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Thursday, 24 November 2011
Page: 9552


Senator EDWARDS (South Australia) (16:03): I rise to speak in support of the Work Health and Safety Bill 2011 and the Work Health and Safety (Transitional and Consequential Provisions) Bill 2011. The Work Health and Safety Bill will repeal the Occupational Health and Safety Act 1991, the OHS Act, upon commencement of the Work Health and Safety Act 2011. At the outset, I confirm that I support harmonisation across Australia but flag that we will be looking to make amendments.

Once again we see another example of Labor-Greens social engineering. The Work Health and Safety Bill 2011 has emerged with serious flaws. The coalition has no problem with harmonised or universal occupational health and safety laws. Indeed the process was started by the last coalition government. Where we differ is that we can see that the unions will use harmonisation as the basis for a whole new minimum national standard. It is the old story—give unions an inch and they will take a kilometre. They demand their pound of flesh, their right, regardless of the merits of their case—and they never resile.

The Prime Minister spoke about some public servants having had tears in their eyes because they had spent their working lives waiting for someone to deliver that reform. Where were they and the Prime Minister when New South Wales decided it wanted more? I note that Senator Williams raised this in an interjection—it was the previous state Labor government which turned this around at the last hurdle. We only have to see what happened there in New South Wales, how the then government, under pressure from its union bosses—Sussex Street again—departed from the harmoni­sation in this bill. What did we see in the redrafted New South Wales bill? We saw nothing less than an introduction of the union right to prosecute. Once more we see the heavy hand of the comrades exerting their muscle—with some help from the Greens.

How long before a similar tactic is employed on this bill, as the union heavies try to turn an occupational health and safety measure to their own industrial advantage? Not content with representing their members, the union leaders also see a role for themselves in bringing about prosecutions. The naked opportunism under the guise of looking after the workers is there for all to see. Under this legislation, occupational health and safety inspectors will have powers that are not available to the police. Unions should realise they do not represent the whole community, although they are over-represented on the Labor benches opposite in this Senate.

In a past life I ran a business. I employed many employees during my time. I have had practical, hands-on experience in using and implementing OH&S rules. I know how important it is to have a safe workplace. With all the gantries, tanks and confined spaces in my old workplace, I know only too well the importance of OH&S rules. However, as you may remember, in my first speech in this place I referred to the fact that I have never had a unionised workplace. Not only did I ensure that our employees were looked after but they continue to be well looked after by subsequent management. I feel secure and confident, in coming to work here now, that that environment is still very productive with its OH&S and is still very conscious of its obligations to continue with its auditing. At my business, we upheld the highest standards of workplace safety. While I did not operate in multiple states and across state borders as many of my peers do across the wine industry, I understand the frustration that that would cause businesses. The process of harmonisation, initiated by the Howard government in 2006, is common sense. The coalition is concerned that unions see harmonisation as setting a minimum national standard which could be built upon. Coalition senators agree with the Master Builders Association who 'strongly reject union right of prosecution'. The authority to prosecute and to commence criminal proceedings should rest solely with the state. The Master Builders Association rightly point out in their submission:

A prosecutor represents all members of their community and cannot, therefore, act as if representing private or factional interests.

Unions, by their very nature, represent the interests of employees and therefore cannot represent the entire community. To empower them with the ability to prosecute is akin to empowering employers with the ability to prosecute employees for a breach of health and safety, an issue that would be viewed as inappropriate by the community.

The Work Health and Safety Bill 2011 is 'coat-hanger' legislation—the regulations will determine any benefit of this change. The final regulations have not yet been released nor has the regulatory impact statement. This is despite the objectives of harmonisation that were laid out in the Access Economics' draft regulation impact statement. There is concern that the regulations will not achieve these objectives.

The harmonisation of OH&S legislation is part of the Council of Australian Governments National Reform Agenda that seeks to minimise the regulatory burdens and create a seamless national economy. Train­ing in occupational health and safety is always an important issue. At this time of transition to new arrangements the availability of courses is vital. Unfortunately the availability of accredited courses has been reduced by 26 per cent since restrictive changes were introduced by the Safety, Rehabilitation and Compensation Com­mission in 2010. The coalition have put forward an amendment to allow the ongoing use of accredited courses under the 2006-07 guidelines.

