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Monday, 4 September 2006
Page: 105

Senator MURRAY (8:08 PM) —With respect to the OHS and SRC Legislation Amendment Bill 2006, it is a truism that occupational health and safety affects most Australians on a daily basis and can have a profound effect on the lives of many individuals and families. Australia continues to have an unacceptable record with regard to work related death, injury and illness. A recent study by Access Economics estimated that there are 4,900 work related deaths—and ‘work related deaths’ includes deaths from work related diseases—each year in Australia. This is higher than the national road toll—in fact, it is more than double.

I have often thought that one of the things we ought to start doing with respect to this is to apply the same statistical and media emphasis that is applied to road trauma and produce the weekly maps of how many deaths have occurred through work related injury that you see for road deaths. It would remind people of how prevalent these deaths are and of the continuing need to improve this situation. The Australian Bureau of Statistics reports that half a million Australians suffer work related injuries or illnesses each year. Approximately 2.8 million Australians have long-term work related conditions. It is also estimated that 3.9 million work related problems and 1.1 million new work related problems are handled each year by general practitioners.

The Productivity Commission report National Workers’ Compensation and Occupational Health and Safety Frameworks noted that workplace injury and illness impose significant social and economic costs on injured workers and their families, employers and the wider community. The report notes that the cost of work related fatalities and illness to the Australian economy is more than $31 billion a year. The Productivity Commission argued that national uniformity in occupational health and safety regulation should be established as a matter of priority.

In essence, all jurisdictions agree with the fundamental principle of duty of care. It is the foundation stone of occupational health and safety regulation and has been found to be sufficiently robust to accommodate the wide range of circumstances and changes facing the various jurisdictions. There are no compelling arguments against a single national occupational health and safety regime, and there are significant benefits from a national approach, particularly for multistate employers and for the increasingly mobile workforce. The Democrats are sympathetic to this argument. The Democrats have been long-term campaigners for harmonisation of workplace relations and occupational health and safety laws and for a single national jurisdiction. The Democrats believe that having different laws across nine jurisdictions with respect to these areas does lead to inequalities and inefficiencies.

The Productivity Commission recommended that governments should address these compliance burdens, costs and inefficiencies and that the Australian government could take steps immediately by allowing qualifying employers to self-insure under its Comcare scheme and be covered by the Australian government’s OH&S regime. The bill aims to implement the Productivity Commission’s recommendation, extending coverage under the Occupational Health and Safety (Commonwealth Employment) Act 1991 to eligible corporations which are licensed under the Safety, Rehabilitation and Compensation Act 1988. The Safety, Rehabilitation and Compensation Act, the SRC, allows former Commonwealth authorities and eligible private sector corporations to be self-insured under this act. In principle, the Democrats support this aim.

The Productivity Commission argued in their report:

The lack of a nationally consistent approach appears to have imposed significant compliance costs on business and may have lead to inequities for injured workers in terms of benefits payable and entitlement to benefits.

At present, former Commonwealth authorities and licensed private sector corporations operate under the Commonwealth workers compensation regime—that is, through the SRC—but are also covered by state and territory occupational health and safety legislation in the jurisdiction in which they operate. This makes for unnecessary difficulties for many firms who wish to develop a national and uniform approach to occupational health and safety and may result in the requirement that they comply with eight separate and quite distinct occupational health and safety jurisdictions.

The National Council of Self-Insurers gave the Senate committee an instance of where safety was jeopardised by different regulations:

If you look at the security-sensitive ammonium nitrate regulations which have come in state by state, PACIA, the Plastics and Chemical Industries Association, are really concerned about the different degree of regulations across the states. We have a situation where the ammonium nitrate can be classified differently, the amount you can store is different from state to state, the transport of it is such that you can transport a certain amount in Victoria but you cannot take it into South Australia et cetera. Some national guidelines there, some national regulations, would streamline it and make it a lot safer. That is what it is about. The confusion is really dangerous.

