Bills

Work Health and Safety (Representative Assistance) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 12 April 2017.)

The Hon. J.E. HANSON (19:47): I rise to support the bill to allow health and safety representatives to seek assistance from any person to resolve health and safety issues in their workplace. Section 68(4) of the Work Health and Safety Act 2012 is unique to South Australia. No other jurisdiction has a requirement that the person who can provide assistance to a health and safety representative must be a person who works in the workplace, who is involved in the management of the business or undertaking, or who is a consultant approved by a ministerial advisory body.

The additional requirement was an amendment that was made so as to secure the passage of the Work Health and Safety Bill in 2012. The proposed amendment will reduce the regulatory burden for persons who wish to offer free assistance to health and safety representatives by removing the requirement to apply to the Industrial Relations Consultative Council to become an approved consultant. The original bill also adopted amendments that were made to the model Work Health and Safety Act in 2016 (which is the model act) that introduces the requirement for persons providing assistance to health and safety representatives to give notice of entry of at least 24 hours.

To date, this amendment to the model act has not been adopted in any other jurisdiction. The Hon. Tammy Franks MLC has since filed an amendment that now removes the substitute clauses. The Hon. Tammy Franks MLC stated in her second reading speech that the bill amends section 68 of the Work Health and Safety Act to bring it in harmonisation with work health and safety legislation in all other Australian jurisdictions. This will now, of course, be the effect because no other jurisdiction has introduced section 68(3)(a) and (b) of the model Work Health and Safety Act.

In particular to this bill, I note as well that a particular case has occurred called the case of Powell, and I understand that it is very likely that Ms Franks may address that further in what she has to say. The case of Powell occurred in June this year and is quite important in any argument that might be made against some sort of concept of unfettered access for industrial associations. I think that should be fairly well considered in any debate which is happening in regard to this because at the time when people might have been getting a bit hot under the collar about something like this, that had not yet been decided. In that regard, the government supports the amendment to remove section 68(4) of the Work Health and Safety Act to allow any person to provide assistance to a health and safety representative.

The Hon. R.I. LUCAS (19:50): I rise on behalf of Liberal members to oppose the legislation consistent with the position that the Liberal Party put when we debated the bill back in 2012. There were long debates about the legislation and there were certainly long debates about these particular provisions. I have to say that, only becoming aware of the government's about-face in relation to this particular issue today, and that was confirmed by the contribution on behalf of the minister and the government by the Hon. Mr Hanson then in his contribution, I return to the debate that we had in this chamber back in October 2012 in relation to these particular provisions. The amendments were moved by me on behalf of the Liberal Party in the committee stage of the debate and the government's position was clear and unequivocal. Let me quote:

The government supports both the amendment and the consequential amendment. Whilst we did not seek this amendment, it does not infringe upon the key pillars of the harmonised bill; therefore, in the interest of progressing this important legislation, the government will support the amendment.

There was no division. There was no dissentient voice recorded anywhere in the chamber. When one goes through the committee stage of that debate, there were many, many divisions which were decided by a margin of one vote in relation to the proposed amendments. They were well argued, well thought arguments about many particular provisions of the work health and safety legislation, which did extend over a number of months for those of us who participated in that particular debate, but on this particular amendment there was no division, there was no dissentient voice expressed in the particular debate, and the government's position was quite explicit.

'The government supports both the amendment and the consequential amendment' was the first point. The second point was 'it does not infringe upon the key pillars of the harmonised bill', and that was important from the government's position then because the government was arguing to support the model legislation, the government was arguing the importance of harmonised legislation, and for those reasons the government made this point when it said, 'We are supporting this amendment and the reason we are supporting it is that it does not infringe upon the key pillars of a harmonised bill.'

I have to say that I am stunned to hear that the government is now saying that it has changed its position completely, particularly as, in the legislation, there is a provision for a complete review of the legislation, I think next year in 2018, so not only this particular provision but all the legislation, obviously, as it relates to work health and safety laws in South Australia.

