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Wednesday, 29 March 2006
Page: 164


Mr RIPOLL (10:00 AM) —Labor opposes the OHS and SRC Legislation Amendment Bill 2005. Like the government’s extreme industrial relations legislation more generally, this bill has at its heart the stripping away of the terms and conditions of our workforce. Labor is driven by a desire for genuine improvements in the area of occupational health and safety across Australian workplaces. Unfortunately, this legislation risks diminishing the occupational health and safety conditions in our national workplaces. The OHS and SRC Legislation Amendment Bill 2005 is the latest in a number of amendments made to OH&S legislation by this government. It follows on from previous OH&S legislation introduced by the government since the election in 2004, which includes the National Occupational Health and Safety Commission (Repeal, Consequential and Transitional Provisions) Bill 2005 and the Australian Workplace Safety Standards Bill 2005, which were dealt with together; the Occupational Health and Safety (Commonwealth Employment) Amendment Bill 2005; and the Occupational Health and Safety (Commonwealth Employment) Amendment (Promoting Safer Workplaces) Bill 2005. Labor opposed each of these bills, and for good reason. Each of these occupational health and safety bills reduced, compromised or put at risk the occupational health and safety conditions of Australian workers in their workplaces.

The bill we are debating today is no different. The bill before us is the government’s response to recommendations by the Productivity Commission that changes in this area were needed. Historically, the overriding objective in the evolution of OH&S policy in this country has been the prevention of workplace injury and illness. This has been a principle that has historically underpinned state and federal legislation in this area. Of course, over time this has led to the evolution of different OH&S regulatory regimes and workers compensation schemes across Australia.

Given that the total economic cost of work related fatalities, injuries and illnesses to the Australian economy is in excess of $31 billion every year, this should perhaps be of little surprise. We expect that for those employers with operations around the country, complying with different state based legislative requirements can be a significant cost burden also. It is logical that national uniformity in OH&S regulation should be a priority objective. Looking at the existing system, it is understandable that changes in this area are warranted—which brings us to the detail of the bill itself.

It is worth mentioning the operation of the two acts which this amendment bill seeks to amend. Currently the Safety, Rehabilitation and Compensation Act allows for premium based workers compensation schemes for Commonwealth employees. Importantly, it enables former Commonwealth authorities and eligible private sector corporations to obtain a licence to self-insure under the scheme. Most Commonwealth authorities are covered by both the Safety, Rehabilitation and Compensation Act and the Occupational Health and Safety (Commonwealth Employment) Act. Former Commonwealth authorities can remain covered by the provisions of the Safety, Rehabilitation and Compensation Act by obtaining a self-insurance licence. Failing this, under the current system, they default to coverage under the relevant state or territory workers compensation legislation. In the event that the Commonwealth retains at least a substantial interest in a corporation, that corporation could remain covered by the Occupational Health and Safety (Commonwealth Employment) Act by virtue of its meeting the definition of a Commonwealth authority under that act, whereas a former Commonwealth authority cannot be covered by the Occupational Health and Safety (Commonwealth Employment) Act.

While it is the case that private corporations can currently be licensed under the Safety, Rehabilitation and Compensation Act—and there are currently five, employing approximately 15,000 people, according to figures provided to Comcare—it is also the case that they are not subject to the Occupational Health and Safety (Commonwealth Employment) Act. OH&S obligations for these corporations are provided by the different state and territory OH&S legislative frameworks. Similarly, in the case of privatised former Commonwealth authorities, while they retain Safety, Rehabilitation and Compensation Act coverage there is no scope for coverage under the OHS(CE) Act, therefore preventing former Commonwealth authorities licensed under the Safety, Rehabilitation and Compensation Act from having integrated occupational health and safety and workers compensation arrangements.

Under this situation, the OH&S arrangements directed to the prevention of workplace injury are also subject to state and territory OH&S legislation while rehabilitation and workers compensation arrangements are subject to Commonwealth legislation. In other words, while certain private sector corporations can retain or obtain workers compensation coverage under the Commonwealth scheme through a self-insurance licence, there is no corresponding mechanism for them to obtain coverage under the Commonwealth occupational health and safety scheme itself.

