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Tuesday, 30 March 2004
Page: 22306


Senator ELLISON (Minister for Justice and Customs) (7:04 PM) —I move:

That this bill be now read a second time.

I seek leave to have the second reading speech incorporated in Hansard.

Leave granted.

The speech read as follows—

OCCUPATIONAL HEALTH AND SAFETY (COMMONWEALTH EMPLOYMENT) AMENDMENT (EMPLOYEE INVOLVEMENT AND COMPLIANCE) BILL 2002

The amendments in this bill will provide enhanced protection for Commonwealth employees at work and reflect the Government's commitment to achieving safer workplaces.

Safe and healthy workplaces are an important issue for all Australians. At the May 2002 meeting of the Workplace Relations Ministers' Council, Ministers from the Commonwealth and all State and Territory jurisdictions endorsed a landmark new national occupational health and safety strategy which envisages workplaces free from work-related death, injury and disease. For the first time all Australian governments have set national targets to improve occupational health and safety. The Commonwealth government is fully committed to this initiative and the amendments in this bill will contribute to implementation of the national OH&S strategy.

This bill proposes to amend the Occupational Health and Safety (Commonwealth Employment) Act 1991 which is the legislative basis for the protection of the health and safety at work of Commonwealth employees in Departments, Statutory Authorities and Government Business Enterprises.

This bill is similar to a 2000 bill which lapsed when Parliament was pro rogued last year. This bill includes some additional changes to provide further protections for employees. Some amendments are also included to strengthen the compliance provisions.

The amendments in this bill will shift the focus of occupational health and safety regulation in Commonwealth employment away from imposing solutions and towards enabling those in the workplace to work together to make informed decisions about workplace safety. While this will give employers and employees added flexibility in meeting their obligations, the new compliance provisions will ensure that such flexibility is subject to a strong and effective enforcement regime if obligations are not met.

The key amendments proposed in this bill relate to the employer's duty of care, workplace arrangements and compliance.

This bill amends s.16 of the OH&S Act to replace current prescriptive elements requiring an employer to develop an occupational health and safety policy in consultation with unions. Instead, s.16 will be more outcomes focussed because of the new requirement for employers to develop, in consultation with their employees, safety management arrangements that will apply at the workplace.

This should ensure a more integrated and focussed approach at the workplace level. Safety management arrangements will be tailor-made to the needs of particular enterprises. If employers do not develop adequate safety management arrangements to protect their employees , they will be in breach of their duty of care under the OH&S Act.

The term “safety management arrangements” describes a wide range of matters which could or should be addressed at the workplace level . To assist employers and employees understand the types of matters which could be included in safety management arrangements, this bill includes a new provision setting out a non-mandatory and non-exclusive list of matters which may be appropriate to be adopted in safety management arrangements, such as a health and safety policy, risk identification and assessment, training and agreements between employers, employees and their representatives.

To further assist the development of safety management arrangements, the Safety, Rehabilitation and Compensation Commission is gaining the power to advise on matters to be included, and employers are required to heed such advice in developing safety management arrangements.

This bill will enhance consultation between employers and employees by facilitating a more direct relationship between them. The current prerogative role of unions, which limits the ability of employees to fully participate in workplace health and safety arrangements, is being removed. Unions will, however, still be able to participate in the development of workplace safety management arrangements where employees request . Unions will also retain their current enforcement roles where employees request it. New amendments in this bill give employees a wider choice as to who may represent them, namely another employee, a registered organisation or an association of employees which has a principal purpose of protecting and promoting the employees' interests in matters concerning their employment.

A health and safety representative will be elected for each designated workgroup, as is currently the case. However, current restrictions on the ability of employees to become health and safety representatives are being removed. Currently, where there is an involved union, only employees nominated by the union can be candidates for election as a health and safety representative. This limits individual workers rights. So this bill provides that all employees can be candidates for election as a health and safety representative of employees in a designated workgroup. As in the 2000 bill, this bill requires employers to conduct elections for health and safety representatives at the employer's expense. This bill contains a further amendment to provide an alternative election option which will enable employees to request that the election be conducted in accordance with regulations if requested by a majority of the employees in the designated workgroup or 100 whichever is the less.

As in the 2000 bill, this bill also contains amendments in relation to health and safety committees.

This bill includes the amendments to encourage compliance which were previously part of the 2000 bill. In particular, new remedies of enforceable undertakings, injunctions and remedial orders are included which will enable Comcare, the regulatory body under the Act, to work with employers and others to remove risks to the health and safety of employees before an injury occurs.

This bill also includes the amendments in the 2000 bill which will substantially increase the levels of penalties in the OH&S Act and will make provision for the imposition of civil as well as criminal penalties. A new feature in this bill is the extension of liability for the imposition of civil pecuniary penalties to Commonwealth employers.

Criminal penalties are being retained for contraventions of the OH&S Act which result in death or serious bodily harm (if the contravention is reckless or negligent) and for offences which are more appropriately dealt with in the criminal justice system. Criminal penalties will also apply where a breach of the employer's duty of care has exposed an employee to a substantial risk of death or serious bodily harm and the employer was reckless or negligent about that.

The Victorian Government proposed new offences whereby a senior officer of a company can be convicted and gaoled where his or her company has committed an offence, such as industrial manslaughter, and the officer had some level of knowledge and responsibility.

This bill does not propose any such offences. This Government believes that the mix of preventative, remedial and punitive civil and criminal sanctions in this bill provides a better system to improve workplace safety. Just punishing individuals will not work.

Finally, this bill also contains the amendments in the 2000 bill to revise the annual reporting requirements under the OH&S Act and some minor or technical amendments to improve the current arrangements concerning investigations of alleged contraventions and notices issued by inspectors.

Ordered that further consideration of this bill be adjourned to the first day of the next period of sittings, in accordance with standing order 111.