All I can say is that, clearly, Premier Weatherill and the government have obviously decided to flip the bird at employers and businesses and those who employ people in South Australia. Premier Weatherill has essentially said, 'Well, stuff you' to the businesses and employers of South Australia and has decided to side with the CFMEU in particular in terms of their approach to industrial lawlessness on construction sites nationally, soon to visit construction sites here in South Australia.

We have seen a little bit of this over the last few months in terms of Premier Weatherill's approach to economic policy, business policy and direction. There has been his now notorious reference to businesses and employers of 'You lot being members of the employer class in South Australia', his challenge to business leaders at a particular major lunch at the Convention Centre in the last six months where he freely admitted that he did not believe in free enterprise, and his attempt to characterise all banks and employees in South Australia as fronts for terrorists and money launderers.

Now we see this particular approach to this bill, contrary to the position that he and the government adopted when the legislation was introduced, saying, 'Well, stuff you' to the businesses and employers. 'I am not worried now. If we are not here as a government in March of next year, we'll let the CFMEU run the place' in relation to construction sites in the construction industry in South Australia, as they are currently doing in Melbourne and Sydney in particular with their lawlessness on construction sites through that area.

I will put on the record an update of recent decisions in relation to the actions of the CFMEU on construction sites both in South Australia and nationally as a warning, I guess, to those in this chamber who are supporting or who might be contemplating supporting this particular change.

In terms of the issue of businesses, there has been, not unexpectedly, in the last few hours considerable concern expressed by a number of key industry groups, particularly those associated with the construction industry—the MBA, the HIA, Business SA and a number of those particular groups representing employer groups in South Australia—expressing concerns in relation to the intended change of heart of the government in relation to this particular issue and in particular their concerns at the impact of driving up the costs of doing business and the costs of projects, in particular major projects, in South Australia as a result of increasing lawlessness, which will be possible under the legislation, by the CFMEU on South Australian construction sites.

When we debated the legislation in 2012, at that stage I referred members—and, as I said, ultimately even the government supported the amendment—to the evidence and findings of the Cole royal commission in relation to the actions and operations of the CFMEU. The Cole royal commission report stated:

Occupational health and safety is often misused by unions as an industrial tool. This trivialises safety, and deflects attention away from real problems…scope for misuse of safety must be reduced and if possible eliminated.

In other evidence to the Cole royal commission it was noted:

It is not uncommon for a builder or subcontractor, who is in dispute with the union over an unrelated industrial issue, to receive visits from union officials investigating and finding alleged safety breaches. The union official asserts that immediate risk exists. Work ceases while employees sit in the sheds or, worse, leave the site.

That was the evidence, and they were the conclusions of the Cole royal commission into the building and construction industry. Warnings were given at the time in 2012, and credit to the government: they indicated their complete support for this compromise position that was put. As I said, no dissentient voice was expressed at all by any member of the Legislative Council to that particular amendment at that stage.

Since then, there is much further evidence in relation to the actions and operations of the CFMEU. I want to refer to some of the recent cases in relation to the CFMEU. A penalty decision handed down on 22 April 2016, just last year, related to alleged breaches against the CFMEU of coercion on a building site in South Australia. A building penalty decision was handed down and penalties totalling $494,150 were imposed on the respondents. That was appealed to the Full Court of the Federal Court and that was dismissed by the Full Court of the Federal Court.

The allegations of coercion that the CFMEU officials were found guilty of were that on 30 October 2013 five CFMEU officials entered the Flinders University construction site and provided entry notices. Whilst on site they threatened the site supervisor that, if he did not fly the CFMEU flag on the crane, they would stop the job. After the flag was flown on the crane, a number of CFMEU officials who are named posed for photographs in front of it.

That same day, six CFMEU officials entered the TAFE project site at Tonsley Park without providing notice. During a discussion with the site's project manager one of the CFMEU officials allegedly said words to the effect, 'We're not going to be filling out right of entry notices—that's come from the secretary', referring to the secretary of the CFMEU at the time. On 20 November 2015, the court found that the officials had breached the Fair Work Act. A penalty decision was handed down on 22 April 2016, penalising the CFMEU $456,000 and individual officials between $1,200 and $9,700 each.

