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Occupational Health and Safety (Commonwealth Employment) Amendment (Employee Involvement and Compliance) Bill 2002

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2002-2003-2004

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

SENATE

 

 

 

 

 

 

 

 

 

OCCUPATIONAL HEALTH AND SAFETY (COMMONWEALTH EMPLOYMENT) AMENDMENT (EMPLOYEE INVOLVEMENT AND COMPLIANCE) BILL 2002

 

 

 

 

SUPPLEMENTARY EXPLANATORY MEMORANDUM

 

 

Amendments to be Moved on Behalf of the Government

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Employment and Workplace Relations, the Honourable Kevin Andrews MP)

 

                                                                              

 



 

 

OCCUPATIONAL HEALTH AND SAFETY (COMMONWEALTH EMPLOYMENT) AMENDMENT (EMPLOYEE INVOLVEMENT AND COMPLIANCE) BILL 2002

 

 

(Amendments to be moved on behalf of the Government)

 

 

 

OUTLINE

 

The proposed Government amendments will amend the Occupational Health and Safety (Commonwealth Employment) Amendment (Employee Involvement and Compliance) Bill 2002 (the Bill) as introduced.  The effect of the Government amendments will be to retain the provisions of the Bill that propose the establishment of a new dual civil and criminal penalty regime under the Occupational Health and Safety (Commonwealth Employment) Act 1991 (the Act).  Other proposed minor and technical amendments will also be retained.

 

The Government amendments will remove provisions contained in Schedule 1 to the Bill concerning changes to the employer’s duty of care and the role of unions in the workplace, in particular in relation to:

·         Workplace arrangements, including consultation and Designated Work Groups (items 3, 8, 11-13, 41- 43, 71, 101-4, 161-165).  Removing these items would retain current arrangements under the Act whereby unions are directly and automatically involved in occupational health and safety matters at Commonwealth workplaces, including the development of an occupational health and safety policy.

·         Health and Safety Committees (HSCs) and Health and Safety Representatives (HSRs), including elections (items 21, 44-46, 57-61, 152, 153 166-169).  Removing these items would retain current arrangements under the Act for HSCs and HSRs, including for the nomination of HSRs and the conduct of elections.

·         Safety Management Arrangements (items 14, 20, 26, 27, 29, 132, 159, 160).  Removing these items would retain current arrangements under the Act in relation to the employer’s duty of care and the types of matters which should be included in an occupational health and safety policy.

 

The Government amendments will also remove other matters proposed in the Bill including provisions concerning:

·         Investigations (item 74).  The Bill would have required an investigator to return a document provided during an investigation to the person who provided it.

·          Notices (item 105, however the penalty provision will be retained).  The Bill would have amended section 50 to reflect amendments made elsewhere about revoking and displaying notices.

·         Reporting and notification requirements (items 122 and 123).  The Bill would have removed the dual reporting and notification requirements under the Act.

·         Enabling Comcare to exercise some of the powers currently conferred on the Safety Rehabilitation and Compensation Commission (the Commission) (items 19, 53, 62, 63, 65, 67-70, 124, 142, 143).  These items reflected that Comcare can more practically undertake certain tasks, for example requiring documents to be displayed at Comcare’s offices because the Commission does not have offices.

·         Amending the duty of care of persons who erect and install plant (item 38, however the penalty provision will be retained).  Removing this item retains the current duty of care owed by the person erecting or installing the plant.  This extends to the safety of the piece of plant but does not include a duty in relation to the process of erecting and installing the plant.

·         Annual reporting requirements (items 133-136). The Bill would have required more meaningful information to be reported and therefore a greater focus on measuring occupational health and safety performance.

·         Updating the list of Government Business Enterprises in Schedule 1 to the Act (items 156 and 157).  The Bill would have removed a number of entities currently listed that either are no longer GBEs or no longer exist and others that should be added.

·         Transitional provisions which would have been required had items 122, 123 and 136 been retained (items 172 and 173).

·         Technical and consequential amendments removing references in another Act to what would have been the Occupational Health and Safety (Commonwealth Employment) Amendment Act 2001 . That Bill lapsed in 2001. (Clause 2, table item 3 and items 1-3 in Schedule 2).

 

The new civil and criminal penalty regime proposed in the 2002 Bill will be retained to improve enforcement under the Act. The new enforcement regime will:

 

·         Provide for civil penalties as far as possible, reserving criminal penalties for more serious breaches of the Act where there has been a death or serious bodily harm. Criminal penalties are also being retained for offences which are more appropriately dealt with in the criminal justice system, such as contempt of the Commission or failing to attend before the Commission as a witness;

·         Provide a new offence were an employer breaches its duty of care and negligently or recklessly exposes an employee to a substantial risk of death or serious harm;

·         Provide for a wider range of remedies under the Act to ensure more effective protection of the health and safety of Commonwealth employees at work, namely:

o    Injunctions, both prohibitory and mandatory, to achieve compliance with the Act;

o    Remedial orders to enable effective action to be taken to remedy the effect of a breach of the Act; and

o    Enforceable undertakings.  Comcare is being given the power to accept a written undertaking relating to the fulfilment of an obligation under the Act from a person who is required to fulfil that obligation.  This will be available as an alternative to prosecution and thereby encourage voluntary compliance with the requirements of the Act; and

·         Substantially increase levels of penalties.  For example, currently the maximum penalty under the Act is $100,000 for a breach of the employer’s duty of care.  This is to be increased to 2,200 penalty units ($242,000) for a civil breach and 4,500 penalty units ($495,000) for a criminal breach.