The OH&S (Commonwealth Employment) Act provides the legal basis for the protection of the health and safety of Commonwealth employees. It does not, however, apply to former Commonwealth authorities and private sector corporations that become licensed self-insurers on account of the fact that they are not Commonwealth employers. This has created the situation where former Commonwealth authorities and licensed private sector corporations currently operate under the Commonwealth workers compensation regime but are covered by relevant state and territory occupational health and safety legislation in the jurisdictions in which they operate. In the current circumstances, corporations which could consider applying for Safety, Rehabilitation and Compensation Act coverage but are unable to be covered by the OH&S (Commonwealth Employment) Act are as follows: Commonwealth authorities in the process of privatisation which wish to continue their workers compensation coverage post privatisation through the SRC Act licensing arrangements, former Commonwealth authorities that have left the Commonwealth scheme and operate under state or territory schemes but are unable to return to the SRC Act coverage after ministerial declaration and SRC Commission approval of a licence application, and corporations which operate in competition with existing or former Commonwealth authorities.

Under the SRC Act, the minister currently has the ability to declare that corporations carrying on business in competition with an existing or former Commonwealth authority are eligible to apply for a self-insurance licence. In the event that such competitors were to be licensed under the Safety, Rehabilitation and Compensation Act for workers compensation purposes they would still remain covered by state and territory OH&S safety legislation. The Productivity Commission argued in its inquiry report that this situation may place those businesses at a competitive disadvantage where they would be required to comply with up to eight separate sets of state and/or territory occupational health and safety legislation and associated compliance costs, compared to a Commonwealth authority which is subject to the Commonwealth regulatory framework. In other words, the Commonwealth legislation is seen as providing a barrier to competitive neutrality for those corporations. It is of little surprise, then, that in its report National workers’ compensation and occupational health and safety frameworks of 2004 the Productivity Commission recommended that the Australian government amend the Occupational Health and Safety (Commonwealth Employment) Act to enable corporations that are licensed to self-insure under the Australian government’s workers compensation scheme to elect to be covered by the Australian government’s occupational health and safety legislation.

The Productivity Commission considered that this would increase the administrative savings for multistate corporations and allow for greater coordination and feedback between the workers compensation and OH&S regimes. Indeed, as the Productivity Commission itself observed in its report National workers’ compensation and occupational health and safety frameworks of 2004, this can make it difficult for business with national operations to develop a national approach to OH&S. The government’s response to this has been to support the Productivity Commission’s recommendation ‘to enable those employers who are licensed to self-insure under the Australian government’s workers compensation scheme to elect to be covered by the Australian government’s occupational health and safety legislation’ with the modification that there should be mandatory coverage under the OH&S(CE) Act for non-Commonwealth employers who gain a self-insurance licence under the SRC Act. As a consequence, the amendment bill before us seeks to extend coverage of the OH&S (Commonwealth Employment) Act to multistate employers while licensed under the Safety, Rehabilitation and Compensation Act 1998 for self-insurance purposes.

The bill also seeks to ensure that Commonwealth authorities licensed under the Safety, Rehabilitation and Compensation Act but not covered under the OH&S (Commonwealth Employment) Act are then covered by that act. The bill makes provision to allow Comcare to charge all Commonwealth authorities an occupational health and safety contribution for the administration of the Occupational Health and Safety (Commonwealth Employment) Act and would also validate payments purported to have been made under the SRC Act by some licensees and Commonwealth authorities for OH&S contributions in the 2002-03 financial year. The OHS and SRC Legislation Amendment Bill 2005 seeks to allow corporations licensed as self-insured under the Safety, Rehabilitation and Compensation Act 1998 to be covered under the OH&S Safety (Commonwealth Employment) Act 1991, administered by Comcare.

The government has also sought to make other amendments. Some amendments seek to correct a drafting oversight in amendments made in 2001 to both the SRC Act and the OH&S (Commonwealth Employment) Act. Those amendments placed the provisions for regulatory contributions for both acts in the SRC Act itself. However, because both those acts contain different definitions of ‘Commonwealth authority’, a regulatory contribution towards the costs of administering the OH&S (Commonwealth Employment) Act cannot currently be charged to some Commonwealth authorities covered by the OH&S (Commonwealth Employment) Act but not by the SRC Act itself. These amendments seek to correct this and certify payments already made for the year 2002-03. The 2001 amendments also reorganised the licensing arrangements under the SRC Act and introduced one generic licence. As a result, some licensees were charged and paid licence fees for the year 2002-03 under the wrong licence provisions. While the amounts were later recalculated under the correct provisions, the amendments will also certify those licence fees as originally paid.