In another decision handed down on 19 January this year, the Federal Court handed down penalties totalling $57,000 on a number of CFMEU respondents, and they included Mr Aaron Cartledge, a person well known to members in this chamber. The summary of that case indicates that on 22 November Mr Cartledge and Mr McDermott attended a meeting at the new Royal Adelaide Hospital project, organised by SafeWork SA.

During the meeting Mr Cartledge and Mr McDermott threatened to organise industrial action at the project if the head contractor sought to enforce a Fair Work Commission order from September 2013 that required employees on the project to not take industrial action. During the meeting it is alleged that Mr McDermott threatened, 'If you try anything, there will be Armageddon.' It is alleged that Mr Cartledge threatened, 'All hell will break loose and we will take this national,' if the head contractor took steps to enforce the order.

On 31 May 2016, the court found all respondents had contravened section 343(1) of the Fair Work Act by threatening to organise action against the head contractor, with the intent to coerce the head contractor to not exercise a workplace right. Another decision—there are many others that could be referred to—was filed on 4 September 2014 and it was in relation to right of entry. On 17 May 2017 (only recently), the Full Court dismissed the appeal from the CFMEU. In brief, this related to breaching right of entry provisions on an Adelaide construction site. I will not go through all the detail but, again, they were found guilty and penalised. Financial penalties were imposed in relation to the CFMEU officials.

Finally, I refer to a summary media statement of 13 November 2014 where Fair Work Building and Construction summarised their calls for Mr Aaron Cartledge's right of entry permit to be suspended and that he be banned from receiving a permit for 12 months. For various other officers, they called for their permits to be revoked and that they be banned from receiving a permit for either a 12-month period, a two-year period and one for a three-month period. That press release states:

The men all admitted to intentionally hindering and obstructing Hansen Yuncken site managers at the project. Mr Luke Stephenson, a former CFMEU official, no longer works for the CFMEU SA branch but still holds a valid Right of Entry permit.

In determining appropriate penalties to issue, Justice Mansfield said about Mr Cartledge, he 'is the most senior CFMEU officer in South Australia. He was aware that what he was doing did not comply with the law.'

His Honour also said: 'Both Pitt and O'Connor were prepared to use force to gain entry' and in relation to Mr Pitt: 'that behaviour demonstrates that he did not care that he was breaking the entry rules, but that he was so indifferent to complying with them as to force entry and make the threats to [the site manager].'

As I said, there are many, many other examples of the thuggery and lawlessness of the CFMEU nationally—it is even worse if you want to refer to some of the decisions in Sydney and Melbourne—and in South Australia. That is why the Cole royal commission warned, in relation to right of entry laws regarding work health and safety, that the unions and the CFMEU in particular used work health and safety provisions to get access to worksites, in some cases for reasons other than work health and safety issues, that is, to pursue their enterprise bargaining or their industrial negotiation issues or whatever else they wanted to support—the flying of the CFMEU flag on a crane, for example. In essence, those are the sorts of directives that they would issue on building and construction sites in South Australia and in other states as well.

From the government's viewpoint, the concerns of business and industry stakeholders in South Australia is what has changed in relation to the position they and this parliament adopted in 2012. Whilst acknowledging that there was to be a review next year of the total legislation, including these particular provisions, what has changed in relation to the current arrangements for work health and safety? What is prompting the need for legislative change?

I want to refer to some of the submissions that I have received—not all of them, but a number of them. The first has been sent to a number of members, including the Hon. Ms Franks and others, from Rick Cairney Consulting. Members will be aware that Mr Cairney was a former office holder or employee of Business SA and now runs his own consulting business in this particular area. I quote from his letter to me of 15 September:

In the second reading speech, the Hon. Tammy Franks' explanation for the introduction of this bill is to ensure that our nation has one set of consistent occupational health and safety laws so that employers and workers do not have to work with eight different sets of workplace safety laws. However, the fact is that we do not have one set of consistent occupational health and safety laws and this amendment bill will not change the situation. The state of Victoria chose not to introduce the model WHS Act and Western Australia, New South Wales and South Australia WHS acts all contain some inconsistent provisions.

