CHAPTER 2

Key Issues

2.1        All submitters to the inquiry expressed in-principal support for the harmonisation of Australia's Occupational Health and Safety (OHS) laws. It was generally accepted that harmonisation would improve business efficiency and worker protections.[1]

2.2        Some submitters viewed the Work Health and Safety Bill 2011 (the bill) as a minimum national standard which could be built upon.[2] In contrast, other submitters argued that the bill should be passed in its current form.[3]

2.3        The key issues raised by the submitters and considered by the Committee were:

• consistency with the Fair Work Act 2009;
• Category 1 offences;
• regulation of Health and Safety Representatives (HSRs), including proposed provisions to prohibit discriminatory, coercive and misleading conduct;
• management of psychosocial hazards; and
• regulation of chemical labelling.

2.4        The Committee also considered the importance of parliamentary scrutiny of proposed legislation, not withstanding its part in a broader national scheme. It is to this matter that the Committee first turns.

Intergovernmental agreements and parliamentary scrutiny

2.5        As discussed in Chapter 1, the creation of harmonised OHS laws is underpinned by intergovernmental negotiations and agreement between the Workplace Relations Ministers Council in each state and territory. This agreement was substantially reached in 2009, culminating in the Intergovernmental Agreement for Regulatory and Operational Reform in Occupational Health and Safety (IGA).[4]

2.6        The IGA relevantly states:

5.1.6 For the purpose of ensuring that model OHS legislation applies throughout Australia, each Party to this Agreement will, subject to its parliamentary and other law-making processes, take all necessary steps to enact or otherwise give effect to model OHS legislation within its jurisdiction within the timeframes agreed by WRMC.

...

5.1.8 The adoption and implementation of model OHS legislation is not intended to prevent jurisdictions from enacting or otherwise giving effect to additional provisions, provided these do not materially affect the operation of the model legislation, for example, by providing for a consultative mechanism within a jurisdiction.[5]

2.7        The Committee asked the Department of Education, Employment and Workplace Relations (the Department) during the hearing to comment on the limitations imposed by the IGA. The Department acknowledged that the IGA did not bind Parliament:

I suppose the agreement is an agreement between the governments. Governments and parliaments are not necessarily the same thing, so I do not think governments could purport to bind to their parliaments through an agreement of this type.[6]

2.8        The Department explained:

The government view would certainly be to encourage the parliament to pass the legislation as introduced, because it does reflect the agreed national position which the government has committed to.[7]

2.9        Senate parliamentary committees, as an extension of the Senate itself, have a crucial role in reviewing proposed legislation. This role is diminished in circumstances where national legislative schemes are presented to Parliament with the suggestion that they cannot, or should not, be amended because they are supposed to be uniform around the country. The Committee is concerned that the trend towards national schemes could potentially limit the role of the parliament by reducing or negating its investigative powers.

2.10      Though not commenting specifically on the current bill, the Committee notes with approval the stated position of the Senate Scrutiny of Bills Committee on uniform schemes:

While the [Scrutiny of Bills] Committee understands the arrangements through which cooperative schemes are often implemented and the arguments in favour of a uniform national approach, it is concerned to ensure that legislation is subject to appropriate legislative scrutiny. The Committee would welcome an opportunity for it to consider and comment on an exposure draft of any proposed amendments prior to their adoption.[8]

2.11      The Scrutiny of Bills Committee’s comments are consistent with recent recommendations made by the Senate Select Committee on the Reform of the Australian Federation:

Recommendation 3

2.56    The committee recommends that exposure drafts of legislation intended as the foundation for a referral of power to the Commonwealth be made available for examination by parliamentary committees, including, as appropriate, the Joint Standing Committee proposed in Recommendation 17 of this report and the Senate Standing Committee for the Scrutiny of Bills, prior to their adoption.[9]

...

