Penny Wright (SA, Australian Greens) Share this | Link to this | Hansard source

In speaking on the Work Health and Safety Bill 2011 and a related bill, I wish to express our extreme disappointment in the rejection by the lower house of a number of important amendments to this legislation which would have strengthened the protections available to Commonwealth employees and brought them into line with the protections available to workers in other jurisdictions, particularly New South Wales.

My Greens colleague, Adam Bandt, moved three groups of amendments when this bill passed through the House of Representatives, each of which failed to receive the support of either the coalition or, perhaps more surprisingly, Labor. The first of these amendments sought to bring the Commonwealth bill in line with its New South Wales equivalent by giving unions the power to initiate prosecutions with respect to category 3 offences, which are those at the lower end of the offending spectrum.

Trade unions have been able to prosecute breaches of workplace health and safety laws in New South Wales since the 1940s. In that time, union prosecutions have been rare. However, when they have been taken, they have been very effective in strengthening the safety standards for workers and for the community at large. That is why, when the model work health and safety laws came to be considered by the New South Wales parliament earlier this year, my New South Wales Greens colleague, David Shoebridge MLC, moved to ensure that union prosecution rights were retained in that state.

Why are union prosecution rights so important? Because the union right to prosecute ensures that employers respond more quickly to demands from their workforce for safety improvements. This right acts as a powerful incentive for employers to protect their workers' health and safety. Take, for example, the very successful prosecutions taken last decade by the Finance Sector Union, which were directed at reducing armed robberies in New South Wales bank branches. Tired of seeing not only their members but also members of the public both physically and psychologically injured as the result of armed hold-ups, the FSU decided to take action. As a result of this action, the major banks in New South Wales were forced to invest a significant amount of money—in the vicinity of $100 million—in order to improve safety standards. This included the installation of full-height anti-jump barriers, ATM bunkers and digital controlled circuit TV with back-to-base monitoring. The result has been a dramatic fall in armed robberies, from 102 in 2002 to just four in 2010. It is a shame that because of the failure of the lower house to adopt my colleague's proposed amendments, such court actions will not be available to unions seeking to improve the safety conditions of Commonwealth workers. It is a particular indictment of the government, whose New South Wales Labor colleagues rightly supported the retention of the union right to prosecute in that state.

The second group of amendments proposed by my colleague Adam Bandt in the lower house would have introduced a test of 'gross negligence' into the definition of a category 1 offence. Category 1 offences are the most serious of the three offence categories contained in the bill. In its current form, a category 1 offence is made out if a duty holder, without reasonable excuse, engages in conduct that exposes an individual to whom a duty is owed to a risk of death or serious injury or illness, and the person is reckless as to the risk of death, serious injury or illness. In this context, proving recklessness would require proof that a defendant charged with a category 1 offence knew that death or serious injury was a probable or possible consequence of his or her conduct but consciously chose to disregard the risk. It is a subjective concept for which proof of awareness of risk is essential. So, for a category 1 offence to be made out, it must be proven that the defendant foresaw that death or serious injury was a likely result of their conduct.

In contrast, criminal negligence, or gross negligence, as proposed by Adam Bandt, is not concerned with the defendant's actual state of mind. Rather, culpability is determined objectively by referring to what the reasonable person, in the position of the defendant, would have known and done. If gross negligence were to be included in the test for a category 1 offence, it would be enough to show that the risk existed and that the accused's conduct involved a great falling short of the standard of care required of a reasonable person.

The National Occupational Health and Safety Review Panel, created in 2008 to report to the Workplace Relations Ministers' Council on the optimal structure and content of model OH&S laws, concluded that both 'recklessness' and 'gross negligence' should be included in the test for a category 1 offence. This recommendation was overturned by the Workplace Relations Ministers' Council. The rejection by the lower house of the 'gross negligence' test is a rejection by the government and by the coalition of best practice safety standards in the workplace.

