Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

I rise to speak in support of the Work Health and Safety Amendment Bill 2022. Work health and safety laws in Australia are a shared responsibility. Each jurisdiction is responsible for implementing, regulating and enforcing their own work health and safety laws. Australia has model work health and safety laws that have been adopted in all jurisdictions except Victoria, which has similar laws in place. These model work health and safety laws are developed and administered by an independent statutory body, Safe Work Australia, through a process involving all jurisdictions as well as employer and employee representatives.

In 2018, the five-yearly review of the model work health and safety laws was commissioned by Safe Work Australia. Safe Work Australia appointed independent reviewer Ms Marie Boland to conduct the review. The Boland review found that the laws were largely operating as intended, and the 34 recommendations from the Boland review were mainly clarifying in nature. In May 2021, as the Commonwealth minister responsible for work health and safety, I convened a work health and safety ministers meeting to consider the response to the Boland review. Ministers agreed on action for all 34 items of the Boland review, reflecting the cooperative approach to the discussions that we all took. A key outcome of the meeting was ministers' unanimous agreement to introduce gross negligence, or equivalent, as a fault element for category 1 offences, which apply when a worker is killed or suffers a serious injury or illness, which this bill will now introduce.

The bill before the Senate introduces the first tranche of policy decisions that were settled in the ministers meeting. These decisions were: amending the model work health and safety laws to provide that a work group is negotiated with workers who are proposed to form the work group—that was recommendation 7b; amending the obligation to train health and safety representatives to provide that health and safety representatives are entitled to choose a course of training—that was recommendation 10; to align the process for the issuing and service of notices under the model Work Health and Safety Act to provide for clarity and consistency—that was recommendation 16; providing the ability for inspectors to require the production of documents and answers to question for 30 days after the day they or another inspector enter a workplace—that was recommendation 17; enabling and clarifying that work health and safety regulators can participate in cross-border information sharing—that was recommendation 19; amending the Work Health and Safety Act to include, as I've stated, gross negligence as a fault element in category 1 offences under the Work Health and Safety Act—that was recommendation 23a; extending the 12-month deadline to 18 months for a person to make a request to the regulator to bring a prosecution for a category 1 or 2 offence—that was recommendation 24; and prohibiting insurance for work health and safety fines, and the inclusion of offences for breaching this prohibition—that was recommendation 26. The government is also setting the fines for the newly created offence of providing insurance for work health and safety penalties.

One of the most important aspects of this bill, as I've said—and I worked through this with the ministers at the time in a very cooperative fashion—is the introduction of gross negligence as a fault element for category 1 offences and the extension of time. Without a doubt, any workplace death is a tragedy, and one death is one too many. Category 1 offences, as they currently stand, have a standard of recklessness which requires prosecutors to prove any intent to disregard a risk of death or serious injury. This can be very difficult to prove at times. What this bill will do is introduce recommendation 23a of the Boland review, which was the inclusion of gross negligence as a fault element in category 1 offences. I just note, as the Commonwealth minister at the time who was negotiating and working with the state and territory jurisdictions, that this recommendation was universally supported by all jurisdictions. I am very proud that we were at the time able to achieve that result and that it is now being legislated.

Grossly negligent conduct, as well as recklessness, should attract the most serious penalties under our work health and safety laws, and that is why, when in government, I was pleased to lead the Commonwealth government charge to support the decision to introduce this change. By introducing the fault element of gross or criminal negligence, the change will ensure that the appropriate threshold is set to capture culpable conduct but also preserve the current risk-based approach adopted in the category 1 offence. A category 1 offence is an offence by a person engaging in conduct that exposes an individual to whom a duty is owed to a risk of death or serious injury being reckless to the risk. So, for example, an employer in the construction industry does not provide safety equipment such as a harness, netting or railing in an open-aired elevated workplace and an employee severely injures themself. The employer may be penalised under a category 1 offence as they were grossly negligent and/or reckless in their work health and safety duty, which led to a serious injury. This means businesses as well as workers with a work health and safety duty can be penalised if they are needlessly reckless or negligent in their duty. It also means that where accidents do occur, businesses and workers with work health and safety duties are not going to be unfairly penalised when they take the appropriate steps and minimise the risk of death or injury. Importantly, it continues the key principle of a risk based approach for the work health and safety laws and does not focus on the outcome that occurs. In other words, we are seeking to prevent that outcome from occurring.

