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Education and Employment Legislation Committee
23/10/2019
Estimates
EMPLOYMENT, SKILLS, SMALL AND FAMILY BUSINESS
Safe Work Australia

Safe Work Australia

CHAIR: I welcome representatives from Safe Work Australia, including Ms Baxter, Chief Executive Officer. Ms Baxter, do you wish to make an opening statement?

Ms Baxter : No, thank you.

Senator PRATT: Thank you, Ms Baxter. How many workplace fatalities have there been this year to date?

Ms Baxter : As at 21 October—and I believe my colleague Ms Raven will have a more up-to-date figure—there have been 121 work related traumatic injury fatalities.

Senator PRATT: Do you have a breakdown of the industries in which these tragic fatalities have occurred?

Ms Baxter : Yes, we do.

Ms Raven : In terms of the detailed breakdown of fatalities by industry of workplace, I can provide that data as at 10 October, which is a total of 121 Australian workers.

Senator PRATT: That'll be fine.

Ms Raven : For transport, postal and warehousing there have been 41 fatalities. For agriculture, forestry and fishing there have been 28. For construction there have been 17. For mining there have been eight. For electricity, gas, water and waste services there have been six. For public administration and safety there have been six. For manufacturing there have been five. For administrative and support services there have been two. For arts and recreation services there have been two. For other services there have been two. For professional, scientific and technical services there have been two. For wholesale trade there have been two. That's the total of 121.

Senator PRATT: Thank you. I note that those statistics in relation to transport workers won't surprise Senator Sheldon, unfortunately.

Senator SHELDON: No. I thought they were actually a bit low, but I have a question to ask about that.

Senator PRATT: In terms of the trends for this year versus previous years, how are we tracking in prevention of these tragic accidents and incidents?

Ms Raven : In 2018 there were a total of 144 workers fatally injured at work. In the previous year, 2017, there were 189 workers fatally injured at work. If we look at the fatality rate, which is the number of fatalities per 100,000 workers, in 2018 the fatality rate was 1.1 fatalities per 100,000 workers, and this is the lowest rate in the 15-year time series and a decrease of 52 per cent since 2009.

Senator PRATT: In terms of the drivers of prevention for these tragic deaths, is there a trend within those different parts of the economy where those decreases can be seen in terms of particular industries working harder to prevent workplace death and injury?

Ms Baxter : There are certainly occurrences in a number of different industries across Australia where there are improvements in worker safety. I think the issue for us at Safe Work Australia is we are aware of those improvements, but it's not possible for us to pinpoint a reason or an exact cause. These are multifactor issues that are occurring here and that's why we're seeing the improvements. We can't really point to, for instance, the work, health and safety laws or—

Senator PRATT: No. I guess I'm asking whether there are particular industries that have done better than others in improving their fatality statistics?

Ms Raven : I can provide some examples using the 2017 figures compared to 2018 figures. Regarding the agriculture, forestry and fishing industry, that decreased from 16.8 in 2017 to 11.2 in 2018. Transport, postal and warehousing decreased from 8.3 in 2017 to 5.9 in 2018.

Senator PRATT: Are you able to provide that over time as a statistical trend? That would be very good, because I know they're small amounts of data and it would be hard, really, to tell whether there are cultural or—as you, Ms Baxter, reflected on—other particular drivers for the change or whether it's good fortune.

Ms Baxter : Yes.

Senator PRATT: On a breakdown of the industries in which serious injuries have occurred, I imagine the statistics are somewhat larger. Do they follow the same kind of trend?

Ms Raven : Certainly both the rate and the number of serious workers compensation claims have been trending downwards.

Senator PRATT: Are you able to give us an overview of the industries in which serious injuries have occurred, and the numbers?

Ms Raven : For that particular data, I do have some high-level examples. We can take on notice to provide you with more detailed data for the industries. If we look at the industries with the highest frequency rate of serious workers compensation claims, that frequency rate is calculated based on claims per million hours worked. Agriculture, forestry and fishing had 8.6 serious claims per million hours worked in 2017-18, manufacturing had 8.1, and transport, postal and warehousing had 7.7.

