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Monday, 9 October 2006
Page: 71

Senator MURRAY (5:06 PM) —The Occupational Health and Safety (Commonwealth Employment) Amendment Bill 2005 before the chamber, broadly speaking, aims to remove the automatic right of unions to provide occupational health and safety representation and is similar to bills introduced in parliament in 2000 and 2002. The government’s first attempt at these provisions was its Occupational Health and Safety (Commonwealth Employment) Amendment Bill 2000. That bill was subject to a Senate inquiry, and in the Democrats’ minority report to the report on that bill I said:

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.

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.

The 2000 bill was never dealt with in the Senate chamber as it turned out; instead it lapsed with the prorogation of the parliament for the 2001 election. The second attempt for this legislation was through the expanded Occupational Health and Safety (Commonwealth Employment) Amendment (Employee Involvement and Compliance) Bill 2002, which in March 2004 passed amended, without the offending provisions and with the support of all parties. The 2002 bill passed with the support of all parties because the Democrats successfully negotiated for the provision relating to changing the role of union involvement in occupational health and safety to be excised from the bill to ensure the passage of the remaining provisions through parliament.

For the sake of the media, the public, the unions and industry groups I want to take a minute to expand on what I have just said and to emphasise the valuable role the Democrats played in the balance of power in the Senate from 1996 to 2005 and in the years before and what it now means without it. On industrial relations in particular, the portfolio I have held since 1996, the Democrats have played a balancing role between two often ideologically opposed parties. We are not beholden to big business and we are not beholden to the unions. We do judge legislation on its merits and we try to take a practical, pragmatic and sensible view even while trying to be consistent in terms of our principles.

During the Howard government’s first three terms, 18 industrial relations bills passed the Senate. Six were passed by the coalition, Labor and the Democrats all voting together; 11 were negotiated and amended by the Democrats and opposed by Labor. The 2002 bill, eventually supported by all parties, had two goals: one was to remove the automatic right of unions to provide occupational health and safety representation, and the other goal was to introduce a new penalty and enforcement regime. The new penalty and enforcement regime had the strong support of the unions and industry groups, and both sides were keen for the regime to be implemented. Not surprisingly, the unions were opposed to removing the automatic right of unions to provide occupational health and safety representation.

Whilst the government’s proposal was along similar lines to those that existed in the states, and it is obviously desirable to harmonise legislation on occupational health and safety wherever possible, the Democrats were concerned that the intention of the bill went too far. As noted in the Democrats’ minority report to the 2002 bill, in which I included a comparison of state legislation, the various state legislations still included a role for unions. For example, the New South Wales Occupational Health and Safety Act 2000 allows and allowed for a union representative to be present at inspections, and that principle had been present throughout both Liberal and Labor governments.

It was and still is our view that union officials with expertise in occupational health and safety should continue to be involved as appropriate in workplace health and safety. We raised our concerns with the government and suggested some alternative provisions. The government undertook to consider our suggestions and, for the sake of facilitating the passage of the remaining provisions in the bill—and, remember, they were wanted by all the parties—the government agreed to set aside the contentious provisions. The Democrats were able to, in the balance of power, negotiate the passage of legislation supported by all parties and stakeholders while delaying those controversial provisions for further consultation.

Within a month of the government taking control of the Senate, the government reintroduced the contentious aspects of the original 2002 legislation. Not only has it failed to address any of our previous concerns; it has introduced new provisions which further impinge on union representation. It is difficult to treat this bill with any credible feeling given its track record and the fact that the current bill was introduced in the House of Representatives over 12 months ago and we are only now getting round to dealing with it in the Senate. Such a long delay can only lead one to conclude that the occupational health and safety procedures as they currently stand in Commonwealth workplaces are not really a problem and do not need urgent revision. What one can conclude is that, when you get round to it, having a smack at the unions can be done in your own time!

Statistics suggest that the current Commonwealth occupational health and safety act has resulted in a better, perhaps the best, safety record of all jurisdictions. The Workplace Relations Ministers Council reports from 2002 and 2004 show that, in 2000-01 and 2002-03, the Commonwealth jurisdiction resulted in fewer injuries resulting in five or more days compensation per 1,000 employees than the state jurisdictions. And injuries have been decreasing: claims accepted per 1,000 employees reduced significantly in the Commonwealth, from 61.8 in 1996-97 to 51.7 in 2001-02. I do not have any updated figures since then, but I expect the trend will have been maintained.

I would go so far as to suggest that, rather than address any real problems, the sole purpose of this bill remains to further undermine the role of unions. This is despite national and international evidence that shows that union involvement in occupational health and safety is beneficial. If that turns out to be true, what you are doing is playing with people’s welfare for political reasons, and no government should have that on its conscience. Having said that, it is the case that Australia continues to have a poor record with regard to work related death, injury and illness. The question must be, then: will this legislation actually improve that record or worsen it? If it does not improve that record it will, of course, be failed legislation.