Under the government’s proposal, the costs borne by Comcare to administer the OH&S (Commonwealth Employment) Act in relation to private sector corporations would be covered by an OH&S contribution included in the corporation’s self-insurance licence fee. OH&S contribution costs would not be borne by the Commonwealth from revenue. The government argues that it is preferable to have an integrated approach to workers compensation and occupational health and safety by providing for all organisations covered by the SRC Act through the licensing arrangements to be covered concurrently by the OH&S (Commonwealth Employment) Act.

The government argues that its own OH&S regime should open up access to give those businesses granted a self-insurance licence under the SRC Act scheme a single set of national occupational health and safety rules. Taken in isolation, the government’s amendments seeking to create a uniform national occupational health and safety regime appear to be a sensible housekeeping measure. However, as with all things to do with industrial relations, the effects of the government’s changes are a double-edged sword. There may be significant merit in introducing a simplified national system for occupational health and safety reasons but, as drafted, these changes unreasonably diminish occupational health and safety conditions.

To prove this point, any detailed consideration of this bill must be done in conjunction with earlier government amendments made to the Occupational Health and Safety (Commonwealth Employment) Amendment Bill 2005, which removed the need for employers—government agencies—to negotiate occupational health and safety agreements with unions and employees through the introduction of so-called management arrangements. Labor opposed those amendments because, firstly, through the introduction of the so-called management arrangements, they removed the need for government agencies to negotiate occupational health and safety agreements with unions and employees; secondly, they removed all references to unions and replaced them with ‘employee representatives’, defined as either a registered organisation or a workplace staff association, who must now be invited into the workplace by an employee; thirdly, they required that an employee invite an employee representative to initiate an occupational health and safety investigation of a workplace, where previously a union could make such a request directly to Comcare; fourthly, they required that employee representatives involved in developing OH&S management arrangements be issued with a certificate, valid only for a 12-month period, by the Chief Executive Officer of Comcare; and, finally, they empowered employers to conduct the election of employee health and safety representatives, a role that was previously conducted by a union or a person specified by the National Occupational Health and Safety Commission, which the government has abolished.

On top of these concerns, we on this side are also concerned about a number of negative implications in the government’s actions through this proposed bill. These include the fact that entitlements under Comcare may vary compared to those of other states and territories; that the movement of large, multistate employers to the Comcare administered national system could mean that premium revenue would be lost by the states and territories, leaving employers who remain in state and territory systems facing higher premiums in the future; and that a reduction in premium pools in states and territories, in turn, would place increased pressure on entitlements for injured workers and employees. We are also concerned about the privacy considerations of individual employees. Human resources departments of employers who self-insure will have access to information on employees that, under state and territory schemes, only insurance companies would have access to.

In conclusion, Australian trade unions have a strong and long track record of protecting employees from unsafe work practices and places; in this country, there is a huge need for that to continue. Unfortunately, this legislation takes the same approach followed by the government’s broader approach to industrial relations changes, which is to delegitimise the role of unions in the workplace—the role of workers’ representatives. The combination of the OHS and SRC Legislation Amendment Bill 2005 with the Occupational Health and Safety (Commonwealth Employment) Act 1991, as amended in 2005, has very serious implications for the future involvement of organised labour in occupational health and safety issues at the workplace level.

Taken together with the amendments made to the Occupational Health and Safety (Commonwealth Employment) Act 1991, the OHS and SRC Legislation Amendment Bill 2005 will extend limitations on union participation in occupational health and safety issues to non-Commonwealth, multistate employers who successfully apply for a self-insurance licence under Comcare. This is bad news for Australian workers and, ultimately, it is potentially bad news for Australian workplaces as well. It is clear that health and safety outcomes are dependent on high levels of worker participation and union support; they are also highly dependent on cooperation in the workplace. Simply put, removing the role of unions and replacing it with a management driven process, which will lead to less safe and less healthy workplaces, is just not good.

As I have said in this place when debating the government’s amendments to occupational health and safety legislation, unions have a legitimate role to play in the monitoring and enforcement of occupational health and safety matters in the public sector. However, it is not just the public sector where the role of unions is important. Despite what this government may want to think, unions have a legitimate and very important role to play in occupational health and safety matters also in the private sector. While in many instances the involvement of the union will not be warranted, it is undeniable that they exist as a safeguard for the protection of occupational health and safety terms and conditions. By extending the coverage of the Occupational Health and Safety (Commonwealth Employment) Act to multistate national employers, the government is effectively seeking to bar union involvement in those workplaces covered by this legislation. That is completely unacceptable and it is why we oppose this legislation.