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Monday, 9 October 2006
Page: 91

Senator TROETH (7:30 PM) —It is a great pleasure for me to speak tonight on the Occupational Health and Safety (Commonwealth Employment) Amendment Bill 2005. The bill will amend the original 1991 act. It is to cover new categories of employers and employees called non-Commonwealth licensees and employees. It is interesting that, after all the accusations made by the opposition about this being part of the Howard government agenda, these amendments actually respond to a recommendation made in the Productivity Commission’s report 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 1991, 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. This legislation would be extended to cover those insuring under any future alternative national premium-paying insurance scheme.

So the amendment is not something that the government has thought up in the dead of night. It is responding to a recommendation by that august body the Productivity Commission. The bill will also ensure that all Commonwealth authorities licensed under the Safety, Rehabilitation and Compensation Act 1988 are covered by the Occupational Health and Safety (Commonwealth Employment) Act and it corrects some drafting errors made in 2001 as well as other matters.

I am very proud to be a member of the government that has brought in the Work Choices legislation. It is most unfortunate that recent campaigns against the Work Choices legislation have incorrectly asserted that workplace safety will be compromised by promoting greater flexibility in the workplace. As we know, ultimately the Work Choices legislation will result in more workers moving to the federal industrial relations system, although the reforms will not impact on state and territory jurisdiction over workers compensation and occupational health and safety.

We all realise that the economic cost of workplace accidents to workers, employers and the community—and we all regret that there are still far too many—is estimated to be in excess of $30 billion annually or five per cent of GDP. That is too high in anyone’s language. The responsibility for these workplace accidents must be shared by all stakeholders—by employers, by employees and by the community. We must all act to make continual improvements. Introducing laws that are punitive towards employers is not the answer. The best way to address the issue is to promote a culture where there is greater cooperation between employers and employees.

The Australian government is committed to improving OHS outcomes in all Australian workplaces. We demonstrated this commitment by initiating the development of the National OHS Strategy in 2002. Signatories to the strategy include the Australian government and all the state and territory governments, including the ACT, as well as the ACTU and the Australian Chamber of Commerce and Industry. The strategy seeks to improve Australia’s OHS performance over the next decade and to foster sustainable, safe and healthy enterprises that prevent work related death, injury and disease. There are five national priorities: reducing high incidence and severity risks; improving the capacity of business and workers to manage OHS; preventing occupational disease more effectively; eliminating workplace hazards at the design stage; and strengthening the capacity of governments to influence better OHS outcomes.

There are 10 million workers in Australia. Many employers ask—and many did when we conducted the committee hearings on this bill—why there are eight different and quite separate OHS and workers compensation jurisdictions. What makes things worse is that there is little in the way of consistency and uniformity across the various schemes. Indeed, the National Australia Bank has complained that the current state based systems have resulted in the bank dealing with eight different sets of legislation. That then means that there are eight different levels of benefits, eight different definitions of injury and so on.

In order to improve national frameworks for OHS and workers compensation consultation, the government undertook to establish the Australian Safety and Compensation Council, known as the ASCC. That body includes representatives from federal, state and territory governments as well as employee and employer groups. It provides a new opportunity to coordinate workers compensation on a national level. Unlike the old National Occupational Health and Safety Commission, the ASCC will consider both OHS and workers compensation matters. Its main role will be to provide policy advice to the Workplace Relations Ministers Council, which comprises the federal minister and his state and territory counterparts.

What are some of the detailed reasons for this amendment? Currently, the former Commonwealth authorities and licensed private sector corporations who operate under the Commonwealth workers compensation schemes are covered by state and territory occupational health and safety legislation. This makes it very 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 their own separate state or territory OHS regulations.

I want to look at some of the ramifications of this. The New South Wales government recently passed the New South Wales Occupational Health and Safety Amendment (Workplace Deaths) Bill. If an employer is convicted of causing death through ‘recklessness’ they face up to five years in jail and a $165,000 fine. Breaches of such serious and punitive laws are dealt with by the New South Wales Industrial Relations Commission, not by a court. That will continue, as the New South Wales Court of Appeal has found that there is nothing to prevent the New South Wales Industrial Relations Commission from hearing such matters.