A relatively recent study by Access Economics estimated that there are 4,900 work related deaths—‘work related deaths’ means including from work related diseases—each year in Australia. As Senator Marshall pointed out, this is higher than the national road toll; it is double. The Australian Bureau of Statistics reports that half a million Australians suffer from a work related injury or illness 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. Frankly, when I first came across those figures, the quantum surprised me. The point is that, if this country dedicated as much public exposure and attention—that is, the same level of media exposure and the graphs and tables and so on that go with it—to workplace injuries and deaths as it does to road tolls, we could considerably improve the understanding of the extent of this problem.

The government has not produced any evidence to suggest that its amendment bill will improve these sorts of statistics. However, there is evidence that suggests that reducing or excluding the role of unions will have a negative impact. The Bills Digest to this current bill notes that leading occupational health and safety experts, Johnstone, Quinlan and Walters, have recently argued that there:

… is no reliable evidence of the effectiveness of arrangements to represent workers’ interests in OHS in which trade unions are not involved in a supportive and enabling capacity.

Rather, as noted in the Bills Digest, they argue the opposite:

... the analysis of international research suggests that consultative arrangements and union representation:

on health and safety at the workplace are associated with better health and safety outcomes than when employers manage OHS without representative worker participation.

A group of British researchers analysed the relationship between worker representation and industrial injuries in British manufacturing. They found that those employers who had trade union health and safety committees had half the injury rate of those employers who managed safety without unions or joint arrangements. In Canada, a study by the Canadian ministries of labour found that union supported health and safety committees have a significant impact on reducing injury rates. A report by the Ontario Workplace Health and Safety Agency found that 78 to 79 per cent of unionised workplaces reported high compliance with health and safety legislation, with only 54 to 61 per cent of non-unionised workplaces reporting such compliance.

In Australia, unionised workplaces are three times as likely to have a safety committee and twice as likely to have undergone a management safety audit in the previous year than non-unionised workplaces. A 1995 World Bank report stated:

Trade unions can play an important role in enforcing health and safety standards. Individual workers may find it too costly to obtain information on health and safety risks on their own, and they usually want to avoid antagonizing their employers by insisting that standards be respected.

What has changed since then? That was 11 years ago. I follow these issues reasonably carefully. The United Kingdom’s Robens committee report, which led to Australia’s occupational health and safety laws being revolutionised after the 1970s, recognised the unique role of the representatives of employees—namely, unions—and stated that, whereas individual employees may not have had personal experience of health and safety adversity, collective organisations acquired what now may be called ‘corporate knowledge’ of OH&S issues, particularly those specific to an industry.

The evidence suggests that union involvement in occupational health and safety is beneficial, yet the bill before us reduces this significantly—if not eliminating union involvement altogether—in many workplaces. Specifically, the bill will remove the need for government agencies to negotiate occupational health and safety agreements with unions and employees through the introduction of management arrangements. The bill will remove all references to unions and replace them with references to ‘employee representatives’, defined as either a ‘registered organisation’ or a ‘workplace staff association’, which must now be invited into a workplace by an employee. The bill will require that an employee invite an employee representative to initiate any occupational health and safety investigation, whereas previously a union could make submissions directly to Comcare for a request to investigate a workplace.

The bill will require employee representatives involved in developing occupational health and safety management arrangements to be issued with a certificate by the chief executive officer of Comcare, valid for only a 12-month period. 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, as we know, no longer exists.

I note that, in the inquiry to the 2002 bill, the department stated that the bill did not exclude unions from involvement in OH&S, although any involvement required a request to be made by one or more of their members. My impression then and now is that this approach does not seem to put a high enough value on union activity in this field. The Bills Digest, in respect of the bill before us, warns that new provisions—specifically the more stringent certification process involving an administrative decision-maker and the possible reluctance by employees to request representation without the assurance of anonymity—may prove to be a strong deterrent for seeking employee representation. The Bills Digest further notes that even the unintended exclusion of unions from representing employees in OH&S consultations may have the effect of weakening OH&S for Commonwealth employees overall.

The question before me is how, on behalf of the Democrats, I should handle this bill, given that, on the one hand, evidence suggests that union involvement in occupational health and safety is beneficial and, on the other, the government has demonstrated that they are not interested in negotiating a workable solution which is acceptable to all parties with respect to that issue. We could just oppose the bill based on its explicit intention of reducing union involvement in occupational health and safety, or we could try to amend the bill to an ideal level, knowing that the government has rejected our previous suggestions. Instead, I have approached a number of people and got some assistance, including from the CPSU, and have put together some amendments which I think maintain the intent of the bill but improve the transparency and integrity of the proposed new process.

On this occasion, the Democrats believe that it is better to try and achieve a reasonable outcome and appeal to the government’s reasonable side, if that exists. Given that the government have only supported four non-government amendments since 1 July 2005, compared to the 115 they accepted in 2004-05 which still exist, I will not hold my breath. I think it is to the great discredit of the government to now take the view that all wisdom resides on their side, that they are perfect, that they always know best and that everything they do is right. If they can accept a couple of hundred amendments every year from 1996 onwards, which are still in legislation, and realise that those amendments actually improved the circumstances of the bills before them, I find it very odd that, to date, only four non-government amendments have been accepted. Hopefully, the Australian people will get the message and will take control of the Senate away from them. I will discuss the detail of the amendments in the committee stage, but I indicate now that the Democrats will not support the bill without our amendments being accepted.