Recommendation 17

8.41    The committee recommends the establishment of a Joint Standing Committee of the federal parliament to be administered by the senate and with a senator as its chair. The committee should have a mandate to conduct its own inquiries and be assigned a range of oversight responsibilities that would enable it to assume a significant and integral role in helping to manage Australia’s modern federation. This should include the responsibility to provide regular oversight of COAG.[10]

Committee view

2.12      The Committee recognises and affirms the extensive consultation that the Department and Safe Work Australia have conducted to reach agreement on OHS laws. However, the Committee also is cognisant of the importance of parliamentary oversight and sees merit in the recommendations of the Senate Scrutiny of Bills and Senate Reform of the Australian Federation Committees that, in general, the better approach is for parliament to consider exposure drafts before intergovernmental agreements are finalised.

Matters identified by the Senate Scrutiny of Bills Committee

2.13      The Committee also has had reference to the report tabled by the Senate Scrutiny of Bills Committee which considered this bill.

2.14      The Scrutiny of Bills Committee asked Senator the Hon Christopher Evans, Minister for Tertiary Education, Skills, Jobs and Workplace Relations to comment on possible inappropriate delegation of legislative power. In particular, the Minister has been asked to comment on:

• whether subclauses 12(7) and 12(8) which enables a regulation to amend primary legislation are needed, and if they are needed, whether it would be appropriate to limit the delegation of legislative power to a set period;[11] and
• whether subclauses 12C(1) and 12D involve an inappropriate delegation of legislative power (as it permits an administrator, with the permission of the Minister, to modify the operation of the statutory requirements).[12]

2.15      The Scrutiny of Bills Committee has also asked the Minister to comment on whether instruments made under subclauses 12D(2) and 273B(2) are legislative instruments, and, if so, whether these instruments are governed by the Federal Legislative Instruments Act 2003. [13]

2.16      The Scrutiny of Bills Committee has also raised some concerns about the offences provisions in the bill. For example,

• reversal of onus of proof;
• strict liability; and
• privilege against self-incrimination.[14]

Committee view

2.17      The Committee has considered the Scrutiny of Bills Committee's comments on these matters. The Minister's response is unlikely to be received before the tabling of this report. The Committee considers that the matters raised by the Scrutiny of Bills Committee should be satisfactorily resolved before the bill proceeds.

Discrimination provisions

2.18      The Australian Council for Trade Unions (ACTU) and the Australian Manufacturing Workers Union (AMWU) identified concerns with the substantial reason test in the proposed discrimination provisions that deal with civil provisions, and also noted that these provisions are inconsistent with the Fair Work Act.

2.19      Clause 104 of the bill proposes that it is an offence for a person to engage in discriminatory conduct for a prohibited reason.

2.20      Clause 105 describes discriminatory conduct, which includes certain actions:

• that may be taken in relation to a worker (e.g. dismissing a worker or adversely changing the position of the worker);
• that be may be taken in relation to a prospective worker (e.g. treating one job applicant less favourably than another); and
• relating to commercial arrangements (e.g. refusing to enter or terminating a contract with a supplier of materials to a workplace).[15]

2.21      Clause 106 states that discriminatory conduct is undertaken for a prohibited reason if it is taken because the worker or prospective worker:

• is involved in, has been involved in, or intends to be involved in work health and safety representation in the workplace;
• undertakes, has undertaken, or proposes to undertake another role under the bill;
• assists, has assisted, or proposes to assist a person exercising a power or performing a function under the bill;
• gives, has given, or intends to give information to a person exercising a power or performing a function under the bill;
• raises, has raised, or proposes to raise an issue or concern about work health and safety;
• is involved in, has been involved in, or proposes to be involved in resolving a work health and safety issue under the bill; or
• is taking action, has taken action, or proposes to take action to seek compliance with a duty or obligation under this bill.

2.22      Civil and criminal proceedings may follow if a person engages in discriminatory conduct for a prohibited reason.