Senator PRATT: Thank you. In terms of the agriculture sector and other areas included in those statistics, have you done an analysis of the number of migrant workers or people who are on temporary visas who work within those relatively high-risk industries?

Ms Raven : The data that we have available to us at Safe Work Australia is from the national dataset for compensation based statistics, and that data is provided by jurisdictions. Our ability to look at the dataset for workers on those types of arrangements would depend on their eligibility for compensation and whether a compensation claim was made and accepted. It is something that we can certainly take on notice and, if we can provide further detail—

Senator PRATT: Just to be clear, as Safe Work Australia, are you aware of all injuries or are you only aware of injuries where someone has an eligibility for workers compensation?

Ms Raven : Our datasets are based on claims for compensation.

Senator PRATT: How do you track injuries that occur to people who don't have access to workers compensation? Who tracks that? Why is it that they don't have access to workers' compensation? And how can you work out what's risky, as Safe Work Australia, if you're not tracking all people in the labour market?

Ms Raven : There is a range of other data sources available that are not collected by Safe Work Australia. They're collected by other organisations and groups that provide some insights into all work related injuries. For example, the Australian Bureau of Statistics undertakes a work related injury survey. The sample sizes for that survey are quite small, so it's not necessarily a true reflection of the picture of injuries. I think it would be fair to say that the data we have, whilst it is limited to compensation claims, does provide an indication of particular types of industries and occupations that have a higher incidence and frequency of claims.

Senator PRATT: Might it be fair to say, therefore, that, in industries like agriculture where you might have a larger number of people working informally in the economy, the workplace injury rate and the death rate would be higher than the statistics you've revealed this evening?

Ms Raven : For the compensation data, we know that the data only includes those that are eligible for compensation. So yes, that is a true statement, in that there could be others that have been injured at work that are not included in that dataset. Safe Work Australia doesn't have any role in determining eligibility for workers compensation in the jurisdictional workers compensation schemes—

Senator PRATT: No, no—it's not so much that. Your role is, of course, to address safety in the workplace, but if you don't have access to the true data of where the danger in workplaces is—

Ms Baxter : We are dependent upon the jurisdictions to provide us the data. We are not a collector of data as such; we're more a collator of data. So whatever the jurisdictions are able to collect and then provide to us is what we can work with.

Senator PRATT: If you are trying to assess risky occupations—well, risk in agricultural sectors—you're therefore not relying just on the fatalities and serious injuries. What other data sources are you going to, in terms of assessing risk and the nature of risk in particular occupations?

Ms Raven : Just to clarify a point: with the fatalities dataset, it is—

Senator PRATT: Everyone.

Ms Raven : Yes. It's not, obviously, based on eligibility for compensation in any way. As I said before, we do look at data holdings at the AIHW or ABS. Where additional research is needed, we may commission pieces of research to have a look at particular industries or issues as Safe Work Australia members ask us to.

Senator SHELDON: I'm just going through the dataset. You mentioned the number of fatalities in transport and the related dataset that you had. You mentioned 41. In the case of deaths, do those include fatalities from truck crashes per se? Do you use that dataset? If there is a truck crash which involves either a truck driver being killed or another person involved in a truck incident being killed, does that go to your dataset?

Ms Raven : I think it would depend on the circumstances around that particular incident or accident, but our traumatic injury fatalities dataset includes workers that are fatally injured at work and also bystanders.

Senator SHELDON: When it's a worker, is the worker a contractor in that circumstance or an employee?

Ms Raven : That particular dataset isn't based on an employment arrangement; it's based on a range of data sources. So, to compile that data, we look at media reporting around fatalities. We're reliant on fatality reporting from the WHS regulators in each of the jurisdictions. We also access the National Coronial Information System. So there's a range of things that go into informing the compilation of that dataset.

Senator SHELDON: I appreciate you are collating this information from other state jurisdictions—if I've got that correct. In the case of serious injuries, do you include insurance claims for third-party involving a truck, for example? The reason I'm highlighting a truck is that there are many vehicles that are involved in commercial work. Do you have a truck or do you have other vehicles that are commercial vehicles that are involved when you're correlating the number of serious injuries that occur within that particular type of work?