The third group of amendments proposed by my colleague Adam Bandt would have brought the provisions relating to discriminatory conduct in the Work Health and Safety Bill into line with the corresponding provisions in the Fair Work Act. Clause 104 of the bill imposes civil and criminal liabilities upon a person who engages in discriminatory conduct for a prohibited reason. The purpose of this provision is to provide protection against adverse treatment to those individuals who seek to enforce or act in accordance with their health and safety rights under the bill. It would protect, for example, an employee who raises concerns about safety within the workplace or who nominates for a position as a health and safety representative.

In its current form, the bill only imposes criminal liability if the prohibited reason is the dominant reason for the discriminatory conduct and, in the civil sphere, if the prohibited reason is the substantial reason for the discriminatory conduct. The purpose of the proposed amendments was to remove the substantial and dominant reason tests and instead impose liability for any discriminatory conduct in which a prohibited reason plays any role at all in the decision-maker's mind.

I note that the second and third sheets of amendments moved by Adam Bandt in the lower house would have directly enacted recommendations made by the Senate Education, Employment and Workplace Relations Legislation Committee in its report on this bill, tabled in August 2011. This committee was chaired by Senator Gavin Marshall and membership of the committee included two of his Labor colleagues. The failure of Senator Marshall's lower house Labor colleagues to pass the second and third groups of amendments I have discussed today is hard to understand. It is unfathomable to me why, in the lower house, Labor voted against the very recommendations made by their Labor colleagues in the Senate through their involvement in the Education, Employment and Workplace Relations Legislation committee's majority report.

The Greens will not be opposing the passage of this bill through the Senate in its current form; however, we ask the Senate to note the wasted opportunity these rejected amendments represent.

Catryna Bilyk (Tasmania, Australian Labor Party) Share this | Link to this | Hansard source

I rise to speak on the Work Health and Safety Bill 2011 and the Work Health and Safety (Transitional and Consequential) Provisions Bill 2011. The first speech on legislation I delivered in this chamber, only shortly after beginning my term in the Senate, was on the Safe Work Australia Bill, which later received royal assent and became the Safe Work Australia Act. The act established Safe Work Australia, a tripartite statutory body with representatives from employers, employees and government for improving occupational health and safety outcomes and workers compensation arrangements in Australia.

The establishment of this authority placed Australia on the path to the first ever set of nationally consistent harmonised work health and safety laws. The decision to harmonise work health and safety laws was made by the Council of Australian Governments at its meeting in July 2008. One of Safe Work Australia's responsibilities was to drive the reform process and to develop model occupational health and safety laws for adoption by each jurisdiction. These laws would encode a model occupational health and safety act, model occupational health and safety regulations and model codes of practice.

The model act was developed by Safe Work Australia in accordance with the decisions of the ministers council. An exposure draft of the model act was released for public comment for six weeks in September 2009. This resulted in significant public feedback to the act, with a total of 480 submissions received in response, which informed amendments to the exposure draft. The model act, regulations and codes of practice to be implemented across all jurisdictions, in accordance with the intergovernmental agreement, were agreed to by the Workplace Relations Ministers Council in December 2009.

Since the endorsement of the model act by the ministers council, two jurisdictions have taken the important step forward of passing new health and safety legislation. The Queensland Work Health and Safety Act received royal assent on 6 June this year and the New South Wales Work Health and Safety Act received royal assent the following day. As Senator Abetz said in his contribution, it is a shame that the New South Wales parliament decided to change the legislation. I agree with the statement made by the Prime Minister when the previous New South Wales government proposed the changes. She said:

… a deal is a deal and the federal government requires this deal to be honoured.

What the coalition has failed to mention is that the current WA Liberal government have not yet even introduced legislation into their parliament. They have flagged changes that are inconsistent with the harmonised laws and will give Western Australian workers a worse deal when it comes to safety. The Victorian government also appear to be walking away from harmonisation, even though their own regulator has signed up to the laws and business strongly supports them. The purpose of the model act is harmonisation, the benefits of which should flow to all workers and businesses, including those in Victoria and Western Australia.

