Bills

Work Health and Safety (Industrial Manslaughter) Amendment Bill

Second Reading

Adjourned debate on second reading (resumed on motion).

Mr COWDREY (Colton) (15:32): Prior to the break, I referenced the quite significant disparity between the current states that have industrial manslaughter laws in place, both in terms of the question of threshold and also in terms of potential carve-outs for volunteers and how they are captured, or not captured as the case may be, in other jurisdictions. We also worked through the different penalty provisions that are in place in those jurisdictions that have industrial manslaughter laws in place at the moment.

While I certainly acknowledge that there has been a push to bring some level of harmonisation, particularly around the penalty provisions, it is important to note that, should this bill pass in its current form, and one would assume that that will most likely be the case given the current composition of the house, it is important to note that we will have some of the highest penalty provisions of all the states.

It is also important to note that there had been a push and there had been this issue raised by some of the employer organisations in this state that there could be a better approach to this, an approach that was put to the Attorney-General, and that perhaps waiting for the point in time where we were going to have a more holistic review of the WHS Act would be a more appropriate time to bring the South Australian jurisdiction in line with those significant penalty provisions, rather than starting at that point.

I think it is also helpful in regard to the bill before us to have a conversation about the genesis of the movement towards industrial manslaughter as a concept. The first jurisdiction in Australia to move in this direction was Queensland, and in preparing for this debate I had a close peruse of the debate that took place in Queensland at that point in time. There was significant reference which was probably helpful in the context of where we are in South Australia at the moment and the changes that have taken place in regard to the running of the CFMEU here in South Australia given the context of the Victorian takeover of the South Australian branch and the donation that was received by the Labor Party and then returned subsequent to the election on the back of pressure put on the government here in the house.

I just want to quote directly from the Hansard of the Queensland house at that point in time to give some level of context. I quote Mr Bleijie, who is the member for Kawana in Queensland, if my memory serves me correctly:

It was obvious where these laws came from: the mining division of the CFMEU. The amendments that have been flagged through the media and through the Queensland Resources Council were not subject to review, were not subject to any committee analysis and were simply an afterthought following a closed-door discussion with union bosses as Dr Anthony Lynham tried to get back into the good books with the CFMEU after they called for his resignation in May this year. I have spoken to the honourable member for Hinchinbrook, our shadow minister with respect to natural resources. I know of the concern he will express if the mining sector is included in industrial manslaughter laws applicable to the mining sector. However, as I indicated, thus far the minister has put forward no amendments dealing with the mining sector [at all].

I end that quote there, suffice to say there has certainly been a view in that parliament that these laws originated from within the CFMEU. I certainly do not by any anticipation throw into question or by any stretch minimise the impacts on those families that the government has referenced in regard to the reasoning for their introduction of the laws to this place.

Certainly, that is not what I am saying by any stretch of the imagination, but I think it is also something that needs to be put on record, that there has been a clear historic connection between the CFMEU and the laws that have entered our parliament today.

Moving further to some of the information that was put on record during the debate in Queensland, a number of points were made, and I think I have tried to articulate one as succinctly as I can here in terms of moving away from the implied or real principle of mutual obligation. I lift this passage directly from the Queensland Master Builders' submission to the Queensland parliament in regard to these laws and through the committee review process. I quote:

…but rather shift the focus of safety improvement from practical safety solutions and education to one of punitive action, fear and retribution. In an era where improving safety culture is proven to be the key to safer workplaces, and where industries are seeing the benefits of better safety leadership, we cannot understand why the government is so intent on stifling this process.

It further outlines in its submission something that I think is important to note in this house to provide greater context to the debate that we are having here today as well, and I quote:

In the early 2000s there was a substantial shift across all jurisdictions' regulators towards an educative and advisory approach to safety compliance rather than taking hard punitive actions. Since this shift there has been substantially improved safety culture across all industries which has resulted in a decline in workplace incidents. More specifically, the Best Practice Review, highlighted that Queensland—

in particular, at that point in time—

had one of the highest increases in traumatic injury fatalities between 2010 and 2015.

It also goes on, through its submission, and again I quote:

Further to this, the worker fatality rates nationally have dropped substantially over the last 15 years, as highlighted in the table below—

in its submission—

from the Safe Work Australia Comparative Monitoring Report…2003-15.

With that link into the history and some of the origins of the bill that has entered this place, I also want to reflect on the substantial changes that are being proposed in some cases. In particular, I reference the discussion paper that the Attorney-General has out for consultation at the moment around WHS breaches and the ability for third parties to bring an action directly to SAIT should it not be resolved in a 48-hour period.

