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Monday, 27 August 2001
Page: 26677


Senator JACINTA COLLINS (4:22 PM) —We are speaking on the Occupational Health and Safety (Commonwealth Employment) Amendment Bill 2000 joined with the Safety, Rehabilitation and Compensation and Other Legislation Amendment Bill 2000. I will deal firstly with the occupational health and safety bill. This bill seeks to amend the provisions of the Occupational Health and Safety (Commonwealth Employment) Act 1991. The amending provisions contained within this bill fall into three categories: firstly, amendments to section 16 of the principal act to eliminate union involvement in matters of occupational health and safety; secondly, amendments designed to improve the enforcement and compliance regime of the act, principally by including provisions for civil remedies and sanctions supplementing the current regime of criminal penalties and breaches; and, thirdly, by extending the application of criminal and civil penalties to Commonwealth employees. The major issue of disagreement between the government and the opposition with this bill is the removal of unions from the processes regulating occupational health and safety in Commonwealth employment, and I will deal with that matter firstly.

Currently, section 16 of the act requires an employer to develop an occupational health and safety policy and agreement in consultation with involved unions. This bill will replace that provision with a requirement that an employer is to develop, in consultation with their employees, safety management arrangements that will apply at the workplace. Whilst removing the current role for unions, amendments will permit employees 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. Comcare will be able to issue an authority for a union representative to be involved in OHS consultations.

It is the opposition's contention that those aspects of this bill removing unions from an active role in occupational health and safety matters are, firstly, poorly motivated, resulting from this government's ideological obsession with disempowering unions. That motivation is reflected in some serious definitional problems within the bill. Secondly, those aspects of this bill are lacking any reasonable or rational justification and, on the contrary, run counter to the hard evidence of real benefits when unions are involved in occupational health and safety matters. Turning firstly to the issue of motivation, this government has had an unhealthy ideological obsession with the union movement since the day it came to office. It changed the rules governing industrial relations to make it tough for unions to organise. It, to use the words of the Prime Minister, `stabbed' the Industrial Relations Commission in the stomach to make it tough for unions to represent their members. When it could, it cheered on employers in their campaigns to take on unions, even coordinating one notable campaign with Patrick's. When employers did not join such campaigns, it berated them for their weaknesses, as the former minister did with the construction industry.

Amazingly, coalition members and senators still say with straight faces that there is no bias in their party room against union activism. The current minister claims a history as a union radical, in his attempt to portray himself as even-handed. But provisions such as these place in stark relief this government's obsession with reducing the role of unions in our society and illustrate the irrationality, the foolishness and the danger of this obsession.

Research proves that unionised workplaces have a better occupational health and safety outcome than non-unionised workplaces. The Australian Workplace Industrial Relations Surveys of 1990 and 1995 showed that if there is no union only 19 per cent of workplaces will have a health and safety committee, compared to 59 per cent of unionised workplaces, and that a workplace is twice as likely to have undertaken a health and safety audit in the last 12 months if the workplace is organised. Research funded by Worksafe Australia shows that workplaces with effective health and safety committees have fewer workers compensation claims. The research is borne out by experience. This legislation deals with the Commonwealth public sector, which is the best performing jurisdiction in the country in the area of occupational health and safety. The Comcare scheme has the lowest premium rates in the country and work related accidents have been declining since the original occupational health and safety act commenced. So in the words of the current minister on the subject of the monarchy, `if it ain't broke, don't fix it'.

The other aspect of concern with these changes relates to the composition and functioning of occupational health and safety committees. Currently, a health and safety committee must be established for employees at a particular workplace if the number of employees at that workplace is normally not less than 50. The bill requires that an employer must establish a health and safety committee if the total number of employees across all workplaces is not less than 50. An employer must establish a committee for employees within a given state or territory if the number of employees within the state or territory is not less than 50 and a reasonable request has been made in writing by the health and safety representative. There is a real possibility that this is a less stringent requirement than the current provisions. For instance, if the employer has multiple workplaces, each with more than 50 employees, the employer would only be required to establish one committee. This represents a very serious contraction of effort in regard to addressing health and safety matters and would most certainly lead to a reduction in safety standards at a workplace level.

I want to turn now to deal with those amendments dealing with the compliance and enforcement regime contained within the act. One of the weaknesses of the original legislation that its operation has revealed has been in the area of compliance and enforcement provisions. A range of remedies and sanctions are being introduced through this bill, along with significant increases in penalty levels. The bill is amending the current regime of criminal liability under the act to one based on both civil and criminal penalties for contravention of the act. The bill also includes an amendment to extend civil and criminal penalties to Commonwealth employees and employees of Commonwealth authorities, ensuring that a Commonwealth employee will be accountable where they have acted wrongfully. Commonwealth officers or employees will continue to have the protection of the Commonwealth's policy on indemnification where they have acted reasonably and responsibly in the course of their duties. Those aspects of this amending bill enjoy the support of the Labor Party, with one minor extension focusing on risk management, which I will address by amendment during the committee stage.

