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Monday, 9 October 2006
Page: 66


Senator WONG (4:47 PM) —I first extend to the chamber my apologies for my late arrival to this debate and thank Senator Marshall for his excellent contribution indicating Labor’s position on the Occupational Health and Safety (Commonwealth Employment) Amendment Bill 2005. As the chamber will no doubt have discerned, Labor will be opposing the bill in its current form. We do so for a range of reasons.

The bill proposes the removal of the need for government agencies to negotiate occupational health and safety agreements with unions and employees through the introduction of so-called management arrangements. As Senator Marshall has identified, the bill removes references to unions and replaces them with a reference to employee representatives, defined either as a registered organisation or a workplace staff association, who are now required to be invited into the workplace by an employee.

The bill will require that an employee invite an employee representative to initiate an OH&S investigation, whereas previously a union could make a request to investigate a workplace direct to Comcare. Employee representatives involved in developing OH&S management arrangements must be issued with a certificate by the CEO of Comcare, valid only for a period of 12 months. And, finally, the bill empowers employers to conduct the election of employee health and safety representatives, a role previously conducted by a union or a person specified by the National Occupational Health and Safety Commission, which the government proposes to abolish.

Australia continues to have a very poor record with respect to work related death, injury and illness. It is estimated that there are around 3,000 work related deaths in Australia each year which, as Senator Marshall and others in previous debates related to occupational health and safety have indicated, is more than the national road toll. Broken down, nearly 450 of these work related deaths—an average of 10 per week—are a result of a traumatic incident at work, including work related road deaths. A further 150 deaths occur while Australian employees travel to or from work, with about 200 per year dying as a result of someone else’s work activity.

In 1996, the National Occupational Health and Safety Commission in its research arrived at a conservative estimate that at least 2,300 people died each year as a result of work related exposure to chemicals. Clearly, that number does not reflect the current extent of death from occupational disease. In the near future this figure may rise due to the expected increase in asbestos related deaths—a tragedy that, unfortunately, for many decades has continued its assault on working Australians, particularly through the Wittenoom disaster and, of course, the James Hardie disgrace. Australia has the highest incidence of asbestos related death in the developed world. The incidence in Australia has been rising steeply since 1970 and it is estimated that the total number of asbestos related deaths will reach at least 40,000—perhaps as many as 60,000—by 2020. Approximately 480,000 Australian employees experience a work related injury or illness each year. That translates to millions of Australians suffering from work related long-term health conditions, and each year there are around 140,000 compensated work related injuries resulting in an absence from work of one or more weeks.

The bill before the chamber proposes to amend the Occupational Health and Safety (Commonwealth Employment) Act 1991. The principal act provides a legal basis for the protection of the health and safety of Commonwealth employees in departments, statutory authorities and government business enterprises. This bill is the third attempt by the Howard government to introduce the provisions it contains—namely, the removal of unions from workplace occupational health and safety institutions.

The principal act is similar to counterpart state and territory legislation in that it follows the Robens model. This model stems from the report of the Committee on Safety and Welfare at Work commissioned by the United Kingdom parliament in the early 1970s as a means of reducing the incidence of workplace deaths and injury. Essentially, that approach recommended greater self-regulation in the workplace through a collaborative approach between employers and employees, including through the relevant unions. The principle of freedom of association was an important aspect of the Robens approach.

The Robens model has largely been followed in subsequent and similar inquiries conducted both by the states and by the Commonwealth. Consequently, occupational health and safety committees have now become a familiar part of the industrial landscape across Australia. The effectiveness of the Robens approach has been supported by the National Occupational Health and Safety Commission, which said in November 2002:

... there is indirect but strong evidence that employee participation, either direct or representative, is an essential component of effective occupational health and safety management.

The government’s first attempt to remove the role of unions in occupational health and safety matters was its Occupational Health and Safety (Commonwealth Employment) Amendment Bill 2000. That lapsed with the prorogation of the parliament for the 2001 election. However, before the lapse of the bill, the Senate Employment, Workplace Relations, Small Business and Education Legislation Committee prepared a report on the bill’s provisions.

