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Monday, 27 August 2001
Page: 26682

Senator MURRAY (4:43 PM) —I rise to speak to the Safety, Rehabilitation and Compensation and Other Legislation Amendment Bill 2000 and the Occupational Health and Safety (Commonwealth Employment) Amendment Bill 2000. The first bill consists of nearly 100 pages and the second bill is over 50 pages, which indicates that there is a fair bit of legislation before us. The numbers of amendments so far are relatively light. That leads me to the conclusion that substantial portions of these bills are technical and administrative and that the areas of controversy are likely to be relatively limited.

The purpose of the Safety, Rehabilitation and Compensation and Other Legislation Amendment Bill 2000 is to tighten the definition of injury and disease and to restrict access to compensation, to restructure deductions from benefits in relation to income from suitable employment, to restrict access to compensation for non-economic loss before 1 December 1988, to expand the regulatory regime for rehabilitation program providers, to rationalise the categories of licence in the associated regulatory regime, to expand the formulae for calculating premiums and to introduce regulatory contributions. Its purpose is also to amend the Industrial Chemicals (Notification and Assessment) Act 1989, to relax the publication and regulatory arrangements for synthetic polymers of low concern, to align the primary and secondary notification for priority existing chemicals and to increase discretion in the public consultation processes for secondary notification.

The purpose of the Occupational Health and Safety (Commonwealth Employment) Amendment Bill 2000 is to increase flexibility in the design and implementation of workplace safety arrangements, to increase flexibility in the application of civil and criminal remedies for breaches and to increase freedom of association in negotiations and monitoring arrangements. We see merit in many aspects of these bills. Some will prove to be more efficient by improving the operation of these systems in a technical and administrative sense. They represent two sides of the same issue, which is the provision of a healthy workplace with fair compensation for the injured or ill.

It is pleasing that both the health and safety and compensation systems in the Commonwealth public sector have generally worked well since the current legal regime was established, I believe, in 1988. The health of these schemes is reflected in the stable compensation costs within the Commonwealth over recent years and the compensation premium rates which are the lowest in the country. Given some of the controversy attaching to the state schemes, that is no mean boast. While that low rate in part reflects the occupational composition of the Commonwealth service, it is also testament to a health and safety regime that works well and a compensation system that also functions efficiently and effectively.

In this light, there does not appear to be convincing evidence to support changes that do other than improve the efficiency of the system. The Democrats do not see any evidence that suggests that the rights of either employees or the Commonwealth as employer need changing in any material respect. On balance, the fairness of the system and the balance of rights seems appropriate. We do not see a case for reducing employees rights to compensation, especially where that reduction is likely to result in expensive litigation testing new meanings: for example, the meaning of `closely connected' or increasing the exemptions related to poorly defined management actions.

There is no evidence that stress claims, for example, are a real problem in this system of compensation. There is, however, a growing body of work that suggests that management activities can make an important difference to the incidence of work related stress. Management practices that increase employee autonomy and consultation are associated with better health outcomes. The Whitehall studies in the United Kingdom, for instance, found this result. In this light, it is important that the Commonwealth compensation system fairly recognises illness and disease that arises or is exacerbated by working life and encourages managers to manage in ways that minimise it. Our current law appears to do this without creating an unworkable scheme or an unfundable liability. So the general approach of the Democrats to these bills is to support changes that will improve the administration and efficiency of these systems without changing the balance of rights.

We support the improvements proposed by the government in relation to hearing loss and see merit in further reviewing hearing loss criteria. This area of the scheme deserves general improvement and we welcome the government attending to it. We also support the change in relation to income earned from suitable employment inside or outside the Public Service. The Occupational Health and Safety (Commonwealth Employment) Amendment Bill makes changes to the treatment of offences. Under the current act, offences are treated as criminal offences. It has been suggested that this penalty approach has contributed to a very small number of prosecutions since 1992, even though 28,000 incidents have been reported.