I want to turn now to the Safety, Rehabilitation and Compensation and Other Legislation Amendment Bill 2000. Some of the more important proposed changes are as follows. The bill proposes amendments to the Safety, Rehabilitation and Compensation Act 1998—the SRC Act—and the Industrial Chemicals (Notification and Assessment) Act 1989—the ICNA Act. Firstly, with respect to self-insurance, the SRA permits an employer to self-insure against liability, but they must be licensed to do so. The bill proposes to amend the act's current licensing arrangements to replace the current five categories of licence with one generic licence. The current licensing arrangements provide a different application form for each different type of business unit making the application, depending on whether it includes self-claim management. The proposed single licence application will provide scope for both self-insurance and claims management. The bill also contains other consequential amendments to the licensing arrangements.

In regard to Comcare administrative arrangements, the bill provides for amendments which propose to streamline the funding arrangements for regulation of workers compensation and occupational health and safety in the Commonwealth jurisdiction by providing for one regulatory contribution. The bill contains amendments to ensure that Comcare's financial arrangements are consistent with the requirements of the Commonwealth Authorities and Companies Act 1997.

With respect to rehabilitation, the SRA currently provides a system of rehabilitation which relies on the services of approved rehabilitation providers. The act currently gives Comcare the responsibility of ensuring that rehabilitation providers have the qualifications, proven effectiveness, availability and cost efficiencies to deliver quality services to employers and employees. The current approval provisions require that persons providing treatment and services meet acceptable standards. The bill proposes amendments to the current processes for approving new rehabilitation providers by providing a statutory basis for existing guidelines, by enabling a fee to be charged to cover the costs of the application process—proposed to be $400—and by ensuring that the approval can be revoked if a rehabilitation provider is no longer able to meet the standards required.

The bill contains a number of amendments to improve some scheme benefits, clarify the circumstances in which compensation is payable under the act and clarify the amount of compensation payable. Improvements to the scheme benefits include providing greater access to compensation for employees who suffer hearing loss. Presently, an employee must have a hearing loss of more than 20 per cent before the loss is compensable. The bill will reduce this to 10 per cent, which is comparable to Victoria, Tasmania and Western Australia—although South Australia, Queensland and the Northern Territory have a five per cent threshold level, with New South Wales at six per cent. We will seek to improve the bill in that respect.

Other improvements to the scheme benefits include ensuring that all employees covered by the act can receive compensation beyond the age of 65—if they are injured over the age of 63, such workers are presently excluded from receiving compensation—and enabling claimants to seek the costs of treatment from a wider range of health practitioners than they can at present without having to seek a referral from a medical practitioner; for example, for physiotherapy and occupational therapy. Other amendments will standardise the basis by which compensation is calculated for the first 45 weeks of a claim and clarify that dependants of deceased employees have access to common law. The bill will also ensure that compensation payments for former employees are maintained at 70 per cent of indexed normal weekly earnings and that normal weekly earnings of former employees are updated to a prescribed index—proposed to be the ABS wage cross index.

Moving next to those amendments relating to disease and injury where the Labor Party has major problems, the bill includes a proposal to amend the circumstances in which compensation is payable under the SRA by amending the definitions of `disease' and `injury'. The SRA presently requires a material contribution to a disease by employment before compensation is payable. The 1988 second reading speech for the bill indicated that there needed to be a close connection between the employment and the disease. However, subsequent court decisions indicate that only a connection between employment and the disease is required before it is compensable. The bill includes an amendment which requires that an employee's employment is not to be taken to have contributed in a material degree to his or her disease unless there is a close connection between the employee's employment and the disease. We will be opposing that, and I will come to that in a moment.

The SRA also currently prevents compensation claims being used to obstruct legitimate management action and contains an exclusionary provision. It provides that compensation is not payable in respect of an injury that arises from reasonable disciplinary action taken against an employee or a failure by the employee to obtain a promotion, transfer or benefit in connection with employment. The bill seeks to extend this provision to include other activities that are to be regarded as normal management responsibilities; for example, an injury resulting from a reasonable appraisal of the employee's performance, any reasonable counselling action—whether formal or informal—any reasonable suspension action or a failure by the employee to obtain a reclassification in connection with his or her employment. The amendment arises from court decisions which have held that the exclusionary provisions refer only to formal disciplinary action. The amendment would ensure that the specified disciplinary actions attract the exclusion, but Labor believe they go too far.

