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Thursday, 16 May 1985
Page: 2040


Senator COOK(10.56) —This is a resumption of the debate on the National Occupational Health and Safety Commission Bill 1985, a Bill which sets up the National Occupational Health and Safety Commission, the National Occupational Health and Safety Office and the National Institute of Occupational Health and Safety, as well as providing for national standards of codes and practices. When I was cut off in my prime last night before completing my address I was replying to some remarks by Senator Sheil. I think I replied to them all, but before I move to the substantive debate I should say to Senator Sheil that this is the only area I am aware of where the Queensland Government and the Australian Council of Trade Unions agree. For a National Party senator that might have been a persuasive reason why he would find the charity within himself to support this Government measure. In terms of observers of politics, I think it is a rarity to get such a wide cross-section of consensus. On this occasion the magical consensus has been found. The Queensland Government, in common with all other State governments, the main employer bodies, the union movement and the Commonwealth Government all agree on this legislation. Only the Opposition disagrees, and it is a rather ingenuous Opposition indeed.

I return to the substantive debate. Occupational health and industrial democracy are two features of the ACTU-Australian Labor Party prices and incomes accord. That accord is responsible for underpinning the Government's economic policies. It is the key player in bringing inflation down and reducing industrial dispute. Last year it caused the Government to achieve an economic growth rate of 5.1 per cent compared with an economic growth rate in the last year of the Fraser administration of 0.9 per cent. It is the basis on which this country's economic progress has been built. One aspect of the accord is that the Government is to proceed with occupational health and safety legislation. It has done so by taking that matter to the National Labour Consultative Council, a tripartite body, reaching an agreement with all the main players in industrial relations, resulting in this legislation. That should be fundamentally recognised as a strong basis for this legislation gaining comprehensive support in this Parliament.

The legislation proposes not to enforce standards but to provide a mechanism in which national research information evidence can be taken as to what standards should exist, setting an example through those standards to encourage industry, including unions and employers, to live up to those standards and improve the general occupational health and safety provisions in our wider community. For anyone who is interested in the industrial relations debate-and I know that a number of Opposition senators often parade themselves as experts on that subject-one key matter that should be emphasised in industrial relations is finding areas in which employers and unions can agree and, by developing those agreements, encouraging a greater feeling of trust to emerge between both parties, a better rock upon which to build a firmer understanding where there is dispute. If a reservoir of trust or goodwill is established by working together positively in areas in the mutual interests of both parties, that reservoir of goodwill which can help resolve complex and difficult disputation when it arises can only be to the good. If one casts around one's mind for areas of mutual interest, certainly one is training and improvement of skills in industry, including apprenticeship training, and overwhelmingly the area of occupational health and safety is another.

I would have expected more support from the Opposition for this legislation. It represents an effort in the work place, backed by government, aimed at the emergence of a greater degree of co-operation at the coal face of industrial relations, on the shop floor. That must improve the general standard of industrial relations in Australia as well as lower the loss time to industry and avoid the necessity for people to suffer the debilitating accidents that occur, the diseases that arise and, unfortunately, in many cases the deaths that occur. Some 300 people were killed last year when working in industry in Australia.

Having made those points, I am somewhat perplexed that the general thrust of the Opposition's position is that nothing should be done. Opposition members commiserate and articulate a general concern about the matter but oppose this legislation. They suggest that it is best to let the market decide. One normally could understand that view from the Opposition, but there is a clearly established need for standards to be set to provide some leadership to the market. If that had not been the case in the past, we would have the exploitative behaviour-not by all but by some employers-which has resulted in gross exploitation, gross dereliction of safety requirements and diseases developing in industry which are not desirable. This legislation provides the leadership on a tripartite basis to help employers and unions lift their game and save this nation a major and debilitating loss to its productivity from industrial accidents and disease.

I turn to some of the major arguments used in opposition to this legislation by coalition speakers. One of the main themes in the remarks of Opposition members is that this Bill represents an attack by the Labor Party on employers. That is a ridiculous assertion, but Opposition speakers have paraded this fiction under a number of headings and tried to portray ALP members as haters of employers. That is not a credible proposition anywhere, and certainly not in this chamber. The Hawke Labor Government has done more than any previous government to provide formal recognition of employer organisations. It was this Government which set up the Economic Planning Advisory Council and which gave employer organisations a role in helping to manage the economy by harnessing the intelligence, goodwill and enthusiasm of the social partners and in getting a more consensus oriented approach to the economic settings for Australia. There are a number of other examples of cases in which this Government has given formal recognition to employers in order that they may play their role more effectively on behalf of their own organisations.

