Introduction
Coalition Senators are supportive of a wide range of recommendations in the majority report.
The health and safety of workers is of utmost importance to the Australian Government, particularly the prevention of serious injuries and deaths in Australian workplaces. It is the fundamental aim of Australian safety laws and associated frameworks to ensure workers come home safely after every day at work.
Workplace related injury and illness carry significant tangible costs to the community, individuals, families and workplaces. Coalition Senators know the real cost of a workplace death is immeasurable and tragic.
This inquiry has taken into consideration extensive evidence from a wide range of sources and witnesses, including those who have lost loved ones. Coalition Senators have listened carefully to the evidence given by the family members, colleagues, and friends of those who have died and thank them for their courage and resolve in sharing their stories and experiences. Their willingness to share very painful experiences has been critical in helping our understanding of the importance of support for victims’ families.
A diverse range of views and approaches were presented regarding the adequacy of current frameworks surrounding the prevention, investigation and prosecution of industrial deaths in Australia.
Coalition Senators acknowledge the release of the report and related findings as an important step. While we support many of the recommendations, we also believe that several recommendations are not the most effective policy responses in achieving the best possible health and safety outcomes for every workplace across the country.
The majority report also downplays the importance and effectiveness of harmonised laws already in place across most jurisdictions in Australia and the risk of further fracturing those laws when improved harmonisation is the goal.
Historical Background
Safety law commenced with various forms of industry, factory or jurisdiction specific compensation law. These laws were designed, in the main, to compensate workers in the event they were injured in a workplace or travelling to and from a workplace. It was compulsory for employers to ensure they had such insurance so as to provide cover and compensation to workers in the event they suffered a loss arising from a workplace injury.
Early iterations of such law tended to centre on what happened after an injury or death had occurred, rather than focus on the prevention of such injury or death in the first place. Community attitudes and safety law evolved rapidly delivering many improvements. The community rightly expects that those going to work will return every night and have embraced the contemporary focus on identifying risk and preventing serious injury and fatalities before they occur.
Modern safety law, both domestically and internationally, has improved markedly to now place priority on identifying and eliminating risk in the workplace and stopping serious injury and death before it happens – as opposed to a focus on what should happen once an injury or death has taken place. Put simply – it is better to focus on stopping injury and death in the first place – rather than focus on what to do after an injury or death has happened.
The Committee did explore in great detail matters and evidence that did adopt the contemporary focus of 'prevention'. Coalition Senators, in particular, adopted this approach while noting that many witnesses gave evidence that, in summary, looked at how the existing law and framework could be used in a more effective way to prevent serious injury or death.
Comments on Recommendations in Majority Report
Coalition Senators are supportive of a wide range of recommendations in the majority report.
Many of the recommendations are designed to improve the experience of families that have lost loved ones, including by improving communications, investigation processes, the capability of investigators, the transparency of processes, increased cooperation between agencies, improved timelines and better support.
There are some recommendations we support in part and others that we are not able to support.
Recommendation 1
We understand Safe Work Australia is currently investigating options to supplement its current data sets with other available data sources in relation to the incidence of occupational lung disease in Australia. Safe Work Australia currently maintains the Traumatic Injury Fatalities (TIF) data set as a measure of workplace fatalities. We understand it would not be appropriate for the TIF data set to capture data on death resulting from occupational disease because it is intended to only capture those who are fatally injured at work.
Safe Work Australia advised the Committee that there are some challenges compiling and reporting occupational disease statistics. The long latency periods of many of these diseases and the impact of multiple contributing risk factors in many cases, means linking occupational exposures to a diagnosis can be challenging. The scope and the sources of data for such a register would be complex and would require the involvement of health agencies given the broader health aspects of occupational diseases.
We understand Safe Work Australia currently supplements its data with other relevant data sources, including for example:
the Australia Bureau of Statistics’ Work-related Injuries Survey (which Safe Work Australia partly funds)
the various Australian Institute of Health and Welfare data sets, and
the Australian Mesothelioma Registry (which is funded by Safe Work Australia).
These data sources are utilised and incorporated into statistical and research reports produced by Safe Work Australia, and are used to inform its policy work. Safe Work Australia also undertakes and supports research into various work health and safety issues, including occupational diseases and exposures, and utilises expert research done in this area here in Australia and overseas.
