Opposition Senators' Report
2.1
The Opposition does not support the changes proposed in
the OHS and SRC Legislation Amendment Bill 2005. In its view the bill
represents another attempt by the Government to spread its control of workplace
related matters as far as possible into the private sector by broadening the
application of the Occupational Health and Safety (OHS) Act beyond its current
boundaries. Over fifteen thousand workers have already been removed from the
state and territory OHS systems by businesses applying to self-insure under
Comcare, a figure which is set to rise.
2.2
The Opposition acknowledges that one of the stated
objectives of the bill is to implement the Government's response to the
Productivity Commission's report into national workers' compensation and
occupational health and safety frameworks.[15]
Yet it is significant that the Productivity Commission's recommendation with
respect to workers compensation, which were designed to encourage
self-insurance applications under Comcare, faced overwhelming opposition from
state governments.[16]
2.3
The most controversial provisions of the bill are those
which intend to bring commercial corporations, including Commonwealth entities
which have been privatised and private entities which compete with the
Commonwealth, within the jurisdiction of the Commonwealth OHS Act. In this
report, Opposition senators examine three issues arising from their examination
of the bill:
-
enforcement and compliance arrangements under
the proposed changes;
-
union involvement in occupational health and
safety, especially in the light of other OHS amending legislation currently
before the parliament; and
-
whether any evidence exists to support the view
that current state OHS laws create confusion for business and increase
compliance costs, and that time and resources which would otherwise go to
improving workers' the health and safety are currently being wasted.
Enforcement, self-regulation and voluntary compliance
2.4
Opposition senators are concerned by evidence from
unions that the proposed changes will result in a diminution of standards under
the current Commonwealth OHS system. There is no requirement in the legislation
for companies to work towards higher health and safety standards. As noted by
the ACTU submission, the existing compliance obligations under the Commonwealth
OHS Act are very poor compared with state and territory acts. As a consequence,
business is encouraged to lower health and safety standards without fear of
prosecution.[17] Opposition senators are
concerned that a system which encourages self-regulation and voluntary
compliance will create more confusion and result in less compliance in the
workplace. This inevitably will translate into more injuries and deaths. It
also runs counter to the objectives of the Australian Safety and Compensation
Council's National OHS Strategy to reduce occupational injury by 40 per cent
and fatalities by 20 per cent by 2012.[18]
2.5
This is particularly relevant to the building and
construction industry. Construction workers have a significantly higher chance
of being killed at work than workers in other industries, and the incidence of
serious injury among construction workers is about 50 per cent higher than the
average for all industries. Opposition senators are only too aware of the industry's
poor OHS record which accounted for 13 per cent of all fatalities and 9.2 per
cent of all injuries over the six year period from June 2002.[19] According to the CFMEU submission, the
proposed legislation will compound these alarming figures because it is likely
that many larger national contractors will take advantage of the opportunity to
leave the state systems and enter a more lax Commonwealth regime.[20]
2.6
The committee heard compelling evidence from the ACTU that
the Government's enforcement agency, the Safety, Rehabilitation and
Compensation Commission, is dysfunctional in terms of policing the Commonwealth
OHS Act. Comcare lacks appropriate dispute resolution procedures, which could
have an adverse effect on private sector workers who may fall under the
umbrella of the OHS and Comcare systems, many of whom, have less beneficial
leave arrangements than their public sector counterparts.[21] The changes being proposed will
further weaken Comcare's ability to ensure compliance with the law. The AMWU
submission argued that extending coverage of the Commonwealth OHS Act to
multi-state employers which self-insure under Comcare, will open up a 'safety
gap' that will threaten the welfare of workers and their families. The
submission correctly pointed out that the Commonwealth does not maintain a
force of safety inspectors, relying instead on the services of state inspectors
under a memorandum of understanding. Penalties on employers are substandard and
rarely enforced.[22]
2.7
Opposition senators agree with the argument put forward
by unions that the standards enforced by Comacre are not as stringent as those
which operate under state jurisdictions. The National Council of Self Insurers
told the committee that self insurance provides an extra layer scrutiny on top
of inspectorate activity because companies voluntarily become involved in
safety audits which are reported to the relevant state regulator.[23] Yet Opposition senators are not
convinced by this argument. The system of audit and compliance is not as
effective as having inspectors on the ground. The proposals in this bill will
do nothing to increase the level of workplace inspections and financial
penalties which have already had a strong and positive influence on OHS
practice and compliance.