2.23      In relation to criminal proceedings:

• a person will only commit an offence if the prohibited reason is the dominant reason for the discriminatory conduct (subclause 104(2)); and
• the reason for the discriminatory conduct is presumed to be the dominant reason for the conduct unless the accused proves otherwise (subclause 110(2)).

2.24      In relation to civil proceedings:

• a person will only commit an offence if the prohibited reason is the substantial reason for the discriminatory conduct (subclause 112(4); and
• the reason for the discriminatory conduct is presumed to be the substantial reason, unless the accused proves otherwise (subclause 113(2)).

2.25      The Explanatory Memorandum explains the purpose of the discrimination provisions:

The purpose of these provisions is to encourage engagement in work health and safety activities and the proper exercise of roles and powers under the Bill by providing protection for those engaged in such roles and activities from being subject to discrimination or other forms of coercion because they are so engaged. They clearly signal that discrimination and other forms of coercion that may have the effect of deterring people from being involved in work health and safety activities or exercising work health and safety rights are unlawful and may attract penalties and other remedies.[16]

2.26      The unions have argued that the intention of protecting HSRs, as outlined in the explanatory memorandum, is not achieved in the clauses as they are currently constructed.

2.27      The ACTU submitted that employers often act with mixed motives:

We are concerned about the case where an employee makes a safety complaint; six months later the employer selects them for redundancy. The redundancy is overwhelmingly motivated by legitimate business objectives, but a small factor in the decision (say 10%) is the desire to punish the complainant.

Under the model Bill, the employer will not be liable for a civil penalty if they can prove that the illegitimate reason was not a ‘substantial’ reason for the decision.[17] However, we think that the Parliament should penalise decisions in which the illegitimate motive plays any real role.

This is the position under the Fair Work Act. An employer is liable to a civil penalty (for taking adverse action against an employee who has made a complaint) if the illegitimate reason is just one of the ‘real’ reasons for a decision[18] – even if it is only a small part of the overall reasons.[19]

We submit that the model Bill should be made consistent with the Fair Work Act. The Parliament should not tolerate employers bringing illegitimate reasons to bear in making decisions affecting workers.[20]

2.28      The ACTU submitted that the legal tests contained in subclauses 104(2) and 110(2) (which refer to dominant reason test with respect to offences under the Act) and subclauses 112(4) and 113(2) (which refer to a substantial reason test in civil proceedings) ought to be removed. The latter creates an inconsistency with the general protections in the Fair Work Act and should be amended.[21] The CPSU supports this argument.[22]

Committee view

2.29      The Committee agrees that the substantial and dominant reasons tests should be removed from the bill. The bill should be amended to prohibit decisions in which a prohibited reason plays any role at all in the decision maker's mind. Such an amendment would ensure consistency with the Fair Work Act, ensure appropriate protections are in place for HSRs and will be consistent with the current explanatory memorandum.

Recommendation 1

The Committee recommends that the Work Health and Safety Bill 2011 be amended to remove the substantial and dominant reason tests from the discrimination provisions in Part 6.

Offences under the bill

2.30      A number of submitters raised technical concerns about the construction of Category 1 offences in the bill.

2.31      The bill proposes that three categories of penalties apply to breaches of the work health and safety duties:

• Category 1 - for reckless conduct that exposes an individual to a risk of death or serious injury or illness and is engaged in without reasonable excuse;
• Category 2- failure to comply with a health and safety duty and exposing an individual to a risk of death or serious injury or illness; and
• Category 3 - failure to comply with a health and safety duty.

2.32      The Category 1 offence would require the prosecution to prove the fault element of recklessness in addition to the physical elements of the offence. [23] Category 2 and 3 offences are strict liability offences. [24]

2.33      The bill contains no reverse onus of proof. Prosecutors must prove all matters relating to non-compliance with duties of care, including whether the person conducting the business or undertaking failed to do what was ‘reasonably practicable’ to ensure the health and safety of workers (and, in relation to category 1 offences, whether the reckless conduct was engaged in without reasonable excuse).[25]

2.34      In most circumstances, the prosecution would only have to prove the conduct of the accused. However, there is an exception. This is where the accused produced evidence of an honest and reasonable (but mistaken) belief in the existence of certain facts which, if true, would have made the conduct innocent. In such a case, the prosecution must establish that there was not an honest and reasonable mistake of fact.

