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Monday, 4 September 2006
Page: 101


Senator WONG (7:53 PM) —Labor opposes the OHS and SRC Legislation Amendment Bill 2006. Like the government’s extreme industrial relations legislation, this bill has at its heart the stripping away of the terms and conditions of our workforce. We on this side are driven by a desire for genuine improvements in the area of occupational health and safety across Australian workplaces. Unfortunately, this legislation risks diminishing the occupational health and safety conditions in our workplace.

The OHS and SRC Legislation Amendment Bill 2006 is the latest in a number of amendments made to occupational health and safety legislation by the Howard government and it follows on from previous occupational health and safety legislation introduced by the government since the election in 2004. These include: the National Occupational Health and Safety Commission (Repeal, Consequential and Transitional Provisions) Bill 2005, the Australian Workplace Safety Standards Bill 2005, the Occupational Health and Safety (Commonwealth Employment) Amendment Bill 2005 and the Occupational Health and Safety (Commonwealth Employment) Amendment (Promoting Safer Workplaces) Bill 2005. Labor has opposed each of these bills for good reason. Each of these occupational health and safety bills reduced, compromised or put at risk the occupational health and safety conditions of Australian workplaces.

Labor believes that the bill currently before the chamber will have the same effect. The bill before the chamber is the government’s response to recommendations made by the Productivity Commission that changes in this area were needed. It has historically been the case that we have seen through the evolution of OH&S policy in this country the overriding objective of preventing workplace injury and illness. This has been a principle that has historically underpinned both state and federal legislation in this area. Over time, we have seen the evolution of different OH&S regulatory regimes and workers compensation schemes. We accept for those employers with operations around the country that complying with different state based legislative requirements can be a significant cost burden. It is logical that national uniformity in occupational health and safety regulations should be a priority as an objective. Looking at the existing system, it is understandable that change in this area is warranted.

In relation to the detail of this bill, it is worth mentioning the operation of the two acts which this bill seeks to amend. The operation of these two acts in combination with each other provides the grounds through which occupational health and safety conditions in workplaces across the country can be eroded. The Safety, Rehabilitation and Compensation Act currently allows for a premium based workers compensation scheme for Commonwealth employees. It also enables former Commonwealth authorities and eligible private sector corporations to obtain a licence to self-insure under the scheme. In the event that a former Commonwealth authority does not obtain a licence for self-insurance purposes, under the current system those organisations currently default to coverage under the relevant state or territory workers compensation legislation. Private corporations can also be licensed currently under the Safety Rehabilitation and Compensation Act. The most recent of these was the National Australia Bank, which registered for self-insurance purposes only in the past few weeks. Such businesses are currently not subject to the Occupational Health and Safety (Commonwealth Employment) Act. Occupational health and safety obligations for these corporations are provided by the different state and territory occupational health and safety legislation. In other words, while certain private sector corporations can retain or obtain workers compensation coverage under the Commonwealth scheme through a self-insurance licence, there is no corresponding mechanism for them to obtain coverage under the Commonwealth occupational health and safety scheme.

The Occupational Health and Safety (Commonwealth Employment) Act provides the legal basis for the protection of the health and safety of Commonwealth employees. It does not, however, apply to former Commonwealth authorities and private sector corporations that became licensed self-insurers on account of the fact that they are not Commonwealth employers. This has therefore created a situation where former Commonwealth authorities and licensed private sector corporations currently operate under the Commonwealth workers compensation regimes but are covered by the relevant state and territory occupational health and safety legislation in the jurisdictions in which they operate.

Under the SRC Act, the minister currently has the ability to declare that corporations carrying on business in competition with an existing or former Commonwealth authority are eligible to apply for a self-insurance licence. We believe this creates the untidy situation where, in the event that competitors were to be licensed under the Safety, Rehabilitation and Compensation Act for workers compensation purposes, they would still remain covered by state and territory occupational health and safety legislation. The Productivity Commission argues in its inquiry report to which I referred earlier that this situation may place those businesses at a competitive disadvantage where they would be required to comply with up to eight separate sets of state or territory occupational health and safety legislation and associated compliance costs compared to a Commonwealth authority, which is subject to the Commonwealth regulatory framework. In other words, the Commonwealth legislation can be seen as providing a barrier to competitive neutrality for these corporations.

It is little surprise then that in its report No. 27 of June 2004, National Workers’ Compensation and Occupational Health and Safety Frameworks, the Productivity Commission recommended that the Australian government amend the Occupational Health and Safety (Commonwealth Employment) Act to enable these corporations that are licensed under the Australian government’s workers compensation scheme to elect to be covered by the government’s occupational health and safety legislation. The Productivity Commission considers that this would increase the administrative savings from multistate corporations and allow for greater coordination and feedback between the workers compensation and occupational health and safety regimes. Indeed, as the Productivity Commission itself observed in its report in 2004 on the national workers compensation and occupational health and safety frameworks, this can make it difficult for businesses with national operations to develop a national approach to occupational health and safety.

The government’s response to these matters has been to support the Productivity Commission’s recommendation to enable those employers who are licensed to self-insure under the Australian government’s workers compensation scheme to elect to be covered by the Australian government’s occupational health and safety legislation. However, it has done so with a modification that there should be mandatory coverage under the Occupational Health and Safety (Commonwealth Employment) Act for non-Commonwealth employers who gain a self-insurance licence under the SRC Act.

The amendment bill before us seeks to extend coverage of the Commonwealth Employment Act, to which I referred earlier, to multistate employers who are licensed under the SRC Act for self-insurance purposes. The bill also seeks to ensure that Commonwealth authorities licensed under the SRC Act but not covered under the Occupational Health and Safety (Commonwealth Employment) Act are covered by that act.

