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Wednesday, 29 March 2006
Page: 169


Mr HENRY (10:20 AM) —The Productivity Commission’s report No. 27, National workers’ compensation and occupational health and safety frameworks, recommended that the Australian government amend the Occupational Health and Safety (Commonwealth Employment) Act to enable those employers who are licensed to self-insure under the Comcare scheme to elect to be covered by the Australian government’s occupational health and safety legislation. The OHS and SRC Legislation Amendment Bill 2005 implements the government’s response to that Productivity Commission report. Corporations licensed under the Safety, Rehabilitation and Compensation Act 1988 will also be covered under the Occupational Health and Safety (Commonwealth Employment) Act 1991.

This bill ensures that all Safety, Rehabilitation and Compensation Act licensees, both corporations and Commonwealth authorities, are covered by the Occupational Health and Safety (Commonwealth Employment) Act for occupational health and safety purposes. At present, Commonwealth authorities and licensed private sector corporations which operate under the Commonwealth workers compensation scheme are covered by state and territory occupational health and safety legislation within the jurisdictions in which they operate. This makes it unnecessarily difficult for many firms to develop a national approach to occupational health and safety and can result in the requirement that they comply with eight separate and quite distinct occupational health and safety jurisdictions.

The amendments in this bill will provide all licensees under the Safety, Rehabilitation and Compensation Act with the benefits of operating under one occupational health and safety scheme, together with integrated prevention, compensation and rehabilitation arrangements. This will produce better health and safety outcomes all round for the employees of the affected bodies. These amendments will enable greater coordination and feedback between the workers compensation and the occupational health and safety arrangements. The time and resources currently expended in addressing jurisdictional boundary disputes caused by multiple compliance regimes can be better redirected to achieve greater overall efficiencies.

Importantly, savings can be devoted to further improving health and safety in the workplace. All Safety, Rehabilitation and Compensation Act licensees will be covered by the Occupational Health and Safety (Commonwealth Employment) Act. These will include Commonwealth authorities and non-Commonwealth licensees. The title of the Occupational Health and Safety (Commonwealth Employment) Act will be amended to the Occupational Health and Safety Act 1991. This will take into account that non-Commonwealth entities will now be covered. It will ensure Comcare’s ability to levy from all Commonwealth authorities a contribution towards the administration of the occupational health and safety act. As it currently stands, the definition of a Commonwealth authority is different in the Safety, Rehabilitation and Compensation Act. This prevents Comcare from levying a contribution from entities not covered by the Safety, Rehabilitation and Compensation Act but covered by the Occupational Health and Safety (Commonwealth Employment) Act.

It is important that this bill be introduced in order to (a) provide certainty to Telstra in the event that they are fully privatised—the Telstra (Transition to Full Private Ownership) Bill 2003 removed Telstra from schedule 1 of the Occupational Health and Safety (Commonwealth Employment) Act, so it is no longer deemed to be a government business enterprise for the purposes of the act; and (b) provide coverage for Optus, which, although self-insured under the Comcare scheme, does not have coverage under the Occupational Health and Safety (Commonwealth Employment) Act because it does not fit the definition of a Commonwealth authority or government business enterprise.

Recent mischievous campaigns against the Workplace Relations Amendment (Work Choices) Act 2005 have incorrectly asserted that workplace safety will be compromised by promoting greater flexibility in the workplace. While Work Choices will result in more workers moving to the federal industrial relations system, the reforms will not impact on state and territory jurisdiction over workers compensation and occupational health and safety.

Legislation imposes a duty of care on employers to protect the health and safety of their employees. This duty of care includes providing a safe working environment and safe systems of work and encompasses risks associated with fatigue. As is currently the case, employers, employees and their representatives will need to be conscious of their responsibilities under the occupational health and safety legislation in negotiating any change to working hours arrangements, including overtime and rest breaks.

