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National Occupational Health and Safety Commission (Repeal, Consequential and Transitional Provisions) Bill 2005



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Parliament of Australia

Department of Parliamentary Services

Parliamentary Library BILLS DIGEST

Information analysis and advice for the Parliament

30 August 2005, nos. 37-38, 2005-06, ISSN 1328-8091

Australian Workplace Safety Standards Bill 2005

National Occupational Health and Safety Commission (Repeal, Consequential and Transitional Provisions) Bill 2005

Steven O’Neill Economics, Commerce and Industrial Relations Section

Thomas John Law and Bills Digest Section

Contents

Abbreviations used in this Bills Digest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

The development of occupational health and safety law in Australia . . . . . . . . . . . . . . . . .4

Establishment of the National Occupational Health and Safety Council . . . . . . . . . . . . . .5

The National Occupational Health and Safety Council under the coalition government . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6

The replacement of NOHSC with the Australian Safety and Compensation Council . . . .8

Main Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

National Occupational Health and Safety Commission (Repeal, Consequential and Transitional Provisions) Bill 2005 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Australian Workplace Safety Standards Bill 2005 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Commentary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Endnotes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

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National Occupational Health and Safety Commission (Repeal, Consequential and Transitional Provisions) Bill 2005

Abbreviations used in this Bills Digest

ACCI Australian Chamber of Commerce and Industry

ACTU Australian Council of Trade Union

ASCC Australian Safety and Compensation Council

AWSS Bill Australian Workplace Safety Standards Bill 2005

DEWR Department of Employment and Workplace Relations

LMC Labour Ministers’ Council

NOHSC National Occupational Health and Safety Commission

NOHSC Act National Occupational Health and Safety Commission Act 1985

NOHSC Bill National Occupational Health and Safety Commission (Repeal, Consequential and Transitional Provisions) Bill 2005

OHS Occupational Health and Safety

WRMC Workplace Relations Ministers Council

Warning:

This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

Australian Workplace Safety Standards Bill 2005 3

National Occupational Health and Safety Commission (Repeal, Consequential and Transitional Provisions) Bill 2005

Australian Workplace Safety Standards Bill 2005

National Occupational Health and Safety Commission (Repeal, Consequential and Transitional Provisions) Bill 2005

Date Introduced: 11 August 2005

House: House of Representatives

Portfolio: Employment and Workplace Relations

Commencement: The operative provisions of the National Occupational Health and Safety Commission (Repeal, Consequential and Transitional Provisions) Bill 2005 will commence on a single day fixed by proclamation or on the day after a period of six months, whichever is first. The Australian Workplace Safety Standards Bill 2005 will commence at the same time as the National Occupational Health and Safety Commission (Repeal, Consequential and Transitional Provisions) Bill 2005.

Purpose

The National Occupational Health and Safety Commission (Repeal, Consequential and Transitional Provisions) Bill 2005 (the NOHSC Bill) will abolish the National Occupational Health and Safety Commission (the NOHSC).

The Australian Workplace Safety Standards Bill 2005 (the AWSS Bill) will provide a framework for the declaring of occupational health and safety standards through the Australian Safety and Compensation Counsel. However, the AWSS Bill will not provide for the establishment or setting up of the Australian Safety and Compensation Council— this body and all its functions and powers will be established administratively.

Background

The NOHSC was established on 11 October 1984 on a non-statutory basis, and in the following year, established under section 6 of the National Occupational Health and Safety Commission Act 1985 (NOHSC Act). The Government proposes to replace NOHSC with the Australian Safety and Compensation Council (ASCC).