Recommendation 2
We consider it would be appropriate for Safe Work Australia to maintain a public list of amendments that jurisdictions make to the model WHS laws, as one of Safe Work Australia’s primary functions is to develop, evaluate and revise, if necessary the model WHS laws.
We understand Safe Work Australia would need the agreement of all jurisdictions to provide this information and then collate and publish it centrally on the Safe Work Australia website.
Recommendation 3, paragraph 3.32
We understand that a national WHS prosecutions database that would capture this kind of information is already being developed through Safe Work Australia’s tripartite process. Again, Safe Work Australia would need the agreement of all jurisdictions to provide this information and then collate and publish it centrally on the Safe Work Australia website.
Recommendation 3, paragraph 3.33 and 3.34
The Australian Government is already using its purchasing power to improve work health and safety in the construction industry in several ways, including:
through the Federal Safety Commissioner and the Australian Government Building and Construction WHS Accreditation Scheme which sets best practice standards on Commonwealth funded building projects. Companies accredited under the scheme as head contractors have better safety records; and
through the Building Code 2016 which:
requires companies to comply with work health and safety laws, including work health and safety training requirements and asbestos safety requirements (ss. 9(3)) and facilitate right of entry for work health and safety purposes (s. 14); and
allows the Minister to impose an exclusion sanction where the company has failed to comply with work health and safety laws (s. 18).
At any one point in time, there are approximately $50 billion worth of contracts subject to these requirements. We suggest that other jurisdictions should consider a similar approach.
Recommendation 4
We understand the terms of reference of the 2018 Review of the model WHS laws that is being conducted by Ms Marie Boland (the Boland review) focus on the model WHS laws and the National Compliance and Enforcement Policy (NCEP). Ms Boland could consider those recommendations that relate to the model WHS laws and that might be relevant to the NCEP, but a number of the recommendations would be outside of the scope (for example, Recommendation 11).
Recommendation 5
In 2009, the panel conducting the National Review into Model Occupational Health and Safety Laws (the National Review), as part of making recommendations on the content and structure of the model WHS Laws, examined the nature and organisation of work in Australia. In this respect the model WHS laws were drafted with the various types of working arrangements in mind, including labour hire.
The WHS laws already require labour hire agencies and host employers to do what is reasonably practicable to ensure the health and safety of on hire workers.
Labour hire agencies and host employers both have responsibilities for the safety of hire workers:
Host organisations have a clear duty to ensure the health and safety of all workers while at work, so far as is reasonably practicable. This includes making sure that temporary and labour hire workers are given necessary training and instruction so they can carry out their work safely.
Labour hire agencies are also obligated to ensure the health and safety of workers during their placement with host organisations.
Labour hire workers have a duty to take reasonable care for their own health and safety and that of others.
Labour hire agencies and host organisations are also expressly required to consult, cooperate and coordinate activities with all other persons who have a health and safety duty in relation to the same matter.
Coalition Senators do not believe there is evidence to demonstrate that the use of temporary and labour hire workers has increased or that labour hire contributes to an increase in safety risk level or a greater likelihood of serious injury or fatality.
Evidence provided by Safe Work Australia, for example, demonstrates that safety outcomes in Australian workplaces have improved steadily over the last decade in all sectors of the economy. Rates of serious injury and fatalities have declined consistently throughout that period, particularly in sectors which are conventionally associated with being ‘high risk’.
In addition, no witness appearing before the Committee provided any factual evidence or data to demonstrate that the use of temporary or labour hire engagement was in and of itself a risk to workers so engaged.
The only conclusion to be drawn from the evidence is that even if there has been an increase in the use of temporary and labour hire workers, this has not affected the consistently downwards trend in fatality and serious injury rates about which witnesses commonly agreed and acknowledged.
Recommendations 9 and 11
The model WHS Act already includes provisions that allow for the sharing of information by WHS regulators in certain circumstances. Consistent with the object of recommendation 11, Safe Work Australia could first be asked to consider whether the existing provisions are sufficient; and if not, whether amendments are required.
We understand that the Boland review is considering these issues. Consistent with Recommendation 4, Safe Work Australia could consider this recommendation once Ms Boland has provided her report.