 

 

FINANCIAL IMPACT STATEMENT

 

The proposed amendments are budget neutral.

 

 

 



 

NOTES ON AMENDMENTS

 

These amendments will make changes to Schedule 1 of the Bill, and omit Schedule 2.

 

Amendment No. 1 ¾ Clause 2, page 2 (table item 3)

 

1.1.      Amendment No. 1 would remove the commencement time for Schedule 2 of the Bill as introduced. This amendment is consequential on Amendment No. 26, which would remove Schedule 2 from the Bill. Schedule 2 would have removed references in another Act to what would have been the Occupational Health and Safety (Commonwealth Employment) Amendment Act 2001 . That Bill lapsed when the Parliament was prorogued prior to the 2001 election.

 

Amendment No. 2 ¾ Schedule 1, item 3, page 3 (lines 19 to 23)

 

2.1.      Amendment No. 2 would remove item 3 which proposed that a definition of “association” be inserted into the Act.

 

Amendment No. 3 ¾ Schedule 1, item 8, page 5 (lines 1 to 14)

3.1.      Amendment No. 3 would remove item 8 which proposed that a definition of “employee representative” be inserted into the Act.

 

Amendment No. 4 ¾ Schedule 1, items 11 to 14, page 5 (line 28) to page 6 (line 10)

 

4.1.      Amendment No. 4 would remove item 11 and retain in the Act a definition of “involved union”.

4.2.      Amendment No. 4 would remove item 12 which proposed a definition of “registered organisation”.

4.3.      Amendment No. 4 would remove item 13 and retain in the Act a definition of “registered union”.

4.4.      Amendment No. 4 would remove item 14 which proposed a definition of “safety management arrangements”.

 

Amendment No. 5 ¾ Schedule 1, items 19 to 21, page 7 (lines 19 to 28)

 

5.1.      Amendment No. 5 would remove items 19 to 21 from the Bill and retain current arrangements under the Act whereby only the Commission responds to information and advice sought from employers, employees and contractors, and issues directions on occupational health and safety matters.

 



Amendment No. 6 ¾ Schedule 1, items 26 and 27, page 8 (line 8) to page 9 (line 18)

 

6.1.      Amendment No. 6 would remove items 26 and 27 and retain the current arrangements for the employer’s duty of care and consultation under the Act, including where an occupational health and safety policy is developed in consultation with involved unions.

 

Amendment No. 7 ¾ Schedule 1, item 29, page 9 (line 21) to page 10 (line 33)

 

7.1.      Amendment No. 7 would remove item 29 from the Bill, which concerned the development of safety management arrangements.

 

Amendment No. 8  ¾ Schedule 1, item 38, page 11 (line 25) to page 12 (line 8)

 

8.1.      Amendment No. 8 would amend item 38 of the Bill as introduced to repeal the existing penalty in the Act.  The Bill as introduced proposed to extend the duty of care of a person who erects and installs plant to include the process of erecting and installing the plant.

8.2.      Amendment No. 8 would insert item 38A that would provide a legislative note to the effect that a person who breaches subsection 20(1) may be subject to civil action or a criminal prosecution.

 

Amendment No. 9 ¾ Schedule 1, items 41 to 46, page 12 (line 15) to page 16 (line 20)

 

9.1.      Amendment No. 9 would remove item 41 and retain the current arrangements in the Act in relation to the role of unions in the workplace.

9.2.      Amendment No. 9 would remove items 42 to 46 and retain the current arrangements in the Act in relation to Designated Work Groups (DWGs), Health and Safety Representatives (HSRs) and Health and Safety Committees (HSCs).

 

Amendment No. 10 ¾ Schedule 1, item 53, page 17 (lines 5 and 6)

 

10.1.    Amendment No. 10 would remove item 53 and retain current arrangements under the Act whereby a person to whom a provisional improvement notice (PIN) has been issued can ask the Commission to conduct an investigation. The Bill proposed that the request could be made to Comcare.

 

Amendment No. 11 ¾ Schedule 1, items 57 to 63, page 17 (line 20) to page 20 (line 14)

 

11.1.    Amendment No. 11 would remove items 57 to 61 and retain current arrangements in the Act relating to HSRs and HSCs.

11.2.    Amendment No. 11 would also remove item 62 which would have allowed an HSR to make a request to Comcare rather than to the Commission where there is a dispute about stopping work in an emergency situation.

11.3.    In addition, Amendment No. 11 would remove item 63 and retain current arrangements under the Act whereby only the Commission can provide advice to employers, employees and contractors. The Bill proposed that Comcare could perform this function and refer persons seeking advice to experts.

