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Occupational Health and Safety and Other Legislation Amendment Bill 2009

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2008-2009

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

OCCUPATIONAL HEALTH AND SAFETY AND OTHER LEGISLATION AMENDMENT BILL 2009

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

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



OCCUPATIONAL HEALTH AND SAFETY AND OTHER LEGISLATION AMENDMENT BILL 2009

 

OUTLINE

 

The Bill amends the Occupational Health and Safety Act 1991 ; Occupational Health and Safety (Maritime Industry) Act 1993 ; Safety, Rehabilitation and Compensation Act 1988 and Seafarers Rehabilitation and Compensation Act 1992 .

 

The principal amendments to the Safety, Rehabilitation and Compensation 1988 Act (‘SRC Act’) will:

o    enable Comcare to access the Consolidated Revenue Fund (CRF) to pay compensation claims in respect of diseases with long latency period (such as asbestos related disease) where the employment period was pre-1 December 1988 but where the condition did not manifest itself until after that date.

o    re-instate claims arising from off-site recess injuries;

o    allow for compensation for medical expenses to be paid, where payment of other compensation is suspended;

o    allow for time limits for claim determination;

 

The Bill amends the Occupational Health and Safety Act 1991 to provide that ‘lifts’ are interpreted as being within the definition of ‘plant’ for the purposes of the Act.  Legal advice has been received that ‘lifts’ may not always come within the Act’s definition of ‘plant’.

 

The Bill also makes a number of minor technical amendments to the Acts, other than the SRC Act, which are consequential on the commencement of the Legislative Instruments Act 2003 . The amendments do not in any way affect the operation of the amended Acts.



FINANCIAL IMPACT STATEMENT

 

It is estimated that the amendments to the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) reinstating coverage for off-site recess breaks will cost Comcare $1.7m for 2009/10 and the same for the forward years (adjusted for indexation of 4.5% p.a.). It is estimated that some 23% of medical costs (which are 25% of total claim costs) would otherwise be claimable through either Medicare or the PBS.

 

Therefore the proposal would result in a net savings to the PBS of $130,000 for 2009/10 and the same amount indexed for medical cost inflation over the forward years.

 

The remaining amendments are expected to have a nil financial impact.

 



NOTES ON CLAUSES

 

Part 1—Preliminary

 

Clause 1—Short title

 

This is a formal provision specifying the short title of the Act. 

 

Clause 2—Commencement 

 

This clause specifies when the various provisions of the Act commence

 

Clause 3—Schedule(s)

 

This clause provides that an Act that is specified in a Schedule is amended or repealed as set out in that Schedule. The Schedule contains amendments to the Occupational Health and Safety Act 1991 ; Occupational Health and Safety (Maritime Industry) Act 1993 ; Safety, Rehabilitation and Compensation Act 1988; and Seafarers Rehabilitation and Compensation Act 1992 .

 

Any other item in a Schedule operates according to its terms

 



Schedule 1—Amendment of the Occupational Health and Safety Act 1991

 

Schedule 1 of the Bill contains amendments to the Occupational Health and Safety Act 1991 (OHS Act).  The principal amendments amend the definition of ‘plant’ to include ‘lift’.

Schedule 1 of the Bill also makes a number of technical amendments to the OHS Act as a consequence of the commencement of the Legislative Instruments Act 2003 . These amendments do not in any way affect the operation of the provisions of the OHS Act.

 

Item 1—Subsection 5(1) (subparagraph (a)(ii) of the definition of Government business enterprise )

 

Proposed item 1 will amend the subsection by omitting the reference to ‘instrument published in the Gazette’ and substituting a reference to ‘legislative instrument’.

 

This is a technical amendment as a consequence of the commencement of the Legislative Instruments Act 2003 . This amendment does not in anyway affect the operation of the provisions of the OHS Act.

 

Item 2—Subsection 5(1)

Item 3—Subsection 5(1) (at the end of the definition of plant )

 

Proposed item 2 will insert a definition of ‘lift’ in subsection 5(1). The definition will make clear that ‘lifts’ are plant and aligns the definition of ‘lift’ with that used in clause 4 of the National Standard for Plant. Proposed item 3 will, by way of example, make clear that the definition of ‘plant’ in the OHS Act includes a lift.

 

Legal advice has been received that lifts may not meet the definition of plant under the OHS Act and hence the need for the amendment.