The Work Health and Safety (Transitional and Consequential) Bill will provide for the transition from the Occupational Health and Safety Act, including making necessary consequential amendments to the Safety, Rehabilitation and Compensation Act 1988 and the Social Security Act 1991. As I said in my speech on the Safe Work Australia Bill, there is much to be gained from harmonising workplace health and safety laws across Australia. It reduces regulation, particularly for those businesses that operate across state and territory borders and would otherwise have to deal with several separate workplace health and safety regimes. Significant savings will result for businesses that work across jurisdictions—savings that they can potentially redirect to make real improvements to workplace health and safety for their employees.

There are roughly 40,000 businesses operating across state and territory boundaries in Australia. According to Access Economics, harmonising work health and safety laws will save these businesses $179 million per annum. The harmonised laws also provide workers with the same rights and protections regardless of where their work is carried out. Labour mobility will be enhanced by the recognition of training and licences across jurisdictions.

Of course, harmonising our work health and safety laws across Australia also provides a valuable opportunity to modernise our laws and make some important improvements to workplace health and safety regulation. The model bill provides coverage of a wider range of contemporary work relationships, including contractors, employees of contractors, subcontractors, labour hire workers, apprentices and volunteers. It provides a new statutory right for workers to cease unsafe work in certain circumstances. It introduces tougher penalties for failing to meet a duty of care. It removes the Commonwealth's immunity from criminal prosecution. And it provides for a wider range of enforcement options, including infringement notices, remedial orders, adverse publicity orders, training orders and orders for restoration. The bill establishes Comcare as the sole regulator of workplace health and safety in the Commonwealth, whereas currently regulatory powers are shared between Comcare and the Safety, Rehabilitation and Compensation Commission.

Finally, the bill extends work health and safety laws to other persons deemed to be employees under the current Occupational Health and Safety Act. The laws are also extended to members of the Defence Force, although the bill enables the Chief of the Defence Force and the Director-General of Security, with the approval of the minister, to disapply specified provisions of the act. This provision existed previously, obviously in recognition of the heightened risk that employees such as Defence Force members accept as part of their employment; however the minister's agreement was not previously required.

The bills have been the subject of some scrutiny, and as a member of the Senate Education, Employment and Workplace Relations Legislation Committee I participated in the inquiry into the bills. It was a robust inquiry with one public hearing, and we had a wide-ranging discussion with witnesses from four organisations: the Australian Council of Trade Unions, the Australian Manufacturing Workers Union, Master Builders Australia and the Department of Education, Employment, and Workplace Relations. Other than to support the bill, the committee made two recommendations. The first was to remove the substantial and dominant reason test from the discrimination provisions in part 6. The purpose of the discrimination provisions in the bill is to avoid discrimination or coercion from discouraging engagement in work health and safety roles. However, the ACTU and the union both submitted that the bill should penalise employers if discrimination plays any role in a decision. They also submitted that they believed this provision should be brought into line with the discrimination provisions in the Fair Work Act, which do not include the substantial and dominant reasons test.

In responding to the recommendation, the minister pointed out that the discrimination provisions in the Work Health and Safety Bill do not displace the adverse action provisions in the Fair Work Act. It is also important to recognise that the discriminatory conduct provisions in the Work Health and Safety Bill provide for a criminal offence, whereas those under the Fair Work Act only provide for a civil offence. The substantial and dominant reason test is reserved for the more serious breaches where criminal penalties may apply.

The second recommendation of the committee was to include 'gross negligence' under category 1 offences. Category 1 offences involve reckless conduct which exposes an individual to a risk of death, serious injury or illness. However, the ACTU were concerned that, given the seriousness of category 1 offences, the test should not be set so high that it would be difficult for the regulator to prosecute. It was considered by the committee that the onus of proof for category 1 offences would include the prosecution establishing that there was not an honest and reasonable mistake of fact on the part of the accused.

The minister responded to this recommendation by pointing out that such an amendment would go beyond local general criminal laws, in that it would apply to conduct which exposed an individual to a risk of death, serious injury or illness even when the conduct did not actually result in death, serious injury or illness. Such conduct, in the government's view, would constitute a category 2 offence, whereas serious category 1 offences which attract a jail term should include an element of intention.