Warning:

This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

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National Occupational Health and Safety Commission (Repeal, Consequential and Transitional Provisions) Bill 2005

The development of occupational health and safety law in Australia

A background to the adoption of Commonwealth Occupational Health and Safety (OHS) law and the NOHSC has been provided earlier in the Parliamentary Library Bills Digest: No. 112, 2000-01 on the Occupational Health and Safety (Commonwealth Employment) Amendment Bill 2000.1 There, it was reported that Federal, State and Territory OHS legislation were originally derived from the ‘Factory Acts’ and ‘Shop Acts’ imported from Britain toward the end of last century.2

However, Australian OHS law was revolutionised in the 1970s following a United Kingdom Parliamentary Inquiry on health and safety at work. The inquiry was commissioned following perceptions of poor safety practices and record keeping in key British industries. The Report of the Committee of Inquiry on Occupational Health and Safety in 1972 came to be known as the Robens Committee Report.3

Legislation adopting its recommendations was passed in the United Kingdom in 1974. Australian States followed the legislative trend in the 1980s.4 The Robens Committee Report observed that the infrequency and often long latency of workplace injuries meant

that individuals did not have sufficient personal experience of injuries (emphasis added) to prompt a significant awareness of occupational health and safety. It concluded that:

if individual experience is not in the normal course conducive to safety awareness, then safety awareness must be deliberately fostered by as many specific methods as can be devised.5

What distinguishes the Robens Committee's approach is the role of self-regulation of safety in the varied enterprises across industries. The problem of health and safety, it said:

could not be overcome so long as people were encouraged to think that safety and health at work could be ensured by an ever expanding body of legal regulations enforced by an ever increasing army of inspectors.6

It concluded that occupational health and safety could be realised if government, management and employees were jointly responsible.

Underpinning self-regulation was statutory recognition of joint consultative practices as the basis of the new approach:

Commitment of all employees: employees must be able to participate fully in the making and monitoring of arrangements for safety and health at work. There should be a statutory duty on every employer to consult with his employees or their representatives at the workplace on measures for promoting safety and health at work, and to provide arrangements for the participation of employees in the development of such measures.7

It is important to note that freedom of association principles were the cornerstone of the Robens Committee's approach, recognising, as it did, the unique role of the representatives

Warning:

This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

Australian Workplace Safety Standards Bill 2005 5

National Occupational Health and Safety Commission (Repeal, Consequential and Transitional Provisions) Bill 2005

of employees (unions) and, 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 OHS issues, particularly those specific to an industry. Following the enunciation of the principles of joint consultation, and recognising the diversity of work practices and procedures, the formulation of a systems approach to managing safety in a particular enterprise became the norm.

Establishment of the National Occupational Health and Safety Council

At the federal level, the establishment of NOHSC in 1984 reflected many of the approaches which had been gaining momentum since the 1970s. In his Ministerial Statement of 11 October 1984, the Hon Ralph Willis set out objectives and a framework of operation for the NOHSC as part of federal-state OHS machinery.8 The key parts of the NOHSC strategy were:

• to reduce the unacceptably high national record of occupational death, injury and illness. At that time, on average, every working day in Australia there was one occupational fatality. Industrial accidents leading to lost time injuries occur 600 times a day throughout the nation

• the improvement of working conditions as a basic objective of the prices and incomes accord. At the heart of this commitment was the Government's belief that all workers have the right to a safe and healthy working environment

• as part of the object that all Australians work in a safe and healthy environment and to encourage work involvement and job satisfaction, the Government proposed to subsidise selected organisations introducing industrial democracy practices

• OHS improvements in occupational health and safety would come about through active participation of workers and their representatives in decisions about their health and safety, whether those decisions are made at the work place, State or Federal government level and based on the principles of participation and acceptance of appropriate responsibility. Consultation and co-operation-with State and Territory governments, the trade unions, employers and their organisations, occupational health and safety specialists and community groups was a feature

• the role of the Commonwealth was primarily one of co-ordination and facilitation. The major jurisdiction over occupational health and safety lies with the States. State and Commonwealth governments have clear and distinctive roles and responsibilities. The establishment of NOHSC did not transfer responsibilities, but resulted in additional, beneficial activities. The Commonwealth undertook standards development, research, training and information collection and dissemination, arguably more efficiently and effectively done at a national level. The proposals represented a positive initiative in co-operative federalism

Warning:

This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

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National Occupational Health and Safety Commission (Repeal, Consequential and Transitional Provisions) Bill 2005