It is critical that we ensure prosecutions and higher penalties apply not only to when a death or serious injury or illness occurs but when there is a near-miss due to gross or criminal negligence. This will ensure that Australian workplaces become safer for all. The priority must be on strengthening the risk based approach of the work health and safety framework and to apply higher penalties equally to near-misses and serious injuries, and these decisions in the bill do just this.

The bill will also extend the deadline for requests of regulators to bring prosecution for category 1 and category 2 offences. This was another recommendation of the Boland review, which, again, as the Commonwealth minister, I supported in the Work Health and Safety Ministers' Meeting. What the extension of time will actually do is ensure that another six months will be provided before a person loses the ability to request a regulator to actually bring a prosecution. What this in turn does is provide more time to them to provide the information as to why, especially due to the likelihood in these incidences for significant recovery, for the grieving process et cetera and processes that mean you could actually miss the deadline. That is why this additional six months was so important.

In terms of the banning of the insurance and the indemnity products for work health and safety fines and penalties, what the bill does—and, again, this was unanimously supported—is also prevent a person required to pay a penalty under the law from recovering that penalty under a contract of insurance. The banning of the provision of insurance or indemnity products for criminal fines and penalties is not uncommon in Australia. For example, the Corporations Act 2001, the Financial Accountability Regime and its predecessor the Banking Executive Accountability Regime already have, or had, similar provisions to prohibit insurance and indemnity for penalties. Under the Fair Work Act, federal courts have the ability to make personal payment orders for breaches of the Fair Work Act. This was an often used provision to ensure payment by individuals of, say, matters the CFMEU brought to the court by the now abolished ABCC. The power to do this was reconfirmed by the High Court in the Australian Building and Construction Commissioner v CFMEU. This was actually a High Court of Australia case. The rationale provided in the Boland review is the provision of insurance and/or indemnification for work health and safety penalties. What that actually does is undermine the deterrent effect of imposing such penalties. The rationale, as set out in the review and agreed to by the ministers, makes sense and is accepted in similar scenarios to ensure personal payment for misconduct. This is why the Commonwealth supported this recommendation. It is important for the record as well to clarify for businesses that this part of the bill will not criminalise access to insurance or indemnity arrangements for legal costs in defending a prosecution. The Boland review itself expressly stated that companies and officers should not be precluded from accessing insurance or indemnity arrangements for legal costs in defending a prosecution. The legislation before us does not do that either. It only stops insurance and indemnity from when prosecution has been successful and the penalty itself has been determined.

In terms of clarifying Safe Work Australia's access to data, the bill will also amend the Safe Work Australia Act to clarify, for the avoidance of doubt, that information necessary to support Safe Work Australia's data and evidence functions may be provided to Safe Work Australia. Safe Work Australia is the national policy body for work health and safety and workers compensation. Its members represent the interests of the Commonwealth, states and territories as well as employers and workers. As part of its role in developing these national policies and strategies Safe Work Australia maintains and publishes national data, and it helps to inform policies that improve Australia's work health and safety laws and policies by maintaining national datasets and developing evidence based research that relies on input from a range of sources, including jurisdictional authors. The amendments in the bill that we have before us will ensure that persons with relevant information, including work health and safety regulators and workers compensation bodies, are able to provide this information to Safe Work Australia.

The work health and safety ministers meeting also recommended that the work health and safety regulations be amended to deal with psychological risks and injury. Again, this was in recommendation 2 of the Boland review. Amending the regulations in this way represented a strengthening of our commitment to addressing and preventing psychological injury in Australian workplaces. This recommendation responded to stakeholder concerns at the absence of specific regulation on this issue, and it now assists businesses—in particular, obviously, small businesses—to meet their obligations in relation to psychological health. Many recommendations agreed to at the meeting of ministers in May 2021 respond to concerns raised by families who have been affected by a workplace death, and they overlap with a number of the recommendations that were contained in the Senate inquiry into industrial deaths, They never came home.