Throughout all consultation processes—including the national occupational health and safety review, the model act consultation, the exposure draft process, and the committee inquiry—the consistent message from stakeholders has been that there is broad support for national harmonisation of occupational health and safety laws. Fortunately, workplace health and safety is a matter which is universally supported by employers and employees, as it is in their respective interests. Workplace injuries, accidents and illnesses not only lead to great pain and suffering, not to mention financial burden, for employees but to financial costs, low productivity and loss of morale for businesses.

Safe Work Australia estimates that in 2005-06 the cost of workplace related illnesses and injuries—including the economic impact on the broader community in the form of medical and legal expenses, as well as the costs associated with retraining and loss of productivity and morale among co-workers—was a staggering $57.5 billion, or almost six per cent of Australia's gross domestic product.

The sheer cost of workplace illness and injury demonstrates the importance of improving workplace health and safety in Australia. Not only is it in the interests of employers and workers, it is in the national interest. This is why this Gillard Labor government wants all employers, including those in the Commonwealth jurisdiction, to be spending less time and resources worrying about the red tape of compliance with occupational health and safety laws. Instead, the Gillard Labor government wants employers to focus those resources on dealing with the real issues which confront health and safety in their workplaces. With the support and agreement of state and territory governments, we will achieve this by being the first government to take a national approach to workplace health and safety.

We will also improve workplace health and safety through tougher penalties and by extending the scope of our workplace health and safety laws. It has been a lengthy process to get to this point, but these bills are part of a reform which was long overdue even when we started on this path. I would like to thank the Minister for Tertiary Education, Skills, Jobs and Workplace Relations, Senator Evans, and the previous minister, now Prime Minister Julia Gillard, for all their hard work bringing these bills to the parliament. In times to come, many businesses, unions and workers will be grateful for this important reform. I commend the bills to the Senate.

Sean Edwards (SA, Liberal Party) Share this | Link to this | Hansard source

I rise to speak in support of the Work Health and Safety Bill 2011 and the Work Health and Safety (Transitional and Consequential Provisions) Bill 2011. The Work Health and Safety Bill will repeal the Occupational Health and Safety Act 1991, the OHS Act, upon commencement of the Work Health and Safety Act 2011. At the outset, I confirm that I support harmonisation across Australia but flag that we will be looking to make amendments.

Once again we see another example of Labor-Greens social engineering. The Work Health and Safety Bill 2011 has emerged with serious flaws. The coalition has no problem with harmonised or universal occupational health and safety laws. Indeed the process was started by the last coalition government. Where we differ is that we can see that the unions will use harmonisation as the basis for a whole new minimum national standard. It is the old story—give unions an inch and they will take a kilometre. They demand their pound of flesh, their right, regardless of the merits of their case—and they never resile.

The Prime Minister spoke about some public servants having had tears in their eyes because they had spent their working lives waiting for someone to deliver that reform. Where were they and the Prime Minister when New South Wales decided it wanted more? I note that Senator Williams raised this in an interjection—it was the previous state Labor government which turned this around at the last hurdle. We only have to see what happened there in New South Wales, how the then government, under pressure from its union bosses—Sussex Street again—departed from the harmonisation in this bill. What did we see in the redrafted New South Wales bill? We saw nothing less than an introduction of the union right to prosecute. Once more we see the heavy hand of the comrades exerting their muscle—with some help from the Greens.

How long before a similar tactic is employed on this bill, as the union heavies try to turn an occupational health and safety measure to their own industrial advantage? Not content with representing their members, the union leaders also see a role for themselves in bringing about prosecutions. The naked opportunism under the guise of looking after the workers is there for all to see. Under this legislation, occupational health and safety inspectors will have powers that are not available to the police. Unions should realise they do not represent the whole community, although they are over-represented on the Labor benches opposite in this Senate.