This bill makes provision to allow Comcare to charge all Commonwealth authorities an occupational health and safety contribution for the administration of the Occupational Health and Safety (Commonwealth Employment) Act. It would also validate payments purported to have been made under the SRC Act by some licensees and Commonwealth authorities for OH&S contributions in the 2002-03 financial year.

The OHS and SRC Legislation Amendment Bill 2005 seeks to allows corporations licensed as self-insured under the Safety, Rehabilitation and Compensation Act 1988 to be covered under the Occupational Health and Safety (Commonwealth Employment) Act 1991, administered by Comcare.

The government has also sought to make other amendments. Some of those amendments seek to correct a drafting oversight in amendments made in 2001 to both the SRC Act and the Occupational Health and Safety (Commonwealth Employment) Act. Those amendments placed the provisions for regulatory contributions for both acts in the SRC Act. The 2001 amendments also reorganised the licensing arrangements under the SRC Act and introduced one generic licence. As a result, some licensees were charged, and paid, licence fees for the year 2002-03 under the wrong licence provisions. While the amounts were later recalculated under the correct provisions, the amendments will also certify those licence fees as originally paid.

Under the government’s proposal, the costs borne by Comcare to administer the Occupational Health and Safety (Commonwealth Employment) Act in relation to private sector corporations would be covered by an OH&S contribution included in the corporation’s self-insurance licence fee. As such, contribution costs would not be borne by the Commonwealth from revenue.

The government argues that it is preferable to have an integrated approach to workers compensation and occupational health and safety by providing for all organisations covered by the SRC Act, through the licensing arrangements, to be covered concurrently by the Occupational, Health and Safety (Commonwealth Employment) Act. The government further argues that the government’s occupational health and safety regime should open up access to give those businesses granted a self-insurance licence under the SRC Act scheme a single set of national occupational health and safety rules.

Taken in isolation, the government’s amendments to seek to create a uniform national occupational health and safety regime may appear to be a sensible housekeeping move. However, as with all things to do with industrial relations, the effect of the government’s changes are double edged. There may be significant merit in introducing a simplified national system for occupational health and safety but, as drafted, the changes before the chamber unreasonably diminish occupational health and safety standards.

To prove this point, any detailed consideration of the bill must be made in conjunction with earlier government amendments made to the Occupational Health and Safety (Commonwealth Employment) Amendment Bill 2005, which removed the need for employers and government agencies to negotiate occupational health and safety agreements with unions and employees through the introduction of so-called management arrangements.

Labor opposed those amendments. We opposed those amendments because they removed the need for government agencies to negotiate occupational health and safety agreements with unions and employees. The bill removed all references to ‘unions’ and replaced them with ‘employee representatives’—defined as either a registered organisation or a workplace staff association, who must now be invited into the workplace by an employee. The bill further required that an employee invite an ‘employee representative’ to initiate an occupational health and safety investigation, where previously a trade union could make such a request direct to Comcare to investigate a workplace.

The bill required that employee representatives involved in developing these management arrangements be issued with a certificate by the chief executive officer of Comcare, valid only for a period of 12 months. And finally, the bill empowered employers to conduct the election of employee health and safety representatives, a role previously conducted by a trade union or a person specified by the National Occupational Health and Safety Commission, a body which the government proposes to abolish.

On top of these concerns, we on this side of the chamber are also concerned about a number of negative implications in the government’s actions. These include that, as a result of the proposed bill, entitlements under Comcare may vary as compared with those which apply in other states and territories; the movement of large multistate employers to the Comcare administered national system could mean that premium revenue could be lost by the states and territories, leaving employers remaining in the state and territory systems to face higher premiums in the future; and reduced premium pools in states and territories would place increased pressure on the entitlements for injured employees.

We are further concerned about privacy considerations of individual employees. Human resource departments of employers who self-insure will have access to information on employees that, under state and territory schemes, only insurance companies would have access to.

Something the Howard government does not like to acknowledge, but which is well known to Australian employees, is the strong track record of Australian trade unions. It is a strong track record in protecting employees from unsafe work practices and unsafe workplaces. Unfortunately, the legislation before us takes the same approach as has been followed in the government’s broader approach to industrial relations changes—to de-legitimise and attack the role of unions in the workplace.

The combination of the bill before us and the 1991 act, as amended in 2005, has serious implications for the future involvement of organised labour in occupational health and safety issues at the workplace level. Taken together with the amendments made to the Occupational Health and Safety (Commonwealth Employment) Act 1991, the bill will extend limits on union participation in occupational health and safety issues to non-Commonwealth multistate employers who successfully apply for a self-insurers licence under Comcare. This is bad news for Australian employees and, ultimately, it is potentially bad news for Australian workplaces. It is clear that health and safety outcomes are often dependent on high levels of worker participation and union support. Put simply, removing the role of unions and replacing them with management driven processes has the potential to lead to less safe and less healthy workplaces.

As I said in this place when we were debating some previous legislation, unions do have a legitimate role to play in the monitoring and enforcement of occupational health and safety matters in the public sector—and it is not just the public sector where that role is important. Despite what the government may wish to think, trade unions do have a legitimate role to play in occupational health and safety matters in the private sector as well. While in many instances the involvement of the union may not be warranted, it is undeniable that trade unions exist as a safeguard for the protection of occupational health and safety terms and conditions. By extending the coverage of the Occupational Health and Safety (Commonwealth Employment) Act to multistate national employers, the government is effectively seeking to bar union involvement in those workplaces covered by this legislation. We believe that is unacceptable, and that is why we oppose the bill.