Ms Raven : The number of serious injuries within that type of work or industry is based on either the worker's occupation or the employer's industry. It's not to do with whether it's a contracted arrangement or anything like that.

Senator SHELDON: If you're a truck driver and you're operating for, say, a major retailer and you're contracted to a transport company and your contract is as an owner-driver—you own your own rig—and you get injured whilst you're out on the road and you get seriously injured, under what circumstances would that be included and under what circumstances would it not be included in your statistics for serious injury?

Ms Raven : Within the national dataset, it would be included if that particular worker was eligible for workers compensation and made a claim to their workers compensation scheme.

Senator PRATT: What if they were self-insured or not insured at all?

Ms Raven : I don't know exactly what you mean by that, in terms of their insurance.

Senator PRATT: They're self-employed, so they don't have workers compensation. If they're eligible for compensation, it'll only be if they've insured themselves.

Ms Raven : As I've said, that particular dataset that we have is based on accepted workers compensation claims in each of the jurisdictions, so it's based on those that are covered by workers compensation schemes. If they're not part of those schemes—

Senator SHELDON: I want to highlight a substantial deficiency in the figures in the road transport industry. A third of road transport commercial vehicles are considered as owner-operators. The vast majority—I wish I could quote where the figures come from, but I can say that I'd be confident that it's well over 99.9 per cent—are not on workers compensation. If there is 0.1 per cent, they're probably employees being called contractors. Those people would not be included in your dataset. That's a significant question that is being raised about what is one of the most dangerous industries. What is the dataset giving us when we're trying to make decisions as a government, an opposition or the various state jurisdictions? I will just put you on notice that there is a suggestion about how that could be dealt with, because that is a serious failing in the keeping of data. I appreciate there are limitations on the data that's passed on, but there should be a proactive way of collecting that data.

Ms Baxter : As well as the datasets that we've got, I might just clarify: the traumatic injury fatalities database that we hold will pick up every fatality. It doesn't matter how someone's employment relationship is characterised, those are picked up in that database. But, as well, we have the Australian strategy, which is a 10-year strategy running till 2022, and one of the priority industries that has been identified in that strategy is road transport, logistics and warehousing. Certainly, the work health and safety regulators around Australia are very aware of the fact of the high risks involved in road freight transport, and we have had discussions about it at Safe Work Australia, and I'm aware that a number of regulators take action and take initiatives to address the hazards and the risks that they're seeing in that industry.

Senator SHELDON: I appreciate the issue with regard to fatalities. You explained that very clearly to me. On the situation regarding serious injuries and, I might add, other injuries, there is not a set of figures that actually includes over a third of the workforce, because, if they're not on workers comp, they're either self-insured or not insured because they're owner-operators—and there are a multitude of reasons for that. There's a third of the workforce not being included, so, when you are trying to make decisions about particular industries which are dominated, in particular, by owner-drivers, because of the nature of those markets and of how they operate—it's hard to make a decision about what is a proactive way to deal with injuries. I'd like you to take on notice to come back to me to say how you're going to include a third of the road transport workforce that's not now included for serious injuries and other injuries. I think that's pretty fundamental.

Ms Baxter : We can certainly have a look at that and take that to our members. As you may or may not be aware, Safe Work Australia is not me. It's not my staff who are sitting here this evening. Safe Work Australia is actually our members body, which is constituted of representatives from each of the jurisdictions and also representatives from employer organisations and employee organisations. So I'd be very happy to have a look at it back in the agency and then take something forward to members for their consideration. It's they who make the decisions about what we do and what we pursue.

Senator PRATT: In that context, how do you manage representation from people who are self-employed within a work safety context, giving them a voice and representation within the policy development of Safe Work Australia?

Ms Baxter : For instance, one of the members of Safe Work Australia is the Australian chamber. They have a number of peak organisations that have membership of their body. It's also possible for people to make representations through their jurisdiction members as well. So their voices can be heard in those ways.

Senator SHELDON: Senator Payne, I am not questioning the accuracy of what has been put to me, but could I put on notice whether the minister could consider appropriate steps for this to be taken to a higher level—maybe COAG—because I know these conversations have been occurring in state and national jurisdictions for considerable time beyond this government. So I think, particularly in light of the serious injuries that we are seeing in the sector, let alone the fatalities, that are not being recorded, they could be considered.