The essence of the Labor senators’ report on the bill was threefold. First, there was a rejection of the reduced role for unions under the proposed act. In particular, Labor senators were of the view that the government’s position was driven by ideological rhetoric associated with labour market opposition. Second, concern existed over the ‘vagaries’ of the proposed ‘safety management arrangements’, especially given the ongoing success of the existing policy approach. Labor senators gave qualified support for a more flexible, dual civil and criminal system of OH&S enforcement and compliance.

In their report on the bill, the Democrats took a slightly different approach, which Senator Murray may comment on in his contribution to this debate. The Democrats argued that the 2000 bill should be passed with amendments. Senator Murray’s report on that legislation stated, amongst other things:

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&S. 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.

I want to emphasise that we have had the commission, the government’s own body—although the government is now seeking to abolish it, if it has not already done so—indicating that union involvement, ‘employee participation, either direct or representative’, is an essential component. The point made by Senator Murray, which has some cogency, is that you should not throw the baby out with the bathwater—that you deal with any inappropriate activity but you ought not ‘clamp down on legitimate useful or effective union H&S activity’.

The government’s second attempt to attack unions’ involvement in health and safety occurred in June 2002 with the Occupational Health and Safety (Commonwealth Employment) Amendment (Employee Involvement and Compliance) Bill 2002. The 2002 bill was referred to the Senate Finance and Public Administration Legislation Committee, with Labor senators again recommending the amendment of the bill to remove provisions designed to reduce or remove union involvement in health and safety outcomes. As I understand it, the Democrats’ position in relation to the 2002 bill remains unchanged. While some elements of the 2002 bill were subsequently enacted in the 2004 legislation—the Occupational Health and Safety (Commonwealth Employment) Amendment (Employee Involvement and Compliance) Act 2004, which introduced a more flexible compliance regime—Senate amendments supported by Labor and the Democrats significantly diluted the original intent and key provisions of the 2002 bill.

What we have before the chamber in the 2005 bill is essentially amendments modelled on provisions which have been unsuccessfully brought before parliament in 2002 as part of the 2002 bill. The bill before the chamber proposes the introduction of ‘management arrangements’ to replace occupational health and safety agreements traditionally developed through tripartite processes between unions, employers and employees. The arrangements replace the requirement for government agencies to negotiate health and safety agreements with unions and employees to govern occupational health and safety matters. Current legislation requires occupational health and safety committee meetings every three months, with minutes of the meetings to be kept for three years. These timeframes will now be decided by the ‘management arrangements’.

The bill also intends to remove all references to ‘unions’ and replace the term with ‘employee representatives’, defined as either a ‘registered organisation’ or a ‘workplace staff association’. The latter is defined as an ‘association of employees, a principal purpose of which is the protection and promotion of the employees’ interests in matters concerning their employment’.

Additionally, the bill indicates that, under the amended legislation, employee representatives must be invited into the workplace by an employee. And, under the provisions of the bill, an employee must invite the ‘employee representative’ to initiate any investigation into occupational health and safety matters. Under the current act, as I indicated earlier, a union is able to directly request that Comcare investigate a workplace. The bill also proposes that employee representative organisations request the right to be involved in consultations regarding occupational health and safety by submission to the chief executive of Comcare. The Comcare chief executive may, or may not, issue a certificate with whatever conditions are deemed necessary, with validity for a fixed period of 12 months.

Finally, the bill also provides for employers to conduct the election of employee health and safety representatives, a role previously conducted by a union or a person specified by the National Occupational Health and Safety Commission. In both 2000 and 2002 the government failed to outline a sound analysis as to why the current provisions and policy approach of the act needed to be changed. Nothing has changed with this bill, and the government has not put forward its analysis or evidence as to why the bill needs to be supported in its current form.

The fact is that occupational health and safety matters are most effectively developed through tripartite processes involving unions, employers and employees, based on the Robens model. This bill, as I have outlined, dismantles this tripartism, making it more difficult for employees to be adequately represented on these matters. The bill proposes to remove all references to unions in the act. This effectively means that the role a trade union currently fulfils may be replaced by a workplace staff association. This could be merely a social club and may not fulfil the requirements mandated to trade unions, such as their democratic processes and their independence.