The Minister for Employment and Workplace Relations, in his second reading speech on this bill, argued that multistate employers:

find it almost impossible to develop a national approach to occupational health and safety and the increased cost of complying with multiple jurisdictions does not lead to improved health and safety outcomes for their employees.

Not surprisingly, the Australian Chamber of Commerce and Industry have expressed support for the bill, citing compliance complexities as a key reason. In their submission to the Senate inquiry into this bill, the ACCI argued that some employers, particularly the larger national employers, derive legitimate benefits from self-insuring for workers compensation purposes. Under certain conditions, these self-insurers can apply to be licensed under the Commonwealth SRC Act rather than being required to participate in and comply with each separate state and territory workers compensation scheme. Licensees able to access such arrangements therefore avoid the administrative and compliance complexities that otherwise arise from participation in several workers compensation systems.

Mr Bernie Ripoll, the Labor member for Oxley, in his second reading remarks on this bill in the House of Representatives, said:

We expect that for those employers with operations around the country, complying with different state based legislative requirements can be a significant cost burden also. It is logical that national uniformity in OH&S regulation should be a priority objective. Looking at the existing system, it is understandable that changes in this area are warranted ...

There appears to be wide-ranging support and evidence for the need for harmonisation of occupational health and safety laws. So I was curious that, in their opposition senators report to the inquiry into this bill, Labor have argued in that Senate report against harmonisation. I quote:

The Opposition believes that the level of confusion arising from different state laws is overstated, and claims of additional compliance costs to employers who have to comply with conflicting OHS state laws lack any evidentiary basis.

I disagree with the ALP’s assertion in the report and I tend to support the way in which Mr Ripoll expressed himself. I do agree with some of the other concerns that the ALP have raised over this bill.

In the terms of reference to the Productivity Commission, Minister Ian Campbell stated:

Ideally, a national framework for workers’ compensation and OHS would encompass a cooperative approach between the Commonwealth and State governments while still leaving primary responsibility for these systems with the States. Moreover, any national frameworks would provide the States with adequate flexibility to address local conditions, encourage competition and facilitate competitive neutrality.

It appears that there has been little consultation with the states on this bill, given that the states expressed overwhelming opposition to the Productivity Commission’s recommendation, which the bill now implements. It concerns me that the federal government is determined to press ahead with this legislation despite a High Court challenge by the Victorian government against the federal government challenging the legitimacy of federal workers compensation insurance licences. The Victorian government is arguing that federal licences which effectively allow large employers to opt out of state schemes and insure through Comcare are not permitted under the Constitution. Victoria’s approach is supported by other state governments, including New South Wales, Tasmania and Western Australia.

We Democrats are concerned that the government seems to have put too little effort into trying to persuade the states and territories to achieve uniform occupational health and safety codes and standards and to harmonise occupational health and safety laws. The government’s actions with respect to this bill and industrial relations reform in general will only serve to put the states more offside and to slow, if not halt, any chance of uniformity and harmonisation. This is not only bad politics but bad policy.

The Democrats are concerned by accusations that existing compliance obligations and enforcement of these obligations under the Commonwealth occupational health and safety system are poor compared with state and territory acts. It is our view that we should be working towards a national world-class system, taking the best aspects of state, territory and federal law and coming up with a unitary system which is supported by the states and territories.

The unions and Labor have accused the Commonwealth system of being lax in compliance. They submit evidence that compares Comcare figures to Victoria’s WorkSafe figures for 2003 and 2004. It shows that Comcare had only 0.08 workplace interventions per employee, compared to WorkSafe’s 2.07; that Comcare handed out only 0.005 safety prohibition and improvement notices per employee, compared to WorkSafe’s 0.59; and that there had been no prosecutions under Comcare, compared to 0.005 per employee under WorkSafe. Those figures are not just academic. Given the earlier figures as to the quantum of workplace injuries that I raised, it is obviously very important to use both investigation and enforcement to reduce the incidence of negative health and safety occurrences. The differences in these figures are cause for questioning at least. I note that Comcare advised the Senate committee that until legislative changes were made in September 2004 it was unable to initiate civil or criminal prosecutions. I accept that this factor accounts for some of the difference in figures, but it does not account for the difference in intervention and improvement notices. I urge the government to investigate the matter further. The question of resourcing also needs to be considered.