Recommendation 13
This recommendation is not supported. The introduction of industrial manslaughter laws would not take account of the serious, criminal sanctions already in place for workplace fatalities in the model Work Health Safety (WHS) laws and in general criminal laws.
It introduces potentially overlapping offences and are likely to complicate rather than support accountability, with no clear evidence of successfully reducing the risk of workplace fatalities.
Additionally, it promotes an adversarial legal approach based on a blame culture. It is punitive rather than preventative, which can ultimately distract from the core object of work health and safety laws in Australia. It is better to focus on the processes in preventing injury and death in the first place – rather than focus on the punishment and what to do after an injury or death has happened.
To introduce industrial manslaughter laws undermines the efficacy of existing harmonised work health and safety laws across Australia.
It is important not to adopt proposals that could result in poorer outcomes for Australian workers.
In addition, we are concerned that that industrial manslaughter laws would expose employers and managers to the risk lengthy prison terms even where they are unjustly accused of being responsible for incidents in the workplace.
For example, if an employer has the right policies and processes in place, yet these are not followed by a person who fails to wear protective clothing, works under the influence of alcohol or fails to take breaks, the employer should not face criminal conviction and jail time.
Industrial manslaughter laws would possibly have the opposite effect to what is intended – making companies and managers less likely to disclose and address risks.
A number of submitters have suggested to the Inquiry that no one has gone to jail for a workplace death. It is our understanding that in the last three years, two people have been sentenced to jail for workplace deaths under the general criminal law. We understand the following custodial sentences have been imposed in relation to workplace fatalities:
7 years for manslaughter and perjury (2018) (Queensland).
10 years and 6 months for manslaughter (2015) (following a retrial after an appeal of the original 12 year jail sentence) (South Australia).
In addition, significant financial penalties have been recently imposed by courts under the model WHS laws in relation to workplace fatalities. These include a fine of $900 000 for a lime products company and $405 000 building contractor, both in NSW.
Coalition Senators believe a balanced regulatory approach is the key to achieving safer workplaces, evidenced by the continued decrease in workplace fatalities along with serious injury claims in the country.
The current model WHS laws have helped achieve a significant reduction in the number and rate of workplace fatalities. Workplace fatalities have reduced by 48 per cent from 310 in 2007 to 190 in 2017. The rate of workplace fatalities has halved, from 3 fatalities per 100 000 workers in 2007 to 1.5 per 100 000 workers in 2016.
We believe the focus on holding companies and managers accountable for braches in their WHS duties regardless of outcome, as is inherent in the existing model laws, is the appropriate approach to continue to drive a reduction in fatalities and injuries in the workplace.
Recommendation 15
We understand that where a person requests under s 231 of the model WHS Act that a prosecution for a Category 1 or 2 offence be brought by a regulator, s 231 already requires that the regulator advise the person within 3 months of what has happened, or is going to happen, and if there is to be no prosecution, the reasons why.
Safe Work Australia could be asked to consider whether this obligation should be extended and if so, whether amendments to the model WHS laws are necessary. Safe Work Australia could do this taking into account any relevant findings of the Boland review.
Further, we note that it is not within Safe Work Australia’s functions to pursue jurisdictions to implement amendments to the model WHS laws.
Recommendation 16
We understand that Safe Work Australia has no function in relation to coronial inquests. The functions and powers of coroners are covered under separate jurisdictional legislation.
There is no evidence before the Committee justifying an industrial death to be treated differently by a coroner to any other death.
Recommendation 17
This recommendation is not supported.
The National Review into Model Occupational Health and Safety Laws 2008 gave careful consideration to which parties should be able to bring prosecutions under the model WHS laws. The Second Report to the Workplace Relations Ministers’ Council found private prosecution to be problematic. For example, it can be seen as compromising the objectivity, credibility and effectiveness of enforcement. Further, it has serious practical difficulties. For example, a private prosecution will not be able to be brought with the same resources and capacity available to a regulator or Director of Public Prosecutions e.g., in relation to conducting proceedings or evidence collection.
These matters remain crucial to this issue. There is no evidence before the Committee justifying a departure from the current approach in the model WHS laws.
Further, we understand that it is not within Safe Work Australia’s functions to pursue jurisdictions to implement amendments to the model WHS laws.
