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Thursday, 13 October 2011
Page: 11835


Mr BANDT (Melbourne) (12:33): by leave—I move amendments (8) to (15) as circulated in my name together:

(8)   Clause 104, page 81 (lines 11 to 13), omit subclause (2) (not including the note), substitute:

(2) Subsection (1) does not apply if the defendant proves that:

(a) the conduct was reasonable in the circumstances; and

(b) a substantial reason for the conduct was to comply with the requirements of this Act or a corresponding WHS law.

(9)    Clause 106, page 82 (line 15), before "Conduct", insert "(1)".

(10) Clause 106, page 83 (after line 25), at the end of the clause, add:

(2)   Conduct referred to in section 105 is engaged in for a prohibited reason if it is engaged in for reasons that include a reason set out in paragraphs (1)(a) to (j).

(11)   Clause 110, page 86 (lines 3 to 17), omit the clause, substitute:

110 Reason for conduct to be presumed unless proved otherwise

(1) In proceedings for an offence of contravening section 104 or 107, if a prohibited reason is alleged for discriminatory conduct, that reason is presumed to be the reason for that conduct unless the defendant proves, on the balance of probabilities, that the reason was not the reason for the conduct.

Note:   Conduct is engaged in for a prohibited reason if it is engaged in for reasons that include a prohibited reason—see subsection 106(2).

(2) To avoid doubt, the burden of proof on the accused under subsection (1) is a legal burden of proof.

(12) Clause 112, page 87 (after line 13), after subclause (2), insert:

Note:   Conduct is engaged in for a prohibited reason if it is engaged in for reasons that include a prohibited reason—see subsection 106(2).

(13) Clause 112, page 87 (lines 31 to 34), omit subclause (4).

(14) Clause 113, page 88 (line 14), omit "a substantial", substitute "the".

(15) Clause 113, page 88 (line 16), omit "a substantial", substitute "the".

These are important amendments from the perspective of harmonisation. These amendments will bring the protections that will apply in the amended Work and Health Safety Bill to people who might bring complaints or take steps that are available to them under OH&S laws into line with the protections that exist in the Fair Work Act. There are a number of reasons why that is important.

The general principle point of view from someone who has practised in this area for a number of years is that it is very rare, when it comes to questions of discrimination and victimisation for exercising workplace rights that are available to you, that an employer, a fellow worker or whoever it may be says: 'I am now taking this action against you for a discriminatory reason. I am doing this to you—demoting you, dismissing you—because you have put in a complaint.' For that reason the law has recognised for a number of years, under governments of both persuasions, federally, that when it comes to protecting workplace rights it makes sense for the onus to be reversed, but for that to be something that is of course rebuttable on the evidence. That allows someone who has an evidentiary basis for a claim to proceed, and then the onus is reversed.

In the Fair Work Act that we have at the moment that has continued. It also applies to complaints that are made under workplace laws, and those workplace laws can include health and safety laws. If these amendments are not passed, firstly, we will have a situation where someone under the Health and Safety Act will have a lower level of protection available to them than someone under the Fair Work Act and will find it more difficult to exercise their workplace rights. Given the importance we have heard about these provisions and the importance of the protections they provide, every protection should be made available to someone to exercise the rights that are available to them under law.

Secondly, because of the potential overlap between the Fair Work Act and the Work Health and Safety Bill we are going to have a situation where, unless they are harmonised, we are going to encourage forum shopping. We are not going to see complaints made under the Health and Safety Act and a separate system of resolution; we are going to see—and who could blame someone for doing this?—people exercising their rights under the Fair Work Act and potentially seeking to expand the definition of what counts as a workplace right under that act, knowing that there will be more favourable provisions available to them there—provisions that, as I have said, have been enacted under both coalition and Labor governments.

It is for that reason, if we are serious about harmonisation, that these amendments should be passed. I commend the amendments to the House.