A further amendment relates to the interaction between disease and injury. Currently, the SRC Act sets out separate tests for establishing entitlements to compensation for diseases and injuries. Employment must be making a material contribution to a disease before that disease is compensable whereas for an injury to be compensable it is only required that that injury should have occurred at work. Court decisions have held that a natural progression of a disease which causes an injury at work is compensable—for example, if a claimant has a history of heart disease not caused by work but, while they are at work, this work causes a heart attack, this would be compensable under the act. The bill includes an amendment to overcome these decisions so that, where an injury occurs at work which is the natural progression of a disease, the injury will be deemed not to be an `injury' for the purposes of the act. We are opposing this amendment because we do not believe it is quite as clear as that when you are dealing with the natural progression of disease and we believe some of those factors would be very difficult to delineate.

Moving to some further amendments in the bill, the bill proposes an amendment to extend to all claimants the requirement that any earnings by a claimant may be taken into account in the calculation of the claimant's weekly incapacity payments. Court decisions have interpreted that earnings refer only to Commonwealth income, so that if a claimant returns to work in non-Commonwealth employment that income could not be used to offset benefits received under the act. The proposed amendments ensure that the claimant is not being overcompensated under the act.

Another amendment states that there is no automatic entitlement to payment for non-economic loss for employees who suffered a permanent impairment before the SRC Act commenced. The bill also contains a number of technical amendments to the SRC Act that are essentially of a policy or technical nature, including some amendments which address regulatory matters.

Turning to the Labor Party's position on this bill, in the second reading speech given by Minister Reith on 7 December 2000 the government justified this bill on the basis that it needs to:

... improve the operation of the Commonwealth workers compensation scheme while at the same time ensuring that the act reflects the government's commitment to balancing the costs of work related injury with access to fair compensation and effective rehabilitation for injured workers.

However, this is typical of this government. The concern over budgetary implications regarding this scheme is exaggerated and can clearly be seen as an attack on Commonwealth employees' access to workers compensation. In fact, this bill represents the second time around. I think in earlier discussions I described it as a wolf in sheep's clothing when the department, in relation to the last bill addressing these issues, sought to say, `No, we took into account the committee's deliberations.' As I mentioned in my earlier comments concerning the occupational health and safety bill, claims accepted as a percentage of employee numbers have reduced since 1996 and the Commonwealth fund has the lowest premiums in Australia. This is not the time to be restricting access further. In its own most recent annual report Comcare boasts that it has:

Reduced injury frequency rates per 100 employees a further 6 per cent;

Met the majority of the Commission's claims management performance indicators, and improved performance on others;

Introduced a new OHS self-assessment and audit tool for employers (SafetyMAP);

Exceeded the national average durable return to work rate by 10 per cent

The provisions relating to the amendments to the definition of injury or disciplinary action exclusions ought to be opposed. While the government has argued that these amendments are consistent with Labor's statements back in 1988, the operation of the scheme since then has provided no compelling justification for supporting amendments that will result in a more restrictive approach to compensable injuries and diseases than that of the states. At the time that Labor proposed the provisions, Commonwealth expenditure on workers compensation had increased by over 700 per cent in a 10-year period. However, the workers compensation scheme is now self-funded, the premiums are the lowest in Australia—they are presently less than one per cent—and claims are falling; therefore, those amendments are not necessary. This very good performance of the fund is partly related to the passing in 1991 of the Occupational Health and Safety Act, the legislation that the SRC is linked to. This is proof of the importance of union involvement in health and safety management.

I have mentioned that the bill will provide greater access to compensation for employees who suffer hearing loss. Presently, an employee requires a hearing loss of more than 20 per cent before the loss is compensable. The bill will reduce this to 10 per cent, which is comparable to Victoria, Tasmania and Western Australia—although South Australia, Queensland and the Northern Territory have a five per cent threshold and New South Wales is at six per cent. Labor will move an amendment to reduce the required amount of compensable hearing loss to the five per cent mark, in line with many of the other jurisdictions. Labor will also be opposing government attempts to have a requirement that, after an initial claim for hearing loss, a claimant must suffer a further five per cent hearing loss before they can claim. We do not consider that, just because an initial claim is made, a worker who suffers a further four per cent loss should be precluded from claiming.

The final comment I want to make regarding these bills is on the issue of consultation. The explanatory memorandum reads that `a level of consultation did occur before the bill was introduced'. This was not our experience through the committee consideration of these bills. The ACTU advise that they were not provided with effective consultation and, in fact, the committee has not been provided with effective responses about some definitional problems, which we will go to in the second reading stage. (Time expired)