 

Item 4—Subsection 5(8)

 

Proposed item 4 will repeal the subsection as the subsection refers to section 46A of the Acts Interpretation Act 1901 which was repealed by the Legislative Instruments Act 2003 . The subsection is repealed because it is redundant.

 

Item 5—Subsection 6(2)

 

Proposed item 5 is similar to item 1 but will amend the subsection by omitting the reference to ‘notice in writing’ and substituting a reference to ‘legislative instrument’.

 

Item 6—Subsection 6(4)

 

Proposed item 6 will repeal the subsection as the subsection refers to section 46A of the

Acts Interpretation Act 1901 which was repealed by the Legislative Instruments Act 2003 . The subsection is repealed because it is redundant.



 

Item 7—Subsection 7(2)

 

Proposed item 7 is similar to item 1 but will amend the subsection by omitting the reference to ‘notice in writing’ and substituting a reference to ‘legislative instrument’.

 

Item 8—Subsection 7(4)

 

Proposed item 8 will repeal the subsection as the subsection refers to section 46A of the

Acts Interpretation Act 1901 which was repealed by the Legislative Instruments Act 2003 . The subsection is repealed because it is redundant.

 

Item 9—Subparagraphs 9(2)(c)(i) and (ii)

Item 10—Subsection 9(5)

 

Proposed items 9 and 10 are similar to item 1 and will amend subparagraphs 9(2)(c)(i) and 9(2)(c)(ii) and subsection 9(5) by omitting references to ‘notice in writing’ and substituting references to ‘legislative instrument’.

 

Item 11—Paragraph 9(5)(b)

 

Proposed item 11 is similar to item 1 and will amend paragraph 9(5)(b) by omitting references to ‘notice’ and a substituting reference to ‘legislative instrument’.

 

Item 12—Subsection 9(6)

 

Proposed item 12 will repeal the subsection as the subsection refers to section 46A of the

Acts Interpretation Act 1901 which was repealed by the Legislative Instruments Act 2003 . The subsection is repealed because it is redundant.

 

Item 13—At the end of section 19

 

Section 19 of the OHS Act deals with the duties of suppliers in relation to plant and substances. Proposed item 13 will extend section 19 to clarify that it does not apply to the owner of a workplace in relation to the supply of a lift in the workplace.  The purpose of the proposed amendment is to avoid undue interference with the operation of the occupational health and safety laws of a state or territory which already impose duties on owners of buildings.

 

Item 14—Subsection 70(5)

Item 15—Subsection 70(6)

 

Proposed item 14 will repeal the subsection as the provision deals with publishing codes of practice in the Gazette and these matters are now covered by the Legislative Instruments Act 2003 .

 

Proposed item 15 will amend subsection 70(6) to provide that an approved, or amended, code of practice or a notice of revocation of a code of practice is a legislative instrument.

 

 



Schedule 2—Amendment of the Occupational Health and Safety (Maritime Industry) Act 1993

 

Schedule 2 of the Bill makes a number of technical amendments to the Occupational Health and Safety (Maritime Industry) Act 1993 (OHSMI Act) as a consequence of the commencement of the Legislative Instruments Act 2003 . These amendments do not in any way affect the operation of the provisions of the OHSMI Act.

 

Item 1—Subsection 109(5)

 

Proposed item 1 will repeal the subsection as the Legislative Instrument Act 2003 now deals with the requirements for publication and tabling in Parliament of an approved, amended or revoked code of practice.

 

Item 2—Subsection 109(6)

 

Proposed item 2 will amend subsection 109(6) to provide that an approved, or amended, code of practice or a notice of revocation of a code of practice is a legislative instrument.

 

The amendment will omit the reference to ‘disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 ’ and substitute a reference to ‘legislative instrument’.

 

 



Schedule 3—Amendment of the Safety, Rehabilitation and Compensation Act 1988

 

Schedule 3 of the Bill contains amendments to the Safety, Rehabilitation and Compensation Act 1988 (SRC Act). The principal amendment will:

·          enable Comcare to access the Consolidated Revenue Fund (CRF) to pay compensation claims in respect of diseases with long latency period (such as asbestos related disease) where the employment period was pre-1 December 1988 but where the condition did not manifest itself until after that date.

