The Hon. T.A. FRANKS (16:40): I rise to speak on the Work Health and Safety Bill 2011, almost some five or six months after it was first introduced into this place. Far from falling from the sky overnight, I acknowledge that in fact this bill is the result of an impressive initiative which has taken many years of negotiation between all states and territories, stakeholder groups (including unions) and, of course, employer associations.
I indicate that the Greens have strong support for this bill before us today. I will also be moving amendments, but I certainly do not predicate the success of those amendments on support for the bill. The objective of this bill is to have one set of consistent occupational health and safety laws across the nation to cut through the current red tape and regulation arrangements so that employers and workers do not have to work with eight different sets of occupational health and safety laws and regulations, as they currently do.
Members would be aware that there are industries across the country where employees constantly need to cross state borders and are moving from one jurisdiction to another. Having one set of laws, not called ‘occupational health and safety’ but much more simply, I would say, and in plain English, ‘work health and safety’, will increase the productivity of the nation, set higher safety standards and cut red tape. If the opposition supports less government regulation of business, it would be in the interests of their constituents to support this bill.
A number of large bodies and quite credible bodies have conducted economic analyses of the new proposals, including the Productivity Commission, the Business Council of Australia, the Allen Consulting Group and Access Economics. Those reports certainly informed the Greens’ support for this bill. The reports established indicate that the support for a process of harmonisation and the move to simplify regulation by cutting the additional red tape under this new model will, in fact, be good economic sense.
The point has been made that injuries caused in the workplace drive down the productivity of a particular workplace and also impose additional cost to the employers. However, by preventing injuries and implementing higher standards of work health and safety or occupational health and safety practices, employers will, in fact, find that the scheme makes their enterprises more cost-effective, as suggested by the economic analyses of the aforementioned groups.
I would like to make the point here that the nine-page report commissioned by Hudson Howells, which the opposition has been captive to, claims that the costs are estimated to be $1.4 billion to businesses moving towards this harmonisation of occupational health and safety laws. The report has no transparency in its calculations, and it seems to simply be a lobbying mechanism to delay the implementation of this scheme which the employer associations and the union groups had previously agreed to. I suggest that this report not be heavily relied on as its credibility is questionable.
The states will receive financial assistance from the commonwealth when it comes to the implementation of the new scheme, and hopefully South Australia will be participating by 1 January 2012. I think in South Australia that payment is worth some $30 million for all the COAG reforms, but if the minister could clarify that for me it would be appreciated.
As members would be aware, injuries in the workplace can take place at any time and in any form. People in the workplace need to be protected from either a physical or psychological injury—and I welcome the recognition of psychological harm that is contained within this bill, the sorts of injuries that may come about from stress, harassment and bullying—and that is certainly accommodated in this bill, and I do acknowledge that.
I would like to note that when a worker suffers from a severe injury or, indeed, there is a death in the workplace from an accident which could have been prevented, it is the families of those workers who are at the losing end. I cannot imagine looking into the faces of these families and informing them that their son, daughter, parent, friend or relative has died in the workplace from an injury which could have been prevented. If we had to explain to them that that injury could have been prevented had we had better work health and safety laws in this state, I certainly would not want to take on that job of informing those people that their loved one had died.
There are so many cases of workplace injuries and deaths, not only in our state but also across the nation, which could actually be prevented. We must recognise that we have come a long way in the improvement of work health and safety in this country over many decades. That work has come from unions working with employers productively to ensure that the best education and the best information are used whenever possible to prevent injuries; certainly in this case prevention is far better than cure.
Out of respect for the families, I will not address any particular stories in this place. However, I would make the point that we should keep in our minds as we debate this bill the stories of those families, many of whom we are familiar with, who have lost their loved ones, or who have had loved ones lose parts of their lives—whether that is through physical or psychological harm done to them through the workplace—that they will never recover. I will certainly be keeping those at the forefront of my mind as we debate this bill.
This bill contains the introduction of union right of entry in the workplace, According to arguments presented, there are only 100 inspectors relevant for 820,000 workers and more than 50,000 employers and 44,000 work-related injuries in South Australia. Union right of entry, while it does not currently exist in South Australia, certainly does exist across the country.
One of the most interesting spurious debates that I have heard is that we should not be proceeding with this bill today because WA is not going forward with it. If you actually go and have a look at what the Western Australian government has said about this bill—and we all do know that Western Australia tends to be a little bit different from the other kids when it comes to any harmonisation laws—Western Australia has certainly put on record that they are very proud of their union right of entry. They have no problem with that in the implementation of laws across the country and certainly they have stated that they would like to see that union right of entry protected by their state legislation.
