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Wednesday, 12 October 2011
Page: 11672


Mr HUSIC (ChifleyGovernment Whip) (18:25): I take a different view on the issue of the use of prosecutions in OH&S matters, which I am happy to discuss later in my contribution. I will pick up, in argument, points that would oppose some of the matters that have been raised by the honourable member for Riverina. With respect, I just disagree with them. It is important to note at the outset that I certainly speak in support of the Work Health and Safety Bill 2011 and related bill now being considered, primarily because OH&S is one of the critical protections offered to employees in any workplace. Regardless of the industry that they work in and regardless of the jurisdiction they are in, there should be a degree of comfort that there is a safety net of laws protecting them in the way that they work, both now from an immediate threat and in the future from longer term disabling injuries or conditions that are brought about by systems of work that are inherently unsafe and have not been attended to.

Surprisingly, in this day and age 290 Australians are killed each year at work, which is simply an unacceptable number. Many more will die as a result of work related disease. Each year about 135,000 Australians are seriously injured at work. It has been estimated that work related injury and illness cost our economy about six per cent of gross domestic product, and the cost is far greater because you simply cannot put a dollar figure on the injury, suffering and pain that people have to experience because there are not safe systems of work and they are poorer for it.

It has been a long ambition of successive Labor governments to achieve harmonisation of these laws across all jurisdictions. Nationally harmonised laws were first raised in 1974 by the Whitlam government and remained a priority through the intervening years. As long ago as the 1970s it was clear that having different laws across states and territories created a regulatory maze and was a burden on businesses operating across jurisdictions. Almost 30 years on, here we are in a day and age where businesses are much more global and the workforce is a lot more portable. Our laws that are intended to provide protections to the safety and wellbeing of workers have to reflect the present operating climate.

These bills implement a 2007 election commitment to establish nationally harmonised OH&S laws. The reforms that they bring forward have come about because of agreements that have been reached through the Council of Australian Governments and the Workplace Relations Ministers Council. For those who doubt the ability of the federation of work on a range of different areas, it has been demonstrated that federal and state governments, regardless of political hue, can, particularly in terms of the national interest, find a way to work through issues that have bedevilled their predecessors in trying to come up with good law, harmonised law, that reduces regulatory burden and provides uniform protections across the country. The government worked in partnership over the past three years with the states and territories, the ACTU, the union movement and business groups to achieve a new legislative framework. The framework seeks to replace nine separate OH&S acts and more than 400 pieces of related regulations which in the past have created unnecessary confusion, complexity and higher costs for many businesses. I refer to the process of reaching these reforms started 30 years ago through successive governments. We have been trying to work out how to get these reforms done and we have been able to achieve them. The opposition made some comment—particularly the member for Wannon—which the member for Riverina reflected on. With all due respect, the member for Riverina was wrong in the way he characterised the contribution of the member for Wannon because the member for Wannon was criticising us on two counts. He criticised us for not supporting their reforms back in 2006 when they tried to change OH&S laws. Frankly, there were a lot of us. I had the honour of being able to represent working Australians in a trade union where we would not have been comfortable in any shape or form with the reforms put forward by the Howard government. Bear in mind that they ripped away workplace protections for people and brought in a system of O&HS that was dictated a lot by employer preference rather than by what a lot of people would say is important—that is, that employers and employees build not just systems and not just processes but a safety culture where people work together. I recall designated workgroups where employers were able to choose key OH&S reps if employees were unable to select them. It was a great concern that employers had a great deal of influence in the way that workplace safety was rolled out in workplaces when, as I said before, it is much more successful to build consensus in workplaces and build a commitment to workplace safety.

So we were criticised for not supporting their reforms and now we are criticised because we are getting this matter debated. It was not the case, as the member for Riverina said, that the member for Wannon was claiming we were rushing this through. That is not the case at all. He actually wanted us to move quicker on it. We are here getting the job done in terms of OH&S and we have had a difficult process getting that achieved. New South Wales, the state that I come from, under the Carr government reformed industrial relations laws and turned back the 1992 IR reforms brought in by the Greiner-Fahey governments which saw people lose workplace rights and over the course of those years made improvements to OH&S laws. One of those improvements was that, when push came to shove, if an employer was not taking seriously their safety responsibilities there could be recourse to prosecution.

