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Wednesday, 17 August 2005
Page: 126


Mr STEPHEN SMITH (6:17 PM) —Labor oppose the Occupational Health and Safety (Commonwealth Employment) Amendment Bill 2005. We do so for the following reasons. Firstly, the bill proposes to remove the need for government agencies to negotiate occupational health and safety agreements with unions and employees, through the introduction of so-called management arrangements. Secondly, the bill will remove all references to ‘unions’ and replace them with references to ‘employee representatives’, defined as either a ‘registered organisation’ or a ‘workplace staff association’, which must now be invited into the workplace by an employee. Thirdly, the bill will require that an employee invite an employee representative to initiate an occupational health and safety investigation, where previously a union could make directly to Comcare such a request to investigate a workplace. Fourthly, employee representatives involved in developing occupational health and safety management arrangements must be issued with a certificate by the CEO of Comcare, valid only for a 12-month period. Finally, the bill empowers employers to conduct the election of employee health and safety representatives, a role previously conducted by a union or a person specified by the National Occupational Health and Safety Commission, which the government proposes to abolish through legislation passed through this House yesterday.

Regrettably, Australia continues to have a poor record with respect to work related death, injury and illness. It is estimated that there are around 3,000 work related deaths in Australia each year—more than the national road toll. When one breaks this down, the true gravity of the situation becomes apparent. Nearly 450 of these work related deaths, an average of nearly 10 per week, are the result of a traumatic incident at work, including work related road deaths. A further 150 deaths occur while Australian employees travel to or from work, with another 200 people dying each year as a result of someone else’s work activity.

In 1996, National Occupational Health and Safety Commission researchers arrived at a conservative estimate that at least 2,300 people died each year as a result of work related exposure to chemicals. This does not reflect the current extent of death from occupational disease. In the near future, this figure may rise due to the expected increase in asbestos related deaths, a tragedy that for many decades has continued its macabre assault on working Australians, particularly through the Wittenoom disaster and the James Hardie disgrace. Australia has the highest incidence of asbestos related disease in the developed world. The incidence in Australia has been rising steeply since 1970, and it is estimated that the total number of asbestos related deaths will reach at least 40,000 and perhaps as many as 60,000 by 2020.

More broadly, approximately 480,000 Australian employees experience a work related injury or illness each year. That translates to approximately 2.8 million Australians suffering from work related long-term health conditions. Each year there are around 140,000 compensated work related injuries resulting in an absence from work of one or more weeks. In comparison, there are over 13,500 road accidents involving casualties each year in Australia.

That provides the context and background to the government’s proposed changes to occupational health and safety arrangements. The Occupational Health and Safety (Commonwealth Employment) Amendment Bill 2005 proposes to amend the Occupational Health and Safety (Commonwealth Employment) Act 1991. That act provides the legal basis for the protection of the health and safety of Commonwealth employees in departments, statutory authorities and government business enterprises.

This amendment bill is the government’s third attempt to introduce the provisions contained in this bill—namely, the removal of unions from workplace occupational health and safety institutions. As such, it is instructive to consider the legislative history of the preceding bills and the reasons for their previous rejection by the parliament.

The Occupational Health and Safety (Commonwealth Employment) Act 1991 is similar to its counterpart state and territory legislation, in that it follows the Robens model of occupational health and safety. The Robens model stems from the report of the committee on safety and welfare at work commissioned by the United Kingdom parliament in the early 1970s as a means of reducing the incidence of workplace death and injury.

Essentially the approach by the Robens committee recommended greater self-regulation in the workplace through a collaborative approach between employers and employees. Importantly, the Robens model recognised the role unions play as employee representatives. As such, the principle of freedom of association was an important part of the Robens approach. The Robens model was largely followed in subsequent and similar inquiries conducted by both the states and the Commonwealth. Consequently, occupational health and safety committees have now become a familiar part of the industrial and workplace landscape across Australia.

The effectiveness of the Robens approach was supported by the National Occupational Health and Safety Commission when it stated in November 2002:

... there is indirect but strong evidence that employee participation, either direct or representative, is an essential component of effective occupational health and safety management.

The government’s first attempt to remove the role of unions in occupational health and safety matters was its Occupational Health and Safety (Commonwealth Employment) Amendment Bill 2000. The 2000 bill lapsed with the prorogation of the parliament for the 2001 election. Before the lapse of the bill, the Senate Employment, Workplace Relations, Small Business and Education Legislation Committee prepared a report on the bill’s provisions. The essence of the Labor senators’ report was threefold. Firstly, there was a rejection of a reduced role for unions, under the Occupational Health and Safety (Commonwealth Employment) Act 1991. Labor senators took the view that the government’s position was driven by ‘ideological rhetoric associated with labour market opposition’. Moreover, there was evidence presented to the committee that where ‘unions back members of health and safety committees, the results will be lower workers compensation claims’. Secondly, there existed concern over the vagaries of the proposed safety management arrangements, especially given the ongoing success of the existing policy approach. Qualified support was given for a more flexible, dual civil and criminal system of occupational health and safety enforcement and compliance.