The consequences of the bill are fairly plain to see. By devolving responsibility from unions to employee representatives, as the bill proposes, strong occupational health and safety processes and outcomes will be increasingly difficult to enforce. It appears from this legislation that the government’s intent is to throw employees back on their own resources instead of utilising the health and safety expertise built up over many years by trade unions and their membership. Employee representatives will lack the independent information and assistance currently provided by unions, while representatives themselves are less likely to be forthcoming in occupational health and safety negotiations with their employers. As well, the proposal that a union member must seek permission from a public official, who may or may not agree to involve the union representative in a health and safety matter, is not only counter to good public policy but is likely to be in breach of the terms of ILO convention 87, to which Australia became a party in 1973. Finally, the bill proposes that employers, not employees, control the elections of their health and safety representatives.

To characterise this legislation, it is fundamentally about shifting responsibility, power and access to information away from trade unions as representatives of employees towards the employer and towards individual employees without the support of their trade unions. The bill, as I have outlined, also creates a far more bureaucratic and difficult process for employees to advocate on behalf of health and safety issues and, perhaps more importantly, for trade unions to initiate investigations by Comcare. You have to wonder why the government would seek to play politics with occupational health and safety simply by virtue of its disregard and blatant hatred of the trade union movement. There is demonstrable evidence that involvement of trade unions through tripartite processes over many years has had a measurable and significantly positive effect on health and safety outcomes. The government does not worry about that; the government is more keen on attacking the role of unions and rights of unions to be involved in workplaces than on looking at what is the best public policy to minimise injury to Australian workers in Commonwealth agencies.

As I said, one of the aspects of the bill is that employers, not employees, will control the election of their health and safety representatives. You have to ask why it is that the Commonwealth wants to ensure that that occurs. What is so frightening about a trade union or an independent body determining and ensuring that elections of health and safety representatives are undertaken appropriately? What is the public policy argument for the government or the employer to control the representatives of employees in relation to health and safety? Frankly, this provision is nothing more than a blatant attempt to diminish and ultimately remove unions from the health and safety process within the Australian public sector. This bill represents the government’s third attempt to put legislation in place that seeks to deny Australian employees the basic and fundamental right to be represented by a union if they so choose. It is a piece of legislation driven by the Howard government’s extreme ideology rather than any sense of sound public policy outcomes.

The fact is Australian trade unions have a strong track record of protecting employees from unsafe work practices and unsafe workplaces. It is clear from the evidence in Australia and internationally that health and safety outcomes are highly dependent on high levels of worker participation and union support. If you look at this research, some of which was referred to earlier, you see that removing the role of unions and replacing them with management-driven processes is likely to lead to less safe and less healthy workplaces.

Unions have a legitimate role to play in the monitoring and enforcement of health and safety matters in the public sector. Unions exist as a very important and necessary safeguard to protect employees when a breakdown on health and safety issues has occurred between an employee and an employer. This view recognises, of course, the many examples where these health and safety issues arise on a daily basis and employees, between themselves or with their managers, resolve them efficiently and expeditiously. In such cases, the involvement of unions as a third party is not a prerequisite and often does not occur because it is often not required. There is no mandatory involvement of unions in such issues, despite the fact that the government would like to construe the argument in that way.

We already have both union and non-union employees working cooperatively with management and achieving results, so for the government to now attempt to ostracise unions completely from health and safety matters is comprehensible only if we appreciate the ideological war being waged by the Howard government. The changes contained in the bill are unashamedly anti-union, based as they are on the extreme ideological view of those opposite: that neither an individual trade union nor the organised trade union movement has a role to play in the workplace.

Workplace health and safety must be a priority. It must be adequately resourced for employers and employees to enforce effective occupational health and safety rules and regulations. This is incumbent upon all in the workplace because no-one wins if working conditions deteriorate or when workplace accidents occur. It is unfortunate that the government’s priority of its ideological attack on trade unions seems to outweigh the priority of good public policy to ensure good workplace health and safety in the public sector. The bill is ill-conceived; it is nothing more than an ideological attack on trade unions with no public policy benefit. We oppose this legislation.