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Monday, 4 September 2006
Page: 113


Senator TROETH (8:39 PM) —It is a pleasure to speak on the OHS and SRC Legislation Amendment Bill 2006, which was the subject of an inquiry by the Senate Employment, Workplace Relations and Education Legislation Committee. Productivity Commission report No. 27, National workers’ compensation and occupational health and safety frameworks, recommended that the Australian government amend the Occupational Health and Safety (Commonwealth Employment) Act 1991 to enable those employers who are licensed to self-insure under the Comcare scheme to elect to be covered by the Australian government’s OHS legislation. This bill will implement the government’s response to the Productivity Commission report. Those corporations which are licensed under the Safety, Rehabilitation and Compensation Act 1988, the SRC Act, will also be covered under the Occupational Health and Safety (Commonwealth Employment) Act 1991. The bill ensures that all SRC Act licensees—both corporations and Commonwealth authorities—are covered by the Occupational Health and Safety (Commonwealth Employment) Act 1991 for OHS purposes.

At present, those former Commonwealth authorities and licensed private sector corporations that operate under the Commonwealth workers compensation scheme are covered by state and territory occupational health and safety legislation in the jurisdictions in which they operate. That makes it unnecessarily difficult for many firms to develop a national approach to occupational health and safety, and it may result in the requirement that they comply with eight separate, and quite distinct, OHS jurisdictions. The amendments in this bill will provide all licensees under the SRC Act with the benefits of operating under one occupational health and safety scheme, together with integrated prevention, compensation and rehabilitation arrangements. This will produce better health and safety outcomes all round, including for the employers of the affected bodies. The amendments will enable much greater coordination and feedback between the workers compensation and OHS arrangements. The time and resources which are currently expended in addressing jurisdictional and boundary disputes caused by multiple compliance regimes can be redirected to achieve greater overall efficiencies and, importantly, savings can be devoted to further improving health and safety in the workplace.

It is very important that this bill be introduced in order to, firstly, provide certainty to Telstra in the event that they are fully privatised. The Telstra (Transition to Full Private Ownership) Bill 2003 removed Telstra from schedule 1 of the OHS Act so that it is no longer deemed to be a government business enterprise for the purposes of the OHS Act. It is important that this bill now be put through in order to, secondly, provide coverage for Optus who, although self-insured under the Comcare scheme, do not have coverage under the Occupational Health and Safety (Commonwealth Employment) Act 1991 because they do not fit the definition of a Commonwealth authority or government business enterprise.

Recent campaigns against the Work Choices bill, such as those exemplified by Senator Sterle, have incorrectly asserted that workplace safety will be compromised by promoting greater flexibility in the workplace. It is true that the Work Choices bill will result in more workers moving to the federal industrial relations system, but these reforms will not impact on state and territory jurisdiction over workers compensation and occupational health and safety. All OHS legislation imposes a duty of care on employers to protect the health and safety of their employees. The duty of care includes providing a safe working environment and safe systems of work, and it encompasses risks associated with fatigue. As is currently the case, both employers and employees will need to be conscious of their responsibilities under OHS legislation in negotiating any changes to working hours arrangements, including overtime and rest breaks.

The economic cost of workplace accidents to workers, employers and the community is huge. It is estimated to be in excess of $30 billion annually, or some five per cent of gross domestic product. The responsibility for this must be shared by all stakeholders, and we must all act to make continual improvements. The answer is not to introduce laws that are punitive and punish the employer above all else—particularly given the example that Senator Sterle used. You would have thought that those workers, working under a skull and crossbones signal, would have deduced that there was some requirement for them to take responsibility for not eating their lunch anywhere near the vicinity of that particular chemical.

The best way to address this issue is to promote a culture where there is greater cooperation between employer and employee. In this respect, I am very pleased to say the Commonwealth is leading the way in promoting an environment in which employers and employees are encouraged to take a cooperative approach to identifying and eliminating hazards that may cause injury or death. The Australian government is strongly committed to improving occupational health and safety outcomes in all Australian workplaces. Those improvements can be achieved through governments, employers and employees taking a cooperative and non-adversarial approach to workplace health and safety issues. It is no use various sectors of the working environment sitting around saying to the other sector ‘This is your fault,’ while these dreadful accidents continue to happen.

The coalition has a proud record in its commitment to improving occupational health and safety in every Australian workplace. We initiated the development of the National Occupational Health and Safety Strategy in 2002, and I remind those opposite that the signatories to this strategy include the Australian government, all the state and territory governments including the ACT, the ACTU and the Australian Chamber of Commerce and Industry. So every part of the workplace is committed to making this strategy work. We want to improve Australia’s performance over the next decade and we want to foster sustainable, safe and healthy enterprises that prevent work related death, injury and disease.

There are five national priorities in this strategy: (1) reducing the high incidence and severity of risks; (2) improving the capacity of business and workers to manage occupational health and safety; (3) preventing occupational disease more effectively; (4) eliminating workplace hazards at the design stage; and (5) strengthening the capacity of governments to influence better OH&S outcomes. And that is why we have moved to establish the Australian Safety and Compensation Council.