The bill proposes to change this enforcement regime to one relying on both civil and criminal penalties for contravention of the act with many of these matters currently dealt with as criminal offences becoming civil actions instead. This seems a sensible adjustment that will enhance the effect of the act. For very serious offences that result in death or serious bodily harm, criminal penalties will continue to apply. It is also appropriate that the courts are given the power to grant injunctions to prevent the occurrence, or recurrence, of a breach of the act and to make remedial orders in the case of serious offences such as these.

However, the bill makes a raft of other amendments to the management of health and safety in the Commonwealth. It attempts to remove unions from processes, it weakens the role of employees and their representative bodies—where they have them—so that employers must simply consult with them rather than negotiate suitable agency approaches to health and safety management and it is much less prescriptive about the framework within which health and safety is to be managed in the workplace.

The current act sets out clear arrangements that require an employer to make an agreement with employees, through their unions, about appropriate mechanisms for continuing consultation on health and safety. It is up to these parties and the agency to work out what is useful in their environment and local circumstances. While the act gives responsibilities to employers and a role to the unions, it is up to them to work out what is going to work in their particular and specific agency. This provides considerable local latitude as to what arrangements to establish within a broad framework that makes the employers' duty of care and the employees' specific responsibilities clear.

It is true that in some cases there may be arguments for taking a critical look at whether unions misuse their involvement in health and safety processes in workplaces. My views about actions by employers or unions that are mischievous in an attempt to misuse or circumvent laws such as this are well known in this place. Some unions may indeed manipulate rights to entry in relation to health and safety matters for ends that are not related to health and safety. I am opposed to this misuse and once again I will refer the Senate to the very good Standing Committee for the Scrutiny of Bills report on rights to entry and warrants and other matters which helpfully lays out principles that should be attended to.

Senator Cooney —A good report!

Senator MURRAY —It was an excellent report. For the purposes of the Senate I record the fact that the chair who managed that process, Senator Barney Cooney, is present in the chamber. However, there is no suggestion that the misuse of rights of entry in relation to health and safety matters is widespread or a problem in the Commonwealth public sector. It is my view that any misuse of that sort is not best attended to through legislation such as this but through other means. The government is, nonetheless, keen to change the balance of union rights in relation to health and safety and to give over to employers total control of health and safety processes, subject to undefined `consultation' with employees.

In some industry sectors, union membership may be so low as to make unions less relevant to processes. This is not the case for the most part in Commonwealth government workplaces. The current act does allow for the circumstance that no union is present in a workplace. It establishes mechanisms throu-gh the commission to permit the election of health and safety representatives, nonetheless—and I refer to section 25(4). More significantly, however, in the great majority of Commonwealth public sector workplaces, unions have a presence, and a strong one. With union density in the public sector hovering at about 50 per cent on average, there are reasonable arguments in favour of continuing union involvement in health and safety structures in these workplaces.

There is good research in Australia that suggests that a union presence is associated with improved health and safety outcomes. I refer to the findings of the Australian workplace industrial relations survey, with its analysis in 1990 and 1995 that showed a positive association between the presence of union delegates and better health and safety structures. Those studies show that where there was no union, only 19 per cent of workplaces had an OH&S committee. In most unionised workplaces—59 per cent—there is a union involvement in an occupational health and safety committee. Research that has been funded by Worksafe Australia shows that workplaces with effective health and safety committees have fewer workers compensation claims. The effectiveness of the current arrangements, as reflected in the low compensation scheme costs, attests to the active role of a web of trained health and safety representatives and an effective union role in helping to put in place such representation and ensure that it works.

