Coalition Senators' Dissenting Report


Coalition Senators' Dissenting Report

Introduction

1.1        The importance of harmonised occupational health and safety (OHS) laws has long been recognised as a critical area of regulatory reform and indeed the process of harmonisation was commenced by the Howard Government.

1.2        In February 2008, the Workplace Relations Ministers Council agreed that the use of model legislation is the most effective way to achieve harmonisation of OHS laws. The Commonwealth and each of the States and Territories subsequently signed the Intergovernmental Agreement for Regulatory and Operational Reform in OHS which commits jurisdictions to implement the model laws by December 2011.

1.3        This Bill is accompanied by the Work Health and Safety (Transitional and Consequential Amendments) Bill 2011.

The principle of Harmonisation and Unions Right to Prosecute

1.4        Coalition Senators strongly support the principle of harmonisation and note that it was the Howard Government in October 2006 that initiated the process.

1.5        The Coalition is concerned that unions see the harmonisation as setting a minimum national standard which could be built upon.[1]

What the bill represents for us is a ground floor of OHS legislation. It is the ground floor that we think is a minimum that should apply in all jurisdictions. That is the commitment that governments have given. They have said that they will implement this ground floor legislation in all jurisdictions and it will be operational by 1 January 2012.[2]

1.6        This is despite the Prime Minister's comments at the Leaders' Debate on her greatest achievement:

Perhaps less transparent to the Australian people: getting new occupational health and safety laws.  Laws around the country.  Businesses have been complaining for 30 years that they have different obligations in different states and at the same time not every individual worker had the same safety standards.  Now, I have delivered that.

Thirty years – on the day we delivered it there were some public servants that had tears in their eyes because they spent all their working life waiting for someone to deliver that reform.  Wasn't easy, but I got it done.  And what I think that shows is if you believe in something passionately, then you will work through.[3]

1.7        It was her own Labor Party in New South Wales (NSW) that changed the model bill. The Prime Minister remained silent in the face of this departure from harmonisation.

1.8        Not only did the Prime Minister try to claim that something that was yet to be achieved was her greatest achievement, she claimed something, started by the Coalition in Government, as her own.

1.9        Coalition Senators are curious as to whether public servants had tears in their eyes to see NSW Labor destroy harmonisation for that state.

1.10      Coalition Senators note amendments may be sought to the Commonwealth’s Work Health and Safety Bill to introduce union right of prosecution along the lines of the provisions in the NSW Bill, added by amendments from the Greens supported by Labor.

1.11      Coalition Senators agree with the Master Builders Association who 'strongly rejects union right of prosecution'. The authority to prosecute and to commence criminal proceedings should rest solely with the State. The Master Builders Association rightly point out in their submission:

A prosecutor represents all members of their community and cannot, therefore, act as if representing private or factional interests.

Unions, by their very nature, represent the interests of employees and therefore cannot represent the entire community. To empower them with the ability to prosecute is akin to empowering employers with the ability to prosecute employees for a breach of health and safety, an issue that would be viewed as inappropriate by the community.[4]

1.12      Further, the Expert Review Panel considered and made recommendations in this area. The Review Panel identified three major concerns with private prosecutions:

There are serious practical difficulties (such as lack of resources which may undermine the evidence base).

Private prosecutions are not subject to the same safeguards as prosecutions brought by the State, such as application of prosecution policies, review of decisions and other public sector accountability measures.

Private prosecutions can disrupt other enforcement activities, such as enforceable undertakings or other measures that the regulator considers as more appropriate or proportionate in the circumstances of a particular case.[5]

Recommendation 1

Any attempt to add third party or union right to prosecute be strongly opposed.

Regulations and regulatory impact statement

1.13      The Work Health Safety Bill is 'coat-hanger' legislation. The regulations will be determinative of any benefit of this change. Model regulations were circulated and are exceptionally restrictive. The 'final' regulations have not yet been released nor has the regulatory impact statement.

1.14      This is despite the objectives of harmonisation laid out in the Access Economics' Draft Regulation Impact Statement:

  • Reducing compliance costs for business.  For multi-state businesses, nationally consistent Acts should equate to lower compliance costs, ceteris parabus.  For single-state businesses the outcome is not clear, a priori.
  • Improving efficiency for regulatory agencies.  Rather than having ten regimes (including Seacare) being reviewed every five years (ie, at least one per year on average), under harmonisation, there should effectively only be one national regime reviewed every five years.
  • Improving safety outcomes.  The reduction of red tape and greater certainty for duty holders should allow business to focus more pro-actively on health and safety improvements, rather than on mere compliance. Regulatory efficiencies should also allow more scope for regulators to actively improve safety in workplaces. In addition, the model Act applies to a broader range of modern employment relationships and thus aims to protect all types of workers from hazards and risks arising from work.[6]