One or two of the other submissions I received in responding to the Hon. Ms Franks's argument about harmonisation and consistency of laws noted that her 2015 attempt to introduce industrial manslaughter laws flew in the face of a claim for wanting to see harmonisation of work health safety laws. The argument was that we should not harmonise the laws, yet their argument to me was, if that is the case, the introduction of industrial manslaughter laws in South Australia was inconsistent with that particular claimed policy goal from the Hon. Ms Franks in terms of her second reading explanation.

I return to Mr Cairney's letter to members. The Hon. Tammy Franks also said in her second reading speech that the current section 68 of the act 'narrows the scope of the act so that a union representative is not able to assist a health and safety representative in light of a workplace incident.' She further states, 'This does not allow for fair and effective workplace representation and consultation in the resolution of safety matters.'

However, in my view, these statements are not correct. In addition to section 119, 'Notice of entry', section 118, 'Rights that may the exercised while at workplace' and section 121, 'Entry to consult and advise workers', there is section 117, 'Entry to inquire into suspected contraventions' of the act, which was the result of negotiations. Section 117 enables a union official to enter a workplace without providing notice to the employer, where the union suspects there has been a contravention of the act, which can include a workplace incident.

I note two points in relation to that. It is clear that under section 117, as Mr Cairney and a number of other industry groups point out, if a union official sees that there is a clear contravention of the act which is threatening the safety and welfare of workers, they do have the powers under section 117.

The other point I would note, which has been made by a number of industry groups, and I made the point in 2012, is that, if workers wish, they are quite entitled to elect, and nothing prevents them from electing, a union representative to be their health and safety representative. That is, if the workers at the worksite support the union, they can actually elect as their health and safety representative—and in many cases they do—a union member from the worksite to be their health and safety representative.

Under the work health laws, the health and safety representative has enormous powers. The health and safety representative, if he or she sees that there is some workplace arrangement, equipment or process which threatens the safety of workers, can stop immediately either that particular piece of equipment, process or operation. That is an existing power for the health and safety representative on a particular worksite.

The act makes it clear they have considerable powers if there is a threat to the safety of a worker in the workplace. This parliament supports that power. The Liberal Party supports that power, and that power can be exercised by a member of the union, if the workers elect the member of the union to be their health and safety representative on the worksite.

Equally, under the current arrangements of the legislation, the health and safety representative can get the assistance of a consultant. There are requirements on the consultant—that is, they have to have the appropriate qualifications and be in a position to know something about health and safety, for example, and they have to have the appropriate qualifications. There is nothing to prevent a union official from having those qualifications and being employed as a consultant by the health and safety representative and being brought in, if they are so qualified and have the appropriate permits.

In all the circumstances that I have outlined, unions, union members and, in some cases, union officers with appropriate qualifications can be utilised or do have powers in certain circumstances to assist the work health and safety provisions of worksites.

So, it is not correct to say that the current arrangements are locking out unions. The current arrangements, which are intended to lock out certain union officials and others who continue to get found guilty and get fined hundreds and thousands of dollars or millions of dollars and have their right of entry permits excluded, have not been consistent with promoting workplace safety. If the law of the land finds these people guilty and they do not have the appropriate right of entry permits, then it is certainly our view that it is not sensible practice to give them a backdoor way of getting onto worksites in South Australia to do whatever it is that they wish to do.

I return to the letter from Mr Cairney. The reason that section 68, which the Hon. Tammy Franks seeks to introduce, was not agreed to be inserted into the act was that the phrase 'request the assistance of any person' was simply too broad and could include anyone without any WH expertise and someone from the media. The presence on site of the media, particularly in the situation of a serious injury or a fatality, could severely exacerbate the trauma of the family of a worker who is severely or fatally injured. Having been the coordinator of a mine site where there were several fatalities, I make the above statement from practical, not theoretical, experience. Finally, Mr Cairney makes the point:

In the past several years, CFMEU officials, including the branch secretary, have been found guilty by the Federal Court of blatantly breaching the right of entry provisions of the Fair Work Act 2007, including bullying and threatening employers.