Certainly that is not a point of contention from the point of view of WA, and certainly it seems to work elsewhere in the country without the terrible consequences that we are told will result in terms of our introduction of a union right of entry in this state. I think if New South Wales can do it, if Victoria can do it, if Queensland can do it, if every other state and territory except for South Australia can do it, I am not sure that the sky will fall in if we have well regulated and well monitored union right of entry in this state.
At this point I would like to acknowledge a current project that is happening in South Australia that has actually been inspired by the young workers memorial LifeQuilt project in Canada. It is being auspiced under the Working Women’s Centre and it is called the LifeQuilt project. This project has been ‘initiated to pay tribute to those who are woven together in life by a common thread, a fatal workplace injury’. This project seeks to bring families together who have lost loved ones, so that they can take some comfort that their loved ones will be remembered and that there is a movement to ensure that safety is made a priority in any workplace.
That movement is the union movement. I am proud to stand here today and say that the Greens are committed, alongside the union movement, to improving work health and safety in this country and in this state. We all work to ensure that members of our community return home at the end of the day without enduring a preventable injury.
I would like to foreshadow that the Greens have tabled amendments to this bill, and they will in fact seek to restore some of the current protections that we are sacrificing with this move to harmonisation. Again, far from the assertions that we have heard that this is all paying for South Australia and is taking on a whole range of new, supposedly onerous, obligations, we are in fact losing some protections that South Australians currently enjoy. Those protections—and the Greens’ amendments will seek to reinstate them—include the provision of five days training for occupational health, safety and welfare to appropriate people, as currently exists in the entitlement, to ensure that we have workers in our workforce who are aware, alert and actively engaged in the prevention of workplace injuries.
We will also seek to insert the protections around workplace bullying that are currently enjoyed by South Australians. Certainly, our current laws give a nod to that with the use of the word ‘welfare’ in our legislation, in terms of occupational health, safety and welfare, which is a term very familiar to South Australians—a little different to the terminology used in other states. I will, as I have said, acknowledge that the bill does, in fact, contain measures around psychological harm. I would hope that that will go some way to ensuring that workplace bullying is given some due consideration in the implementation of these laws.
We will also have a look at the best practice around the country, and the Greens will be moving to replicate the right of unions and employers—or unions in particular in the New South Wales case—to ensure that those groups have the right to prosecute breaches of workplace safety as they occur. That is something that has worked very successfully in New South Wales, and certainly in New South Wales they have amended the harmonised law to maintain that protection. The New South Wales Liberal government (and I believe this was initiated by the Greens but also has the support of the shooters party and Fred Nile’s group) has seen fit to keep those protections. I will be outlining the ways in which those laws have worked for people in New South Wales when I move those particular amendments.
On behalf of the Greens, I will also seek to amend this bill to insert recognition of industrial manslaughter. I have previously outlined the case for those sorts of laws in my current private member’s bill and, as I say, I do not expect these amendments to get up, but I certainly think they need to be put on the table to give some perspective to this debate. When we are talking about harmonisation, it should never be the lowest common denominator; in fact, we should enjoy equal rights and have the minimum amount of what you could call red tape and the minimum amount of difference between our states, but also afford our own citizens, in whatever state we are, the best of protections within that harmonised system. On those grounds, I do not believe any of those amendments will detract from having a harmonised law.
There is an advantage in improving health and safety in a workplace by allowing a union representing its members into that workplace. When we discuss the rights of unions to prosecute, that will be something on which I will be focusing. Going back to right of entry, I would like to refer members to the second report of the National Review into Model OHS Laws which was prepared for the Workplace Relations Ministers’ Council in January 2009. That report recommended the inclusion of right of entry provisions in the model legislation, so it is little surprise that we have it in the bill which sits before us today. That recommendation stated:
The majority of Australian OHS acts confer powers on authorised representatives of unions to enter workplaces. .. Any union official who wishes to exercise the federal right of entry must apply under and be assessed against the requirements of the federal Act. A permit will not be issued unless the applicant is a fit and proper person. I n deciding that, the Industrial Registrar must consider various matters, including whether the applicant has been disqualified from having a right of entry under a State or Territory OHS law or has had such a right cancelled.