In a past life I ran a business. I employed many employees during my time. I have had practical, hands-on experience in using and implementing OH&S rules. I know how important it is to have a safe workplace. With all the gantries, tanks and confined spaces in my old workplace, I know only too well the importance of OH&S rules. However, as you may remember, in my first speech in this place I referred to the fact that I have never had a unionised workplace. Not only did I ensure that our employees were looked after but they continue to be well looked after by subsequent management. I feel secure and confident, in coming to work here now, that that environment is still very productive with its OH&S and is still very conscious of its obligations to continue with its auditing. At my business, we upheld the highest standards of workplace safety. While I did not operate in multiple states and across state borders as many of my peers do across the wine industry, I understand the frustration that that would cause businesses. The process of harmonisation, initiated by the Howard government in 2006, is common sense. The coalition is concerned that unions see harmonisation as setting a minimum national standard which could be built upon. Coalition senators agree with the Master Builders Association who 'strongly reject union right of prosecution'. The authority to prosecute and to commence criminal proceedings should rest solely with the state. The Master Builders Association rightly point out in their submission:

A prosecutor represents all members of their community and cannot, therefore, act as if representing private or factional interests.

Unions, by their very nature, represent the interests of employees and therefore cannot represent the entire community. To empower them with the ability to prosecute is akin to empowering employers with the ability to prosecute employees for a breach of health and safety, an issue that would be viewed as inappropriate by the community.

The Work Health and Safety Bill 2011 is 'coat-hanger' legislation—the regulations will determine any benefit of this change. The final regulations have not yet been released nor has the regulatory impact statement. This is despite the objectives of harmonisation that were laid out in the Access Economics' draft regulation impact statement. There is concern that the regulations will not achieve these objectives.

The harmonisation of OH&S legislation is part of the Council of Australian Governments National Reform Agenda that seeks to minimise the regulatory burdens and create a seamless national economy. Training in occupational health and safety is always an important issue. At this time of transition to new arrangements the availability of courses is vital. Unfortunately the availability of accredited courses has been reduced by 26 per cent since restrictive changes were introduced by the Safety, Rehabilitation and Compensation Commission in 2010. The coalition have put forward an amendment to allow the ongoing use of accredited courses under the 2006-07 guidelines.

Prosecutions under OH&S laws involve criminal matters. Under normal criminal law everyone has the right to silence and protection from self-incrimination—that is, you cannot be forced to say something to an investigator, the police, unless an investigator first obtains a court order and so on. This protection is a right we all have and is essential to community confidence in our criminal justice system and to the rule of law. It stops abuse of power. Protection against self-incrimination is currently available under OH&S laws in New South Wales, Queensland, South Australia and Victoria. The model OH&S laws take away the right to silence and protection from self-incrimination. This will apply not only to employers but to all managers and workers in workplaces. It will give powers to OH&S inspectors not available to the police. Consequently, the coalition recommends that subclause 172 of the Work Health and Safety Bill be amended to include a right to silence and protection from self-incrimination, in line with criminal law and current OH&S laws in New South Wales, Queensland, South Australia and Victoria.

The modern principles of OH&S safety were first created in the UK in 1972 under the Robens review. The principles hold that responsibility for safety is allocated according to what is reasonable and practicable to control. These are the internationally accepted benchmarks embedded in International Labour Organisation conventions to which Australia become a signatory in 2004. ILO Convention 155 (article 16) states:

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

The national review into model OH&S laws stated that there was much dissent in submissions over the inclusion of the word 'control' in duties of care. Recommendation 8 called for the removal of the word 'control' from the definition of 'reasonable and practicable'. This is implemented in the national model OH&S laws.

The model laws also introduce a new and untested legal concept of connecting duties of care to a 'person conducting a business or undertaking'. The removal of the word 'control' not only creates confusion over who is responsible for what in work safety but is a major shift away from known OH&S principles in all Australian jurisdictions except New South Wales. Further, it removes a key element of the ILO OHS Convention, to which Australia is a signatory, and creates a legal void due to unknown application and understanding of duties of care under the new notion. It is realistic to expect that, with the removal of the word 'control', legal uncertainty will occur and will require many years of judicial testing before clarity is achieved. Another lawyer's picnic. The wording of the act must give unambiguous signals in clear lay language to every person involved in workplaces right across this country. People understand in a practical sense that if they control something, or even share control, that they are responsible. With the word 'control' removed, clarity and focus on personal responsibility for safety is diminished and becomes confused. This works against the objective of achieving safe workplaces.