Democrat senators took the view that that 2000 bill should be passed with amendments. Senator Murray’s report stated:

A key area of concern to us is the place of unions in the maintenance and advancement of workplace health and safety. Unions supplement the regulatory and inspectorial roles of State OH&S departments in an irreplaceable way. Unions as a whole sometimes get criticised as a result of the actions of some unionists in misusing the provisions of the various State health and safety Acts. Such unionists raise non-existent H&S issues to achieve other industrial objectives, and misuse entry and search provisions under the pretext of H&S. Such behaviour needs to be addressed. However the way to deal with these abuses is not to clamp down on legitimate useful or effective union H&S activity.

The government’s second attempt was in June 2002 with the Occupational Health and Safety (Commonwealth Employment) Amendment (Employee Involvement and Compliance) Bill. That bill was referred to the Senate Finance and Public Administration Legislation Committee, with Labor senators again recommending the amendment of the bill to remove provisions designed to reduce or remove union involvement in health and safety outcomes. Democrat senators stated that their position remained unchanged because the 2002 bill did not address the concerns raised in the 2000 Senate report. Some elements of that 2002 bill were subsequently enacted in the Occupational Health and Safety (Commonwealth Employment) Amendment (Employee Involvement and Compliance) Act 2004, which introduced a more flexible compliance regime. Senate amendments supported by Labor and the Democrats significantly diluted the original intent and key provisions of that 2002 bill.

With that legislative summary, we come to this 2005 bill. Its proposed amendments are modelled on provisions unsuccessfully brought before the parliament in 2002, in particular as part of the employee involvement and compliance bill of that year. Let me refer to the bill’s proposed provisions in respect of management arrangements. The bill proposes the introduction of management arrangements to replace occupational health and safety agreements traditionally developed through tripartite processes between unions, employers and employees. These management arrangements replace the requirement for government agencies to negotiate health and safety agreements with unions and employees to govern occupational health and safety matters. Current legislation provides for occupational health and safety committee meetings every three months, with committee meeting minutes kept for three years. These time frames will now be decided by the management arrangements.

The bill also intends to remove all references to ‘unions’ and replace them with ‘employee representatives’, defined as either a ‘registered organisation’ or a ‘workplace staff association’. The bill defines a workplace staff association as an:

... association of employees, a principal purpose of which is the protection and promotion of the employee’s interests in matters concerning their employment.

Additionally, the bill also proposes that employee representatives must be invited into the workplace by an employee. Furthermore, under the provisions of the bill, an employee must invite the employee representative to initiate any investigation into occupational health and safety matters. Under the current act a union is able to directly request Comcare to investigate a workplace.

The bill also proposes that employee representative organisations request the right to be involved in occupational health and safety consultations by submission to the chief executive of Comcare. The Comcare chief executive may or may not then issue a certificate with whatever conditions are deemed necessary, with validity for a fixed period of 12 months. Finally, the bill also provides for employers to conduct the election of employee health and safety representatives, a role previously conducted by a union or a person specified by the soon to be abolished National Occupational Health and Safety Commission.

In 2000 and 2002 the government failed to outline a sound analysis as to why the current provisions and policy approach of the act needed to be changed. In 2005 nothing has changed. In his second reading speech on 23 June, the Minister for Employment and Workplace Relations stated:

The Australian government believes strongly that safe and productive workplaces rely on a cooperative approach between employers and employees to identify and eliminate hazards that may cause injury or death.

Obviously this cooperative approach does not extend to the inclusion of unions in public sector occupational health and safety matters and institutions. Occupational health and safety matters are best developed through the tripartite processes involving unions, employers and employees based on the longstanding Robens model. This bill dismantles this tripartism and that approach, making it more difficult for employees to be adequately represented in these vital occupational health and safety matters.

Academic evidence suggests a very strong link between union presence and involvement and improved occupational health and safety outcomes. In his July 2003 paper entitled Workplace arrangements for health and safety in the 21st century Professor David Walters outlined international research that clearly demonstrates that active and organised workers’ representation is effective in ameliorating workplace hazards, that better standards are achieved in unionised workplaces than in non-unionised workplaces, that trained representatives stimulate and participate in workplace occupational health and safety structures and procedures and tackle new occupational health and safety issues, that work force participation in health and safety decisions is one of several factors related to lower claim rates and, finally, the empowerment of the work force was shown in Canadian studies to be one of the organisational reasons consistently related to lower injury rates. Empowerment in this situation includes the presence of unions, union support for worker members of joint health and safety committees and general worker participation in decision making.