• of top priority for the new Commission was the development of uniform legislative approaches in occupational health and safety and the development of national standards. Some of the earliest national standards determined by the NOHSC related to the code for manual handling and concerning the safe handling (and removal) of asbestos. The initial budget allocated to the NOSH strategy was $12 million, and

• The national chemicals notification and assessment scheme, which provides a mechanism for evaluating new chemicals before they enter the Australian market, and for the assessment of existing chemicals was to become a responsibility of NOHSC, although this responsibility has since been devolved. The devolution was a result of the recommendations taken from reviews in the mid 1990s.9

The National Occupational Health and Safety Council under the coalition government

The direction of the NOHSC was changed significantly in May 1997. The Labour Ministers’ Council (LMC) (as it then was) charged the NOHSC with developing current OHS issues for business, particularly for small business. Less attention was to be devoted to the development of nationally consistent OHS standards. A press release following the May 1997 meeting of LMC, authorised under the Hon Peter Reith, stated that:

The Council considered and agreed to proposals for the future directions of the National Occupational Health and Safety Commission (NOHSC) as developed by its Chairman in consultation with all jurisdictions and NOHSC. As the source of strategic direction to national efforts in OHS reform. NOHSC will identify significant current and emerging OHS problems and provide practical solutions for workplaces, with recognition of the needs of small business.

There will be less emphasis on the development and/or promulgation of national OHS standards and codes developed by NOHSC. The prior agreement of the LMC as the peak OHS policy body will be sought before any further national standards or codes of practice are developed. Where new standards or codes are supported, they will be consistent with the overall objectives of regulatory reform.

The Council agreed to support the implementation of a national comparative performance monitoring system of OHS jurisdictions under the auspices of NOHSC. This will focus on outcomes and be used in conjunction with performance monitoring of workers' compensation schemes to enable jurisdictions to better target claims.

Under the new NOHSC directions, there will be an annual report from NOHSC to the Council on NOHSC's activities and achievements incorporating a comprehensive report on national consistency and performance.

The Council recognised that its endorsement of the future directions for NOHSC provides a continuing response to a number of recommendations of the Industry Commission's 1995 Report on OHS (Work, Health and Safety) will assist the States and Territories in their further consideration of those recommendations which fall within their responsibility

Warning:

This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

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National Occupational Health and Safety Commission (Repeal, Consequential and Transitional Provisions) Bill 2005

The national OHS reform agenda agreed to by Ministers will assist small business and address the concerns set out in the Small Business Deregulation Task Force Report.10

As a consequence of this new strategic direction, the Australian Council of Trade Unions (ACTU) claimed that no new national OHS standards were made for the building and construction industry between 1997 and 2003, by which time a report of the Royal Commission into the Building and Construction Industry had welcomed the intention to resume standards setting. Importantly, there was agreement that NOHSC would undertake development for a national standard for construction and codes of practice for prevention of falls and for demolition work. The February 2003 report of the Royal Commission recommended that the Commonwealth take steps to ensure that:

(a) drawing up and giving effect to uniform national standards in the building and construction industry is a priority under the National Priority Action Plans of the National OHS Strategy; and

(b) the [Workplace Relations Ministers Council], its members and NOHSC adopt a timetable and be accountable for the progress and completion of this work.11

NOHSC also assisted in the compilation of data to enable the comparisons made of the claims and costs of the State and Territory workers compensation schemes.12 On 24 May 2002, the Workplace Relations Ministers Council (WRMC) (formerly LMC) endorsed a National OHS Strategy 2002-2012.13 The Ministers indicated that:

The OHS Strategy is significant in that, for the first time, Australia will have all (Cwth and State) jurisdictions, and the peak employer and employee organisations (ACCI and ACTU) committed to minimum national targets and national priorities for improving OHS. Ministers agreed that the OHS Strategy operate for ten years and be monitored by the Council. 14

The National OHS Strategy 2002-2012 outlines initial national OHS targets, which are to:

• sustain a significant, continual reduction in the incidence of work-related fatalities with a reduction of at least 20 per cent by 30 June 2012 (and with a reduction of 10 per cent being achieved by 30 June 2007); and

• reduce the incidence of workplace injury by at least 40 per cent by 30 June 2012 (with a reduction of 20 per cent being achieved by 30 June 2007).15

Finally, in March 2004, Australia ratified the International Labor Organisation Convention No. 155 (Occupational Health and Safety 1981). This requires a national health and safety policy to be implemented in consultation with representatives of employers and workers.

