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Monday, 9 October 2006
Page: 98


Senator ABETZ (Minister for Fisheries, Forestry and Conservation) (8:04 PM) —I thank senators for their contributions during this debate on the Occupational Health and Safety (Commonwealth Employment) Amendment Bill 2005. This bill reflects the government’s commitment to improving health and safety outcomes in Commonwealth workplaces and follows amendments to the OH&S act in 2004, which introduced a strong new compliance regime.

The Australian government strongly believes that safe and productive workplaces rely on a cooperative approach between employers and employees to identify and eliminate hazards that may cause injury or death. The focus of occupational health and safety regulation must shift from imposing prescriptive processes towards enabling workplaces to make informed issues about how best to reduce risks to health and safety in the workplace.

Federal Labor has suggested that this bill is an attack on unions and that it removes unions from involvement in OH&S in the workplace. This simply is not the case. The bill not only improves protection for employees but improves workplace democracy. Possibly that is why those on the other side think it is an attack on unions. Under this bill all employees can participate in OH&S matters at their workplace. Employers will be able to negotiate directly with employees, who may be represented by unions or other representative organisations.

The amendments proposed by this bill reflect the reality that unions no longer represent the majority of public sector employees. In 1991, when the Occupational Health and Safety (Commonwealth Employment) Act was enacted, unions were a significant force in most government workplaces. However, this is no longer the case. Today, unions represent less than half of public sector employees. Some workplaces will be union free or have no active union members and rarely see a union official. In these circumstances, it makes no practical sense to give a union a monopoly over the representation of workers’ OH&S interests in workplaces covered by the OH&S(CE) Act.

The majority of public sector employees—that is, those public sector employees who are not represented by unions—should be entitled to participate in improving OH&S in the workplace, either directly or by choosing their representatives from as wide a field of candidates as possible. Removing the privileged role for unions in workplace health and safety arrangements and giving prominence to the interests of employees will only bring Commonwealth laws into line with most state and territory OH&S laws.

Interestingly, none of the equivalent state or territory laws give the unions a monopoly of the kind that this bill removes from the Commonwealth act. What that does in fact is highlight the extreme position of federal Labor. Most of the other jurisdictions do not even guarantee a union role in formulating enterprise OH&S policies and agreements, representation in designated work groups or involvement in OH&S committees or in electing workplace health and safety representatives.

The coalition agrees that workers should have the right to be represented by unions. Federal Labor, notwithstanding the current approach in the majority of the states and territories, wants union representation guaranteed to the exclusion of all other options. Federal Labor appears contemptuous of a worker’s right to choose an alternative to union representation simply because, for federal Labor, there is no other alternative.

Federal Labor has suggested that under the amendments proposed by this bill unions will be unable to directly request Comcare to investigate an OH&S breach. Once again, Labor is wrong. The existing powers to unions to request Comcare to investigate OH&S breaches are not being removed. Under this bill, employee representatives, including unions, can request an investigation by Comcare provided it is at the request of an employee.

Any suggestion that employees are not in a position to raise OH&S issues with their employer ignores the important role of health and safety representatives who are elected by their fellow employees to investigate these issues at their workplace on their behalf and raise any problems with their employer. Health and safety representatives are required to undergo appropriate training and therefore have the appropriate knowledge and skills to undertake this role. The act also gives health and safety representatives statutory rights and powers to enable them to carry out their functions and ensure OH&S issues are addressed.

Federal Labor also laments changes affecting the election of health and safety representatives. Currently, where there is an involved union, the act gives that union an exclusive role in the conduct of elections for health and safety representatives. This has had unsatisfactory results. Unions can prevent a non-union member from becoming a health and safety representative, because they control the nominations. It sounds a bit like the Senate here—for the Labor Party. This can mean that persons with relevant qualifications, expertise or an interest in health and safety in their workplace do not have an opportunity to take on the role.


Senator Wong interjecting—


Senator ABETZ —I just threw that in to see if you were listening, and it is good that you are. Positions can also remain vacant for extended periods where no union member is nominated. There is nothing sinister about the employer arranging the elections for health and safety representatives. New South Wales, for instance, has a similar provision. Employers are under a duty of care to ensure that workplaces are safe. Having health and safety representatives is an important component of having safe workplaces. It is therefore reasonable to place an obligation on employers to make sure that elections for health and safety representatives are conducted. In the event that employees are not happy with the election arrangements proposed by employers, the bill enables elections to be conducted in accordance with processes prescribed by regulation.

Section 16 is being amended to replace the current prescriptive elements which require an employer to develop an occupational health and safety policy in consultation with involved unions. Instead, section 16 will be more outcomes focused. This will allow employers, in consultation with their employees, to develop health and safety management arrangements tailor made to the needs of their particular workplace. The bill gives employees a wider choice as to who may represent them, including another employee, a registered association such as a union, an association of employees which has a principal purpose of protecting and promoting the employees’ interests in matters concerning their employment such as a staff association or an unregistered union.

Finally, I would like to assure senators that the measures proposed in this bill, in particular the proposed new section 16B, do not violate any implied constitutional freedom of association or Australia’s ILO obligations. It has been suggested that the mechanisms for ensuring employee anonymity proposed by new section 16B may prove to be a strong deterrent to employees seeking representation in consultation with employers about safety management arrangements. These concerns totally misunderstand and misrepresent the intended operation of section 16B.

Section 16B enables the CEO of Comcare to certify that a union or staff association is entitled to represent an employee who wishes to remain anonymous. A certificate issued by the CEO of Comcare guarantees that employee’s anonymity. Section 16B provides a mechanism to protect an employee’s identity if the employee wishes to keep his or her choice about their representation confidential. It is not a precondition to unions or staff associations representing their members. If section 16B were to be deleted, there would be no mechanism to provide employees with confidentiality.

The key amendments in this bill relate to the employer’s duty of care and the workplace arrangement provisions. They will improve health and safety arrangements for Commonwealth employers and employees by enabling them to work more closely together to develop arrangements that suit the needs of their particular workplace. Current workplace arrangements, such as the requirements to have health and safety representatives and committees, remain.

In short, the amendments aim to remove prescriptive requirements, introduce flexibility and ensure employers and employees are free to develop appropriate health and safety arrangements to apply to their workplace. The amendments will not in any way diminish the Commonwealth’s duty of care as an employer to ensure the health and safety of its employees at work or of others who may be at the workplace. I commend the bill to the Senate.

Question agreed to.

Bill read a second time.