Recommendation 18
The National Review into Model Occupational Health and Safety Laws 2008 also gave careful consideration to the definition of officer for the purpose of the model WHS laws. The definition was deliberately drafted to capture the appropriate type of person to be required to exercise due diligence within the model WHS laws framework.
Again, we understand that it is not within Safe Work Australia’s functions to pursue jurisdictions to implement amendments to the model WHS laws.
Recommendation 19
It became clear during the inquiry that there are differing views on how section 232 of the model WHS Act operates and whether it is meeting its intended purpose. Safe Work Australia could first be asked to consider whether the existing provisions are sufficient, and working as intended, and if not, whether amendments are required. Safe Work Australia could do this taking into account any relevant findings of the Boland review.
Recommendation 20
We understand that the Boland review is considering these issues. Consistent with Recommendation 4, Safe Work Australia could consider this recommendation once Ms Boland has provided her report.
Again, we understand that it is not within Safe Work Australia’s functions to pursue jurisdictions to implement amendments to the model WHS laws.
Recommendations 23–33
It has been clear through Inquiry that there is the opportunity to significantly improve the treatment of families who are affected by the tragedy of workplace fatalities. A number of the proposals outlined in Recommendations 23–33 would clearly assist in improving the communication, support, involvement and care for families affected by traumatic loss of a loved one. To ensure that the relevant recommendations are taken forward effectively it is important to ensure they are dealt with by the agencies and authorities that are most appropriate to do so.
We are concerned that a number of recommendations may not properly take into account the role of Safe Work Australia and the purpose for which it was established.
The role of Safe Work Australia is to drive national policy in work health and safety and workers’ compensation. However, it is not responsible for whether jurisdictions act in accordance with it, e.g., whether a state implements the model WHS laws. Primarily, Safe Work Australia is a policy agency responsible for improving outcomes in national work health and safety and workers’ compensation. It is not a regulator and has no oversight role in relation to the jurisdictional WHS and workers’ compensation regulators.
WHS and workers’ compensation regulators have established Heads of Workplace Safety Authorities (HWSA) and Heads of Workers’ Compensation Authorities to co-operatively deal with matters that are within the remit of the jurisdictional regulators, including operational and regulatory matters. It may be more appropriate for Recommendations 7 and 23–33 to be directed to HWSA, who could take into account each unique jurisdiction and its criminal legal system.
However, Safe Work Australia is responsible for the development of the NCEP and it could consider the recommendations of the Committee when next reviewing that Policy, particularly, in relation to working with stakeholders to develop content on investigation practices, including where there is a workplace fatality, to be adopted by WHS regulators as part of the NCEP, as proposed in Recommendation 24.
Consideration could also be given by jurisdictions to whether and how the systems they already have in place to support victims and persons affected by criminal offences could be extended, or further extended, to victims and persons affected by WHS offences.
Recommendation 34
Safe Work Australia has a function to develop proposals to improve workers’ compensation arrangements and to promote national consistency in such arrangements. It is not appropriate for Safe Work Australia to collaborate with each jurisdiction to review the adequacy of workers’ compensation legislation with regard to industrial deaths. Each jurisdiction has its own requirements in relation to review of its legislative framework.
Safe Work Australia has previously considered a national approach for death entitlement benefits. Safe Work Australia could re-consider this matter, and consistency of procedural arrangements for accessing those benefits.
Further Government considerations and suggestions
Independent Commonwealth Review into Jurisdictions
If not otherwise canvassed in the Boland Report, the Commonwealth should commission a review to examine and identify the extent to which jurisdictions are diverging from the model WHS framework and recommend strategies for the Commonwealth Government to pursue in arresting such divergence.
A further related issue arose during hearings in which witnesses observed a predisposition of some jurisdictions to include WHS or safety requirements within types of regulation that are focussed on matters aside from safety or WHS.
Coalition Senators suggest there is merit in this approach.
Recommendation 1
In the event it is not otherwise canvassed in the Boland Report, the Commonwealth should commission a review to examine and identify the extent to which jurisdictions are diverging from the model WHS framework and recommend strategies for the Commonwealth Government to pursue in arresting such divergence.
Work Health Safety Framework
The Committee heard evidence about cross-jurisdictional investigations from several witnesses. While it is clear that regulators make every effort to cooperate in such circumstances, the evidence suggested that when they do arise, there are frequently problems which are the cause of delay and uncertainty amongst all affected.