Ministers at this time also agreed that Safe Work Australia work with relevant experts to undertake a review into the feasibility of developing national work health and safety sentencing guidelines, and that was recommendation 25. Ministers also endorsed the national principles to support families following an industrial death. These principles were developed by Safe Work Australia in response to the recommendations of the Senate inquiry into industrial deaths, They never came home. All ministers at the time, including me, agreed to task Safe Work Australia to work with experts to undertake research into whether it was possible or feasible for national work health and safety sentencing guidelines which would further help further harmonise regulators' responses in similar situations across jurisdictions. In the same meeting, work health and safety ministers agreed that Safe Work Australia produce and publish the model code of practice, managing the risks of respirable crystalline silica from engineered stone in the workplace. Other Safe Work Australia undertakings under the former coalition government included drafting amendments to the model work health and safety regulations to prohibit the uncontrolled processing of engineered stone, publishing revised national guidance on working with silica and silica-containing products and developing additional guidance materials on managing the risks of occupational lung diseases.

Without a doubt all Australians have the right to be safe in their workplaces, and it is important to Australians, whether they be employers or employees, that there are consistent laws around workplace health and safety. I am very pleased that the laws we are introducing today were agreed to when I was the minister, and I am very pleased to support the bill.

David Shoebridge (NSW, Australian Greens) Share this | Link to this | Hansard source

I rise on behalf of the Greens to indicate we will be supporting the Work Health and Safety Amendment Bill 2022 and to indicate the context in which this debate is happening. Last year, I think, 169 workplace fatalities occurred in the country—that is, 169 workers who went to work and didn't return. We should think of the collective trauma of their families and their co-workers and acknowledge from the outset why it is essential that this house gets work health safety right, this parliament gets work health safety right. That is why we look forward to reducing risk in the future and why that should be an essential part of the work of this chamber and this parliament.

This bill is, largely, a non-controversial bill that makes a number of changes to improve and streamline the operation of work health and safety laws in the country. In large part, it seeks to implement recommendations made by Ms Marie Boland as part of the review she did of the model work health and safety laws, and in particular her final report that she delivered in 2018. Just pausing there, it is somewhat frustrating that it has taken five years to actually implement these recommendations, and I do want to credit the minister for bringing this on, moving this through the parliament and putting it in place. Five years was too long to wait for the implementation of these reforms from the Boland review.

I won't go into detail for each of the amendments to the Work Health and Safety Act, but they include providing that negligence can be an alternative fault element for the most serious offences, for category 1 offences. Of course it should be, and the fact that it wasn't in the initial laws has led to a good many prosecutions not being put forward because, in the absence of that alternative basis for proving fault, it was next to impossible. It was next to impossible to meet the standard to hold employers and others to account for the most serious breaches of work health and safety laws.

The amendments also prohibit insurance for work health and safety fines. That's critical if we're going to have accountability in this space. If employers can insure away a potential cost to them, as corporations or individuals, if they can just insure the risk, then that creates a lack of personal incentive to ensure that the laws are complied with. If you can contract out your criminal risk, well obviously that makes workplaces less safe. Clearly prohibiting the insurance for work health and safety fines is essential.

It also clarifies that health and safety representatives are entitled to choose a course of training, that they don't have to take the training often offered by the employer. There are obvious reasons why you would want to empower health and safety representatives to be able to choose the training that is going to be best for them, rather than the training that their employer may want them to undertake.

It deals with some of the complications around processes for issuing and servicing of notice. It simplifies that, and I think that's a good thing for all involved. And it has a series of other modest technical and clarifying amendments.

It is clear, though, that, even with the passage of this bill, there is a vast amount more to do. After essentially a decade of the intentional erosion of workplace conditions and workers' pay and rights under the former coalition government there is a lot more to do than is contained in this bill. Workers have seen their wages and conditions eroded. Overwork and unsafe work in parts of our economy have become normalised. Precarious work is becoming a business model. And all of this is of deep concern for work health and safety in the increasingly diverse workplaces in this country, and the Greens will continue to push for comprehensive reforms that workers need going forward. In particular, Safe Work needs to be up to this reform task, and the evidence to date would suggest it isn't.

The Greens will be moving a second reading amendment to reflect one specific aspect of the future reform work that's needed, and that relates to the ongoing use of manufactured stone and the scourge of silicosis in the workers who work with it. We have known for years that Safe Work has recognised silica as a workplace hazard—indeed, a lethal workplace hazard—and has, at different times, recommended standards for treatment, recommended additional air filtering, made recommendations about wet or dry cutting and made recommendations about personal protective equipment. But they've known from the outset that those aren't working in place. They're not working in the diverse array of workplaces, often without much supervision, where manufactured stone is being cut, whether it's in small workshops in Western Sydney or onsite in the high-rises and commercial and residential buildings where this manufactured stone is being put in place. They know it doesn't work, and they've known it for years. They've known that every year they allowed high-silica manufactured stone to be put in workplaces, young workers and others are being exposed to early, awful, painful and in some cases utterly inevitable deaths as a result of their exposure to this dust. They've known it and they've failed to give the key advice about banning it. That has been put to them for years.