2.35      The ACTU submitted that the Category 1 offence should also include a test of gross negligence, explaining that:

A test of recklessness requires foresight of the likelihood of an outcome of a breach of duty. To be guilty of a criminal offence where recklessness is an element, it must be established that the accused is subjectively aware of the substantial risks, there is a probable chance the consequences will occur and the accused carries out the breach, despite the risks.

The test for recklessness is more difficult to establish than a test for gross negligence. Gross negligence does not require subjective intent to be proved, and the accused is judged against the standard of the hypothetical reasonable person. A test for gross negligence is more suitable in the context of workplace health and safety, where much more effort is put into establishing appropriate standards of safety and enforcing those standards when duty holders fall short of meeting those duties.[26]

2.36      During the hearing, the AMWU described its concern about the absence of 'gross negligence' as a test in the Category 1 offence:

We are talking about category 1 offences when somebody either has been killed or is at high risk of being killed, and these are extremely serious events. It has long been the position of the union movement and the AMWU, as part of that movement, that if it can be shown that an employer was grossly negligent we think that that is the test that should have to be met for category 1 offences.[27]

2.37      The AMWU also explained the special circumstances in which the offences operated

In the area of occupational health and safety there is a huge amount of information, advice and support from the regulatory agencies and from the general community of employers, unions and health and safety specialists...

...So it is not as if the duty holder is actually functioning in a vacuum. If they decide to flout that knowledge and the well known risk controls I think they should be subject to prosecution for being grossly negligent.[28]

2.38      In a supplementary submission, the ACTU noted the possible operation of state and territory manslaughter and negligence laws:

While it is our preference that the model Bill create an express Category 1 offence for grossly negligent conduct exposing another to risk of serious injury or death, we note that if such conduct actually causes death or serious injury, this could constitute a crime of manslaughter (where death resulted), or else the crime of 'negligently causing serious injury', under State law.

At the very least, we submit that the Bill should make it clear that grossly negligent conduct may lead to liability under State criminal laws (despite the operation of section 109 of the Constitution).[29]

Committee view

2.39      The Committee acknowledges that given the criminal penalties, the test for Category 1 offences should be high. However, the test should not be so high that it is impossible for the regulator to prosecute. Further, actions that are grossly negligent and cause serious injury or death to workers should be captured by the criminal offence provisions. For these reasons the Committee believes that the test of 'gross negligence' should be included in the Category 1 test.

Recommendation 2

The Committee recommends that Category 1 offences should also include gross negligence. To achieve this, subparagraph 31(1) of the Work Health and Safety Bill 2011 should be amended to include a test of 'gross negligence'.

Requirement for Work Health and Safety permit holders to provide photographic identification

2.40      Clauses 124 and 125 of the bill state that Work Health and Safety (WHS) permit holders must not enter a workplace unless he or she also holds and entry permit under the Fair Work Act and has photographic identification and the entry permit available for inspection upon request.

2.41      A number of submitters to the inquiry identified inconsistencies between the Work Health and Safety Bill 2011 and the Fair Work Act. The CPSU, the AMWU and the ACTU have stated that the words and photographic identification in clause 125 should be deleted so that the provision is consistent with the Fair Work Act. [30]

2.42      Their rationale is based on clause 124 of the bill, which requires that a WHS permit holder must also hold a permit under the Fair Work Act. In order for a person to hold this permit, he or she would be subject to the 'fit and proper person test' under the Act, and have been issued with a permit under the industrial scheme.[31]