·          re-instate claims arising from off-site recess injuries;

·          allow for compensation for medical expenses to be paid, where payment of other compensation is suspended;

·          allow for time limits for claim determination;

 

Part 1—Amendments

 

Item 1—Paragraph 6(1)(b)

 

Proposed item 1 will amend paragraph 6(1)(b) to allow claims to be made under the SRC Act which arise from injuries that occurred off-site during recess breaks. This type of coverage was provided prior to 13 April 2007 and is now being reinstated.

 

Item 2—After subsection 36(4)

Item 3—After subsection 37(7)

Item 4—After subsection 50(5)

 

Proposed items 2, 3, and 4, will amend subsections 36(4), 37(7), and 50(5), to exclude from the suspension provisions a claimant’s right to compensation for medical treatment under section 16.

 

Currently, the right to compensation under the SRC Act is suspended if a claimant refuses or fails without a reasonable excuse to undertake a rehabilitation program. Compensation under the SRC Act includes medical and related benefits. The suspension of medical benefits under the Act can have counterproductive effects to early rehabilitation and return to work. The purpose of this amendment is to remove such counterproductive effects.

 

Excluding compensation for medical treatment was recommended by the ‘2008 Review of

Self-insurance Arrangements under the Comcare Scheme’ (‘the DEEWR Report’).

 

Item 5—Before subsection 61(1)

Item 6—At the end of section 62

 

These items would allow for the setting of time limits for the determination of a claim and for the making of a reconsideration of a determination.

 

Item 5 would provide that a determining authority must consider and determine a claim under section 14 of the SRC Act, within the period prescribed by the regulations.  A claim under section 14 is a claim that relates to initial liability.

 

Item 6 would provide that decisions in relation to a claimant’s request for a reconsideration of a determination must be made within the prescribed time limits.

 

The actual time limits will be set by regulation.

 

Item 7—After paragraph 90B(a)

 

This item will amend section 90B of the SRC Act by inserting new paragraph (ab).

 

Section 90B was intended to give Comcare access to the Consolidated Revenue Fund (CRF) to pay for all of its undischarged liabilities, and associated expenses, for claims attributable to employment before 1 December 1988. These liabilities are described in paragraph 90B(a) as ‘any liability that is taken, by section 128, to have been incurred by Comcare’.

 

As an indirect result of references to section 128 by the Full Federal Court in Comcare v Etheridge [2006] FCAFC 27 (15 March 2006), Comcare’s access to the CRF under section 90B to discharge its liabilities for long-latency injuries claims was closed off.

The amendments in new paragraph 90B(ab) would restore Comcare’s access to the CRF to pay for these claims.

 

The sorts of long-latency injuries envisaged by paragraph 90B(ab), are those which would be attributable to an event or process occurring during an employee’s employment before 1 December 1988 but would not have manifested themselves or caused impairment or death until after that date. The example in paragraph 90B(ab) refers to mesothelioma arising from the inhalation of asbestos fibres. While asbestos-related diseases would typically fall within the envisaged paragraph 90B(ab) injuries, the amendment is intended to cover a broad spectrum of injuries. (Note that ‘injury’ in the SRC Act also covers diseases.)

 

Item 8—Paragraph 90B(b)

 

This proposed amendment is consequential on item 7 and would provide for the payment, from the CRF, of Comcare’s administrative expenses associated with its liabilities referred to in paragraphs 90B(a) and (ab).

 

Item 9—Subparagraph 90C(1)(a)(i)

 

This proposed amendment is consequential on item 7 and provides that subparagraph 90C(1)(a)(i) refers to paragraph 90B(ab) in addition to paragraph 90B(a).

 

Part 2—Saving provision

 

Item 10—Saving—Payments under section 90B

 

The Court decision in Comcare v Etheridge had the indirect result that section 90B could not be interpreted as giving Comcare access to the CRF to pay for its liabilities arising from disease claims attributable to employment before 1 December 1988 but not manifesting until after that date.

 

This meant that Comcare’s drawings on the CRF to pay for liabilities were retrospectively invalidated.

 

The proposed amendments in this item set up a mechanism for the recovery and off setting of the CRF drawings.

 

Paragraphs (1)(a) and (b) provide that the section applies in relation to amounts paid out of the CRF to Comcare under section 90B which were invalidly paid at the time (the relevant amounts) but which, if the proposed amendments in Item 7 above had been in force, would have been validly paid.

 

Subsection (2) proposes that the relevant amounts already paid to Comcare may be recovered by the Commonwealth as a debt.