1.15      Further, the Intergovernmental Agreement states that the fundamental objective of OHS reform is to produce the optimal model for a national approach to OHS regulation and operation which will:

  • enable the development of uniform, equitable and effective safety standards and protections for all Australian workers;
  • address the compliance and regulatory burdens for employers with operations in more than one jurisdiction;
  • create efficiencies for governments in the provision of OHS regulatory and support services; and
  • achieve significant and continual reductions in the incidence of death, injury and disease in the workplace.[7]

1.16      In Answers to Questions on Notice from Senate Estimates, the Government could not decisively say that the final Regulations will achieve these objectives.[8] Instead, the Government pointed back to the Access Economics report from 2009 which is considerably out of date and by the Government's own admission does not take into account the final regulations still under consideration by the Work Health and Safety Ministers' Conference. Nor has it taken into account the departure from harmonisation by NSW and, potentially, the Western Australian, Governments.

1.17      The Coalition Senators recognise that harmonisation of OHS legislation is part of the COAG National Reform Agenda that aims to reduce regulatory burdens and create a seamless national economy. The Coalition Senators also accept that reforms "aim to deliver more consistent regulation across jurisdictions and reduce excessive compliance costs on business, restrictions on competition and distortions in the allocation of resources in the economy". However, we have great concern with the bill being passed through the Parliament without having had the benefit of viewing the Regulations, the Regulatory Impact Statement or to consult with the wider community about their impact.

Recommendation 2

The Coalition Senators recommend that the final regulations and final regulatory impact statement be released prior to further debate on the Work Health and Safety Bill 2011.

Training

1.18      In a submission to the Committee, Dr John Culvenor said:

Training in occupational health and safety is always an important issue.  At this time of transition to new arrangements the availability of courses is vital.  Unfortunately the availability of accredited courses has been reduced by 26% since restrictive changes were introduced by the Safety Rehabilitation and Compensation Commission in 2010.[9]

1.19      Coalition senators have serious concerns about the changes to the guidelines that supports union training at the expense of a private provider with no beneficial outcomes.

1.20      Senator Abetz has explored this issue at length at Senate Estimates  and despite several lines of questioning, officials have been unable to provide a rational and justification for the change.

Recommendation 3

Coalition Senators recommend an amendment to the Work Health and Safety (Transitional and Consequential) Bill enabling the continuance of courses accredited under the 2006/2007 guidelines.

Removal of the right to silence and protection from self-incrimination

1.21      Prosecutions under current OHS laws are criminal matters.

1.22      Under normal criminal law everyone has the right to silence and protection from self-incrimination. That is, you cannot be forced to say something to an investigator (the police) unless the investigator first obtains a court order and so on. This protection is a right we all have and is essential to community confidence in our criminal justice system and the rule of law. It is this protection that stops abuse of power.

1.23      The passing of the bill in each jurisdiction will abrogate the privilege against self incrimination in New South Wales, Western Australia, Tasmania, the Australian Capital Territory and the Northern Territory. The South Australian legislation provides that a person is not required to provide information if it would incriminate them of an offence. The Victorian and Queensland legislation also provides that an individual may refuse to provide information on the grounds that it may incriminate them. The Commonwealth OHS Act is currently silent on the issue, and therefore the privilege against self-incrimination is considered to remain.[10]

1.24      The model OHS laws take away the right to silence and protection from self-incrimination. This will apply not only to employers but to all managers and workers in workplaces. It will give powers to OHS inspectors not available to the police.

Recommendation 4

Coalition senators recommend that subclause 172 the Work Health and Safety Bill 2011 be amended to include a right to silence and protection from self-incrimination, in line with criminal law and current OHS laws in New South Wales, Queensland, South Australia and Victoria.

Failure to include the term 'control' in identification of Duties of Care

1.25      The modern principles of OHS safety were first created in the UK in 1972 under the Robens Review.[11] The principles hold that responsibility for safety is allocated according to what is reasonable and practicable to control.

1.26      These are the internationally accepted benchmarks embedded in International Labour Organisation (ILO) Conventions to which Australia become a signatory in 2004. The ILO Convention 155 (article 16) states:

Employers shall be required to ensure that, so far as is reasonably practicable, the workplaces, machinery, equipment and process under their control are safe and without risk to health.

1.27      The National Review into OHS laws stated that there was much dissent in submissions over the inclusion of the word 'control' in Duties of Care. Recommendation 8 called for the removal of the word 'control' from the definition of reasonable and practicable. This is implemented in the national model OHS laws.