We have heard the member for Riverina today claim that this is not right. In fact, he quoted the Master Builders Association, claiming that prosecutions initiated by unions may conflict with prosecutions being done by other bodies. It is very hard to get other bodies to undertake those prosecutions. I remember trying to get Comcare to deal with serious workplace safety issues where they do not act and where if a union is prepared to put forward its views on behalf of members in trying to represent issues of workplace health and safety—and they are willing to take the stand—they do it because they are sufficiently concerned about the health and wellbeing of the people that they represent. So prosecutions would not cut across other jurisdictions or other bodies, because more often than not that would not be the case. There were celebrated cases in New South Wales where the financial sector union had to take on banks that were not taking seriously the issue of armed hold-ups and a range of safety concerns. I will not name the bank that they took on, but they were able to see improvements.

The New South Wales Labor government decided that it would not defend this provision early on, but suddenly it backflipped. The COAG process, if you can get things agreed to across states and across the Commonwealth, works. New South Wales did not really push hard for that protection—that is, for prosecutions to be enabled—but in the end a deal was done. If there is agreement and certainty reached, you have to honour the deal. As much as I am supportive of New South Wales—and I thought it would be a good feature at the national level—it did not come to pass. There was uniform agreement through COAG and the Workplace Relations Ministerial Council about how to do this. The deal was done. I was surprised through the course of the year to see a backflip by New South Wales Labor leading into the election and it undid the certainty that was reached where we had been able to get unified laws. The fact is that this has been satisfied. I do not think it is good enough to just backflip in the way that it was done. It was good enough to defend in the first place. It was not defended. We had a deal done and then they went back on it. National laws are important. I think it is critical for people, regardless of jurisdiction, to have uniform securities in place and I commend that to the House.

The reforms that stem from this new framework will repeal and replace the Commonwealth Occupational Health and Safety Act 1991. There will be no change to the coverage of the bill compared with the current act in respect of its application being only to the Commonwealth, Commonwealth public authorities and, for a transitional period, non-Commonwealth licensees. The definition of worker will be extended to include persons who are currently deemed to be employees of the Commonwealth, such as members of the ADF and holders of Commonwealth statutory office. The bills no longer rely on employer duties but, rather, assign primary duty of care to the 'person conducting a business or undertaking'. The Work Health and Safety Bill takes into account the changing nature of modern work and does not rely on the traditional employer-employee relationship, expanding the definition of 'worker' to include contractors, employees of contractors, subcontractors, labour hire workers, apprentices and volunteers. It places a positive duty on officers to exercise due diligence to ensure compliance by that organisation.

For the sake of greater accountability and responsibility for safety outcomes, the Commonwealth will no longer enjoy immunity from criminal liability resulting from offences under this legislation, which I think is an enormously positive move. The bills establish Comcare as the single regulator on these matters in the Commonwealth jurisdiction, with Comcare operating under the oversight of the Safety, Rehabilitation and Compensation Commission, which will continue to provide consultative and advisory functions. There will be a wider range of enforcement mechanisms under these bills, including infringement notices, remedial orders, adverse publicity orders, training orders and orders for restoration. In a measure that will be significant for workers, these bills will include stronger protections from discrimination, victimisation and coercion over work health and safety matters which go beyond what is currently available through these and other laws.

However, in the case of GBEs, government business enterprises, that have transitioned from being wholly publicly owned as agencies to having independent boards set up to oversight their operations, I am concerned that a historical anomaly allows some of them to sit outside OH&S laws. For example, Australia Post still operate by what I call principal determinations. Those allow them to make decisions about employment matters within the GBE. They are an anachronism from the Public Service days of years past. The principal determination system allowed Australia Post to introduce, for example, a system of referring injured employees to a group of company doctors, I would call them. If they had an injury, these employees could not go to a GP of their preference—that is, a family doctor—but would be referred to 'company doctors', who were set up through tender processes. Basically, nine out of every 10 workers who went to see them would be sent back to the job, with a huge risk of misdiagnosis. There were cases where injured employees of Australia Post were sent back to work with broken ankles simply because the KPIs and management bonuses tied to those KPIs required improving workplace attendance, and, if that meant sending people who were injured back to work, then so be it. The principal determinations could never be investigated by Comcare because Australia Post did not come under the Occupational Health and Safety Act in the Commonwealth's jurisdiction. I think it is completely unacceptable for a GBE to be entitled to operate by those means.

Now Australia Post, under Ahmed Fahour, has moved to bring in improved workplace health and safety laws and address this issue. But it is still unacceptable because the principal determinations, as they guide employee conditions in that organisation, still provide for a system of workplace health and safety that sits outside the act. That certainly needs to be addressed. It is an area for future reform that needs to be tackled by this government or any subsequent government, because it is not right to have Commonwealth legislation and harmonised workplace laws in operation yet have a government business enterprise that can operate outside of that process due to an anachronism, a loophole, that exists. I would certainly urge further reform there. These bills are important, and I commend them to the House.