Coalition Senators are aware of endeavours to avoid such circumstances, including the NCEP. This policy exists exactly to minimise the prospect of delay and frustration when approaching cross‑border matters.
The NCEP states that to fully realise the benefits of harmonised WHS laws, the States/Territories have recognised the need for harmonisation to be complemented by a nationally consistent approach to compliance and enforcement. The policy sets out the principles endorsed by the Workplace Relations Ministers’ Council that underpin the approach Regulators will take to monitoring and enforcing compliance with the WHS Act and Regulations.
Coalition Senators believe it would be appropriate for this Policy to be re‑examined to ensure currency in light of the evidence heard before this Committee.
Recommendation 2
The National Compliance and Enforcement Policy should be reviewed and reconfirmed by the States and Territories to facilitate greater cooperation between regulators across the jurisdictions and expedite workplace investigations.
The role of employers and unions in creating a safe work culture
The role of employers, employees and worker representatives is important in creating a safe work culture in workplaces. Coalition Senators accept that everyone in a workplace has a role to play in ensuring work is undertaken safely, risks are identified and hazards are controlled and minimised. This approach is a fundamental part of international WHS frameworks and is based on the Robens principles, which acknowledge effective safety outcomes can only be realised once responsibility for safety is shared amongst all workplace participants.
Regrettably, the Committee heard evidence that showed instances where unions have acted in a manner which is inconsistent with the Robens approach, or which undermined the importance of safety in workplaces. In most of these examples, safety was used as a tool to leverage or advance matters that were usually part of an unrelated industrial campaign or similar negotiation strategy.
Coalition Senators were unsurprised to hear that the bulk of such evidence arose in the building and construction industry and involved conduct displayed by the Construction Forestry Maritime Mining and Energy Union (CFMMEU).
Whilst there are numerous examples in court judgements, the point is summarised here:
This conclusion…is only further supported by the fact that after 17 March 2015, when agreement had been reached with the CFMEU there was no later inspection of the Site by the CFMEU. The expressed concerns as to safety which had warranted such peremptory and immediate access being granted to the premises on the morning of 11 March 2015 had, inexplicably, been resolved without the need for any further inspection being carried out to see if any of the expressed concerns had been satisfactorily addressed. Had the expressed concerns as to safety been genuinely held it would only have been expected that a subsequent inspection would have been carried out. There was no such inspection. And there was no subsequent inspection, it is concluded, because by 17 March 2015 the CFMEU had achieved the objective it had from the outset; it had secured agreement to the payment of a site allowance.
Coalition Senators also note that conduct of this type is not new, as evidenced in the Cole Royal Commission in 2003.
Coalition Senators accept that unions have an inherently significant role in the Australian workplace relations system. We are not opposed to unions or their capacity to represent people in workplaces.
However, Coalition Senators are concerned conduct outlined above erodes and undermines the importance of safety, particularly in an industry where members undertake work that is conventionally associated with a higher level of risk. Genuine safety concerns may risk being treated less importantly if such conduct was allowed to continue.
There is no place for unions who do not adhere to the law or who exploit safety issues to achieve other purposes.
Coalition Senators agree that there is a need to improve the law to achieve the correct balance with safety as a priority. In doing so, such improvements will ensure that unions can play a larger role in terms of fostering a culture of ‘safe‑work’ together with employers and all other persons who hold duties and responsibilities to foster safe workplaces and systems of work.
Recommendation 3
Only union officials who are ‘fit and proper persons’ should be entitled to exercise the right of entry under a permit issued by an independent government authority or judicial officer.
Recommendation 4
Model WHS laws should specify those individuals with criminal records or a history of breaches of right of entry and related provisions under Commonwealth or State and Territory law should not be eligible to obtain a permit.
Conclusion
While Australia has a robust, harmonised legislative framework to protect the health, safety and welfare of all workers, governments, regulators, employer and employee groups need to work together to ensure this framework is effective.
There is always room to improve WHS laws as evidence emerges about best practice.
Ineffective or ill-considered Commonwealth laws can actually be counter-productive to the ongoing harmonisation of the various State jurisdictions that have principal responsibility in this area.
Senator Slade BrockmanSenator James Paterson
Deputy ChairMember