2.43      The Community and Public Sector Union (CPSU), the AMWU and the ACTU have stated that for these reasons a WHS permit holder should not be required to have further photographic identification under the bill.[32] The ACTU explained its reasoning:

There should be a presumption that a permit holder, also issued with a Fair Work Act permit that is subject to the fit and proper person test is not entering inappropriately or with any improper or malicious intent.[33]

2.44      The ACTU elaborated during the hearing:

The reality is that people who will have permits under this act when it becomes law will more than likely be the same people who have permits under the Fair Work Act. It is mostly a question of inconvenience but as a point of principle we would like to see the Work Health and Safety Act integrated as far as possible with the Fair Work Act, not only for matters of practicality but really the right to a safe workplace.[34]

2.45      During the hearing, the AMWU also identified privacy concerns with photographic identification:

The concern that we have raised is about consistency with the Fair Work Act but if, as currently written, it could be possible that the person who is the entry permit holder may, if they are asked for photographic evidence— often the only photographic evidence that someone has on them is their drivers licence and that evidence therefore has on it personal details. We do not think that any employer should have access to that.[35]

2.46      The Master Builders Association took a different view, describing the benefits of requiring photographic identification and distinguishing the right of entry provisions under the Fair Work Act to those in the bill:

[T]here are some key differences in that under the Work Health and Safety Bill an entry permit holder can enter premises without giving prior notice to the person with management or control of the workplace. Conceivably there could be situations where there is a person on site who people may not be aware of their status and their identity. That is not the case under the Fair Work Act where notice needs to be provided before entering. That is a key difference between the two pieces of legislation. Given the statutory rights that entry permit holders can exercise on site, we believe it is appropriate to establish their identity. A certain point is that there have been cases of people posing as work health and safety inspectors from the regulator.[36]

2.47      The Committee asked the Department to comment on the issue during the hearing. The Department told the Committee

Inspectors are required to have available photographic ID when they enter a workplace and it was therefore considered appropriate that entry permit holders should also have photographic ID...The issue has been raised in the Safe Work Australia forums and there has been a reluctance to make an amendment to the model Act to deal with that issue. [37]

2.48      The Department advised that it was seeking an administrative solution to resolve the concerns, explaining to the Committee:

Representatives from each jurisdiction have undertaken to hold discussions with their authorising authority, which in the case of the Commonwealth will be Fair Work Australia, to explore whether the authorising authority as an administrative process can put a photo on the entry permit so that the one permit can be used to satisfy both those elements in the model legislation.[38]

2.49      The AMWU told the Committee that it preferred amendment to the bill, but if this was not possible, it would accept an administrative arrangement sought by the Department.[39]

Committee view

2.50      The Committee understands the concerns raised by the unions and the Master Builders Association but is satisfied that the Department is taking adequate steps to reach an acceptable compromise.

Regulation of Health and Safety Representatives

2.51      The ACTU, AMWU and CPSU raised concerns about the proposed regulation of Health and Safety Representatives (HSRs) under the bill. The bill seeks to provide for the appointment, powers and functions of HSRs who represent groups of workers within a business or undertaking.[40]

2.52      The bill would provide for HSRs to issue Provisional Improvement Notices (PINs) if they reasonably believe that a person is contravening a provision of the bill, or have contravened such a provision in circumstances that make it likely that the contravention will continue or be repeated.

2.53      The bill would also provide for HSRs to direct a work group member to cease unsafe work if they have a reasonable concern that to carry out the work would expose the worker to a serious risk, emanating from an immediate or imminent exposure to a hazard. Before giving the direction, the HSR must consult with the person conducting the business or undertaking and attempt to resolve the issue using the issue resolution procedure under the bill. This is not required, however, if the risk is so serious and immediate or imminent that would not be reasonable to consult before giving the direction.[41]

2.54      The bill proposes that HSRs would not have the power to issue PINs or stop work notices until after training has occurred.