I know this for a fact because, in my former work as a state MP in New South Wales, we undertook in 2019 a review of the state's dust diseases scheme. The thoracic surgeons, the unions and the workers came to us in that inquiry and gave us some of the most heartbreaking evidence about young workers' lives being cut short by silicosis. I still remember the workers coming into the committee hearings and telling us about their diagnosis, telling us about the high likelihood of an early death in two or three years. Some of these workers were in their late 20s or early 30s. They spoke about their families. They spoke about how they had done the work because they were skilled in it and they needed the income for their families, and now it was killing them and leaving their families with nothing. I remember today just how absolutely heartbreaking it was. To then hear that Safe Work Australia wasn't moving to ban the product but was just putting yet more ineffectual measures in place was just so frustrating. Neither the state government nor the state Labor opposition at the time, let alone the federal coalition government or Safe Work Australia, were willing to make the hard call then and ban this stuff.

So, in a dissenting statement at the end of that inquiry, I said this, and I stand by it to this day:

Manufactured stone is a relatively new product, first being distributed in the NSW construction sector in or about 2001. There are numerous credible alternatives for it in all aspects of construction. Consistent with the hierarchy of control measures that forms the core of work health safety responses in Australia the first response to an identifiable hazard like manufactured stone is, where possible, to remove it from the workplace.

There is no doubt that manufactured stone has certain attributes that make it attractive to use; it is consistent, it is relatively cheap and it provides a relatively low cost high gloss finish that is attractive to certain consumers. In its time asbestos also had certain attributes that made it attractive. It was low cost, highly fire resistant and easily cut and affixed. However as the full medical and human cost of its use became apparent asbestos was nevertheless eventually banned. This was after initial attempts by the industry to seek safer handling procedures and more restricted uses.

I firmly believe we should learn from this history and based on the evidence available to date make the call to ban the use of manufactured stone in NSW. Of course a federal ban would be preferable and I acknowledge that NSW cannot ban its importation or availability in NSW, however we can regulate construction and work health safety matters and under those heads of power a ban is entirely possible.

Every month and year we delay, more workers will be exposed to the risk of deadly silicosis. No shiny benchtop is worth that.

That's what I said in 2020, and I said it with the support of thoracic surgeons, the CFMMEU and the workers. That was at the end of 2019 and the beginning of 2020. What has Safe Work done to date? More of this tinkering around the edges. More of this: 'Oh, we can deal with it by greater regulations in the workplaces. We can put more filtering in the workplaces.' None of that will work. None of that will stop workers dying of silicosis. They've known that for years.

That's why, on behalf of the Greens, I move the second reading amendment that was circulated on sheet 1847, as revised:

At the end of the motion, add ", but the Senate:

(a) notes that:

(i) high silica manufactured stone is currently causing the painful death of many young workers who contract deadly silicosis,

(ii) the Federal Government and SafeWork have been on notice about the deadly health impacts posed by manufactured stone since at least 2019 when the matter was canvassed extensively in an inquiry by the New South Wales Legislative Council Standing Committee on Law and Justice and by the press,

(iii) high silica manufactured stone is the asbestos of our age, and the evidence shows it is not being used safely, with deadly results; and

(b) calls on the Government to work with all relevant authorities to consider an urgent ban on manufactured stone and to ensure medical and financial support for those workers who are suffering with silicosis".

And I want to put on the record my gratitude to the minister in working collaboratively to get agreement on that form of words and hopefully work to the truth of that.

But, I ask again: where was Safe Work? And why is Safe Work still not providing the unambiguous advice that all the evidence says they should be providing? They're the work safety regulator for the country. They're being told by unions, by workers, by thoracic surgeons—by everybody, apart from the companies themselves—that this stuff is deadly, and they can't bring themselves to give the obvious advice that it should be banned. Worse than that, many of the workers who have been exposed to this deadly dust in this country since September 2020 can't even rely on the fact that there's an insurance product from the manufacturers that will meet the costs of the claims that they have.