These conclusions are further supported by Johnstone, Quinlan and Walters in their 2004 report Statutory occupational health and safety workplace arrangements for the modern labour market. They quoted a range of international and Australian studies. They said:

While there is considerable variation in the detail of these findings, taken collectively, they all lend support to the notion that joint arrangements, trade unions and trade union representation on health and safety at the workplace are associated with better health and safety outcomes than when employers manage occupational health and safety without representative worker participation.

This bill proposes to remove all references to unions from the act. This effectively means that the role a trade union currently fulfils may be replaced by workplace staff associations. A workplace staff association may merely be a social club and may not fulfil the requirements mandated of a trade union, such as being democratic and independent. As such, by devolving responsibility from unions to employee representatives, as this bill proposes, strong occupational health and safety processes and outcomes will become increasingly difficult to enforce.

The government intends to throw employees back on their own resources instead of using the occupational health and safety expertise built up by unions and their membership over many years. Employee representatives will lack the independent information and assistance currently provided by unions, while representatives themselves are likely to be less forthcoming in occupational health and safety negotiations with their employers. As an example, unions currently protect workers who may be afraid to raise certain occupational health and safety issues with their immediate supervisors. At present, workers can take such issues to the union and protect themselves from any personal repercussions. This will no longer be the case under the provisions of this bill.

Furthermore, the proposal that a union member must seek permission from a public official—the Chief Executive of Comcare—who may or may not agree to involve a union representative in occupational health and safety matters is more likely than not to be a breach of the terms of ILO Convention 87, freedom of association, to which Australia became a party in 1973. Finally, the bill proposes that employers, not employees, control the election of employees’ occupational health and safety representatives. This provision is a blatant attempt to ostracise unions from the occupational health and safety processes within Australian public sector workplaces.

In the area of workplace relations the Howard government consistently talks about choice. It is ironic then that this bill seeks to curtail the choice of Australian employees working in the public sector to be represented by a union in occupational health and safety matters. This bill represents the government’s third legislative attempt to deny Australian employees the basic and fundamental right to be represented by a union, if they so choose, in occupational health and safety matters. As such, it is driven by the government’s extreme ideology rather than by any sense of sound public policy outcomes.

Australian trade unions have a strong track record of protecting employees from unsafe work practices and places. It is clear that health and safety outcomes are dependent upon higher levels of worker participation and union support. Based on the research that I referred to earlier, removing the role of unions and replacing them with management driven processes will lead to less safe and less healthy workplaces.

Unions have a legitimate role to play in the monitoring and enforcement of occupational health and safety matters in the public sector. Unions exist as a very important and necessary safeguard. I use the word ‘safeguard’ because many occupational health and safety issues are already dealt with on a one-on-one basis in the workplace, between employees and/or between employees and their managers or supervisors. There are already many examples where occupational health and safety issues arise on a daily basis and employees, between themselves or with their managers, resolve them efficiently and expeditiously.

In such cases, the involvement of unions as a third party is not a prerequisite and often does not occur because it is often not required or requested. There is no mandatory involvement of unions in such issues as the government would have us believe. We already have both union and non-union employees working cooperatively with management and achieving successful results in improving occupational health and safety standards, so the government’s attempt to ostracise unions entirely from these matters is comprehensible only if one appreciates the government’s ideological approach in these matters.

The changes contained in this bill are so unashamedly anti-union, based as they are on that extreme ideological view, that neither an individual trade union nor the organised trade union movement has a role to play in occupational health and safety matters in the workplace. Mr Deputy Speaker, I simply put to you the illustration of the trade union movement coming to the assistance of the victims of James Hardie. Just ask yourself this simple question: where would the asbestosis and mesothelioma victims of James Hardie have been without the assistance of the trade union movement? I did not see employer associations come to the rescue of the victims of James Hardie. I did not see the Prime Minister, I did not see the Treasurer and I did not see the Minister for Employment and Workplace Relations. It fell to the organised trade union movement to come to the defence of fellow Australians to ensure some semblance of justice was done. If for no other reason, that in itself is justification of the legitimate role of the trade union movement in today’s economic and social affairs—in particular, involvement in today’s workplaces and especially when that relates to occupational health and safety.

The government does not see it this way—a point that becomes clear when one examines this bill. That should come as no surprise to those who have followed the Prime Minister’s 30 years of public life and views about public policy. Workplace health and safety must be a priority. It must be adequately resourced for employers and employees to enforce effective occupational health and safety rules and regulations. This is incumbent upon everyone in the workplace because no-one wins if working conditions deteriorate or when workplace accidents or fatalities occur. This bill is ill-conceived. It is nothing more than an ideological attack on unions, with no public policy benefit. This parliament should reject it.