2.55      When a HSR requests health and safety training, the person conducting the business or undertaking must allow the health and safety representative time off work to attend the course of training 'as soon as practicable', but within the period of 3 months.[42] It would be an offence for an employer not to provide training.[43]

2.56      The unions argue that this would create the potential for a HSR to be without the full range of powers provided for in the bill for up to 3 months. [44] During the hearing, the ACTU drew the Committee's attention to provisions in Victoria which require that only two weeks' notice be given:

The approach of the ACTU in advocating with regard to what should be model legislation is that we have taken the best from various jurisdictions. The provision that has been in existence in Victoria for the last 26 years is seen by and large as the best provision. That provides for a health and safety representative to give two weeks' notice of the intention to attend the course. The employer...has then to enact that with the two weeks' notice. That is the provision that we have advocated for. The bill steps away from that by changing the emphasis on the ability of the health and safety [representative] to give the two-week notice period.[45]

2.57      The AMWU took a similar view:

We have found, particularly in some of the industries where we have a similar provision for at least two weeks' notice for union training leave, that that works extremely well...It is important because, as has been mentioned previously, under the proposed bill health and safety [representatives] in the Commonwealth, who until next year will have been able to issue a 'cease work' or a provisional improvement notice upon their election, from next year will have had to have been trained before they will be able to do that. So it is a change in and limitation of their powers. If that is the provision, people really need to have access to training as soon as possible.[46]

2.58      The second report of the National Review into Model OHS laws considered whether or not HSRs should be required to have training before having the power to issue PINs and to stop work. The report noted that all stakeholders emphasised the importance of training, and a number argued that the power to issue PINs and stop work notices should be limited to those HSRs who had completed the appropriate training.[47] The Report does not discuss the notice that a HSR must give an employee of prospective training.

Committee view

2.59      The Committee appreciates the concerns that the unions have raised. However the Committee is satisfied that the bill contains appropriate measures to ensure that HSRs receive adequate training to perform their role effectively. The clause does not require that 3 months notice be given, rather, the clause requires employers to allow the HSR to receive training 'as soon as practicable' (but no later than 3 months).

2.60      However, the committee would be concerned if employers delayed permitting HSRs to attend training. The committee will have an ongoing interest in this issue, and will monitor the operation of this provision, should the bill proceed.[48]

Management of psychosocial hazards in the workforce

2.61      The ACTU, AMWU, CPSU and the Financial Services Union (FSU) contended that the proposed management of psychosocial hazards in the workforce is inadequate.

2.62      The FSU explained to the Committee that while the finance sector has one of the lowest rates of illness and injury in any industry, psychosocial injury and illness is increasing. For this reason the FSU continues to call for 'strong regulation and supporting codes of practice around psychosocial hazards'. The FSU believes that effective regulation, combined with mandatory risk management should 'go some way to preventing a continued rise in illness and injury attributable to such hazards'.[49]

2.63      The AMWU acknowledged that psychosocial hazards are mentioned in the bill, and are included in the definition of 'health'.[50] However, the bill would not impose a duty to manage such hazards leaving this to the Model Work Health and Safety Regulations (the regulations)  and the code of practice.[51] The AMWU explained to the Committee that the bill lacked a 'general risk management obligation'. The AMWU submitted:

The object of ensuring health and safety is to eliminate the hazard, and if that is not possible, to control it and require the duty holder to be proactive [by] utilising a systemic process as distinct from an ad hoc reactive response. The Commonwealth WHS Bill must be amended by the insertion of Model WHS Regulations 19, 20, 21 and 22 into the Bill...Mandating of a comprehensive risk management approach for ALL work related risks to health would be a very useful regulatory tool in addressing those risks.[52]

2.64      During the hearing, the AMWU emphasised the benefits of regulating the managements of all workplace risks in the legislation, rather than by regulation or codes of practice. However, the AMWU stated that it was happy risk management had been added to the regulations:

