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Thursday, 7 December 2000
Page: 23589


Mr REITH (Minister for Employment, Workplace Relations and Small Business) (9:35 AM) —I move:

That the bill be now read a second time.

The amendments that I am introducing today in this bill will bring significant improvements for Commonwealth employees through safer Commonwealth workplaces.

This bill contains amendments to the Occupational Health and Safety (Commonwealth Employment) Act 1991—the OH&S act—which provides a legislative basis for the protection of the health and safety at work of Commonwealth employees in departments, statutory authorities and government business enterprises. It complements the compensation and rehabilitation arrangements established under the Safety, Rehabilitation and Compensation Act 1988.

The OH&S act requires amendment to modernise and streamline outdated provisions that are currently inhibiting its effectiveness. Consistent with the principles of the Workplace Relations Act 1996, the focus of occupational health and safety regulation has to shift away from imposing solutions towards enabling those in the workplace to work together and make informed decisions about how best to reduce risks to health and safety at their particular workplace. Any additional flexibility in meeting obligations, however, must be backed by a strong and effective enforcement regime.

The amendments in the bill reflect the government's commitment to achieving safer workplaces and take account of advice from the Safety, Rehabilitation and Compensation Commission, comprising representatives of Commonwealth employers and employees and other persons with relevant qualifications and experience, which has recommended changes in some areas.

The key amendments proposed to the OH&S act by this bill relate to the employer's duty of care, workplace arrangements and penalties.

In relation to the employer's duty of care, amendments are proposed to section 16 of the act to replace the current prescriptive elements of the section requiring an employer to develop an occupational health and safety policy and agreement in consultation with involved unions. Instead, employers will be required to develop, in consultation with their employees, safety management arrangements that will apply at the workplace. The term `safety management arrangements' is being used to describe collectively a range of matters which could be covered, and the specific needs of individual workplaces will therefore be able to be accommodated in a more flexible and efficient way. Employers and employees will be able to make informed decisions about how best to reduce any risks to workplace health and safety at their own workplace. This will ensure that there is a more integrated and focused approach at the workplace level. To assist organisations to develop their safety management arrangements, the Safety, Rehabilitation and Compensation Commission is being given the power to advise on the matters to be included, and employers must have regard to such advice in developing their safety management arrangements.

Safe and healthy workplaces can only be achieved if there is maximum commitment from both employers and employees, and each must play an active part in developing appropriate arrangements at the workplace level. Consistent with this, consultation between employers and employees to improve occupational health and safety outcomes is being enhanced by facilitating a more direct relationship between employers and employees and removing the current mandated role of unions.

Employees will have the right to be represented in consultations with their employer by an employee association that has a principal purpose of protecting and promoting the industrial interests of its members in the workplace.

The proposed amendments to the workplace arrangements provisions retain the current features of the act concerning designated workgroups, health and safety representatives and health and safety committees.

A health and safety representative may be selected for each designated workgroup, as is currently the case. However, the current restrictions on the ability of all employees to become health and safety representatives, are being removed.

A health and safety committee will be required to be established where an employer's work force comprises not fewer than 50 employees. The current prescriptive requirements concerning the composition and operation of health and safety committees are being removed from the act and these matters will be dealt with under the safety management arrangements at the workplace.

Improved outcomes can also be achieved by encouraging employers and employees and others with responsibilities under occupational health and safety laws to voluntarily comply with their statutory obligations. Other amendments in this bill therefore provide greater encouragement for voluntary compliance.

There must, however, be a strong enforcement regime to ensure compliance with the requirements of the act. The less prescriptive approach being proposed to the employer's duty of care is therefore being balanced by very important amendments to the penalties provisions to ensure an effective compliance regime. A wide range of remedies and sanctions is being introduced, along with significant increases in penalty levels.

Currently all offences under the act are criminal offences. Even though there have been over 28,000 incidents reported under the act since its commencement in 1992, with 1,248 investigations, there have only been nine prosecutions, of which eight have been successful. All prosecutions have involved significant delays—up to four years in one particular case.

The bill proposes to amend this enforcement regime to one based on both civil and criminal penalties for contravention of the act. As far as possible, the act will provide for civil penalties rather than criminal penalties. This is expected to make proceedings under the act more readily available and reduce delays.

Criminal penalties will be retained for contraventions of the act which result in death or serious bodily harm—or if the contravention is intentional or reckless—and for offences which are more appropriately dealt with in the criminal justice system. Courts will also be given the powers to grant injunctions to prevent the occurrence or recurrence of a breach of the act and make remedial orders.

A very important initiative in this bill is the power being given to Comcare to accept enforceable undertakings from persons considered to have contravened the act. Enforceable undertakings will be available as an alternative to prosecution and will assist in obtaining voluntary compliance with the act.

Where a court finds that an employer has breached sections 64 or 76 of the act, by dismissing, or taking other prejudicial action against, an employee, the court will be able to make orders modelled on section 298U of the Workplace Relations Act 1996, such as requiring reinstatement of the employee or the payment of compensation.

The new range of available remedies will provide maximum flexibility to ensure that effective action can be taken to address breaches or potential breaches of the act.

Currently, the penalties under the act apply only to government business enterprises and their employees. The bill includes an amendment to extend civil and criminal penalties to Commonwealth employees and employees of Commonwealth authorities. This will ensure that a Commonwealth employee will be accountable where he or she has acted wrongfully. Commonwealth officers or employees, however, will have the protection of the Commonwealth's policy on indemnification where they have acted reasonably and responsibly in the course of their duties.

Commonwealth employers will, however, be subject to the new provisions providing for injunctions and remedial orders.

Finally and importantly in relation to penalties, the bill proposes substantial increases to the level of penalties in the act. Currently the maximum penalty under the act for a breach of the employer's duty of care is $100,000. The new maximum penalty will be 2,200 penalty units—currently $242,000—for a breach attracting a civil penalty and 4,500 penalty units—currently $495,000—for a breach attracting a criminal penalty. These amendments will make the level of penalties under the act more consistent with the levels of penalties in state and territory occupational health and safety legislation.

The bill also contains amendments to revise the annual reporting requirements of Commonwealth agencies under the act so that there will be a greater focus on outcomes rather than process and some minor or technical amendments to improve the current arrangements concerning investigations of alleged contraventions and notices issued by inspectors.

Full details of all amendments are contained in the explanatory memorandum for the bill. I present that explanatory memorandum.

Debate (on motion by Mr Stephen Smith) adjourned.