2.8
Opposition
senators draw attention to the final report of the Royal Commission into the
Building and Construction Industry, which concluded in part:
There is persuasive support for the view that the extent of
compliance with occupational and health and safety obligations is strongly
influenced by a reasonable expectation of the likelihood of being inspected,
prosecuted and convicted and having a meaningful penalty imposed. The presence
of occupational health and safety inspectors is important.[24]
2.9
It is in this context that that the Opposition notes the
Commonwealth's extremely limited OHS enforcement capacity which, according to a
recent comparative performance monitoring report for 2003-04, amounted to a
paltry 16 inspectors and investigators and no prosecutions for a workforce of
approximately 286,000 employees.[25]
This is in stark contrast to the 301 and 236 active field inspectors operating
in New South Wales and Victoria,
respectively. While the Opposition is aware that Comcare currently has access
to 268 investigators, the evidence from Victoria
shows that Comcare has used that state's inspectorate on only a dozen occasions
over the past five years.[26]
2.10
The following table from the monitoring report paints a
stark picture of voluntary compliance under Comcare compared with Victoria's
WorkSafe system.
Table 1: Voluntary compliance[27]
|
2003-04 |
Comcare |
Victoria's
WorkSafe |
|
Number of safety inspectors/investigators |
16 |
236 |
|
Workplace interventions |
245 |
43,719 |
|
Safety prohibition and improvement notices |
17 |
12,492 |
|
Prosecutions |
0 |
110 |
|
Number of employees |
286,000 |
2,103,800 |
|
Number of workplaces |
N/A |
300,000 (approx) |
2.11
The Opposition notes the strong concerns expressed by
the Transport Workers' Union about the likely effect of
the bill on enforcement in the transport industry:
It is difficult to see how, in the event that there is a
significant shift from the State jurisdictions to the Federal jurisdiction, the
Government has the resources currently to properly protect workers in this
environment. Self-insured workplaces may (or may not) have an incentive to
improve their workplace safety. But self-insurance is not enough. There must be
some meaningful inspectorate services to ensure workplace safety.[28]
2.12
At the committee's public hearing, DEWR officerschallenged
the evidence presented by unions on a range of issues. They told the committee
that before amendments were made to the Commonwealth OHS Act in 2004, only
government business enterprises could be prosecuted for a breach of the act,
and criminal prosecutions were the only sanction available. According to DEWR,
this explains the small number of prosecutions under the act, which has since been
rectified. Comcare can now bring civil proceedings against the Commonwealth and
its authorities where there has been a breach of the act. DEWR argued that the
enforcement regime under the OHS Act is now more robust than it used to be.[29]
2.13
When asked at a public hearing to provide evidence to
support this position, neither DEWR nor Comcare could do so. Opposition
senators find it unacceptable that DEWR made the claim that a lack of prosecutions
does not reflect Comcare's unwillingness to prosecute, yet failed to provide
any figures to support the assertion.
Union involvement and employee representation
2.14
Opposition senators are concerned by the Government's
continued ideological assault on the legitimate role of trade unions in
representing the interests of employees in the workplace. They believe that an
ideological stance on matters related to occupational health and safety is
neither a constructive policy development nor a prudent one. They reject the
Department's claim that the bill will increase opportunities for employees to
be involved in OHS arrangements and preserve the current active role played by
unions in enforcing compliance with OHS standards. At the committee's public
hearing, the department was unable to demonstrate how the bill will provide for
such guarantees. The submission from the RTBU made the valid point that, like
the Government's claim regarding the compliance costs associated with state OHS
laws, 'the department simply makes it and lets it hang'.[30]
2.15
The Government's intention with this and other amending
legislation before the parliament is to remove union involvement from the
preventative OHS institutions which currently exist in the workplace. The
Occupational Health and Safety (Commonwealth Employment) Amendment Bill 2005,
which was introduced into the parliament in August 2005, will, if passed,
remove the right of union representation in the workplace, reinforce managerial
prerogative and remove all references to unions from the OHS Act. The bill will
also seriously erode the rights and capacity of OHS representatives to
represent their members at the workplace. Taken together, both OHS amendment bills
seek to curtail the choice of employees in the public sector to be represented
by a union in occupational health and safety matters.
