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Monday, 13 October 2008
Page: 5729


Senator SIEWERT (12:32 PM) —The Safe Work Australia Bill 2008 is a very important piece of legislation. The Greens believe that robust and effective occupational health and safety laws and practices are vital for the social and economic health of our workplaces and, more importantly, for Australians and their families.

The importance of occupational health and safety is obvious from looking at even just a few key statistics. In 2004 Access Economics estimated that there were 4,900 work related deaths each year in Australia. The ABS calculated that 690,000 employees suffered from a work related injury or illness in 2006. The Productivity Commission found that, in 2004, workplace deaths, injuries and illnesses cost the economy over $30 billion a year. These figures go to the economic and, importantly, the personal and social costs of workplace injuries and deaths. Behind each of those numbers is a person with a family, workmates, friends and a community.

The last time a bill to set up a national OH&S body was before this place, which was three years ago, I said:

… we have a grave responsibility to the Australian people to get this issue right … We do not want to be carrying out our policy experiments when the cost of our errors can be measured in human lives and injury.

The Greens believe that the previous government got it wrong in many ways. It abolished the tripartite and independent National Occupational Health and Safety Commission and replaced it with an executive body, the Australian Safety and Compensation Council—the ASCC. Under the previous government, we saw a systematic attack on the basic principles of occupational health and safety practice—genuine tripartism, independence and involvement of unions at the workplace level. We pointed this out very vigorously at the time, if people will recall. We believe that the current government has a responsibility to rectify the errors of the past and return to the national stage a robust and independent OH&S body. The Greens welcome the commitment of the government and the state ministers to developing a national, harmonised OH&S system.

The Greens have previously supported the development of national OH&S standards. We note the National Review into Model Occupational Health and Safety Laws currently being conducted by a three-person independent panel of experts. We look forward to the initial report of this review, which we understand is due at the end of October. We also acknowledge the intergovernmental agreement for regulatory and operational reform in occupational health and safety. We welcome the commitment of the government and the states to work towards a harmonised OH&S regulatory regime. We note that the provision of this bill in establishing Safe Work Australia is based on the IGA. But we also note that intergovernmental agreements do not take away the primacy of parliament in deciding the laws of the country. We want to work with the government to ensure that there is a replacement for ASCC and that it has as its key focus the development of model laws and regulations, along with other functions. But we also want to make sure that this body works effectively and in the best interests of the community in occupational safety and health matters.

We believe that building on best practice in OH&S in this country and around the world is to implement genuine tripartism and independence. On these criteria, this legislation is too skewed in favour of governments to the detriment of other key stakeholders in OH&S regulation—that is, employees and employers. Safe Work Australia comes as the latest in a line of national OH&S bodies. The National Occupational Health and Safety Commission was established in 1984 by the then Labor government. It explicitly adopted a tripartite and independent structure incorporating the findings of the Robens report. The Robens report fundamentally changed the approach to OH&S in Australia and around the world. In particular, the Robens report recommended an approach focused on general duties of care. The report stated that the problem of health and safety ‘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’. It went on to recommend that statutory recognition of joint consultative practices—including government, employees and employers—need to underpin the new approach.

If you agree with this approach—and all of Australia’s OH&S laws are based on this concept—then you also have to acknowledge the importance of genuine participation of employers and employees through a representative structure. The NOHS Commission did recognise this and was established as a statutory corporation with a membership structure incorporating employee and employer representatives. Its functions included formulating policies and strategies relating to OH&S matters, reviewing and making recommendations for the making of laws relating to OH&S matters, researching OH&S matters and conducting inquiries into OH&S matters.

In 2004, in its report into national workers compensation and occupational health and safety frameworks, the Productivity Commission made a number of recommendations relevant to the National Occupational Health and Safety Commission, including a specific objective of achieving national uniform OH&S regulation and joint funding from the states. We note that this bill does implement these recommendations. The Howard government, however, instead of implementing those recommendations, once it got its chance by taking control of the Senate, abolished the commission. Prior to being able to abolish the commission, the previous government had already reduced its funding significantly. Between 1996 and 2005 the then government slashed the budget by over $4 million. We believe OH&S was never much of a priority for the Howard government.

The replacement body, the Australian Safety and Compensation Council, kept a similar membership structure, including the same number of employee and employer representatives as the previous commission, but it lacked genuine independence from government as it was merely an administrative rather than statutory body. It also took on responsibility for considering workers compensation matters with no consequent increase in funding. It is also worth noting that in 2004 Australia ratified the International Labor Organisation Convention No. 155: Occupational Safety and Health. This convention requires a national health and safety policy to be implemented in consultation with representatives of employers and workers. At the time, the ALP, the Greens and the Democrats opposed the replacement of the NOHSC with the ASCC. Safe Work Australia fits somewhere in the middle of the NOHSC and the ASCC. It continues the practice of being tripartite—although inexplicably downgrading the representation of employee and employer representatives—and, while more independent of government than the ASCC, is significantly less independent than the NOHSC.