Therefore, the idea that has been floated in the debate on this bill that there will be so-called thuggish union officials storming into workplaces ostensibly to address health and safety issues but using that right to exercise undue power is completely spurious and completely without basis. There is a clear procedure that will have to be followed before these permits are issued. We must remember that at the heart of all this is the role of unions in ensuring that safety concerns for employees and employers are addressed. The rules for exercising a right of entry in the National Review into Model Occupational Health and Safety Laws report went on to say that:
…a union official intending to inspect or gain access to an employee record must [actually] give the occupier of the premises and any ‘affected employer’ written notice (and reasons) at least 24 hours before exercising the right. In addition, a permit holder exercising a State or Territory OHS right:
· must not contravene a condition imposed on the entry permit [under] (clause 496);
· must produce the entry permit for inspection when requested to do so by the occupier of the premises or an affected employer (clause 497);
· may exercise a State or Territory [occupational health and safety] right only during working hours (clause 498);
· must comply with any reasonable request by the occupier of the premises to comply with an OHS requirement that applies to the premises (clause 499);
· must not intentionally hinder or obstruct any person, or otherwise action an improper manner (clause 500); and
· must not misrepresent his or her authority under Part 3-4 [of] (clause 503).
As I say, this is not giving unions carte blanche to simply step into any workplace that they may choose to. There is a due and considered process and, certainly, it seems to work in every other state in this country.
Considerable evidence actually underscores the value of trade union officials being able to enter workplaces to assist in various ways in securing the improved occupational health and safety performance and effective outcomes, particularly when that comes to provision of support to workers who have been elected as health and safety representatives. At the international level, the involvement of workers and their representatives in occupational health and safety is, in fact, mandated by the International Labour Organisation’s Occupational Safety and Health Convention, 1981. So, these are not new concepts and they are certainly not unique to South Australia.
I would note that Johnstone, Quinlan and Walters have observed that, ‘Participatory mechanisms at jurisdictional, industry and workplace level play a pivotal role in Post-Robens OHS legislation in Australia.’ They point to studies that establish a positive relationship between indicators of objective occupational health and safety performances and workplaces with joint arrangements or union involvement in worker representation or, in fact, a combination of the two. Studies from around the world pretty much show that, where you have got a positive relationship with unions and employers, you actually have positive outcomes both in terms of incidences, but also in terms of awareness.
The Queensland experience of union right of entry provisions under their work health and safety legislation amendment bill shows that the rights have not been abused there. They have ensured that workers have had additional sources of advice on occupational health and safety issues. Certainly, the national model itself includes the adequate checks, balances and requirements for periodical issuing of permits and successful completion of training and refresher courses and the like, as well as, of course, the disciplinary action, if necessary and appropriate. I note that the Hon. John Darley has an amendment with regard to the improper use of right of entry and, certainly, the Greens look forward to being informed about that amendment and possibly entertaining that.
In terms of the use of permits, I draw members’ attention to page 72 of the Fair Work Australia 2009-10 Annual Report and the Fair Work Annual Quarterly Reports for 2010-11. The figures in this report indicate that, in the two-year period since the commencement of the Fair Work Act in July 2009, there have been 2,906 applications throughout Australia for right of entry permits but only one revocation and two suspensions. That is one revocation and two suspensions out of 2,906 applications. Certainly those figures go some way to reassuring the Greens that this does not open up any routes to a so-called abuse of union power. In fact, with that in mind, I think you would go a long way to find similar statistics where, out of 2,906 incidences, there were only three situations in which they had possibly been abused. That is certainly reassuring from the Greens point of view.
At this point, I just want to put on record that this is not about unions versus employers. Yet, often, when we do have discussions about these sorts of industrial relations issues and certainly things like right of entry, it does seem to become quite a polarised situation where people take one side or the other. The Greens do not believe that that is the way forward for Australia. We certainly acknowledge that we have good employers and we have good unions, and we have not so good employers and we have not so good unions. We are not here to prop up either; we are here to see the best outcomes; to see those who go into a workplace come out safe, well and alive.
I would also like to draw members’ attention to the lobbying—and I am sure that most members are probably aware of it—from the Roofing Tile Association of Australia (RTAA). We were certainly pleased to receive information from this association, which was in fact involved for some years in the development of the code related to its industry.
The RTAA members have direct responsibility for the installation of over 90 per cent of tiles through manufacturers, contracting divisions and independent tradespeople. One of the RTAA members also has a nationwide metal roof installation business which confronts the same risks as those on roof tile installation. They pointed out that the risk and potential for injury are the same. In fact, they drew our attention to a recent situation where a tradesperson was killed in Queensland, having fallen 2.8 metres from the edge of a roof.