Warning:

This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

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National Occupational Health and Safety Commission (Repeal, Consequential and Transitional Provisions) Bill 2005

The replacement of NOHSC with the Australian Safety and Compensation Council

The Hon Kevin Andrews announced the establishment of the Australian Safety and Compensation Council on 18 May 2004 at WRMC.16 The key rationales for the ASCC include:

• the new body will comprise representatives from each State and Territory government, as well as the Commonwealth Government, along with employer and employee representatives

• the ASCC will establish a national approach to workplace safety and workers’ compensation which currently does not exist in Australia. There is currently no national body for workers’ compensation in Australia. This means there is no consistency to workers’ compensation, nor is there a national approach. Workers’ compensation is a complex system which employers and employees struggle to understand, and

• the ASCC’s main role will be to coordinate research and provide policy advice to the WRMC - which comprises the Federal Workplace Relations Minister and his State and Territory counterparts.

In addition, the Minister argued that the

• ASCC will be a forum for better national discussion and coordination while respecting States’ jurisdictions over workplace safety and workers compensation, and

• Australian Government will maintain its current funding for this body. 17

In a subsequent press release, the Hon Kevin Andrews advised that the Government would propose a number of strategies to ‘revitalise’ the national consultative framework in its response to the Productivity Commission’s (PC) (then imminent) final report into national OHS and workers’ compensation arrangements. He announced that:

• in anticipation of the PC final report’s release, the Australian Government proposed the establishment of the ASCC. The ASCC will achieve better workplace health and safety for employers and employees. For the first time, workers’ compensation issues will be discussed in a national forum

• the ASCC will build on the achievements of NOHSC in pursuing a national approach to OHS and workers compensation issues. It is important to stress that all of the important work currently undertaken by NOHSC will continue

• the ASCC will be a tripartite body, but with a broader consultation base than the current NOHSC arrangements, with representatives from federal, state and territory governments, along with employer and employee representatives, and

• until the ASCC is established, NOHSC will continue to lead national efforts to improve Australia’s OHS performance, working to achieve workplaces that are free from death, injury and disease. The Australian Government is consulting State and

Warning:

This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

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National Occupational Health and Safety Commission (Repeal, Consequential and Transitional Provisions) Bill 2005

Territory Governments and employer and employee representatives about the new national arrangements.18

In any case, soon after the release of the PC’s report National Workers’ Compensation and Occupational Health and Safety Frameworks on OHS and workers’ compensation, the Government rejected its key findings. The Treasurer Peter Costello, in a joint statement with the Hon. Kevin Andrews, rejected the following key recommendations:

• replacing the NOHSC with a smaller body appointed on basis of skills and expertise

• requiring all jurisdictions to adopt uniform OHS regulations

• sharing funding of NOHSC between the Government and the States

• developing an alternative workers' compensation scheme to operate in parallel with existing State schemes (as proposed under steps 2 and 3 of the Commission's model); and

• establishing, by legislation, a workers' compensation body to develop nationally consistent scheme elements.19 However, this approach also suggests that it appears that the Government plans to leave OHS and workers compensation matters to the States.