It is very disturbing that, under the New South Wales OH&S laws, unions can prosecute employers for OH&S breaches, and if they are successful in their action the unions can receive up to half of the fines awarded and have their legal bills paid by the employer. That is a very iniquitous situation. The New South Wales Industrial Relations Commission has in the past fined the ANZ Bank over armed robberies at their branches, after action bought by the Financial Services Union. Patrick Stevedores, similarly, was subject to an MUA prosecution for work practices that risked repetitive strain injury. New South Wales coalminers have also been hit for using misleading maps, prepared by the New South Wales government.

As my colleague Senator Barnett remarked, there is no doubt that the New South Wales Labor Party is financially beholden to the union movement and that it relies on donations from unions. Both the Financial Services Union and the MUA have donated over $350,000 to New South Wales Labor alone since 1995. That extreme situation exists only in New South Wales, where the perverse situation may arise in which a union could abuse such processes and in turn prosecute employers for financial gain over an alleged breach.

Other states and territories are different in the sense that only the relevant workers compensation authorities can prosecute for alleged breaches of work safety laws. The Victorian government has introduced the offence of ‘reckless endangerment’ under the Victorian OH&S Act, which carries a potential prison sentence and large financial penalties. The ACT has introduced the criminal offence of ‘industrial manslaughter’, which singles out employers for punishment despite the fact that some factors may be outside an employer’s control.

These approaches will serve to discourage employers and employees from being closely involved in safety issues. Both those groups will focus on defending themselves rather than on progressively moving forward to cooperatively ensure safer workplaces. Governments at all levels, whether federal, state or territory, must be wary of seeking to amend or impose legislation which serves only to create uncertainties for employers and, in many instances, will only discourage employers and employees from being closely involved in health and safety issues, to which they all should be contributing.

The Australian government introduced the Occupational Health and Safety (Commonwealth Employment) Amendment (Promoting Safer Workplaces) Bill to exclude Commonwealth employers and employees from the application of ACT industrial manslaughter laws or similar laws enacted in the future by other states and territories. The bill that we are discussing tonight reinforces the Australian government’s approach to workplace health and safety, which is to ensure that the main focus is on preventing workplace injuries rather than on punitive punishment after the event.

Let us turn to workers compensation. The Commonwealth Safety, Rehabilitation and Compensation Act allows eligible non-government corporations that meet stringent criteria to self-insure through the Commonwealth workers compensation scheme, administered by Comcare. Self-insurance through Comcare allows businesses to be covered by one set of workers compensation regulations across Australia. That is a very attractive prospect for companies that employ people across a number of different jurisdictions. The Australian government workers compensation scheme is the only scheme that provides single self-insurance arrangements, reducing costs and the compliance burden. This benefits the employees by giving them access to a consistent benefit regime, irrespective of work location across Australia. For instance, Optus was granted a self-insurance licence, allowing them to self-insure through Comcare, which commenced on 30 June 2005. This was in spite of considerable opposition from the Victorian state government, which tried on several occasions to stop Optus from self-insuring through Comcare. More recently, it mounted a challenge on constitutional grounds, which is now headed to the High Court. South Australia and Queensland will join Victoria in this action.

A number of states have sought to discourage corporations such as Optus from joining the Comcare scheme, through imposing large financial penalties on them. Victoria, again, has passed legislation requiring exiting corporations to pay an ‘exit fee’ when leaving the state scheme to self-insure with Comcare. The biggest concern, though, is arrangements in South Australia, where the South Australian WorkCover Corporation sought to impose a fee of $1 million on Optus to exit the South Australian WorkCover scheme. This fee is substantially higher in South Australia than in Victoria, even though Victoria employs more Optus staff than does South Australia. Queensland has introduced a bill which provides for WorkCover Queensland to extract funds from a self-insurer under the Comcare scheme for 12 months after a licence is granted. WorkCover Queensland claims that the levy is required to cover costs incurred by the Workers Compensation Regulatory Authority to monitor the non-scheme employers for compliance with their obligations for rehabilitation.

It is legitimate for state authorities to make proper provision to cover outstanding liabilities for corporations leaving their schemes, but exit fees which are inflated and which cannot be justified by independent actuarial analysis appear to be designed purely to discourage eligible corporations from joining the Comcare scheme. State and territory governments have to face the fact that, while there are eight separate workers compensation jurisdictions that provide very little in the way of consistency and uniformity, more and more state employers will seek to move to the Commonwealth scheme. That is the way of the future, and that is the aspect of these matters that this bill covers. I commend it to the Senate.