The membership of Safe Work Australia and the independence of Safe Work Australia are areas where the Greens have concerns about this bill. We see no justification for downgrading the number of employee and employer representatives from three to two as this bill does. Both NOHSC and ASCC could manage three such representatives. We understand that a great deal of work is involved in adequately consulting employees and employers on the range of issues that come before such bodies. We do not want to see employee and employer representatives at a disadvantage in managing the task of representing their constituents’ interests on such an important body.

We are also concerned about the change in not naming the ACTU and the ACCI as the representative bodies—not necessarily because we have a particular view on these organisations but because the wording of the bill could mean that the union movement in fact has no representation on the SWA. This would be, in our minds, highly undesirable. We are open to further discussion on how the minister’s discretion in nominating an ‘authorising body’ could be tempered—for example, whether there is another formulation which would ensure that the most appropriate representative bodies are authorised. At this stage, we are certainly not convinced by the government’s current approach.

We also believe that there is an unnecessarily high level of ministerial control or direction over the membership of SWA. The minister has unnecessary discretion in the provisions, giving the minister the ability to essentially veto a member nominated by an employer and employee representative body. The minister has no such veto over representatives nominated by the states. This is not only interference in the independence of the body but also contrary to the principles of tripartism. We will be moving amendments to remove this power.

As well as downgrading the number and manner of appointment of employee and employer representatives, there are other provisions which seek to elevate the interests of the Commonwealth and state governments above those of employees and employers. In particular, the bill provides that, when voting on draft legislation, a decision is taken to have been made if there is agreement by two-thirds of the members but also a majority of the members who represent the Commonwealth, states and territories. These provisions also go against the principles of tripartism. The Commonwealth and state governments do not need additional voting rights in the context of Safe Work Australia—they already nominate representatives, and any draft legislation, regulations or codes of practice are required to go to the ministerial council for approval. Furthermore, any such legislation or regulations will need to be passed by the parliaments of the Commonwealth, states and territories. If they do not like something, there is sufficient protection for these governments in these processes, rather than undermining the concept of tripartism in the SWA. We will be moving amendments to restore the representative numbers and remove the additional voting rights of the Commonwealth, state and territory governments.

The other major interference with the independence of the body is the requirement that SWA’s draft strategic and operational powers be approved by the ministerial council and are subject to change on the direction of the ministerial council. Again, these provisions undermine both the tripartite nature and the independence of the SWA. These provisions represent an unnecessary intervention in the independence of the SWA.

I want to reiterate that, while we acknowledge that many of the provisions that the Greens take objection to come from the intergovernmental agreement, that does not put this piece of legislation beyond the normal and appropriate processes of this place. Intergovernmental agreements such as the one dealing with achieving a national harmonised OH&S regulatory system are important in our federation, but these agreements can never take away the role of parliament in making laws. When we believe laws can be improved, particularly when we believe the improvements will increase the probability of the desired outcome, we will argue for those improvements. In this case, we believe the desired outcome is not merely harmonised laws that state governments are happy with but harmonised laws that robustly protect the health and safety of workers. Further, we believe that such laws are best arrived at through a genuinely tripartite process.

The other area where, unfortunately, SWA is borrowing from the Howard government is in its funding. SWA’s initial funding will be $17 million a year. This is Howard-level funding for a body that also has workers compensation issues within its ambit. I note that when in opposition Minister Wong, in commenting on the Howard government’s abolition of NOHSC, said:

Labor believes that ongoing national research into occupational health and safety, something severely compromised by the ongoing funding reductions to the commission in recent years, plays an ongoing important role in the identification and prevention of workplace death and injury in Australia.

Safe Work Australia does have a function of conducting and publishing research, and we agree it is a vital role. We are just not sure how, with its proposed level of funding, Safe Work Australia could take on the essential task of drafting model laws, regulations and codes of practice and engage in the hugely important role of research.

As I mentioned earlier, in the last 10 years we have witnessed the Howard government making a sustained attack on OH&S structures, regulations and rights. The abolition of the NOHS Commission was only one of these. The former government also expanded the jurisdiction of the Commonwealth OH&S laws to non-government businesses.

The Commonwealth OH&S laws are generally seen as being weaker than OH&S regulation at a state level. This was of particular concern for workers in industries with high OH&S risks such as the building and construction and the transport industries. At the time these changes were being made it was noted that, while increasing the numbers of people covered by Commonwealth OH&S regulation, there was a significant lack of sufficient inspectors. There was also an attack on the rights of unions to have active engagement in OH&S matters in the workplace. By dramatically reducing the role of unions, the then government was acting contrary to the national and international evidence which demonstrates that there are much more effective OH&S practices when unions are involved.

The current government, while in opposition, forcefully opposed these measures, as did the Australian Greens. We welcome this government’s stated commitment to occupational health and safety outcomes and look forward to this ALP government introducing as soon as possible legislation to rectify the measures of the previous government, which lessened the rights of employees and the responsibilities of employers in occupational and health and safety matters.

Let us never forget that the paramount reason for occupational health and safety legislation is to protect the health and safety of persons undertaking work or affected by work. We have a duty in this place to get right the processes for developing that legislation and the regulatory framework. Therefore, we will be moving amendments to improve the representation of both employers and employees and to ensure the independence of this very important body. We do support the principle of the legislation but we think it needs improving and we will seek to make those improvements.