He then seeks opposition to the bill. In relation to the issue of the proposed amendment, which states 'any person', the Hon. Mr Cairney and a number of the other stakeholders have highlighted a number of examples where people have sought to bring members of the media in to publicise or highlight a particular workplace incident. Our current legislation says that the intention of this is to actually bring someone in who knows something about work health and safety and can assist the health and safety representative and the workers to resolve the workplace safety issue with the workers and the employer.

As a number of the stakeholders, including Mr Cairney, have indicated, the actual use of the proposed provision—to actually bring a TV camera onto site in the immediate aftermath of a workplace incident, under the guise of any person—is something that is not conducive to helping to resolve the workplace safety issues that exist on the site at that particular time. As Mr Cairney points out, it can and may be traumatic for friends and family of the injured worker at that particular worksite.

The Master Builders Association, in a number of letters to me, have expressed their strong opposition to the proposed amendment. Of course, they are probably the major association that has to deal with the CFMEU on major construction sites in South Australia, even more so than the HIA, for example, and indeed any of the other industry groups. Their letter to me, from Mr Ian Markos, the chief executive officer, states, in part:

The CFMEU's record of lawlessness is well documented and justified the insertion of these provisions; that is, section 68(4) of the act that was inserted in 2012. Nothing has changed to warrant their removal. In fact, as reported by the Sunday Mail in November—

that would be November 2016—

the South Australian branch of the CFMEU is now known across the country as being the most heavily fined for right of entry abuses. An estimated $2 million of CFMEU member fees has been wasted on legal fees, penalties and additional court costs. We note that many of these penalties related to the abuse of safety laws to gain entry to building sites through the use of offensive abuse and intimidation of workers and regulators—people who, like us all, simply wish to do their job and go home safely each night.

This abuse and the CFMEU's unwillingness to change tactics has been noted in frustration by a significant number of Federal Court judges, yet the union continues to employ the same abuse of people and laws for its purposes. This has left the union with only four officials legally able to enter building sites, with increased pressure to use proposed amendments such as this one to increase site representation. Given the pattern of abuse of right of entry, we hold little hope for a change of union behaviour.

Further on:

We believe every person in our industry must take safety seriously. Investing in SafeWork SA's ability to get out to sites to work with industry will do more for safety on building and construction sites than allowing unions to use a safety law to enable right of entry abuses.

Then, further on:

Union thuggery on building sites increases the cost of schools, hospitals and roads by up to 30 per cent. South Australians deserve far better.

Then, he says they urge the parliament to reject the proposed legislation. As I said, there are many others, but I thought I would just refer to three of the industry groups. Business SA's submission to me in part reads as follows:

The Act currently provides that a health and safety representative ('HSR') may request the assistance of 'any person' when exercising a power or performing a function. The Act further provides that 'any person' as referred to in section 68(2)(g) is limited to: a person who works at the workplace; a person involved in managing the relevant business or undertaking; or an approved consultant. Subsection (4) clearly demonstrates that the person whose assistance may be requested by the HSR is one necessarily connected with the business and/or is knowledgeable of safety requirements and practices.

The Bill seeks to alter this. The Bill seeks to delete subsection (4) and substitute new wording.

There is now a further amendment, which is to delete subsection (4). It continues:

The effect of the new wording will be that any person will be able to 'assist' the HSR—regardless of their understanding or involvement with the relevant business. Business SA does not see how a person completely unconnected with the relevant business will be of more assistance to the HSR when performing their functions than a person currently allowed under the Act.