The biggest manufacturer in this space globally, Caesarstone, has been refused insurance for its manufactured stone product in Australia since September 2020. We know that not because of what Safe Work Australia has done but because Caesarstone has had to give the disclosure in their returns to US corporate authorities. What has Safe Work's response been? They know this stuff is deadly, they know workers are dying and they know the main distributor and manufacturer of the product in Australia, Caesarstone, hasn't even been able to get insurance for the costs since September 2020. They've done bugger all.

So yes, let's get this amendment through. And yes, I commend the work that the minister, the unions, the workers and others in this space have been doing to move towards a ban. But this can't wait another week. It can't wait another month. It can't wait another six months. Every day of delay sees more workers exposed to deadly silicosis. At the moment, any worker whose exposure came through Caesarstone faces the very real risk not only of having a deadly disease but also of having no insurance product to meet the claim, for themselves and their loved ones, their families. If Caesarstone, which is a foreign corporation, decides to just pack up in Australia and cease its business, there will be no assets, no insurance, nowhere to go. It's like James Hardy mark 2, and it's unfolding directly in front of us.

If there's one agency that's had the job of preventing this from happening and has failed to act, failed to live up to its duty of care, it's Safe Work Australia. We have a collective responsibility to do better, because, as I said before, and I'll say it again: no shiny benchtop is worth the death of a worker.

Nita Green (Queensland, Australian Labor Party) Share this | Link to this | Hansard source

I rise to speak in favour of the Albanese Labor government's Work Health and Safety Amendment Bill, and in doing so I might just quickly speak to some of what Senator Shoebridge was raising and the very real and urgent need to address engineered stone and the impact it's having on workers. I want to thank the Minister for Employment and Workplace Relations for urging urgent reform on this and working with state and territory ministers to get that urgent reform. We know this is something that has been on the agenda for some time, and it's something that needs to be dealt with urgently. I look forward to seeing those reforms in place at a national level and across the country. I welcome the opportunity to speak on these important measures in the bill and congratulate the Minister for Employment and Workplace Relations as well as his state and territory counterparts for landing consensus on these measures. They might be modest reforms, but they are very meaningful reforms.

This bill harmonises the existing act with the model laws from Safe Work Australia's work in response to the Boland review. Many people may not have heard about what the Boland review is, but it's a really important piece of policy work. Ms Marie Boland conducted a review of Australia's model work health and safety laws in 2018. The Boland review made 34 recommendations on updates to model work health and safety laws, and I want to thank Ms Boland for her important work in this space. Since then, the recommendations of the review have been the subject of tripartite collaboration between the Commonwealth and the states and territories, as well as employers and unions. These groups have been meeting to examine the recommendations and build consensus on the model work health and safety laws. This bill is the first step in the Albanese Labor government's work health and safety reforms.

So what will change because of this bill? As I said at the top of my remarks, these modest but meaningful reforms have the potential to make important impacts on the prevention of workplace accidents. This bill strengthens the government's national approach to managing work health and safety, delivering more consistency across jurisdictions and improving information sharing between key organisations.

Importantly, this bill clarifies that health and safety representatives—or HSRs, as they're commonly referred to in the workplace—who are elected by their workmates can choose a course of training and more effectively issue improvement notices. HSRs are elected by their workmates to do the important work of maintaining and advocating safe systems of work and the elimination of hazards. It would seem straightforward that an HSR should be able to select a training course best suited to them and their workmates to ensure they are prepared and supported in the work they do, but not all employers have respected that principle.

A few years ago, at a train maintenance depot in Sydney, two HSRs went to their boss and put in their paperwork for a health and safety course of their choosing which suited their needs and those of their workmates. They were told by their management that they weren't able to attend their chosen training and that management would choose where they would go. Those HSRs fought this direction all the way to the state Industrial Relations Commission, and they won. That precedent informs the clarification that we see now in this suite of measures. I want to congratulate those particular HSRs and their workmates, who backed them every step of the way. I also want to acknowledge the members and staff of the Australian Manufacturing Workers Union, who got behind those HSRs and made that win possible. Because of their support, that win is now becoming national law. We know that health and safety representatives are trusted leaders and play a vital role in keeping workplaces safe. This is why we are updating the laws to make their jobs easier and simpler.

