BILLS;Work Health and Safety Bill 2011, Work Health and Safety (Transitional and Consequential Provisions) Bill 2011;Second Reading – 24 Nov 2011

I rise to speak on the Work Health and Safety Bill 2011 and the Work Health and Safety (Transitional and Consequential) Provisions Bill 2011. The first speech on legislation I delivered in this chamber, only shortly after beginning my term in the Senate, was on the Safe Work Australia Bill, which later received royal assent and became the Safe Work Australia Act. The act established Safe Work Australia, a tripartite statutory body with representatives from employers, employees and government for improving occupational health and safety outcomes and workers compensation arrangements in Australia.

The establishment of this authority placed Australia on the path to the first ever set of nationally consistent harmonised work health and safety laws. The decision to harmonise work health and safety laws was made by the Council of Australian Governments at its meeting in July 2008. One of Safe Work Australia’s responsibilities was to drive the reform process and to develop model occupational health and safety laws for adoption by each jurisdiction. These laws would encode a model occupational health and safety act, model occupational health and safety regulations and model codes of practice.

The model act was developed by Safe Work Australia in accordance with the decisions of the ministers council. An exposure draft of the model act was released for public comment for six weeks in September 2009. This resulted in significant public feedback to the act, with a total of 480 submissions received in response, which informed amendments to the exposure draft. The model act, regulations and codes of practice to be implemented across all jurisdictions, in accordance with the intergovernmental agreement, were agreed to by the Workplace Relations Ministers Council in December 2009.

Since the endorsement of the model act by the ministers council, two jurisdictions have taken the important step forward of passing new health and safety legislation. The Queensland Work Health and Safety Act received royal assent on 6 June this year and the New South Wales Work Health and Safety Act received royal assent the following day. As Senator Abetz said in his contribution, it is a shame that the New South Wales parliament decided to change the legislation. I agree with the statement made by the Prime Minister when the previous New South Wales government proposed the changes. She said:

… a deal is a deal and the federal government requires this deal to be honoured.

What the coalition has failed to mention is that the current WA Liberal government have not yet even introduced legislation into their parliament. They have flagged changes that are inconsistent with the harmonised laws and will give Western Australian workers a worse deal when it comes to safety. The Victorian government also appear to be walking away from harmonisation, even though their own regulator has signed up to the laws and business strongly supports them. The purpose of the model act is harmonisation, the benefits of which should flow to all workers and businesses, including those in Victoria and Western Australia.

The Work Health and Safety (Transitional and Consequential) Bill will provide for the transition from the Occupational Health and Safety Act, including making necessary consequential amendments to the Safety, Rehabilitation and Compensation Act 1988 and the Social Security Act 1991. As I said in my speech on the Safe Work Australia Bill, there is much to be gained from harmonising workplace health and safety laws across Australia. It reduces regulation, particularly for those businesses that operate across state and territory borders and would otherwise have to deal with several separate workplace health and safety regimes. Significant savings will result for businesses that work across jurisdictions—savings that they can potentially redirect to make real improvements to workplace health and safety for their employees.

There are roughly 40,000 businesses operating across state and territory boundaries in Australia. According to Access Economics, harmonising work health and safety laws will save these businesses $179 million per annum. The harmonised laws also provide workers with the same rights and protections regardless of where their work is carried out. Labour mobility will be enhanced by the recognition of training and licences across jurisdictions.

Of course, harmonising our work health and safety laws across Australia also provides a valuable opportunity to modernise our laws and make some important improvements to workplace health and safety regulation. The model bill provides coverage of a wider range of contemporary work relationships, including contractors, employees of contractors, subcontractors, labour hire workers, apprentices and volunteers. It provides a new statutory right for workers to cease unsafe work in certain circumstances. It introduces tougher penalties for failing to meet a duty of care. It removes the Commonwealth’s immunity from criminal prosecution. And it provides for a wider range of enforcement options, including infringement notices, remedial orders, adverse publicity orders, training orders and orders for restoration. The bill establishes Comcare as the sole regulator of workplace health and safety in the Commonwealth, whereas currently regula­tory powers are shared between Comcare and the Safety, Rehabilitation and Compensation Commission.