The economic cost of workplace accidents to workers, employers and the community is currently estimated to be in excess of $30 billion annually or some five per cent of gross domestic product. The responsibility for this must be shared by all stakeholders. We must all act to make continual improvements. The answer is not to introduce laws that are punitive and which punish the employer above all else. The best way to address this issue is by promoting a culture where there is greater cooperation between employers and their employees. In this respect, it is the Commonwealth that is leading the way in promoting an environment in which employers and employees are encouraged to take a cooperative approach to identifying and eliminating hazards that may cause injury or death.

The Australian government is strongly committed to improving occupational health and safety outcomes in all Australian workplaces. Improvement in Australia’s occupational health and safety performance can be achieved through governments, employers and employees taking a cooperative and non-adversarial approach to workplace health and safety issues. The coalition—


Dr Emerson —Mr Deputy Speaker, in accordance with the standing orders, I would like to ask the member for Hasluck a question in relation to the legislation.


The DEPUTY SPEAKER (Mr Wilkie)—Will the member for Hasluck accept a question?


Mr HENRY —No, I will not. The coalition has a proud record regarding its commitment to improving occupational health and safety in every Australian workplace. The coalition further demonstrated its commitment in this area by initiating the development of the National Occupational Health and Safety Strategy in 2002. Signatories to the strategy, along with the Australian government, included all state and territory governments as well as the ACTU and the Australian Chamber of Commerce and Industry. The strategy seeks to improve Australia’s occupational health and safety performance over the next decade. In addition, it will foster sustainable and safe enterprises that prevent work related death, injury and disease.

The strategy set down five important national priorities: reducing high incidence and severity risks, improving the capacity of business and workers to manage occupational health and safety, preventing occupational disease more effectively—


Dr Emerson —Mr Deputy Speaker, the point I wish to raise and on which I would like to ask a question is whether the member can assure small businesses of Hasluck that this legislation will not adversely affect them.


The DEPUTY SPEAKER —Does the member for Hasluck accept the question?


Mr HENRY —No, I do not. The last two important national priorities are eliminating workplace hazards at the design stage and strengthening the capacity of governments to influence better occupational health and safety outcomes.

In a country with 10 million workers, many employers ask why there are eight different and quite separate occupational health and safety and workers compensation jurisdictions. This is exacerbated by the fact that there appears to be very little in the way of consistency and uniformity across the various schemes. A number of major national corporations have made their frustrations known. The National Australia Bank has previously complained about the fact that the current state based systems result in the bank dealing with eight different pieces of legislation which provide eight different levels of benefit and eight different definitions of injury.

In order to improve national frameworks for occupational health and safety and workers compensation consultation, the government undertook to establish the Australian Safety and Compensation Council—the ASCC. The ASCC includes representatives from Commonwealth, state and territory governments as well as employer and employee groups. It provides a new opportunity to coordinate workers compensation on a national level. Unlike the National Occupational Health and Safety Commission, which it replaces, the ASCC will consider both occupational health and safety and workers compensation matters. Its main role will be to coordinate research and provide policy advice to the Workplace Relations Ministers Council. This is a national council comprised of the federal workplace relations minister and the state and territory counterparts. The ASCC met for the first time in October to discuss the council’s future priorities for moving Australia towards a more nationally consistent workers compensation framework.

Labor will oppose the bill for the sake of opposing it. They will do the bidding of the Labor states and territories, who are opposed to any corporations being able to self-insure under the Commonwealth’s Comcare scheme.

It is to be acknowledged that the unions have played an important role in the promotion of health and safety in the workplace. The ACTU played a central role in the National Occupational Health and Safety Commission and will continue to do so through the ASCC. However, I do not agree with comments made by the previous speaker, the member for Oxley, about the responsible involvement of unions in occupational health and safety. It has been very disappointing to see that the union movement has attempted to cynically exploit the grief and misfortune of people who are injured or killed in workplace accidents. I refer to the ABC’s Lateline, where the President of the ACTU, Sharan Burrow, was filmed at an ACTU campaign meeting saying:

I need a mum or a dad of someone who’s been seriously injured or killed. That would be fantastic.

