prevent bringing people back to the chamber again. We recognise the numbers in the place, but we do want to at least test it.

The Temporary Chairman:

I hear what you are saying, Minister, but in fact you cannot do that because we are asking two different questions. We cannot combine the two questions; we have to put amendments (7) and (8) before amendments (9) and (10). Therefore the question is that clause 38(2) and clause 42(2) stand as printed.

Question put.