 

Amendment No. 12 ¾ Schedule 1, item 65, page 20 (lines 17 and 18)

 

12.1.    Amendment No. 12 would remove item 65 and retain current arrangements under the Act whereby only the Commission can direct an investigator to conduct an investigation. The Bill proposed that Comcare would also be able to direct that an investigation be conducted.

 

Amendment No. 13 ¾ Schedule 1, items 67 to 71, page 20 (line 21) to page 21 (line 16)

 

13.1.    Amendment No. 13 would remove item 67 and retain current arrangements under the Act in relation to the revocation of directions to conduct investigations. This amendment is related to item 65.

13.2.    Amendment No. 13 would also remove items 68-70 and retain in the Act current arrangements whereby only the Commission can direct an investigation. The Bill proposed that Comcare would also be able to direct an investigation.

13.3.    In addition, Amendment No. 13 would remove item 71 and retain current arrangements in the Act regarding an involved union being able to request an investigation.

 

Amendment No. 14  ¾ Schedule 1, item 74, page 21 (line 27) to page 22 (line 8)

14.1.    Amendment No.14 would repeal subsection 43(3) of the Act because the reasonable excuse defence to relevant offences will be in new Schedule 2 to the Act, which is to be inserted by item 158 of the Bill.

14.2.    Amendment No. 14 would also remove from the Bill as introduced the requirement that documents would be returned to the person who provided them when no longer required.

 

Amendment No. 15 ¾ Schedule 1, items 101 to 104, page 28 (lines 8 to 30)

 

15.1.    Amendment No. 15 would remove items 101 to 104 and retain current arrangements under the Act relating to appeals by involved unions in relation to decisions concerning an investigation. 

 



Amendment No. 16  ¾ Schedule 1, item 105, page 28 (line 31) to page 29 (line 18)

 

16.1.    Amendment No. 16 would remove item 105 of the Bill as introduced and retain the current arrangements under the Act prohibiting the tampering with or removal of notices in the workplace.

16.2.    Amendment No. 16 would also repeal the penalty which will be found in new Schedule 2 to the Act. The amendment would also insert new item 105A in to the Bill, which will remove the reasonable excuse defence in subsection 50(2). This defence will be set out in new Schedule 2 to the Act. 

16.3.    In addition, Amendment No. 16 would provide a legislative note to the effect that a person who breaches section 50 may be subject to a criminal prosecution.

 

Amendment No. 17 ¾ Schedule 1, items 122 to 124, page 31 (lines 4 to 19)

 

17.1.    Amendment No. 17 would remove items 122 and 123 and retain in the Act current reporting and notification arrangements.

17.2.    Amendment No. 17 would remove item 124 and retain current arrangements which require copies of codes of practice to be displayed for inspection at the Commission’s offices.

 

Amendment No. 18 ¾ Schedule 1, items 132 to 136, page 32 (lines 8 to 30)

 

18.1.    Amendment No. 18 would remove items 132-136 and retain in the Act current annual reporting requirements.

 

Amendment No. 19  ¾ Schedule 1, item 141, page 33 (line 10) to page 34 (line 8)

 

19.1.    Amendment No. 19 would amend item 141 of the Bill. The effect of this amendment would be to retain the current arrangements under the Act in relation to the institution of proceedings, except that all references in section 77 of the Act to 'an offence against' would be changed to 'a breach of'. The heading of section 77 would be amended so that it reads 'Institution of proceedings' instead of 'Institution of prosecutions'. These changes reflect the fact that both civil and criminal penalties will be available under the Act.

 

Amendment No. 20 ¾ Schedule 1, items 142 and 143, page 34 (lines 9 to 12)

 

20.1.    Amendment No. 20 would remove items 142 and 143 and retain current arrangements for requesting Comcare to institute proceedings. 

 

Amendment No. 21 ¾ Schedule 1, items 152 and 153, page 35 (lines 5 to 8)

 

21.1.    Amendment No. 21 would remove items 152 and 153 and retain the current matters about which regulations may be made under section 82 of the Act.

 



Amendment No. 22 ¾ Schedule 1, items 156 and 157, page 35 (line 20) to page 36

 

22.1.    Amendment No. 22 would remove items 156 and 157 and retain the current schedule of Government business enterprises. The Bill as introduced proposed to amend the schedule of Government business enterprises in the Act.

 

Amendment No. 23 ¾ Schedule 1 , Divisions 1 and 2, page 51 (line 4) to page 53 (line 29)

Amendment No. 24 ¾ Schedule 1, heading to Division 3, page 53 (line 30)

 

23.1.- 24.1.      Amendments No. 23 and 24 would remove items 159-169 which are application and transitional provisions and the corresponding headings. These items in the Bill as introduced were consequential to proposed amendments to modify the employer’s duty of care and workplace arrangements.

 

Amendment No. 25 ¾ Schedule 1, items 172 and 173, page 54 (lines 6 to 15)

 

25.1.    Amendment No. 25 would remove items 172 and 173 which are application and transitional provisions that would have been required had items 122, 123 and 136 been retained.

 

Amendment No. 26 ¾ Schedule 2, page 55 (lines 2 to 12)

 

26.1.    Amendment No. 26 would remove Schedule 2 to the Act (see Amendment No.1).