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Thursday, 12 August 2004
Page: 26320


Senator MURRAY (12:54 PM) —The Occupational Health and Safety (Commonwealth Employment) Amendment (Employee Involvement and Compliance) Bill 2002 is similar to the one introduced in 2000, which was the Occupational Health and Safety (Commonwealth Employment) Amendment Bill 2000. That bill was also sent to a committee. However, the 2000 bill lapsed with the prorogation of parliament for the 2001 general election. The bill before us, in its totality, aims to amend the Occupation Health and Safety (Commonwealth Employment) Act to remove the automatic right of unions to provide OH&S representatives, in line with state OH&S regimes, and to establish a new penalty and enforcement arrangement. As stated in my two minority reports on these two bills, there are a number of useful advances in the proposed legislation.

The bill is, in many respects, in line with state and territory OH&S laws. It is obviously desirable to harmonise legislation in OH&S wherever possible. The Senate knows that the Democrats support and have vigorously lobbied for a unitary industrial relations system. A harmonised system is the next best thing. Having six different sets of OH&S laws—or nine, as it is in this situation—is, frankly, crazy for a country of this size. However, we have concerns with the bill with respect to the provisions relating to OH&S representation. As stated in my minority report:

A key area of concern to us is the place of unions in the maintenance and advancement of workplace health and safety. Unions supplement the regulatory and inspectorial roles of State H&S departments in an irreplaceable way. Unions as a whole sometimes get criticised as a result of the actions of some unionists in misusing the provisions of the various State health and safety Acts. Such unionists raise non-existent H&S issues to achieve other industrial objectives, and misuse entry and search provisions under the pretext of H&S1. Such behaviour needs to be addressed. However the way to deal with those abuses is not to clamp down on legitimate useful or effective union H&S activity.

Evidence was strongly expressed on this issue, and the Democrats will need to assess whether the intentions of the Bills goes too far in this respect. In my view union officials with expertise in H&S should continue to be involved as appropriate in workplace health and safety.

I am also acutely aware of concerns raised by the unions with respect to the proposed changes to the election process of OH&S representatives. I believe that an independent process would be a better alternative to the one proposed by the bill and should address concerns of both employers and unions. We have raised those concerns with the government and have suggested some alternative provisions. As I understand it, the government have undertaken to consider our suggestions.

For the sake of facilitating the passage of the remaining provisions in the bill, this is now a non-controversial bill because the government have agreed to set aside the contentious provisions and have circulated the amendments and the supplementary explanatory memorandum to achieve that aim. This leaves us with the provisions to establish a new penalty and enforcement regime. We consider the new penalty and enforcement regime an improvement on the current system. As outlined in the supplementary explanatory memorandum circulated, the bill provides for: civil penalties, as far as possible reserving criminal penalties for more serious breaches; new offences where an employer breaches its duty of care and exposes an employee to a substantial risk of death or serious harm; and a wider range of remedies and substantial increases in penalties. New remedies of enforceable undertakings, injunctions and remedial orders are included. These 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.

The bill also extends the liability for the imposition of civil pecuniary penalties to Commonwealth employers. The CPSU did suggest that the lifting of the shield of the Crown to allow the prosecution of individuals employed by the Commonwealth for breaches of the act should be extended to agencies and ministers. The problem with this suggestion is that the Commonwealth would essentially be suing itself. In discussions with the CPSU they expressed a view that the Safety, Rehabilitation and Compensation Commission does not have the power to instigate proceedings for breaches under the act. The CPSU argued that good public policy demands that the SRCC, as the regulator, must have the power to instigate proceedings without having to rely on the agreement or good grace of its administrator, and that, because the SRCC is at arm's length from the government and independent of the bureaucracy, it is therefore in the best position to be the decision maker on the institution of proceedings.

We raised this issue with the government and they explained that the SRCC, as it currently operates, is a tripartite body which meets four times a year. It does not have any staff, it is supported in its functions by Comcare, and it is not a separate legal personality that is able to be sued or to sue. It appears then that giving that power to the commission, as it is presently structured, would not be appropriate. However, the government did note that, in its report entitled National workers' compensation and occupational health and safety frameworks, March 2004, the Productivity Commission recommended that the current regulatory framework for the oversight of the Australian government's workers compensation schemes and OH&S regimes be strengthened by progressively developing the SRCC to be controlled by a board of independent directors appointed for a fixed term on the basis of their expertise and skills, to have a full-time director appointed as chairperson and to be provided with its own staff and funding.

In its response, the government supported further examination of this recommendation and said that there is merit in examining in more detail the commission's recommendation that the SRCC become a small stand-alone regulator. Based on the government's response to the Productivity Commission, there appears to be scope for the government to pursue in the future the CPSU's views on this matter. For a good outcome in this area, it would of course be best for those two bodies to agree on the direction that should be undertaken. The CPSU have indicated to us that they are prepared to await the government's examination and to pursue the matter when we revisit, in the next parliament, the bill's provisions now being set aside by the government. On behalf of the Democrats, I look forward to discussing the issue further.

On one final point, I note that the unions, in their submission to the Senate inquiry into this bill, raised their belief that the offence of industrial manslaughter should be introduced at the Commonwealth level for cases of death caused by the negligence or misbehaviour of individuals. I also note that my ACT colleague MLC Rosalyn Dundas supported the industrial manslaughter bill in the ACT earlier this year. The ACT legislation, not surprisingly, has been met with concern from business, to the point where the federal government is looking to pass legislation to overturn the ACT legislation. I and the Democrats will be watching closely how the legislation operates in the ACT; what impact, if any, it has on employers who currently cut corners with respect to occupational health and safety; and whether there will be a positive impact, with fewer deaths and injuries through workplace accidents.

As noted by the CPSU, the penalty and enforcement provisions in this bill are an improvement on the current system. We acknowledge that there is possibly room for further improvement and law change, and I look forward to the outcome of the government's further examination of the Productivity Commission's report National workers' compensation and occupational health and safety frameworks. Until then, the Democrats are pleased to see progression in this matter and improvement to the current system. We support the bill with government amendments as being non-controversial.