We are, however, pleased that we have it in the regulations because in the draft model regulations that went out for public comment, it was not there.[53]

2.65      The Committee asked the Department why psychosocial hazards were explicitly addressed in the proposed regulations, but not in the bill. The Department explained that while it is not mandatory to comply with the codes of practice, employers must show they are doing equal or better than the codes:

The codes of practice have a specific role under the legislation. They can be admitted as evidence in proceedings and a court can take them into account as evidence of what is known about particular hazards and risks, and what is reasonably practicable in the circumstances. While it is not compulsory to comply with the code of practice, in a court of law if challenged you have to show that you are doing equal to or better than the code of practice if you are doing something different. So, they do have quite a strong position in the whole legislative framework.[54]

Committee view

2.66      The Committee believes that it is important that the risks of psychosocial hazards in the workplace are appropriately managed. The Committee accepts that the bill defines health as 'physical and psychological health' and that the Department has made efforts to regulate the management of such risks in the regulations.

Labelling

2.67      CropLife Australia and Accord expressed concern about a change to the labelling requirements in the proposed regulations for the bill. Both organisations supported the overall objectives of OHS reform and acknowledged that they had participated in the Department and Safe Work Australia's extensive consultation processes, although they had some reservations about the quality of those consultations.

2.68      CropLife has identified some inconsistencies between the bill and existing regulation. CropLife is particularly concerned that the bill imposes requirements for agricultural product labels that are inconsistent with the existing regulatory scheme for agricultural chemical products. CropLife recommended amendments to the bill to ensure that Australia's regulatory system for agricultural chemicals remains compliant with best practice guidelines developed internationally by the World Health Organization, the United Nations Food and Agriculture Organization (FAO) and CropLife International.

2.69      CropLife asked the Committee to ensure

[T]hat agricultural chemical labels should continue to be regulated by the Australian Pesticides and Veterinary Medicines Authority (APVMA). The Work Health and Safety Bill 2011 should reinstate previous recognition that APVMA approved labels are sufficient for workplace labelling requirements. Implementation of this change will have no impact on the availability of hazard information available to workers, while preserving the integrity of the APVMA's risk based system. [55]

2.70      Accord agreed, arguing that the bill, and proposed regulations, would :

• lead to increased regulatory burden;
• duplicate regulatory effort by Commonwealth regulatory agencies and safe work entities at the State and Territory level;
• lead to conflicting regulatory requirements;
• lead to a system that did not reflect the COAG best practice principles for regulation or consultation.[56]

2.71      The Committee asked the Department to respond to the issues raised by CropLife and Accord. The Department advised that the specific requirements in relation to hazardous chemicals are included in the draft regulations, which are not yet finalised.[57]

2.72      The Department explained that the relevant draft regulations are based on the National Standard for the Control of Workplace Hazardous Chemicals (National Standard) which uses the United Nations' Globally Harmonised System of Classification and Labelling of Chemicals. The National Standard was developed following extensive public consultation and reviews.

2.73      The Department described the consultation process undertaken to develop the draft regulations:

The approach to hazardous chemicals reflected in the model WHS Regulations has been developed through Safe Work Australia processes, having regard to the views of all stakeholders represented on Safe Work Australia.  There has also been significant consultation between Safe Work Australia, the Department and interested stakeholders, including CropLife and ACCORD.  The approach taken in the model WHS regulations has the strong support of the state and territory representatives on Safe Work Australia.

In recognition of the issues raised by industry representatives, the approach includes a long transition period to maximise the benefits and minimise the costs to industry.[58]

Committee view

2.74      The Committee appreciates the concerns raised by CropLife and Accord. However, the Committee is satisfied that the Department and Safe Work Australia have consulted widely on chemical labelling and notes that this consultation process is ongoing.

Recommendation 3

The Committee recommends that the Senate pass the bills, subject to the foregoing recommendations.

 

Senator Gavin Marshall

Chair

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