Other key issues for the newly formed ASCC will be:

• the increasing use of labour hire arrangements which essentially act to vitiate the joint consultative Robens approach to OHS planning and resolution as the host employer need not assume direct responsibility for people who are not his/her employees,20 and

• access by corporations to the Commonwealth scheme of workers compensation; or, to allow such companies to self-insure under the Commonwealth scheme to the financial detriment of State workcover schemes as well as countering industrial manslaughter laws.21

At the time of the release of the Government’s intention to replace NOHSC with the ASCC, the ACTU argued that:

The ASCC would not have legislated powers and responsibilities, unlike NOHSC. It would be restricted to a toothless advisory role. Its structure would be at the whim of the Commonwealth Government. It would advise on workers’ compensation as well as health and safety … A recent study by Access Economics estimates that there are 4,900 work-related deaths each year in Australia. The Australian Bureau of Statistics reports that half a million Australians suffer work-related injuries or illnesses each year … There is an urgent need for development and review of national standards and codes of practice in Australia. The NOHSC Act is the only legislative basis for those standards and codes of practice.22

The Government reacted to this criticism, agreeing to introduce legislation setting out the declaration of national standards and codes as a statutorily entrenched function of the ASCC. The Explanatory Memorandum to the Australian Workplace Safety Standards Bill

Warning:

This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

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National Occupational Health and Safety Commission (Repeal, Consequential and Transitional Provisions) Bill 2005

2005 states that the Government intends that the ASCC to be tripartite (presumably on invitation of the Minister) but will have power to declare OHS standards, noting that:

The purpose of the Bill is to provide for the declaring of national standards and codes of practice relating to occupational health and safety (OHS) matters by the Australian Safety and Compensation Council (ASCC). The Bill does not prevent additional functions being conferred on the ASCC administratively.

The ASCC will be a body established under the executive power of the Commonwealth to provide policy advice to the Workplace Relations Ministers’ Council on national OHS and workers' compensation arrangements in order to achieve national regulatory frameworks … National standards and codes of practice declared by the ASCC, like those that have been declared by NOHSC, will be advisory only, requiring separate legislative action by Commonwealth, State and Territory governments to implement the standards and codes within their jurisdiction.23

NOHSC staff were transferred to the Department of Employment and Workplace Relations (DEWR) in February 2005, and DEWR assumed part of the NOHSC budget. In short, DEWR is accruing regulatory functions.

Main Provisions

National Occupational Health and Safety Commission (Repeal, Consequential and Transitional Provisions) Bill 2005

Schedule 1, Part 1, item 1 of the NOHSC Bill will repeal the NOHSC Act.

The remaining provisions of the NOHSC Bill are transitional and savings provisions which will allow the transition from a statute based body to the administrative body that the ASCC will be.

Under Part 2, item 3, any assets which were vested in the NOHSC will be, by operation of proposed new subsection 3(a), vested in the Commonwealth. The transfer of those assets, as well as the transfer of any liability incurred by the ASCC, will be excluded from any tax imposed under federal, state or territory legislation by virtue of proposed new section 6. The final financial status of the NOHSC will have to be assessed under proposed new section 9 not later than 90 days after the Council’s abolition and certain reports and financial statements as specified in this section must be given to the Minister

The Commonwealth will become the legal successor to the NOHSC. For example, under item 5, in legal proceedings to which the NOHSC was a party prior to the day its abolition, the Commonwealth will have to be substituted as the then proper legal party. Further, item 4 will stipulate that the Commonwealth will become the custodian of all the

Warning:

This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

Australian Workplace Safety Standards Bill 2005 11

National Occupational Health and Safety Commission (Repeal, Consequential and Transitional Provisions) Bill 2005

records and documents currently held by the NOHSC. Similarly, item 7 will save the operation of those national standards and codes of practice (standards and codes) which have been declared by the NOHSC and were in force just prior to the abolition of the Council. Under subitem 7(2), the existing standards and codes will be deemed to have effect as if they had been made by the to be established ASCC, whilst sub-item 7(1) will deem a reference to the NOHSC to be reference to the Commonwealth, and

The operation of current section 63 of the NOHSC Act will be saved so that even after the repeal of this Act, certain decisions made by the NOHSC will be able to be reviewed (item 10). Similarly, public consultations currently being conducted in relation to proposed standards and codes will continue after the repeal and abolition of the NOHSC (item 12).

Australian Workplace Safety Standards Bill 2005

At the outset it should be noted that the AWSS Bill will not create the ASCC. The ASCC will be a creature of the executive, established by virtue of the executive power enjoyed by the Government. The ASCC will have all the functions and powers which the government chooses for the body and confers upon it by written instruments.