Senator Payne: Thank you, Senator Sheldon, and thank you for the issues that you've raised. I'll take that on notice and also take it up with the minister.

Senator SHELDON: Thank you.

Senator PRATT: Senator Sheldon is going on to ask some questions in the context of the gig economy, but, before leading into that, I wanted to ask: if someone is participating in the gig economy—and many of those people are driving cars, bicycles, et cetera—are you picking up those injuries in the context of transport injuries, or are you not really able to tell if someone has clocked on or off work at the time they are injured?

Ms Raven : Whether they are included in the data set would depend on whether they were eligible for compensation and whether a claim was made or accepted.

Senator PRATT: Is there anyone in those statistics for serious injury or death who is part of the gig economy and working in transport?

Ms Raven : Certainly within the national data set for compensation there may be. I would need to take on notice whether we could potentially identify them. It may be that it would be a subindustry or type of industry—for example, a food delivery driver category. We could provide data at that level, but it would be difficult to tell whether people were included, and that would depend on their employment arrangements.

Senator PRATT: Okay. In terms of you making an assessment on how safe this sort of work is, which Senator Sheldon is going to follow on, how do you know if your statistics are reliable if these workers aren't eligible for workers compensation?

Ms Raven : That is a good question. As we have said before, we are reliant on data that's provided from the jurisdictions and, in terms of the type of work that we undertake, it is determined by priorities or issues put forward by Safe Work Australia members. A couple of years ago with did do some work with the CSIRO, having a look at potential WHS and workers compensation issues, and certainly gig work was something that was included in that particular report. Safe Work Australia members have considered the findings of that report and have not tasked the agency with doing any particular follow-up work in relation to that at this point.

Senator PRATT: Thank you. That's helpful.

Senator SHELDON: I have already asked for one matter to be considered by the minister. Could I ask you to come back to us about raising it with your members on the issue in regard to the gig economy. I am not saying it is less serious. In actual fact there is a substantial overlap in some of the requests I have just made. Could you come back to your members about that?

Ms Baxter : Yes.

Senator SHELDON: The difference between the other question I put to the minister to consider on notice is that that matter has been on the books for a very long time. The gig economy is less important, but it has been on the books for a shorter period of time. I first want to hear if there is a response from the members, before I make any other requests.

Senator Payne: Understood.

Senator PRATT: We can put the rest of them on notice, I think.

Senator ROBERTS: Is it true that all workers must be covered by some type of workers compensation policy?

Ms Baxter : It is certainly our understanding that all employees are covered by state based workers compensation policy schemes. In terms of workers who would be categorised otherwise, my understanding is that it would be advisable for them to have their own self-insurance arrangements. Whether they do or don't, or whether industry by industry they are required to, I would need to take that on notice and come back to you.

Senator ROBERTS: Thank you. Comcare is a workers compensation insurer for Commonwealth government employees only?

Ms Baxter : Commonwealth government employees and some self-insured licensees.

Senator ROBERTS: Who is the insurer for labour hire employees in the coalmining industry in New South Wales?

Ms Baxter : I don't know. That would probably be a matter better directed at the New South Wales government.

Senator ROBERTS: Okay—it's Coal Mines Insurance. Does icare NSW, the nominal workers compensation provider in New South Wales, cover miners in the black coal industry?

Ms Baxter : I don't know.

Senator ROBERTS: Okay—they don't. Legally, they have not been able to since 2005, because Coal Mines Insurance does. Is it true that, under the black coal award, only full-time workers in black coalmines can work in black coalmines?

Mr Hehir : It is not a matter for Safe Work Australia. I think we have discussed this issue before, Senator Roberts. The award sets out the minimum standards. It is possible that workers can be covered by other arrangements, such as enterprise agreements—

Senator ROBERTS: Provided those enterprise agreements cover at least what the award covers.

Mr Hehir : As long as the Fair Work Commission makes the assessment that the better off overall test is met.

Senator ROBERTS: Are you aware that labour hire firm Chandler Macleod hires hundreds of people to work as miners in the black coal industry in New South Wales, but only calls them casuals, even though they work the same hours as full-time miners in black coal who are doing the same job with the same skills, right next to them? Therefore, Chandler Macleod is paying those workers at lower rates and conditions than those who come under the black coal award.