Finally, the bill extends work health and safety laws to other persons deemed to be employees under the current Occupational Health and Safety Act. The laws are also extended to members of the Defence Force, although the bill enables the Chief of the Defence Force and the Director-General of Security, with the approval of the minister, to disapply specified provisions of the act. This provision existed previously, obviously in recognition of the heightened risk that employees such as Defence Force members accept as part of their employment; however the minister’s agreement was not previously required.

The bills have been the subject of some scrutiny, and as a member of the Senate Education, Employment and Workplace Relations Legislation Committee I participated in the inquiry into the bills. It was a robust inquiry with one public hearing, and we had a wide-ranging discussion with witnesses from four organisations: the Australian Council of Trade Unions, the Australian Manufacturing Workers Union, Master Builders Australia and the Department of Education, Employment, and Workplace Relations. Other than to support the bill, the committee made two recommendations. The first was to remove the substantial and dominant reason test from the discrimination provisions in part 6. The purpose of the discrimination provisions in the bill is to avoid discrimination or coercion from discouraging engagement in work health and safety roles. However, the ACTU and the union both submitted that the bill should penalise employers if discrimination plays any role in a decision. They also submitted that they believed this provision should be brought into line with the discrimination provisions in the Fair Work Act, which do not include the substantial and dominant reasons test.

In responding to the recommendation, the minister pointed out that the discrimination provisions in the Work Health and Safety Bill do not displace the adverse action provisions in the Fair Work Act. It is also important to recognise that the discrim­inatory conduct provisions in the Work Health and Safety Bill provide for a criminal offence, whereas those under the Fair Work Act only provide for a civil offence. The substantial and dominant reason test is reserved for the more serious breaches where criminal penalties may apply.

The second recommendation of the committee was to include ‘gross negligence’ under category 1 offences. Category 1 offences involve reckless conduct which exposes an individual to a risk of death, serious injury or illness. However, the ACTU were concerned that, given the seriousness of category 1 offences, the test should not be set so high that it would be difficult for the regulator to prosecute. It was considered by the committee that the onus of proof for category 1 offences would include the prosecution establishing that there was not an honest and reasonable mistake of fact on the part of the accused.

The minister responded to this recommendation by pointing out that such an amendment would go beyond local general criminal laws, in that it would apply to conduct which exposed an individual to a risk of death, serious injury or illness even when the conduct did not actually result in death, serious injury or illness. Such conduct, in the government’s view, would constitute a category 2 offence, whereas serious category 1 offences which attract a jail term should include an element of intention.

Throughout all consultation processes—including the national occupational health and safety review, the model act consultation, the exposure draft process, and the committee inquiry—the consistent message from stakeholders has been that there is broad support for national harmonisation of occupational health and safety laws. Fortunately, workplace health and safety is a matter which is universally supported by employers and employees, as it is in their respective interests. Workplace injuries, accidents and illnesses not only lead to great pain and suffering, not to mention financial burden, for employees but to financial costs, low productivity and loss of morale for businesses.

Safe Work Australia estimates that in 2005-06 the cost of workplace related illnesses and injuries—including the economic impact on the broader community in the form of medical and legal expenses, as well as the costs associated with retraining and loss of productivity and morale among co-workers—was a staggering $57.5 billion, or almost six per cent of Australia’s gross domestic product.

The sheer cost of workplace illness and injury demonstrates the importance of improving workplace health and safety in Australia. Not only is it in the interests of employers and workers, it is in the national interest. This is why this Gillard Labor government wants all employers, including those in the Commonwealth jurisdiction, to be spending less time and resources worrying about the red tape of compliance with occupational health and safety laws. Instead, the Gillard Labor government wants employers to focus those resources on dealing with the real issues which confront health and safety in their workplaces. With the support and agreement of state and territory governments, we will achieve this by being the first government to take a national approach to workplace health and safety.

We will also improve workplace health and safety through tougher penalties and by extending the scope of our workplace health and safety laws. It has been a lengthy process to get to this point, but these bills are part of a reform which was long overdue even when we started on this path. I would like to thank the Minister for Tertiary Education, Skills, Jobs and Workplace Relations, Senator Evans, and the previous minister, now Prime Minister Julia Gillard, for all their hard work bringing these bills to the parliament. In times to come, many businesses, unions and workers will be grateful for this important reform. I commend the bills to the Senate.