Prosecutions under OH&S laws involve criminal matters. Under normal criminal law everyone has the right to silence and protection from self-incrimination—that is, you cannot be forced to say something to an investigator, the police, unless an investigator first obtains a court order and so on. This protection is a right we all have and is essential to community confidence in our criminal justice system and to the rule of law. It stops abuse of power. Protection against self-incrimination is currently available under OH&S laws in New South Wales, Queensland, South Australia and Victoria. The model OH&S laws take away the right to silence and protection from self-incrimination. This will apply not only to employers but to all managers and workers in workplaces. It will give powers to OH&S inspectors not available to the police. Consequently, the coalition recommends that subclause 172 of the Work Health and Safety Bill be amended to include a right to silence and protection from self-incrimination, in line with criminal law and current OH&S laws in New South Wales, Queensland, South Australia and Victoria.

The modern principles of OH&S safety were first created in the UK in 1972 under the Robens review. The principles hold that responsibility for safety is allocated according to what is reasonable and practic­able to control. These are the internationally accepted benchmarks embedded in International Labour Organisation conventions to which Australia become a signatory in 2004. ILO Convention 155 (article 16) states:

Employers shall be required to ensure that, so far as is reasonably practicable, the workplaces, machinery, equipment and processes under their control are safe and without risk to health.

The national review into model OH&S laws stated that there was much dissent in submissions over the inclusion of the word 'control' in duties of care. Recommendation 8 called for the removal of the word 'control' from the definition of 'reasonable and practicable'. This is implemented in the national model OH&S laws.

The model laws also introduce a new and untested legal concept of connecting duties of care to a 'person conducting a business or undertaking'. The removal of the word 'control' not only creates confusion over who is responsible for what in work safety but is a major shift away from known OH&S principles in all Australian jurisdictions except New South Wales. Further, it removes a key element of the ILO OHS Convention, to which Australia is a signatory, and creates a legal void due to unknown application and understanding of duties of care under the new notion. It is realistic to expect that, with the removal of the word 'control', legal uncertainty will occur and will require many years of judicial testing before clarity is achieved. Another lawyer's picnic. The wording of the act must give unambiguous signals in clear lay language to every person involved in workplaces right across this country. People understand in a practical sense that if they control something, or even share control, that they are responsible. With the word 'control' removed, clarity and focus on personal responsibility for safety is diminished and becomes confused. This works against the objective of achieving safe workplaces.

As a former employer, I believe OH&S regulation must be clear if it is to be successfully implemented across Australian workplaces. One of the barriers to successful implementation of this kind of law is that the average employer does not fully understand it. While it is not their intent not to properly implement OH&S requirements, simple misunderstandings do occur. This kind of legislation must be crystal clear to provide employers with certainty.

The object of this bill is to improve safety outcomes, but it is also to reduce compliance costs for business and improve the efficiency of regulatory agencies. Every piece of legislation that comes before this place should be about cutting red tape, getting rid of unnecessary regulations and getting government out of the boardrooms, the workshops and the factory floors, not adding more bureaucratic measures that will require more bureaucrats. It is just churn, churn, churn. Harmonisation is a good aim, but not if it is to be handicapped at birth by union ambition and the probable hatred of the Greens for employers as a continuation of the Marxist class struggle.

We also have the changes to the guidelines that support union training at the expense of a private provider with no beneficial outcomes. We are expected to pass this bill without having seen the regulations or the codes of practice. There is still no clarification on whether this Work Health and Safety Bill will apply to voluntary organisations. Those people out there in the community are unsure of whether this will apply to them. One thing they can be sure of is that any piece of legislation where the unions have been calling the shots regarding content will be to the detriment of any voluntary organisation. We must keep this in perspective. Union participation in the workplace is at an all-time low, with 18 per cent of the Australian workplace belonging to a union. I think they are coming to their senses.

The unions have no time for volunteers. Again, the shades of Marxist leanings come out in 2011. Then there are the health and safety representatives, another device cooked up by the unions to reward their junior cohorts with the first rung up the union industrial ladder, and paid for by the employer. There is less work for the union organiser when they have health and safety representatives—or HSRs—to carry out such duties for them.

While the coalition will not oppose this bill, we will put forward some straightforward and logical amendments. However, it is very important that I point out that this is coathanger legislation. The regulations will be determinative of the benefit of this change. The model regulations were circulated and are exceptionally restrictive. The final regulations have not yet been released, nor has the regulatory impact statement.

In closing, I reaffirm that good policy in government is to always continue to review and propose, and hopefully the government will see the merit in what we are looking at for the benefit of employers all across this country. Harmonisation was initiated by the Howard government in 2006. It is something that the Gillard Labor government should continue to champion at every opportunity at COAG, so that employers can get some certainty as to what can take place in their workplaces, and so NGOs can run their operations and know who can come in and affect their business and their operations.