 

Subsection (3) proposes that Comcare is entitled to be paid an amount, equal to the relevant amounts referred to in paragraphs (1)(a) and (b) above, out of the CRF.

 

Subsection (4) proposes that the Commonwealth may off-set the debt in subsection (2) against Comcare’s entitlement under subsection (3).

 

Subsection (5) would appropriate funds from the CRF for the purposes of the proposed item.

 



Schedule 4—Amendment of the Seafarers Rehabilitation and Compensation Act 1992

 

Schedule 4 of the Bill makes a number of technical amendments to the Seafarers Rehabilitation and Compensation Act 1992 (‘the Seafarers Act’) as a consequence of the commencement of the Legislative Instruments Act 2003 . These amendments do not in any way affect the operation of the provisions of the Seafarers Act.

 

Item 1—Paragraph 10(1)(b)

 

Proposed item 1 will amend the paragraph by omitting the reference to ‘written notice’ and substituting a reference to ‘legislative instrument’.

 

This is a technical amendment as a consequence of the commencement of the

Legislative Instruments Act 2003 . This amendment does not in any way affect the operation of the provisions of the Seafarers Act.

 

Item 2—Paragraph 10(1)(b)

 

Proposed item 2 is similar to item 1 and will amend the paragraph by omitting the reference to ‘the notice’ and substituting a reference to ‘the instrument’.

 

Item 3—Paragraph 28(6A)(b) (definition of Specified rate per kilometre )

 

Proposed item 3 is similar to item 1 and will amend the paragraph by omitting the reference to ‘by written notice’ and substituting a reference to ‘by legislative instrument’.

 

Item 4—After subsection 42(3)

Item 5—Subsections 42(7), (9) and (10)

 

Proposed items 4 and 5 deal with the application of the Legislative Instruments Act 2003 to the Seacare Authority’s ‘Guide to the Assessment of the Degree of Permanent Impairment’ (the Guide).

 

New subsection 42(3A) makes it clear that the Guide, or variation or revocation of the Guide, on approval by the Minister, is a legislative instrument.

 

Notwithstanding that the legislative instrument is made on the day of Ministerial approval, the legislative instrument takes effect in accordance with section 12 of the Legislative Instrument Act 2003 .

 

Proposed item 5 is a consequential amendment to proposed item 4. It repeals subsections 42(7), (9) and (10) because, as the approved Guide is held to be a legislative instrument, these subsections are redundant.

 

Item 6—Subsection 44(3)

 

Proposed item 6 is similar to item 1 and will amend the subsection by omitting the reference to ‘notice in writing’ and substituting ‘legislative instrument’.



Item 7—Paragraph 49(6B)(b) (definition of specified rate per kilometre )

Item 8—Paragraph 50(2B)(b) (definition of specified rate per kilometre )

Item 9—Paragraph 66(4B) (definition of specified rate per kilometre )

 

Proposed items 7, 8 and 9 are similar to item 1 and will amend paragraphs 49(6B)(b), 50(2B)(b) and 66(4B) by omitting references to ‘specifies by written notice’ and substituting references to ‘by legislative instrument, specifies’.

 

Item 10—Subsection 66(6)

 

Proposed item 10 is similar to item 1 and will amend the subsection by omitting the reference to ‘written notice’ and substituting a reference to ‘legislative instrument’.

 

Item 11—Subsection 83A(5) (definition of specified rate per kilometre )

 

Proposed item 11 is similar to item 1 and amends the subsection by omitting reference to ‘specifies by written notice’ and substituting ‘, by legislative instrument, specifies’.

 

Item 12—Subsection 83A(9)

 

Proposed item 12 is similar to item 1 and amends the subsection by omitting reference to ‘written notice’ and substituting ‘legislative instrument’.

 

Item 13—Subsection 130(3)

 

Proposed item 13 is similar to item 1 and will amend the subsection by omitting the reference to ‘notice in writing’ and substituting a reference to ‘legislative instrument’.

 

Item 14—Subsection 139(7) (definition of specified law )

 

Proposed item 14 is similar to item 1 and will amend the subsection by omitting the reference to ‘written notice’ and substituting a reference to ‘legislative instrument’.

 

Item 15—Section 142

 

Proposed item 15 will repeal the section as the Legislative Instruments Act 2003 has made the section redundant.