1.28      The model laws also introduce a new and untested legal concept of connecting Duties of Care to a 'person conducting a business or undertaking'.

1.29      The removal of the word 'control' not only creates confusion over who is responsible for what in work safety but is a major shift away from known OHS principles in all Australian jurisdictions except NSW. Further, it removes a key element of the ILO OHS Conventions to which Australia is a signatory; and creates a legal 'vacuum' due to unknown application and interpretation of Duties of Care under a new concept.

1.30      It is reasonable to expect that, with the removal of the word 'control', legal uncertainty will occur and will require many, many years of judicial testing before clarity is achieved.

1.31      Coalition senators believe that OHS legislation must not just operate with legal clarity. The wording of the Act must give unambiguous signals in clear, lay language to every person involved in workplaces. People understand, in a practical sense, that if they 'control' something (or even share control), that they are responsible. With the word 'control' removed, clarity and focus on personal responsibility for safety is diminished and becomes confused. This works against the objective of achieving safe workplaces.

Recommendation 5

Coalition Senators recommend that the Work Health Safety Bill 2011 be amended to include 'control' in the identification of duties of care. This amendment will bring the bill in line with current practice, International Labour Organisation conventions and will bring legal clarity.

Timeframe

1.32      Coalition Senators are concerned with the 1 January 2012 timeframe given that it is now August 2011 and regulations haven't been released and several Codes of Practice are still in the consultation period.

1.33      There is concern in the community that the harmonisation of OHS laws in Australia may not be complete until December 2011. As a consequence, there will be a considerable strain placed on employers, employees and enforcement bodies to know their rights and obligations, and to change the way that they practice with such short notice.

Recommendation 6

The Coalition Senators recommend that the Australian Government request consideration by First Ministers of a delay of the full implementation of the legislation until 6 months after the finalisation of the last Code of Practice or Regulation. 

Voluntary Organisations

1.34      Coalition Senators find it very disturbing that there is still no clarification on the extent of how the Work Health and Safety Bill will apply to voluntary organisations.

1.35      It is vital that voluntary organisations have certainty as they go about their important work.

Recommendation 7

The Coalition Senators recommend that the Australian Government provide clarity as to the impact of the Work Health and Safety Bill 2011 on voluntary organisations.

Health and Safety Representatives Training

1.36      Coalition senators are concerned with changes under the Work Health Safety Bill in relation to Health and Safety Representatives (HSRs).

1.37      Employers who seek the services of a consultant to advise on OHS practices in their workplace will also be required to pay for training for a HSR in the workplace.

1.38      Coalition senators are concerned that should there be an industrial dispute, there is potentially nothing to stop frequent changes to the HSRs in the workplace. This would place a large burden by way of training costs on the employer.

1.39      The commonsense test dictates that changes to Health and Safety Representation in the workplace should be kept to a minimum.

Committee Recommendations 1 – 2

1.40      The model legislation has been a number of years in development. Parties have had a number of opportunities to consider a number of concepts and Coalition Senators would have thought that this issue had been considered and canvassed by all industry and relevant stakeholders.

1.41      These issues have been well and truly ventilated and it has been decided that they do not have a place in the model act.

1.42      In particular, gross negligence raises a new area of Occupational Health and Safety law which shouldn’t be included in this legislation by an amendment given the ramifications that it would have.

1.43      It is clear that the consequences of the Committee Report put forward by Labor Party Senators has not been thought through to the full extent. Recommendations 1 and 2 seek to open up whole new areas of law without the close examination of other aspects of the bill.

1.44      On the other hand, Coalition senators' recommended amendments have been the subject of significant debate and despite this, concerns still continue to be raised. The response has been unsatisfactory, and it is vital that the recommended amendments prevail as they seek to provide legal clarity.

Recommendation 9

1.45      The Coalition senators recommend that recommendations 1 and 2 by the committee majority be ignored.

Conclusion

1.46      While Coalition Senators support the principle of harmonisation, there is some room for improvement in this bill.

1.47      Although Western Australia was somewhat reluctant, it has continued to take part in the harmonisation process. The Western Australian Government has stated that it is likely to adopt significant portions of the model laws when it enacts its version of the legislation. The areas which have been flagged as possible departure points by the Western Australian Government include the maximum quantum of the penalties, the right of union entry provisions, powers of Health & Safety Representatives to direct work to cease and to issue provisional improvement notices and the reverse onus in discrimination matters.

1.48      Coalition senators support the position of the Western Australian Government in expressing these concerns.

1.49      Further, Coalition senators do not feel it appropriate to debate the bill while there are still many questions unanswered as the Regulations and Codes of Practice are still not available.

 

Senator Chris Back
Deputy Chair 		Senator Michaelia Cash

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