Had the risk control measures of the new code been in place, this accident would have been prevented. The RTAA had extensive knowledge, and I thank them for the information. They drew our attention to many similar instances that have thankfully resulted in far less traumatic and serious injury, but also to the large number of these incidences that are never reported in the official statistics. The information from the Roofing Tile Association of Australia is something that we have certainly taken on board with regards to the lobbying undertaken from the Housing Industry Association.
The RTAA was certainly very keen to see members support this bill in its current form. The consultation that had been undertaken with them as stakeholders had been many years in coming. In fact, they had been looking to have some specific work done for protection in their industry, but it was folded into this particular bill, and they were quite happy to see the many years of work on their industry acknowledged by them being subsumed by the current bill that we have before us.
Another part of the debate that we have had is the idea that nobody can handle the idea of a PCBU. If we cannot handle acronyms in occupational health and safety or work health and safety, then I think we are in the wrong place. Occupational health and safety or work health and safety are loaded with acronyms and, if people cannot handle a PCBU, then perhaps they are in the wrong place. Whether you like the idea of the language of employers or workers or whether you like the idea of occupational health and safety or work health and safety, the reality is, as we know, that language changes over time. In this case, we are seeing introduced the concept of persons conducting business or undertakings (PCBUs), and it will be the language that will be used across the country.
In terms of getting hung up on the idea that we have a new acronym to contend with, I do understand that the Hon. Terry Stephens does not like acronyms, and I certainly am not a big fan, but I have long since acknowledged that there will always be new acronyms and I will just have to deal with it, so the Greens would say that that is not a point we are going to entertain as a problem with this bill—the idea that PCBU is somehow threatening language.
I have many statistics here, but a lot of them were actually outlined quite ably by the Hon. Kelly Vincent with regard to injury rates and falls from the roof tilers, which have some great relevance, as I say, to the arguments put up against this bill from the housing industry. I will not replicate them here.
I will raise something that has not been introduced so far in this debate. Yesterday, when I was at the Our Work Our Lives mini-conference held at the Australian Services Union (auspiced by the Working Women’s Centre and SA unions, I believe) there was an issue around occupational health and safety or work health and safety that was introduced that I thought possibly should have been part of the debate from the beginning and certainly I would hope would appear in any reiterations of national harmonised law.
This was put forward by the Young Workers Legal Service which, ably led by Nadine Levy and Anne Purdy, has been looking at the issue of sexual harassment in the workplace. They have actually suggested that it be put within a framework of occupational health and safety or work health and safety. I have to agree with some of their arguments, and I just put it out there for the minister to take on board for future discussion of work health and safety.
They have been doing quite an extensive body of work on this and they represent young workers, and young women workers in particular; although not exclusive to that group, certainly young women workers do suffer from sex-based harassment in their workplaces. At the moment, the protections are there, but certainly they are not afforded as such through any occupational health and safety mechanisms. They are under equal opportunity and also under the Equal Opportunity for Women in the Workplace programs, and they can go to the Human Rights and Equal Opportunity Commission as well.
The Young Workers Legal Service has proposed that, perhaps by seeing sexual harassment as a work health and safety issue—and certainly there are areas there where psychological harm and, in fact, potentially other injury can occur—this should actually be reframed and seen in a preventative way as part of the rights of a worker to a safe environment. It would seem to me that some of those many thousands of workers who are sexually harassed in the workplace would prefer the preventative rather than the curative approach. I put that on the government’s agenda for another time to perhaps have a look at that work being done by the Young Workers Legal Service.
With that, I indicate that the Greens will be supporting this bill, which I note has actually now been under the auspices of many ministers. A lot of the formative work was done under the former minister the Hon. Paul Holloway, it was introduced into this place some five or six months ago by the former minister the Hon. Bernard Finnigan, has had carriage by the member for Elder (Hon. Patrick Conlon), and currently is re-presented before us by minister Wortley. It has hardly fallen out of the sky overnight. It has hardly come before us without some long period of consultation, of negotiation, of bargaining, of people giving up certain things to get other things.
Certainly, no-one can claim that we have not known that this was coming for some many months, if not many years. There is a great body of work to support the harmonised laws. As I say, a national system in terms of work health and safety can only benefit workers, and one would imagine it would benefit employers as well. With that, the Greens will support the second reading of this bill and look forward to the amendments to be debated in committee. Under all of those ministers, I want to thank Jess Nitschke for being a stable voice and consulting with the Greens all the way through the various ministers and over the various months.
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