The other point that makes a mockery of the allegation that this is an attack on employers is, of course, the very fact that employers agree with this legislation. I vividly recall the time when I was fortunate and privileged to be a member of the National Labor Consultative Council, chaired by the then Minister for Employment and Industrial Relations, Mr Macphee. It was the employers-my recollection is that this came from Bryan Noakes, who is now in the Confederation of Australian Industry-who raised in the first place the suggestion that legislation of this type was necessary. This Government is bringing to fruition an initiative that the employers themselves undertook. The other aspect that make ridiculous the argument that this is an attack on employers is that although this legislation is an attack on some employers, the responsible organisation of employers, the Confederation of Australian Industry, recognises that unfortunately, as in any general organisation representing many interests, some do not play the game. Most of them do, and the Confederation wants to see the standards and respect of those who do the right and proper thing upheld, and the singling out of those who do not play the game. They should not have a competitive advantage over those who do things properly simply because they cut corners and avoid health and safety regulations which would protect the work force. There are some employers, it must be admitted, who do not play the game, and the employers themselves argue that such people should be brought to book and made to observe the standards. I think no one would argue that something ought not to be done about employers who do not observe safety provisions, who are, in fact, quite happy to acquiesce to industrial diseases spreading in their industry or who have a high accident rate, because they tarnish the image of employers generally. As I have said, most employers are conducting themselves in a proper way. The ones who are not are dragging down the general image and they are the ones about whom this legislation is concerned.

Having dealt with that proposition, let me deal with an argument developed by the Opposition spokesman for employment and industrial relations, Mr Peter Shack, in the House of Representatives. He battened on to what he regarded, in his reply to the second reading speech, as a defect in this legislation. The tenor of his remarks was that clause 38, which he singled out, would enforce unnecessary regulation upon employers, the emphasis being on the word 'enforce'. If one reads the qualifications in the speech of Mr Shack one can see that he made ridiculous his own proposition. He acknowledged that clause 38 of this legislation provides for standards to be agreed upon and that the standards and codes are advisory only. I think it is useful to go to the explanatory memorandum to see exactly what clause 38 is about. That memorandum describes it in these terms:

The Commission's principal functions under this Bill are to investigate occupational health and safety matters; to collect, compile and analyse the best available information; and, through this process, to declare national standards and codes of practice.

It is this provision that Mr Shack and other speakers from the Opposition find objectionable. I think that the terms of the provision indicate that it is eminently reasonable. It is only because Mr Shack finds that it might be somehow sneakily possible for unions to insert in awards what those declared national standards are, that Mr Shack sees a way for something awful to happen. I think that is a ridiculous proposition. The codes and the standards that would be declared by this Commission, given its composition, would be agreed to tripartitely and with medical, ergonomic and other expert evidence as well. The standards that are to be agreed on are standards of which all the key players in the industrial relations field would approve. That is the first point.

The second point is that if those standards were to find their way into awards-that is a quite proper thing to occur-they would do so by consent and agreement between unions and employers in a particular work place. Indeed, that may be a very good thing to have happen in order to develop those standards more and more and to apply, modify and shape those standards to suit the needs of an award or industry. But I make the point that they would find their way into awards by consent. The other possible way in which they would find their way into awards would be by arbitration. Knowing the record of the Australian Conciliation and Arbitration Commission on these matters-it is a record in which the Commission is constantly cautious and conservative-I believe it would move and be persuaded to impose those standards by arbitration only if there was a serious record of neglect or a serious accident problem in an area. Then and only then could it be moved, on the basis of the facts and the record, to do something about trying to lift the game in that industry.

In regard to Mr Shack's argument I conclude by citing one other thing and that is that, in fact, most reputable employers impose standards upon themselves which are in advance of the standards that this legislation might cause to be proclaimed. They do so because they recognise, fundamentally, that it is better to have a safe work place in order to lower the overheads due to workers compensation insurance and the costs of lost time to their industry, not to mention the damage to their own work force caused by accidents or disease, and they self-regulate effectively. Those employers would not be at all worried by any standards that might be imposed by award arbitration on employers who do not observe the reasonable levels of behaviour. Those employers drag down the whole accident rate and those unreasonable employers-the corner-cutters-are the ones who need to be prodded into, in fact, conducting themselves in a good and proper way if they are to help this economy to develop by removing the debilitating burden of accidents that reduce our productivity levels.

There is another and, I think, interesting argument. It was referred to by Senator Sheil yesterday. I did not have the pleasure of hearing Senator Messner's address, but doubtless he would have referred, because, indeed, Mr Shack did, to the argument of the reversal of onus of proof. Senator Sheil intimated that the reversal of onus of proof is a disgusting thing to have in legislation. I say quite clearly that the reversal of onus of proof is, in fact, very problematic and one ought to be extremely careful where it is prescribed in legislation. I agree with that. I point out for the benefit of Senator Sheil, a National Party senator from Queensland, that if he feels as passionately about the reversal of onus of proof as his speech yesterday betrayed he did, maybe he should talk to Sir Joh Bjelke-Petersen about the reversal of onus of proof in industrial legislation in Queensland. I am sure that all the people of Australia would applaud him if he would bring his offices to bear on that Premier. The legislation in the South East Queensland Electricity Board dispute shows that the reversal of onus of proof provision has been resorted to. People have to prove that they did not do certain things. That is, indeed, disgusting. Whilst the reversal of onus of proof is a problematic argument, there can be no justification, no matter what concern for the social good there might be, for the Queensland reversal of onus of proof in the industrial legislation in that State.