Mr Hehir : I am not aware of the employment arrangements for Chandler Macleod. I don't have their enterprise agreement in front of me. My understanding—

Senator ROBERTS: Okay, you're not aware—that's fine. Are you aware that claims for workers compensation for black coalmine workers injured in or about a mine have been denied compensation from Coal Mines Insurance, because they were classified as casuals?

Mr Hehir : I am not aware of that.

Senator ROBERTS: In summary, those New South Wales coalmine workers in the Hunter Valley, working full-time hours but classified as casuals for labour hire companies are not legally covered by an icare issued policy or Coal Mines Insurance policy. They are not covered. Are you aware of that?

Mr Hehir : No. It would be a matter for the New South Wales schemes. It is not a matter for the Commonwealth schemes. Work, health and safety legislation is the responsibility of the individual states. The work, health and safety legislation is harmonised legislation; however, there are some variations across the jurisdictions in relation to particular aspects that have changed since the model laws were introduced. But the work, health and safety laws for each individual state and territory are the responsibility for state and territory parliaments.

Senator ROBERTS: Is it of concern to you that there are hundreds of labour hire coal miners in New South Wales who have not been legally covered by the correct insurance policy if injured in or about a mine, and hundreds are now working with no cover or limited cover?

Mr Hehir : Certainly, on a personal level that sounds very concerning. However, it is not something that I have direct knowledge or, nor is it the Commonwealth's legislative responsibility. It remains the responsibility of the New South Wales government.

Senator ROBERTS: Who should these miners turn to?

Mr Hehir : Again, I am not aware of the specifics of any variation in the legislation within New South Wales. Workers compensation legislation is the responsibility of the state parliaments.

Senator ROBERTS: What about injuries being reported? Some of these miners have been told not to report injuries and are now crippled for life.

Mr Hehir : Again, Senator—

Senator ROBERTS: Would they come to someone in the Commonwealth?

Ms Baxter : No. They would be covered by the New South Wales work, health and safety laws. So the appropriate person to make representations to, as it were, would be the New South Wales work health safety regulator.

Senator ROBERTS: What about if they have gone to that regulator and they have been ignored? Then where do they go? They have gone to ministers. They have gone to representatives in parliament in New South Wales. They have gone to the regulator—nothing.

Ms Baxter : Senator, these matters that you are talking about fall within the remit of the states, of the jurisdictions. They are not matters that recovered by the model work, health and safety laws and they are not the responsibility of the Commonwealth workers compensation scheme.

Senator ROBERTS: Chair, I would like to comment—and it is a comment—that the Coal Mines Insurance in New South Wales, which supposedly covers coal mine workers and isn't doing that properly, is 50 per cent owned by the New South Wales Minerals Council and 50 per cent owned by the CFMMEU. The black coal industry has its own workplace health and safety company called Coal Services. It provides pre-employment checks and black lung checks and medical records. It's owned 50 per cent by the CFMMEU and 50 per cent by the New South Wales Minerals Council. In both of these cases the directors must come from the CFMMEU and the New South Wales Minerals Council. The superannuation for the black coal industry is 50 per cent CFMMEU, owned CFMMEU, 25 per cent New South Wales Minerals Council and 25 per cent by the Queensland minerals council—same directorships. There is another entity, coal mines long service leave, which is also controlled by the New South Wales Minerals Council and the CFMMEU. What hope have these miners got? That is a statement.

CHAIR: It is a statement.

Senator Payne: Senator Roberts, I was going to observe that during the course of this evening you have raised a number of issues across a number of sets of witnesses from the departments to agencies. There are, obviously, a range of concerns that you have brought to the committee tonight. I think it would be appropriate if you can bring those together in a way that they can be addressed in globo as it were. Then I would very much like to offer to have that discussion with you—not in my capacity in any official way, except perhaps as a New South Wales senator.

Senator ROBERTS: Thank you very much.

CHAIR: If there are no other questions for Safe Work Australia, I'd like to thank you for coming along this evening and consider yourselves released.