Our government's work health and safety amendment also closes a loophole that some unscrupulous employers have used to avoid accountability for poor safety performance. Currently, employers can purchase insurance for work health and safety fines, which is extraordinary when you think about it. Imagine if an ordinary person could take out an insurance policy against getting parking fines. You would imagine that the compulsion to act in a way that avoids punishment would be seriously diminished, and that is exactly what has happened in workplaces. That's what this loophole means for some employers: the potential punishment and spirit of the penalties are neutralised. Our changes mean that employers doing the wrong thing can't avoid taking financial responsibility for unsafe work environments. Our changes prohibit insurance for work health and safety fines.

Importantly, the bill also guarantees stronger consequences and penalties for employers who expose workers to serious and fatal risks. The bill strengthens the ability to take action against employers who have recklessly caused fatal injury to a worker. It updates what are called category 1 offences, the most serious category of prosecution in relation to injuries to a worker, to now include negligence, which has a more realistic prospect of prosecution. Previously, category 1 only listed offences on the basis of recklessness leading to the death of a worker, which has never been used, because of the unrealistic threshold for prosecution. This sounds like a very small, technical, legal change, but my hope is that it is a first step to more prosecutions in cases were there has been the death of a worker that could have been prevented.

Too many workers are killed in preventable workplace accidents. Last year 169 workers lost their lives. They went to work and they never came home. Just over two weeks ago in North Queensland two workers lost their lives. Dylan Langridge was 33 years old and Trevor Davis was aged 36. They had long lives ahead of them. They died in North Queensland in a mine when they were trapped underground. They went to work and they should have come home. I want to be really clear about this because this is incredibly important. The only acceptable number of workplace deaths is zero. Every single worker has the right to come home at the end of their shift just as safe and healthy as when they left for work. Our government not only believes that but today is legislating to make that so. That's because Labor is on the side of working people.

We believe that workers should be safe, respected and fairly paid. These changes start our work in improving workers' safety. The previous government had had this report since 2018. Until now not a single recommendation had been implemented by the Commonwealth. These are modest and mostly technical changes but they demonstrate our government's commitment to safety and respect at work and they paint a stark contrast with the previous government.

This is just the beginning of our government's reforms on health, safety and respect at work. The tripartite body that made these recommendations has continued their work looking at future reforms. I understand that the next tranche of reforms will continue to strengthen protections for workers from serious and fatal injuries due to negligence and recklessness. This is what's needed to keep workers safe.

I also want to acknowledge the important work being done alongside union members and our state counterparts to take long overdue action against hazards, including silicosis. This is incredibly important work that has gone silent for too long and must be fixed. Our government is also working through industrial relations changes which have a direct correlation with better health and safety. If you want a safe workplace, if you support workers coming home at the end of the day, then you should support Same Job, Same Pay laws. Because we know that when workers have the same job and the same pay, when they are treated with dignity and respect and they are given the power to speak up about safety, they come home safe at the end of the day.

I commend these changes to the chamber. I urge the Senate to support them. I thank the Senate.

Paul Scarr (Queensland, Liberal Party) Share this | Link to this | Hansard source

nator SCARR (—) (): I too rise to speak in favour of the amendments in the Work Health and Safety Amendment Bill 2022. I don't accept the characterisation from the previous speaker, Senator Green, in relation to the last government, but I'll quickly move on to deal with the substance of the issues here.

The way I want to address this is by talking about a particular case. When I was looking into this topic, I saw some commentary in relation to this case and I went back and read the case. Let me tell you the story of Brett Fritsch and why his story is extraordinarily relevant to the legislation which we're talking about today. During the construction of the Adelaide Desalination Plant on 16 July 2010, occupational health and safety offences were committed by a company called Ferro Con SA Pty Ltd and the relevant responsible officer for safety. They resulted in the death of 35-year-old rigger Brett Fritsch and a near miss for another rigger by the name of Craig Fowler.

The rigger's employer, Ferro Con, was using a large crane to install a 1.8-tonne, 14-metre-long steel monorail beam to the rafters of a partially built building. The lifting of the beam had been poorly planned by others. No risk assessment or job safety analysis had been undertaken for this type of lift, and no safe working procedure had been devised to take account of the particular hazards of the task.