Let me now turn to the reversal of onus of proof which is involved in this legislation. Let me start the excursion into the analysis of the reversal by saying once again-I know I am being repetitious but, nonetheless, this needs to be put on the record-That this legislation is agreed to by the employers and they have come to this Government in support of it. So, in this case, the reversal of onus of proof provision has the support of the leading employer organisations in Australia. I suggest that those employers would not move to accept a reversal of onus of proof position which might prejudice some employers unless they were convinced that the reasons for moving to such a position were good and valid reasons.

The reversal of onus of proof matter was referred to, as Senator Sheil pointed out, in the Alert Digest of the Senate Standing Committee for the Scrutiny of Bills. For those who are interested, the reference is page 36 of No. 4 of 1985 produced on 8 May 1985. The unfortunate aspect about the reference made yesterday in the debate to the Scrutiny of Bills report is that there was no real, comprehensive reading of what, in fact, that report said. There was just a reference to it being raised as a problem and then the bigoted argument was put that, therefore, it should be deleted. I think it is necessary, in fact, to visit page 36 and look and see what exactly the Scrutiny of Bills Committee said because it answers the general proposition put by Senator Sheil and other speakers in this debate. Page 36 states:

Sub-clause 52 (2) makes it an offence for an employer to dismiss, or to threaten to dismiss, an employee from his or her employment, or to prejudice, or to threaten to prejudice, an employee in his or her employment, because the employee has given evidence, or proposes to give evidence, at an inquiry.

That provision exists to protect witnesses from having retribution visited upon them because they went forward and gave evidence which this inquiry would need to set national standards. We should bear in mind that these are employees and that the range of subtle measures or pressures that an employer can bring to bear on an employee who wants to testify about unsafe practices in the work place is immense, because the employer basically has the right of hire and fire and the very job of the employee is at risk if he comes forward to an independent body like this Commission and testifies that there are unsafe practices in the work place. There is an absolute need to protect the integrity of witnesses and the quality of evidence in those circumstances. Not only is it a matter of the employees' very jobs; an employer can retard promotion, transfer employees to remote areas and do all sorts of subtle things to discourage honesty and proper evidence being given to an independent commission. Only in circumstances where there is that coercive power of employers to qualify evidence is there this reversal of the onus of proof.

The other thing that has to be said is that we should go a little further into the Scrutiny of Bills Digest to see what else the Committee says. I shall pick up my quotation from where I left it:

By virtue of sub-clause 52 (4) an employer charged with this offence is to bear the burden of proving that the employee in question was not dismissed, prejudiced or threatened because he or she gave evidence or proposed to give evidence if it is established that the employee was dismissed, prejudiced or threatened with dismissal or prejudice and that before that occurred he or she gave evidence or proposed to give evidence . . .

Having established that, what does the Scrutiny of Bills Committee say? After citing a number of other Bills in which this is allowed, it says:

The Committee . . . has accepted the argument that the reversal of the onus of proof is necessary for the proper protection of witnesses since it is very difficult to prove that a person has been dismissed for a particular reason.

The reversal of the onus of proof was accepted by the Committee. I know that Senator Sheil raised the matter as if it was not accepted, but the fact is that it was, although the Committee went on to debate whether there should be an evidential burden or a persuasive burden. That is an interesting argument, but the Committee did not recommend that the persuasive burden inherent in this legislation should be changed. It drew our attention to it but did not recommend that it be changed.

There is one other very good reason why this Senate should consider that it not be changed. If coercive pressure is put on witnesses to give evidence, the type and quality of evidence coming forward would not be the necessary type and quality of evidence to rely upon in making proper decisions. We are talking about occupational health and safety. If the evidence is wrong the risk of decisions which impose hazards in the work place becomes serious, and it is in those circumstances that the reversal of proof is considered.

I conclude by saying that $6 billion was wasted last year through loss of production associated with occupational injury. Three hundred people were killed and 150,000 injured at work. They are of themselves substantive reasons why the Senate should deliberate very soberly on and, hopefully, support unanimously legislation to reduce not only loss of production but also the heavy burden on the maimed, the wounded, the sick, the ill and the dead because of industrial diseases in this country. The framework we are setting up does that. I commend the legislation.