Further on, Business SA states:

Further, the Act should not be changed and weakened where there is no problem to address. The second reading speech for this Bill does not suggest there is any specific problem with the operation of the current provisions of the Act. Rather, the speech makes nebulous claims that: under the current provisions, it is 'difficult for safety representatives to exercise [their] powers and functions'; the section is 'at odds with the very objectives of the WHS act'; and that it is 'unnecessary, counterproductive and out of step with the rest of Australia's workplace safety laws.' Business SA submits the Bill is unwarranted as these nebulous 'problems' do not exist.

Business SA states: It is not difficult for safety representatives to exercise their powers and functions under the Act. As demonstrated above, the Act as it stands is of more assistance to the HSR than that proposed by the Bill as they can request assistance from persons connected with the workplace or an approved consultant. There is no problem to be addressed here.

Further on, under the heading 'Risk of mischief':

Business SA further opposes the Bill as there is a significant risk the amended provision could be used to avoid current right of entry requirements. Business SA is highly concerned the amendment could be used for mischievous purposes because there is little restriction on what the representative can and cannot do while 'assisting' the HSR.

Further on:

The Act itself is very specific about the circumstances in which a WHS entry permit holder may enter a workplace. Under the Act a permit holder may only enter a workplace 'for the purpose of inquiring into a suspected contravention of this Act that relates to, or affects, a relevant worker.' Further, the WHS entry permit holder must 'reasonably suspect before entering the workplace that the contravention has occurred or is continuing and involves a risk to the health or safety of a relevant worker.' As demonstrated, a WHS entry permit holder may only enter a workplace in specific circumstances and for a specific purpose.

The amendment as proposed does not discuss the right of the person 'assisting' the HSR to enter the workplace. Rights to enter a workplace must balance the interests of both the employees and the employer. The amendment as proposed applies no restrictions to the person 'assisting' the HSR to enter the workplace. This lack of limitation gives Business SA great concern the amendment could give rise to serious mischief by allowing the representative to avoid the activity restrictions imposed under conventional rights of entry.

Business SA further submits the Hon. T.A. Franks is inaccurate when stating a HSR's capacity to receive advice and assistance from a union is frustrated.

The letter goes on to explain their views in relation to that, which is similar to some of the other stakeholder views that I have put on the public record.

In conclusion, as I said at the outset, this issue was settled in 2012 with an acceptance that in 2018 there would be a review not only of this provision but of the total act. This provision was settled with the support of the government and with the statement of the government that it did not offend against the essential principles or pillars of harmonisation. That was the position they put to the parliament in 2012.

As I said at the outset—and I conclude on this note—I am very concerned, on behalf of the Liberal Party, that what we have here now is Premier Weatherill in the last months before an election essentially entering into and continuing a class war with business and employers in South Australia. I gave the other examples of his attacks on employers and businesses. Essentially, this state is in a difficult economic situation. We rely on a combined effort of employees and employers in South Australia to try to work our way out of the mess that the state has got itself into after 16 years of a Labor government.

Clearly, Premier Weatherill is returning to the left-wing roots of his past. He has decided, as he leads into the election, as I said, to flip the bird to businesses and employers in South Australia and to say, essentially, 'Stuff you. I'm not going to worry about the impact of CFMEU officials,' and the thuggery and unlawfulness that I have read onto the public record, which Federal Court judges and other judges and commissioners have, right across the board, indicated.

It should be a fair warning to any of us in this chamber who might be contemplating supporting the Labor government turnaround on this particular issue, that it is going to be a recipe for unleashing the forces of the CFMEU onto construction sites and worksites in South Australia. Should there be a change of government in March of next year, that will make the task of trying to generate economic growth in South Australia, to keep the cost of doing business in South Australia down and to keep the cost of major projects in South Australia down to reasonable levels, almost impossible if we are going to allow the sort of thuggery and unlawfulness that Federal Court judges and building construction commissioners have highlighted in so many judgements over the last three or four years about the CFMEU, its officers and officials in South Australia and nationally.

On behalf of Liberal members, we will be opposing the second reading of this legislation. We will oppose the amendments in the committee stage and we will also vote against the third reading of the bill, should it get that far.