As a former employer, I believe OH&S regulation must be clear if it is to be successfully implemented across Australian workplaces. One of the barriers to successful implementation of this kind of law is that the average employer does not fully understand it. While it is not their intent not to properly implement OH&S requirements, simple misunderstandings do occur. This kind of legislation must be crystal clear to provide employers with certainty.

The object of this bill is to improve safety outcomes, but it is also to reduce compliance costs for business and improve the efficiency of regulatory agencies. Every piece of legislation that comes before this place should be about cutting red tape, getting rid of unnecessary regulations and getting government out of the boardrooms, the workshops and the factory floors, not adding more bureaucratic measures that will require more bureaucrats. It is just churn, churn, churn. Harmonisation is a good aim, but not if it is to be handicapped at birth by union ambition and the probable hatred of the Greens for employers as a continuation of the Marxist class struggle.

We also have the changes to the guidelines that support union training at the expense of a private provider with no beneficial outcomes. We are expected to pass this bill without having seen the regulations or the codes of practice. There is still no clarification on whether this Work Health and Safety Bill will apply to voluntary organisations. Those people out there in the community are unsure of whether this will apply to them. One thing they can be sure of is that any piece of legislation where the unions have been calling the shots regarding content will be to the detriment of any voluntary organisation. We must keep this in perspective. Union participation in the workplace is at an all-time low, with 18 per cent of the Australian workplace belonging to a union. I think they are coming to their senses.

The unions have no time for volunteers. Again, the shades of Marxist leanings come out in 2011. Then there are the health and safety representatives, another device cooked up by the unions to reward their junior cohorts with the first rung up the union industrial ladder, and paid for by the employer. There is less work for the union organiser when they have health and safety representatives—or HSRs—to carry out such duties for them.

While the coalition will not oppose this bill, we will put forward some straightforward and logical amendments. However, it is very important that I point out that this is coathanger legislation. The regulations will be determinative of the benefit of this change. The model regulations were circulated and are exceptionally restrictive. The final regulations have not yet been released, nor has the regulatory impact statement.

In closing, I reaffirm that good policy in government is to always continue to review and propose, and hopefully the government will see the merit in what we are looking at for the benefit of employers all across this country. Harmonisation was initiated by the Howard government in 2006. It is something that the Gillard Labor government should continue to champion at every opportunity at COAG, so that employers can get some certainty as to what can take place in their workplaces, and so NGOs can run their operations and know who can come in and affect their business and their operations.

Jacinta Collins (Victoria, Australian Labor Party, Parliamentary Secretary for School Education and Workplace Relations) Share this | Link to this | Hansard source

I rise to speak on the Work Health and Safety Bill 2011 and the Work Health and Safety (Transitional and Consequential Provisions) Bill 2011. I thank senators for their contributions to the debate on this important legislation. Although the Work Health and Safety Bill currently before the parliament applies largely to Commonwealth public sector employment, it forms a crucial part of the Australian government's commitment to nationally harmonised work health and safety laws. This bill complements legislation being enacted across the states and territories that will lead to enhanced work health and safety protections for Australian workers, as well as greater certainty for businesses.

The arguments in favour of the occupational health and safety harmonisation are outlined in the second reading speech to the bill, so I will not repeat them here, save to say that they are very compelling. However, it is important to put on the record that, since the bill was introduced into parliament by the government, harmonised occupational health and safety laws have been independently assessed as having the potential to deliver up to $2 billion per annum in productivity improvements. This is in addition to the national benefit of $250 million per annum reflecting reduced red tape for businesses overall and better work health and safety standards for workers. I would like to deal with Senator Edwards's claim that the regulatory impact statement was not available and highlight that it is, indeed, available, and the figures I mentioned relate to it.

This assessment and these measures affirm the Gillard government's strong commitment to occupational health and safety harmonisation with a major reform that will deliver tangible benefits to businesses and workers alike. It is this balance that is critical and most important to this government. Federal Labor is proud to be implementing and supporting these important laws which are strongly supported by industry and the community as well as the vast majority of state and territory governments. I commend the bills to the Senate.

Question agreed to.

Bills read a second time.