It seems to me that this bill is hostile to union involvement, with little evidence in support of this hostility and the changes it gives rise to. There is, in fact, evidence the other way: that the presence of union representation is associated with better outcomes in this field. Of course, these outcomes are very beneficial to employers who experience lower rates of injury, illness and lost time at work as a result. The case for weakening union involvement, and particularly a loss of the right to reach agreement on the best approach in any single agency, rather than be merely consulted, has not been made. There is not a case for giving the overwhelming control of health and safety in the Commonwealth to employers and reducing the role of employees through reduction in the role of unions. Further, this bill, if passed on this basis, would allow government departments that are subject to it to have one committee for an entire state. This seems an inappropriate approach to local issues and to the important local involvement of employees. It is also contradictory to the principles that the government espouses of enterprise bargaining. The whole purpose of enterprise bargaining is that you attend to the issues that relate to the enterprise concerned. When you translate that into this bill, you really wish to relate the issues to the agency concerned in its geographic situation. In this light the Democrats have sympathy for a number of amendments that have been foreshadowed by Labor. The government benches will note, therefore, where there is a joint opinion on these matters.

However, we want to ensure that there is no discrimination between unionists and non-unionists—a principle that is embedded in the workplace relations bill and which the Australian Democrats strongly espoused in their support of the 1996 act. We believe that both unionists and non-unionists should have the right to nominate and be elected for representative roles in the system that exists, without differential treatment. To this end we will be moving an amendment to the bill that clarifies that both union and non-union members should have the same rights to nominate and be selected for health and safety representative positions, without discrimination. We consider this an important principle: that any employee should—with adequate interest, skills and the support of their co-workers through an election—have the right to take on such positions.

We support the idea that criminal penalties should apply to careless behaviour that results in death or serious injury. However, we believe that careless actions that might result in such an outcome should also attract serious penalties. We do not believe it is appropriate to wait for someone to die or be seriously injured before imposing a penalty where careless behaviour is occurring. We share Labor's view on this issue and we hope the government will see merit in our reasoning on this. Behind it is the basic principle that you do not punish people for somebody getting hit on the head with a brick: you punish people if they do not wear the hard hat which prevents them getting hurt when the brick hits them.

Finally, we note a growing interest in the literature and research about a connection between health and safety and hours of work. My office—and those of other senators—have had strong representations, for instance, over a long period from people such as long-distance truck drivers and doctors. Both of these groups hold the safety of the community in their hands. Both of these groups are a danger to others if they work unsafe hours. Both of these groups have a long history in Australia of being required to work unsafe hours. We finally think it is time, in some legislation, to attempt to take a stand on these issues.

Recent material from the AMA, for example, draws attention to the unsafe and systematic nature of long hours and unsafe rostering practices that affect junior doctors in the public health system. We note the growth in average hours in Australia, especially at the upper end of the long hours spectrum. In 1981, 21 per cent of Australians worked long hours of more than 45 a week and this has now reached 26 per cent. I refer to the ACIRRT research paper 2001:5. The largest absolute increase in hours worked is in the 50 to 59 hours group in Australia. The Australian Medical Association provides evidence of the risk this creates for long hours workers and their clients, with one young doctor reporting a period of 63 hours on continuous hospital duty. How can this possibly be safe, for the individual, for co-workers and especially for the patients? Long hours affect employees in both the private and public sectors, and we think there is now a case for ensuring that the hours issues are taken into particular consideration when ensuring that workplaces and employees are as safe as is humanly possible.

To this end we will propose an amendment—and it has been circulated—that draws employers' attention to this need and encourages them to ensure that employees do not work very long hours—no more than, say, 60 hours per week. We have chosen that figure because the largest absolute increase in hours worked, as I have said earlier, is in the 50 to 59 hours group in Australia. We have asked in our amendment that that be not allowed over two weeks in a regular pattern unless there is some kind of emergency. Plainly, if there is a major train crash, and all the trauma that goes with it, and doctors have to work extraordinary hours, all of us would accept that that is desirable. You have to allow for the emergency provisions. We believe that with these amendments that we propose overall the two bills will make a worthwhile contribution to improvements in health and safety systems in Australia and are intended with a good purpose and for a good outcome.