I am certain I will be having more to say on this issue into the future, but it is directly relevant to this bill as well, because what we on this side of the house want to see, as I have already expressed, is SafeWork SA, under this government—which is calling for every practical step to reduce workplace deaths—being appropriately resourced, particularly through the investigative branches. Running them significantly under what they are budgeted for is not a helpful outcome by any stretch of the imagination, but feeds into the fact they will also be taking on additional responsibilities from this move. Earlier in my contribution I referenced this potential plan.

If the union movement, if the Labor Party as the political wing of the union movement, were looking to try in some way to diminish the scope, the work, of the independent regulator in SafeWork by allowing or introducing legislation that would essentially allow unions to undertake the work that traditionally has been done by an independent regulator, to set up a legal process that would allow unions to take action directly to the SAIT, that is something we would be concerned about. When I say 'we' I speak not just for myself but also for a number of employer organisations in the state.

It is something we will be watching closely that has a direct linkage to the bill before us today. What we are seeing here, what we have witnessed in terms of actions from this government since they have come to government, is them taking steps to make things more difficult for business, to make things more expensive for business, whether you look at the return to work levy changes that occurred earlier on in the life of this government or whether you look at the payroll tax arrangements as they stand.

Despite significant wage growth and contraction of the labour market, that has forced big businesses to pay a much higher amount of payroll tax to our state's coffers based on the fact that their wage bills have all increased substantially over the last 12 to 18 months. It is not just small businesses that have now hit the threshold for payroll tax that were not paying it previously, based on the changes that were made by the previous government in regard to that threshold back in 2018 that for the first time effectively exempted a significant number of small businesses from paying that impost.

What we have seen is a government and a Premier who says all the right things, who says he is a pro-business Premier, who says he is happy to work with business and advance, as best he can, their interests. On the other hand, we are seeing a Premier who is simply pushing through the bidding of the unions. That is the juxtaposition, that is the public issue that this government is going to have and face at a point in time.

With regard to amendments that are coming before the house, it is my understanding that the member for Mount Gambier will be moving a number of amendments to the bill. Some are of a similar nature to those moved by the opposition in the other place more than a week ago. We will take them at face value. We will do our usual processes to ensure that we look at those closely, but if they are in a similar vein to what has been proposed in the other place and in line with the concerns or work in the direction of alleviating the concerns of industry, then I foreshadow that we will have no issue supporting those amendments should they be put to this house. With that, I end my contribution on this bill and look forward to the subsequent phases of debate.

Mr HUGHES (Giles) (15:45): I rise obviously to support the Work Health and Safety (Industrial Manslaughter) Amendment Bill 2023. Given we are a Labor Party, our perspective on this is going to differ fundamentally from the opposition. Indeed, I would be one of those people who would like to have seen legislation of this nature introduced far earlier. Maybe that is because when it comes to one's perspective on these issues, some of your formative influences and some of your occupational influences are going to come to the fore.

I do not think there are many people in this chamber who have actually worked in heavy industry. I have worked in heavy industry—I have worked at heights, I have worked in confined spaces, I have worked with fumes, I have worked with molten metals—so I have worked in places where injuries were too common at that period. Injuries were too common and some of them were horrendous injuries and, unfortunately, deaths were relatively frequent as well.

I would have to say that things have improved and improved very significantly over the years. The major employers did start to give workplace safety a far greater priority. Most major companies will say that the safety of the workforce is their number one priority. Indeed, there are practices and policies in place that indicate that is the case. When you look at the stats, there has been a decline in a number of industries when it comes to workplace deaths. Unfortunately, on average in South Australia we still get around 12 deaths a year from a variety of industries.

In the industries I used to work in deaths did occur and occurred far too frequently. I still recall the nature of some of those deaths. A young apprentice working for a contractor on the steel site at height, working way beyond the subscribed legal hours, fell to his death from the top of the BOS. The BOS is where the metallic iron is turned into steel. He lost his life. His family was absolutely shattered, and the company and the individuals involved got a slap on the wrist. That was commonplace. When someone died there was no real justice, and I am talking about when there has been negligence.

Of course, the threshold in this bill is very high. It says a person can be convicted of industrial manslaughter if they breach a health and safety duty either recklessly or with gross negligence and this causes the death of another person.

That is actually a high bar. People are innocent and corporations are innocent until proven guilty, so there is a whole process behind whether a penalty is going to be imposed, but at least the penalties here now reflect, to a degree, the value of a human life. Once again, we are talking about gross negligence. This is not going to be commonplace.

So there was that young apprentice who died. The most recent death in Whyalla—and this is interesting. When I listen to the member for Colton speak, he has this semi-idealised view of what happens in the workplace. I tell you what: in the workplace, that semi-idealised view that we are all in there for the safety culture does exist to a significant degree, but in practice it does not always happen.