Unlike most of the functions and powers of the NOHSC, none of the functions and powers of the ASCC will be statutory, except for the power to declare national standards and codes of practice (standards and codes) relating to OHS matters. Under proposed new clause 4, the ASCC as established by the government will have the function to declare such standards and codes and under proposed new clause 5, the ASCC will have all the powers necessary to make such declarations.

The proposed powers and functions of the ASCC will be limited. Under proposed new subclause 4(3), the functions may only be performed to the extent that they are supported by a head of power contained in the Constitution. The proposed legislation refers expressly to two of the economic powers conferred upon the Australian legislature under section 51 of the Constitution, that is the trade and commerce power (section 51(i)) and the corporations power (section 51(xx)).

The declaration of a standard or code must be made by written instrument and the ASCC must publish certain items of the standard or code, including information on how interested persons may obtain a copy of the document (proposed new subclauses 6(1) and (4)).

Before declaring a standard or code, the ASCC will be required under proposed new clause 7 to follow a consultation process before declaring the standard or code. Proposed new subclause 7(1) further stipulates that the ASCC will have to take certain steps to conduct this consultation process which will be contained in regulations made under the proposed legislation. Proposed new subclause 7(2) will oblige the ASCC to afford due consideration to any representation made in relation to the standard and code. This

Warning:

This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

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subsection will also provide a discretion to alter the standard or code to be declared on the basis of this representation. The discretion may be exercised if the ASCC thinks it fit to act upon the representation.

Commentary

When passed, the package of proposed legislation will achieve:

• the abolition of the NOHSC

• the transfer of the assets, liabilities or any outstanding projects to the ASCC (and hence the Commonwealth executive), and

• the conferral of one statutory function, and related powers, on the ASCC, namely the function of declaring standards and codes.

The proposed abolition of the NOHSC has been criticised. The criticism focuses on the fact the NOHSC’s replacement, the ASCC, will not have the same legislative basis. Rather, the ASCC will be set up administratively as a creature of the executive. This could be an advantage as it can provide greater flexibility: the Government could add functions and powers more quickly and with less bureaucracy. On the other hand, any changes to the ASCC powers and functions, apart from those proposed in the AWSS Bill, will be made by the government and are not subject to the parliamentary scrutiny processes.

Further, it appears that the ASCC will continue to operate as a so called ‘tripartite body’ advising on OHS issues. In a recent media release, the ACCI has emphasised the importance and their support for ‘the proposed Australian Safety and Compensation Council because it is tripartite in nature…’24 Less clear, however, is what role employee representatives such as unions will be able to play in this body. Leading OHS experts have recently argued that, on the basis of national and international research, there is a strong case for union participation.25

Considering the flexible administrative nature of the ASCC, it does not follow that unions will be ousted from participation. However, it must be noted that the definition of Australian Safety and Compensation Council in proposed new section 3 of the AWSS Bill could suggest that in the future, the new advisory body will be comprised of ‘governments, employers and employees’, implying operation of the ASCC without the participation of unions. In addition, the decision to reduce the involvement of employee representatives in OHS matters would sit squarely with the government’s proposed legislation requiring administrative approval to obtain representation in OHS negotiations with employers.26

Finally, the AWSS Bill will provide the new advisory body with the function and related powers of declaring standards and codes. The actual scope of the functions and powers proposed to be conferred upon the ASCC will depend upon the interpretation of the

Warning:

This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

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constitutional heads of power upon which the creation of this body is based. Sections 51(i) and (xx) of the Constitution are part of the constitutional regime dealing broadly with trade and commerce. The sections overlap to a certain extent in their application. The constitutional basis upon which the ASCC is supported will depend on a range of factors, including the nature and effects of each individual function and power and the characterisation of the heads of power through the High Court.

Endnotes

1 N. Hancock, ‘Occupational Health and Safety (Commonwealth Employment) Amendment Bill 2000’, Bills Digest, No. 112, Department of Parliamentary Library, Canberra, 2000-01.