As a result, Mr Fritsch was required to pull down heavily on a tag line in an attempt to lower the tilted beam's high end to a level position so it could then be bolted to a rafter. This required Mr Fritsch to stand under the 1.8-tonne beam—just think about that—to exert the required force, contrary to a general instruction to not stand under a load. While Mr Fritsch was trying do this the fabric sling supporting the beam snapped, resulting in the end of the beam dropping directly onto his head. He was instantly rendered unconscious and died soon after.

The other rigger, Craig Fowler, was standing on an elevated work platform at the time. His machine was struck by the falling beam, but he was able to ride the fall until he could jump clear onto nearby scaffolding. That is the case of Mr Brett Fritsch.

I want to read to you excerpts of the statement that Brett's mother gave to the South Australian Industrial Relations Court. When we're debating or considering provisions such as this, I think we should reflect on the individuals who are impacted by these events. These changes aren't just words on a page. They have material impacts for everyday Australians' loved ones who are doing their work duties and suffer harm. This is what Brett's mother said:

This is my victim impact statement, but I am not the victim here. Brett, my beautiful boy, is the real victim.

…    …    …

Brett has been robbed of his life, of being a devoted and loving hubby and daddy when he was so happy and in the prime of his life. You have changed the natural order of life for me—a mother should never outlive her child …

She went on to talk about her grandson and the impact of this tragedy on him:

Watching Brett's little one grieve and struggle with questions about death that a now four-year-old should never have to deal with is utterly heart-wrenching. He periodically asks me about his daddy. He asked me last year, 'My daddy is lost. Where is he lost to, nanna' and he has cried and got angry and frustrated because he can't possibly understand or find in his vocab the words to explain his feelings and queries.

Finally, Brett's mother said directly to the magistrate hearing the case:

Your Honour, I need for something very positive to come out of all of this. Please don't allow my Brett to have died in vain. You have the authority to send out a message loud and clear to construction companies that workplace deaths and serious injuries will not be tolerated by the courts.

I can't imagine what it's like to be in that position. I can try to understand, but I can't fathom what it must be like to lose your son and then have to face dealing with a grieving family whilst also dealing with a mother's grief. I think it is fit and proper that we consider those words as we consider this legislation and also consider that this legislation will have an impact on everyday Australians. Senator Green referred to those who are killed at work and those who suffer serious injury. These are not just words on a page. This is dealing with everyday Australians.

In this case, the industrial magistrate identified no less than four failings of the company involved, Ferro Con. I'll go through them. First:

Ferro Con knew decisions may have to be made during the course of each lift, but left all safety considerations of the job up to the supervisor and workers to, at best, be identified, discussed, agreed upon and implemented on an ad hoc basis.

Second:

The second major failing of Ferro Con was to not ensure that a site and task specific workplace procedure was developed for lifting this particular beam on 16 July.

Third:

Ferro Con's third failing was in not prohibiting the installation of the beam unless sufficient space was available on the ground inside the building in which to lower the beam for the purpose of re-rigging.

And fourth:

Ferro Con's fourth failing was to not ensure that the lift complied with its own general job safety analysis for structural steel erection, and in particular a written requirement that riggers were not to stand under a load.

These are clearly acts of negligence and omissions which would fall within the definition of negligence as is introduced by this bill. It should be recognised that, in relation to the standard of proof that is required in this regard, there is reference to the Commonwealth Criminal Code definition of negligence, which is:

A person is negligent with respect to a physical element of an offence if his or her conduct involves … such a great falling short of the standard of care that a reasonable person would exercise in the circumstances … that the conduct merits criminal punishment for the offence.

That is the standard, and that is the standard which every single employer in this country should meet. Every single employer should be meeting those standards, and if they aren't there needs to be consequences, because there are consequences for people such as Brett and his family. We need to take that carefully into account. I say that as someone who comes from the mining industry. For 12 years I worked in the mining industry, and before that I was involved in a number of investigations into fatalities and serious injuries on mine sites. The memories of the consequences of those fatalities, for the individual workers concerned and for their workmates and their families, have stayed with me.

Lastly, I want to deal with a point, which again came up in Brett's case, in relation to this issue of general indemnities. I quote from the case:

Ferro Con had in place a general insurance policy which apparently included indemnification of its Director for fines imposed for his criminal conduct …

In this case, the director—the responsible officer of this company—had an insurance policy which provided an indemnity with respect to any penalties he received. The magistrate continues:

The insurance cover carries a $10,000 excess or deductable payment. As Ferro Con is in liquidation and has no assets with which to pay the excess—

Because the company went into liquidation after this, there was no recourse against the company—

Mr Maione has paid it personally.