2.16
The committee's attention was drawn to evidence from
the United Kingdom
which shows that unionised workplaces are generally safer than non-unionised
workplaces.[31] The submission from the
Australian Manufacturing Workers' Union (AMWU) argued that the steady reduction
in the number of work-related injuries and deaths in the manufacturing industry
is largely due to the role of unions in promoting healthy and safe workplaces
and their ability to work cooperatively with employers and state regulatory
bodies.[32]
Harmonising state and territory OHS laws
2.17
An argument raised in support of the bill by the
National Council of Self-Insurers (NCSI) and DEWR is that self-insurers who
operate in more than one state currently face a significant administrative and
cost burden because they have to meet different state regulatory and
legislative requirements.[33] According
to the NCSI, the bill will remove this impediment to business profitability and
efficiency, and encourage and stimulate business growth and development. These,
however, are familiar claims which could not be substantiated at a public
hearing.[34] The Opposition believes
that the level of confusion arising from different state laws is overstated,
and claims of additional compliance costs to employers who have to comply with
conflicting OHS state laws lack any evidentiary basis.
2.18
The Opposition is concerned by evidence from the CFMEU
and the RTBU that the proposals in the bill will enable the absurd situation
where employees performing the same job in one workplace are subject to two
different OHS standards, one covered by Comcare and the other by a state
jurisdiction.[35] This has the potential
to introduce two systems working alongside each other in one organisation. In
these circumstances, large businesses will be able to choose which legal system
workers are covered by. Opposition senators believe this is a recipe for confusion,
possible disputation and ultimately less safe workplaces. Mr
Andrew Thomas
from the RTBU told the committee:
...having two systems working side by side has the potential for
total and utter confusion. I must say that in the 20 years that I have been in
this union I have not heard employers complain about the fact they are covered
by different occupational health and safety regimes in different states.[36]
2.19
The unions put forward a convincing argument at the
committee's public hearing that the Government should be making an attempt to
harmonise the different state and territory OHS laws and seek greater
cooperation between the states and the Commonwealth on this issue. The current
bill seeks to undermine and further fragment existing state OHS schemes and
weaken the protection and enforcement available through state laws. The
Opposition agrees with the view put forward by the Community and Public Sector
Union that state legislatures are the most appropriate bodies to regulate
workers' compensation and OHS because they are responsive to the circumstances
and needs of the workers and industries in each state.[37]
Conclusion
2.20
The Opposition believes the Government is attempting to
rush this legislation through the parliament without consulting unions,
employees or state and territory governments. It is concerned that the
Government has failed to examine how the changes will affect OHS standards
across the states and territories. Any proposals to amend the OHS Act should
aim to improve occupational health and safety standards and reduce injuries,
illness and fatalities as a first priority, not seek to reduce compliance
obligations on business which is this bill's one and only objective.
2.21
When considered alongside other OHS legislation
currently before the parliament, the Opposition is of the view that the
Government is attempting to transform the OHS system by stealth and in ways
that ultimately will be detrimental to the health and safety of workers. The
Government is using this bill to pursue an extreme anti-union view, to the
extent that it believes the trade union movement has no role to play in occupational
health and safety matters in the workplace, to the clear disadvantage of
working people and the community at large.
2.22
Opposition senators believe that the Government is
adopting the wrong approach in its push to extend coverage of the Commonwealth
OHS system. The Government should be encouraging cooperation between state and
federal governments to achieve uniform OHS codes and standards and harmonised
OHS laws. The unions raised serious concerns about the likely effect of the
proposals on the health and safety of employees, especially workers in the
finance sector, the building and construction industry and manufacturing. Voluntary
compliance will not work in these industries. The proposals under consideration
will have unfortunate consequences for enforcement and compliance and will
strip back the rights and legal protections which workers currently enjoy under
the Commonwealth OHS Act. Any proposal to change the law should strengthen
compliance measures and increase financial and other penalties for breaches of
the law, not weaken them as this bill seeks to do.
2.23
Opposition senators agree with the ACTU that any policy
proposal which significantly extends coverage of the Commonwealth OHS Act
should be referred to the Australian Law Reform Commission before legislation
is considered by the parliament.
Recommendation 1
Opposition senators recommend that the bill be referred to the
Australian Law Reform Commission to examine the bill's constitutional
implications.
Recommendation 2
Opposition senators recommend to the Senate that the bill in its
current form be rejected.
Senator Gavin
Marshall
Deputy Chair
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