Does that really demonstrate a responsible approach to occupational health and safety? I think not. Unfortunately, this demonstrates that the ACTU’s disregard for the wellbeing of workers even extends to taking advantage of family tragedies. What does it say about the union movement’s concern for workers and their families when its president states that a grieving family would be fantastic for her campaign?

The New South Wales government recently passed the Occupational Health and Safety Amendment (Workplace Deaths) Bill, where employers face up to five years jail and a $165,000 fine if they are convicted of causing the death of an employee through recklessness. It is of considerable concern that breaches of such serious and punitive laws, be they civil or criminal, are dealt with by the New South Wales Industrial Relations Commission and not a court. This state of affairs will continue, given that the New South Wales Court of Appeal recently found that there was nothing to prevent the New South Wales Industrial Relations Commission from hearing such matters.

It is even more disturbing that, under the New South Wales occupational health and safety laws, unions can prosecute employers for workplace occupational health and safety breaches and, if successful in their action, receive up to half of the fines awarded and have their legal bill paid by the employer—a great state of affairs! The New South Wales Industrial Relations Commission has fined the ANZ Bank over armed robberies at their branches, after action brought by the Financial Services Union. Patrick Stevedores were subject to an MUA prosecution for work practices that risked repetitive strain injury. New South Wales coalminers have been hit for using misleading maps prepared by the New South Wales government.

The New South Wales Labor Party is financially beholden to the union movement and relies on substantial donations from unions. When we look at this, we see that it is no coincidence that the Financial Services Union and the MUA have donated over $350,000 to the New South Wales Labor Party since 1995. This perverse situation exists only in New South Wales. In every other jurisdiction, only the relevant workers compensation authorities can prosecute for alleged breaches of work safety laws.

The Victorian government has also introduced the offence of reckless endangerment in its Occupational Health and Safety Act, carrying a potential prison sentence and large financial penalties. These states are essentially using occupational health and safety legislation to introduce industrial manslaughter laws by stealth. At least the ACT government has been more upfront in its intentions and has introduced the criminal offence of industrial manslaughter, which singles out employers for punishment despite the fact that some factors influencing occupational health and safety may be outside the employer’s control. This will serve only to discourage employers and employees from developing appropriate workplace relations and partnerships to address safety issues to ensure a benefit for all. Employers and employees will focus on defending themselves rather than progressively moving to cooperatively ensure safer workplaces.

Governments at all levels must be wary of seeking to amend or impose legislation which only serves to create uncertainties for employers. This government has introduced the Occupational Health and Safety (Commonwealth Employment) Amendment (Promoting Safer Workplaces) Bill 2005 to exclude Commonwealth employers and employees from the application of the ACT industrial manslaughter laws or similar laws enacted in the future by other states and territories.

The Commonwealth Safety, Rehabilitation and Compensation Act allows eligible non-government corporations which meet stringent criteria to self-insure through the Commonwealth workers compensation scheme administered by Comcare. Self-insurance through Comcare enables businesses to be covered by one set of workers compensation regulations across all of Australia. For companies that employ staff across a number of jurisdictions, this is an understandably attractive prospect. The Australian government workers compensation scheme is the only scheme that provides single self-insurance arrangements, reducing costs and their compliance burden. This benefits employees by giving them access to a consistent benefit regime irrespective of their work location across Australia.

Optus were granted a self-insurance licence allowing them to self-insure through Comcare. This was in spite of considerable opposition and obstruction from the Victorian government, which tried on several occasions to stop Optus from self-insuring through Comcare and has most recently mounted a challenge on constitutional grounds which has now headed inextricably to the High Court. South Australia and Queensland will also join Victoria in this action.

If the states have an objection to companies seeking to leave their schemes and self-insure through Comcare then the onus is clearly upon the states to work together with the Australian government through the ASCC to put in place consistent and uniform self-insurance arrangements. The states and territories have to face up to the fact that, while there are eight separate workers compensation jurisdictions that provide little if anything in the way of consistency and uniformity, more and more multistate employers will seek to move to the Commonwealth scheme. I therefore support the amendment bill.