The responsible officer paid the excess personally to get the benefit of the insurance policy.

The magistrate continues:

He may not even bear the full cost of this if claimed as a tax deduction. By his payment he has ensured the insurance company grants both Ferro Con, and more importantly him, the indemnity he sought. In this way Mr Maione has made arrangements to avoid the vast bulk of the anticipated monetary penalty.

In my opinion Mr Maione's actions have also undermined the Court's sentencing powers by negating the principles of both specific and general deterrence. The message his actions send to employers and Responsible Officers is that with insurance cover for criminal penalties for OHS offences there is little need to fear the consequences of very serious offending, even if an offence has fatal consequences.

That is the issue that this legislation fixes. It should not be the case that a responsible officer who has been grossly negligent is able to get an indemnity through insurance against the penalty which is imposed after going through the appropriate legal process against the consequences of him or her breaking the law. It should not be the case that someone should be indemnified through insurance so that they don't have to take the real financial consequences, which cannot in any way compensate or be an appropriate indication of the loss suffered, in this case by Brett's family, the loss of that young life. It should not be the case that a responsible officer should be able to get indemnity insurance to cover that cost.

I see Senator Roberts has just arrived. I know Senator Roberts held very responsible positions in the mining industry as a site officer and had responsibility for safety. I'm sure Senator Roberts would agree with me that the No. 1 obligation upon people holding those positions of responsibility is to make sure all of their workers, after they spend a day at work, get home safe and sound to their loving families. That is the No. 1 responsibility, the primary responsibility. It is wrong that in a case such as this, in terms of the death of Mr Brett Fritsch, the responsible officer should have been able to avoid responsibility, the cost, of meeting the criminal penalty that was incurred by him, because he did not discharge his responsibilities as a responsible officer.

I want to say, for the record, that this is a case where the Senate is looking to close this loophole. It is about more than just words on a page. This is about people who have suffered great loss in their families, and the human element of this must always be remembered and always be considered. I hope Brett Fritsch's mother somewhere, somehow, knows that this place is now rectifying this situation where the responsible officer, who had responsibility for keeping her son safe and sound, managed to avoid liability to meet the penalties that were justly imposed against him.

Malcolm Roberts (Queensland, Pauline Hanson's One Nation Party) Share this | Link to this | Hansard source

I want to read a summary of this Work Health and Safety Amendment Bill 2022, because I'm a servant of the people of Queensland and Australia, and I know I'll only get two minutes tonight and will be in continuance in the morning.

This is a sneaky, dangerous bill that, if implemented in full, puts many employers and employees at risk of severe penalties, including up to five years jail and fines of up to $600,000. There is an obligation on employers to enforce safety measures, which could include compulsory vaccinations against COVID or similar diseases for employees. Secondly, if a complaint is made about the employer, even if the complaint is made not involving deliberate actions, the onus of proof is reversed and the employer is considered guilty unless he or she can prove their innocence. That's a complete overturning and reversal of fundamental legal principles.

Any legislation that includes a reversal of the onus of proof is a major event and never should be considered non-controversial. The reversal of the onus of proof flies in the face of the accepted principle that a person should be considered innocent until proven guilty. The onus of proof is on the person asserting guilt. This is known as the presumption of innocence.

I notice that all the lawyers in this place, in the previous bill on the TGA, which is in continuance, and this bill, hang their heads and pretend it goes away. The reversal of the onus of proof is a major issue and should only be imposed in exceptional cases. Labor have, at least, three pieces of legislation proposed in this week's session, and two on the noncontro list include provisions for the reversal of the onus of proof. They include the export control measures bill as well as this work health and safety bill.

We will definitely be opposing this bill in its current form. It is a sneaky, dangerous bill. We will be raising two amendments and, if they pass, then we will be supporting the bill. Before I get shut down for the night, I want to say that in my experience—

Claire Chandler (Tasmania, Liberal Party, Shadow Assistant Minister for Foreign Affairs) Share this | Link to this | Hansard source

Order, Senator Roberts. It being 7.30 pm, you will be in continuation.