The latest death in Whyalla unfortunately—and it was quite a few years ago now, but it was within this century—I think was around about 2010. That death was of a Filipino worker. He was asked to do a job that none of the Australian workers on that site would do, because they knew it was dangerous. But this Filipino worker was on a 457 visa. There was a degree of vulnerability, and there might not have been the same level of awareness when it comes to safety. The Aussie workers would refuse to do that particular job. He did that job, and he died. His family—his kids, his wife—lost their father. There would have been a bit of a payout, but that is not going to go anywhere near bringing that life back. That was gross negligence. The workers there knew it was unsafe, and yet the employer (management) was able to prevail upon this Filipino worker to do that job that ended his life.

I can recount a number of other incidents where there has been that level of negligence. It was not only the fact that I used to work in heavy industry. As a mature age student, I went off to uni and when I graduated I was working at doing after injuries at worksites, doing worksite assessments, doing return to work planning and a whole range of other things.

Some of the things that I used to see included safety guards having been removed in a rail sleeper factory in order for the job to be done more efficiently. A worker lost part of his hand as a result of that, and when I went out on that site those safety guards were in the paddock at the back of the factory. A decision had been made to remove them. In that case, a life was not lost but there was a very traumatic injury.

We are coming up to that time of year again when we acknowledge all those people who have passed away as a result of exposure to asbestos. My community of Whyalla was one of the hotspots when it came to asbestos exposure. There were a lot of people from my community, and people who scattered elsewhere when the shipyard closed, and there was a downsize in the steel industry, but a lot of people had their lives cut short as a result of being exposed to asbestos. We know that the figures from early in this decade indicated that, by 2020, 20,000 people in this country will have died from exposure to asbestos, largely through mesothelioma.

Indeed, it was a Whyalla worker, a shipwright, who was the first in 2009, I think, to get exemplary damages under the act at the time, the Dust Diseases Act 2005. In 2009, he was the first to get exemplary damages. He was not killed. He had plaques, he had asbestosis, it did have an impact. As far as I know, he did not ultimately die as a result of his exposure to asbestos, but many other workers did.

The issue here was that it was not a case that the companies did not have the knowledge: they did have the knowledge. In the Supreme Court, when the court found in favour of this gentleman, William James Parker, who went for exemplary damages, in the summing up Justice Lovell indicated that this was a systemic failure on the part of BHP. They knew well that asbestos was dangerous, that asbestos can kill people.

This is one of the issues here when it comes to gross negligence. I would argue that for all those people, or at least most of those people, who died as a result of occupational exposure to asbestos in companies that had the knowledge, had the awareness, that was gross negligence. We knew in the 1950s it had been established that asbestos caused lung cancer and by 1960 we knew that specifically it caused mesothelioma, yet the companies did nothing. If anything, they covered it up, and they downplayed it. It was a whole bunch of companies. Obviously, Hardie was the notorious company but there were companies such as BHP, Rio Tinto and a whole range of others doing the same thing, the covering up and the downplaying of the danger of asbestos. So all those lives were cut short.

This is why I say that my perspective is different from someone who probably has worked as a white-collar worker most of their lives, went to uni and the rest of it. I come from an industrial community. I have seen the direct consequences when there is negligence that leads to somebody dying. It is tragic and there should be consequences for that. There should not be just a slap on the wrist, a fine for a company that could be worth billions of dollars. If someone has lost their life through gross negligence, there should be some justice.

Things have improved in heavy industry, things have improved in mining, and some of that was not as a result of a road to Damascus conversion by some of these companies: it was scathing findings before judges in courts. I know that when it came to BHP, the thing that triggered a far greater focus and an evolution of the focus on safety was as a result of work that was being done at the coke ovens at the time. It was a bunch of contractors working at the coke ovens who were exposed to high-temperature steam that damaged their lungs. One of those people involved ultimately had their life shortened, but that was some years later.

It was the finding of the court in relation to that incident that led to the focus shifting more heavily onto safety as a priority with BHP as it was at the time in Whyalla prior to 2000. Things have improved. The sort of semiregular deaths that we used to get in the steel industry are now, fingers crossed, something that belongs to the past. There has not been a death now for over 10 years. That is a very good thing. I know that at BHP at Olympic Dam there has been a relatively recent death. OZ Minerals was the contractor. It was not so much related to the mine itself but I think it was related to work that was going on on some transmission assets, and somebody died there.

This bill has been a long time coming. As has been indicated, the other states have already gone down this particular pathway. I commend the bill. It is bringing at last some justice to bear when it comes to gross negligence leading to the death of workers.

Debate adjourned on motion of Mr Odenwalder.