The Hon. K.L. VINCENT (20:28): I take the floor briefly to indicate the Dignity Party's support for this bill. I would like to acknowledge the various submissions and lobbying that I have received on this bill from the likes of the Law Society, the Master Builders Association and one individual lobbyist. However, despite the concerns that have been raised, I can indicate that the Dignity Party will be supporting this bill today.

We do not believe this is any sort of Trojan horse. Of course, it is important to remember the CFMEU will continue to be subject to federal laws and fines as they were before. Given that we are simply reinstating a feature that was taken out of the bill in 2012, and there is no appetite to reinstate it, we will be supporting the bill.

The Hon. J.A. DARLEY (20:29): I rise to make a brief contribution to the bill. In her second reading speech, the Hon. Tammy Franks very heavily emphasised that one of the main drivers for this bill was to allow unions onto worksites. However, as a result of the recent Full Federal Court decision against Mick Powell, the unions have received a very clear message that they are not allowed to enter worksites, using section 68 of the act. I understand that as a result of this, the intention of the bill has now changed from when it was originally introduced in April and the focus is now just on allowing experts on site to assist health and safety representatives with safety issues.

I am very supportive of improving worker safety; however, concerns have been expressed to me that this is merely a backdoor way for the unions to gain access to worksites when they are not meant to be there. I understand these concerns. However, I believe that the prospect of improvements to worker safety outweighs the potential threat that these changes will be exploited by the unions.

The circumstance of a person going to work and failing to return home because they have been killed at a worksite is absolutely unacceptable. Unfortunately, it does happen, so I will do what I can in my role as a legislator to try to improve this. In saying this, I would still appreciate, for the record, confirmation from the Hon. Tammy Franks that the intention of this bill is to allow experts on site to assist the health and safety representatives rather than providing a mechanism to allow unions on site.

The Hon. T.A. FRANKS (20:31): I rise to thank all the speakers who have made a contribution to the bill's second reading debate: the Hon. Justin Hanson, the Hon. Rob Lucas, the Hon. John Darley and the Hon. Kelly Vincent. I will remark on some of the comments and also flag that since I introduced the bill, I have tabled a further amendment and I did so in consultation with the office of the minister.

The Hon. Rob Lucas remarked in his speech that he was stunned to discover today that the government was supporting this bill. I am not sure why he is stunned because last Thursday, 21 September, I wrote to all members of this place and their staff, and indeed all House of Assembly members, an email with regard to my bringing this bill to a vote tonight. In that email, I noted not only was it my intention to take the Work Health and Safety (Representative Assistance) Amendment Bill 2017 to a vote tonight, but I attached the bill, a Hansard as a reminder and the amendment that is now filed and will be moved by myself.

In that email, I noted not only was it simply largely a matter of harmonisation and reflected the state of play in other states, but the amendment that I had filed had been done in consultation with the minister's office, and so certainly I am surprised and stunned to hear that the Hon. Rob Lucas is stunned that the government might be supporting this bill. I will not be speaking for the government; the government is big enough and ugly enough to speak for itself.

The Hon. Rob Lucas did seek to speak for not just the government but, indeed, the Greens in terms of our intentions with regard to work health and safety laws. He commented that at the time there was no contention with regard to this part of the legislation and his successful amendment to the model law during a debate.

He did not reflect on the fact that this particular act, when it was being debated through this place, took well over a year to get passage. I think we were all worn down. I think we were all sick of it—sick to death of it—and certainly compromise was the name of the game after a year and several ministers had been exhausted in a process of finally getting to an agreement on work health and safety laws and some subscription, and in large parts subscription to a harmonised law, across the country.

I certainly do not see that a compromise several years ago, after such a contentious and drawn out debate, is in any way flipping the bird or saying, 'Well, stuff you,' and certainly I do not see it as the CFMEU running the place. I am quite intrigued that the entirety of the Hon. Rob Lucas's speech was quite caught up with the CFMEU. I would like to point out to all members of this council, and indeed all members in this state, that this bill does not just apply to the CFMEU. This bill does not just apply to the construction industry. Indeed, that is about 5 per cent of our workforce.