In a country with 10 million workers, many employers ask why there are eight different and quite separate OH&S and workers compensation jurisdictions, as exist at the moment. This is made worse by the fact that there appears to be very little in the way of consistency and uniformity across the various schemes. A number of major national corporations have made their frustrations known with this situation. For instance, the National Australia Bank has previously complained about the fact that the current state based systems result in the bank dealing with eight different legislations, which provide eight different levels of benefits, eight different definitions of injury, and so on.

So, in order to improve the national frameworks, the government undertook to establish the Australian Safety and Compensation Council. That has representatives from Commonwealth, state and territory governments, as well as employer and employee groups. It provides a new opportunity to coordinate workers compensation on a national level. Unlike the National Occupational Health and Safety Commission, which it replaces, the ASCC will consider both occupational health and safety and workers compensation matters.

The ASCC’s main role will be to coordinate research and provide policy advice to the Workplace Relations Ministers Council, which obviously comprises the federal workplace relations minister and the state and territory counterparts. The ASCC met for the first time in October last year to discuss the council’s future priorities for moving Australia towards a more nationally consistent workers compensation framework.

What has been Labor’s position up till now? Certainly I should acknowledge, on the opposition’s side, that unions have played an important role in the promotion of health and safety in the workplace. They always have and one would hope that they always will. The ACTU, as I have said, played a central role in the National Occupational Health and Safety Commission and, through its membership of the ASCC, I would imagine it would continue to do so. So it is very disappointing to note that the union movement has attempted to cynically exploit the grief and misfortune of those people who are killed or injured in workplace accidents. For instance, last year, on the ABC’s Lateline, the President of the ACTU, Ms Sharan Burrow, was filmed at an ACTU campaign meeting saying:

I need a mum or a dad of someone who’s been seriously injured or killed. That would be fantastic.

That is a terrible statement to make. And, indeed, at the hearings on the Work Choices bill which I conducted in November last year, I challenged Ms Burrow about that statement that she made on the ABC’s Lateline and asked her if she regretted that in any way. And she said, virtually, no, she did not. This demonstrates that the ACTU’s disregard for workers’ wellbeing even extends to taking advantage of family tragedies. What does it say about the union movement’s concern for workers and their families when its president states that a grieving family would be ‘fantastic’ for her campaign?

What has been the attitude of the states and territories? The New South Wales government has recently passed the New South Wales Occupational Health and Safety Amendment (Workplace Deaths) Bill, where employers face up to five years jail and a $165,000 fine if they are convicted of causing an employee’s death through recklessness. It is of considerable concern that breaches of such serious and punitive laws, be they civil or criminal, are dealt with by the New South Wales Industrial Relations Commission and not a court. And this state of affairs will continue, given that the New South Wales Court of Appeal recently found that there was nothing to prevent the New South Wales Industrial Relations Commission from hearing such matters.

It is very disturbing that, in a future where we hope we would have a harmonious industrial relations atmosphere, under those New South Wales occupational health and safety laws unions could actually prosecute employers for workplace occupational health and safety breaches and, if successful in their action, could receive up to half the fines awarded and also have their legal bill paid by the employer. The New South Wales Industrial Relations Commission has fined the ANZ Bank over armed robberies at their branches after action brought by the Finance Sector Union. Patrick Stevedores were subject to an MUA prosecution for work practices that risked repetitive strain injury. New South Wales coalminers have been hit for using misleading maps prepared by the New South Wales government.

The New South Wales Labor Party is financially beholden to the union movement and relies on substantial donations from unions. It is no coincidence that the Finance Sector Union and the MUA have donated over $350,000 to New South Wales Labor since 1995. This situation exists only in New South Wales. In every other jurisdiction, only the relevant workers compensation authorities can prosecute for alleged breaches of work safety laws. This creates a perverse incentive for unions to abuse such processes and to prosecute employers for purely financial gain.

The Victorian government has also introduced the offence of reckless endangerment under the Victorian Occupational Health and Safety Act, carrying a potential prison sentence and large financial penalties. So the Victorian and New South Wales laws are essentially using occupational health and safety legislation to introduce industrial manslaughter laws by stealth. The ACT has been more upfront in its intentions. It has introduced the criminal offence of industrial manslaughter, which singles out employers for punishment despite the fact that some factors influencing occupational heath and safety may be outside the employer’s control. That sort of approach, which is adversarial to say the least, will serve only to discourage employers and employees from being closely involved in safety issues. Employers and employees will focus on defending themselves rather than progressively moving ahead to cooperatively ensure safer workplaces.

Governments at the Commonwealth, state and territory levels must be wary of seeking to amend or impose legislation which only serves to create uncertainties for employers and in many instances will only discourage employers and employees from being closely involved in those sorts of issues. The Australian government has introduced the Occupational Health and Safety (Commonwealth Employment) Amendment (Promoting Safer Workplaces) Bill 2005 to exclude Commonwealth employers and employees from the application of the ACT industrial manslaughter laws or similar laws enacted in the future by other states and territories.

To sum up, this bill further reinforces the Australian government’s approach to workplace health and safety to ensure that the main focus is on preventing workplace injuries, rather than punishment after the event.