The Senate committee heard concerns about the Commonwealth’s ability to adequately resource the inevitable increase in workload that will result from this bill. It is my understanding that at the moment there are approximately 16 Commonwealth workplace inspectors, with access to an additional 200 state inspectors. I do not know how you can have ‘approximately 16’ so I presume that means full-time equivalents. While this may seem adequate on the face of it, I was alarmed to learn that Comcare openly admitted that it was reluctant to use the services of state and territory inspectors because it was dissatisfied with the quality of their reports. Comcare explained to the committee:

Part of the problem that we experience relates to the fact that we approach investigations quite differently. You even see it with the terminology. The states refer to ‘inspectors’ and we refer to ‘investigations’ and ‘investigation reports’. A lot of the inspectors that do work for us from the states are used to walking into a workplace, spotting hazards—things like cabling, as was mentioned before—writing a notice and leaving, whereas, when we require an investigation report to be done, it is quite a comprehensive forensic examination in response to an incident: what went wrong; who was responsible; what are the elements of the legislation; what are the elements of an offence; what should have been done; what was reasonably practicable; was it done; and, if not, why not?

I am somewhat surprised by these comments because they expose such a difference in methodology and approach. That needs to be resolved. We need to have a uniform method of approaching these issues which produces the optimal outcomes. I note that Comcare did indicate to the committee that they will be expanding the number of investigators, although they did not say by how many. Labor in their opposition senators report on this bill—correctly, in my view—drew attention to the final report of the Royal Commission into the Building and Construction Industry. This final report concluded in part:

There is persuasive support for the view that the extent of compliance with occupational health and safety obligations is strongly influenced by a reasonable expectation of the likelihood of being inspected, prosecuted, convicted and having a meaningful penalty imposed. The presence of occupational health and safety inspectors is important.

I agree, and the Democrats agree, with that sentiment. Therefore I find it hard to have confidence in an expanded scheme when the ability to deal with current and expected future workloads is still questionable. But our prime concern with this bill relates to what I would call its partner legislation—the Occupational Health and Safety (Commonwealth Employment) Amendment Bill 2005. This is scheduled to be dealt with by this chamber tomorrow.

The Commonwealth Occupational Health and Safety (Commonwealth Employment) Amendment Bill 2005, broadly speaking, aims to remove the automatic right of unions to provide occupational health and safety representation. The Democrats believe that unions have a legitimate and useful role in occupational health and safety, and the research demonstrates that union representations on health and safety at the workplace are associated with better health and safety outcomes. We will be moving amendments to that bill when it finally comes into the chamber. If those amendments were to be agreed to, we would actually be in a position whereby we could support this bill. However, the government have already indicated that they will not be supporting our amendments to the Occupational Health and Safety (Commonwealth Employment) Amendment Bill 2005. If that is the case, it is difficult for us to support the expansion of workplaces under the Commonwealth occupational health and safety scheme in an environment where unions will have much less participation. As I have said, unions have traditionally had a positive effect on health and safety outcomes.

While the Democrats support the harmonisation of occupational health and safety laws, and we support the idea of a single national scheme—reducing regulatory burden is an important thing to pursue—we have concerns with the lack of involvement of and cooperation with the states and territories with respect to getting common agreement on occupational health and safety; with the enforcement of Commonwealth occupational health and safety rules; and with the government’s wider aim with respect to union involvement in health and safety. For this reason I am caught in a conundrum. I and my party support the intent behind this bill. But when we line this bill up with the Occupational Health and Safety (Commonwealth Employment) Amendment Bill 2005 in the form in which it will pass, we think the combination of the two is negative rather than positive. Therefore we will oppose this bill.