2 The Factory and Shop Acts have been, together with Public Health Legislation, an integral part of early workplace legislation. Measures included in these Acts included protection of minors and the regulation of working time. Encyclopedia Britannica, Labour Legislation, Volume V16, Page 27, 1911, available at: http://encyclopedia.jrank.org/KRO_LAP/LABOUR_LEGISLATION.html, accessed 23 August 2005.

3 Report of the Committee on Safety and Health at Work 1970-1972, HMSO, London, 1972.

4 K. Haines, T. John, ‘Workplace death and serious injury: a snapshot of legislative developments in Australia and overseas’, Research Brief, No. 7, Department of Parliamentary Library, Canberra, 2004-05.

5 ibid., p. 1.

6 ibid., para 59.

7 ibid., para 70.

8 The Hon Ralph Willis, ‘Establishment of National Occupational Health and Safety Commission’ Ministerial Statement, House of Representatives, Hansard, 11 October 1984.

9 Dr Howard Gwynne, Moving To Full Cost Recovery: Improving The Effectiveness Of NICNAS, Report for the Assistant Minister for Industrial Relations, May 1995. There was also an Access Economics report on NICNAS at this time

10 The Hon Peter Reith MP, ‘Labour Ministers Council’, Press Release, 30 May 1997.

11 Royal Commission into the Building and Construction Industry, Vol.6, February 2003, pp. 28-29.

12 See: for example, Workplace Relations Ministers Council, Comparative Performance Monitoring, Fourth Report, August 2002.

13 According to workplace.gov.au, the ‘Workplace Relations Ministers’ Council (WRMC) is a council of federal, State and Territory Ministers responsible for workplace relations matters in their respective jurisdictions. The New Zealand Minister is invited to attend WRMC as an observer. The Council usually meets twice a year, around May and November. (The Council

Warning:

This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

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was formerly known as the Labour Ministers’ Council.)’, available at: http://www.workplace.gov.au/workplace/Category/PolicyReviews/WorkplaceRelationsMinist ersCouncil.htm, accessed 23 August 2005.

14 The Hon Tony Abbott reported on this meeting in ‘Ministers report on OHS and workers compensation’, Press Release, 11 September 2002.

15 see: http://www.nohsc.gov.au/nationalstrategy/.

16 The Hon Kevin Andrews, ‘Australian Safety and Compensation Council’, Media Release, 18 May 2004.

17 ibid.

18 The Hon Kevin Andrews, ‘Improving National Consultative Arrangements For OHS And Workers Compensation’, Media Release, 28 May 2004.

19 The Hon Peter Costello and the Hon Kevin Andrews, ‘Response to Productivity Commission report on workers’ compensation and occupational health and safety’, Joint Media Release, 24 June 2004.

20 As background to OHS and labour hire, see Chapter 4 of the Victorian Parliament’s Economic Development Committee’s report, Labour Hire in Victoria, June 2005.

21 See the Hon Kevin Andrews, Address to the ‘Safety, Rehabilitation & Compensation Safety Awards’, Speech, Hyatt Hotel Canberra, 28 July 2005.

22 ACTU, Australia Needs the National Occupational Health and Safety Commission, Position Paper, June 2004.

23 Australian Workplace Safety Standards Bill 2005, Explanatory Memorandum.

24 Australian Chamber of Commerce and Industry, Industry Blueprint calls for employee engagement on health and safety, media release, 18 May 2005.

25 R. Johnstone, M. Quinlan and D. Walters, Statutory OHS Workplace Arrangements for the Modern Labour Market, Working Paper No. 22, National Research Centre for OHS Regulation, Australian National University, Canberra, January 2004, pp. 4-5 and 20-1.

26 T. John, ‘Occupational Health and Safety (Commonwealth Employment) Amendment Bill 2005’, Bills Digest, No. 18, Department of Parliamentary Services, Canberra, 2004-5, p. 4 and p. 7.

Warning:

This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

Australian Workplace Safety Standards Bill 2005 15

National Occupational Health and Safety Commission (Repeal, Consequential and Transitional Provisions) Bill 2005

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Warning:

This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.