This bill applies to each and every workplace and industry across our state. It was certainly not just the CFMEU that came out in support of this bill. I am wearing an Independent Education Union ribbon because I have just been speaking at their dinner this evening. They were there today in support of the bill and wished me well as I had to leave a little early to come back for this session. There is the Australian Education Union and the nurses. Teachers and nurses are far from the conjured-up class war imagery that the Hon. Rob Lucas so well employed, but they are also the reality of who will benefit from this bill.

What has changed as well is not only the willingness to give it another go, having been scared off by the debate that went for well over a year, but there are some pieces of information that I think members will appreciate me referring to now in my response and second reading summary. The first piece of information is actually incredibly relevant and the Hon. Justin Hanson made some mention of it, and that of course is the Powell case.

The Full Federal Court of Australia has handed down an important decision relating to union right of entry for occupational health and safety purposes in the Australian Building and Construction Commissioner v Powell [2017] FCAFC 89 (ABCC v Powell) on 2 June this year. The court there unanimously ruled that a CFMEU official who was called onto a construction site to assist a health and safety representative was not protected by Victorian OHS legislation and was required to have a right of entry permit under federal law.

The facts of this case were that, as has been raised on four occasions in 2014, an elected health and safety representative on a Melbourne construction site asked Mr Powell, an official of the CFMEU, to attend the building site to assist him in dealing with various occupational health and safety issues. On each occasion that Mr Powell attended the site and was questioned about his presence, he stated that he was there to assist the HSR and cited his ability to do so under the Occupational Health and Safety Act 2004 of Victoria. That act provided that a HSR may seek the assistance of any person whenever necessary in relation to health and safety matters.

The OHS Act there also states that an employer must allow a person assisting an HSR to access the workplace unless the employer considers that the person is not a suitable person to assist due to insufficient knowledge of occupational health and safety. Each time this occurred, Mr Powell refused to leave the site when requested by the employer to do so. On one occasion, he also stated that he was not attending the premises under the commonwealth Fair Work Act 2009 and therefore did not have a federal right of entry permit. On two occasions, police were called to the site.

Mr Powell was not a permit holder under part 3-4 of the Fair Work Act. The Australian Building and Construction Commissioner (ABCC) commenced proceedings against Mr Powell for a civil penalty for contraventions of section 494(1) of the Fair Work Act. This section prohibits a union official from exercising a state or territory OHS right unless the official is the holder of a right of entry permit issued under part 3-4. The decision by Justice Bromberg of the Federal Court held that the relevant sections of the OHS Act did not confer a right to enter premises for the purposes of section 494 of the Fair Work Act and therefore there was no requirement for Mr Powell to have a federal permit in order to enter the site under the OHS Act.

The ABC Commissioner appealed this decision and the Full Federal Court's decision, by unanimous decision, upheld that appeal and found that Mr Powell was required to have a permit under part 3-4 of the Fair Work Act in order to enter the site to provide assistance to the HSR under the OHS Act. The court considered the legislative history and construction of the relevant provisions of the Fair Work Act and the OHS Act in order to determine whether there is a 'right to enter premises' conferred by the OHS Act in accordance with the meaning of that phrase in part 3-4 of the Fair Work Act.

Overturning the primary judge's decision, the court found that the OHS Act conferred a right to enter premises, and that right is exercised by the assistant to the HSR. In this case, that was Mr Powell. This was because, firstly, the OHS Act confers a statutory obligation on the employer to allow people from whom the HSR has requested assistance access to the premises. The OHS Act also states that the HSR can enforce the exercise of his or her power by applying for an order in the Magistrates Court. This statutory entitlement would be a defence to any claim of civil or criminal trespass. Secondly, the OHS Act confers a right on the HSR to have the assistant enter the premises. Consequently, it is a right to enter exercise by the assistant at the request of the HSR.

The court then considered whether a right to enter contemplated in section 494 of the Fair Work Act covers the section of the OHS Act that addresses a right of entry of the assistant or merely rights outlined in part 8 of the OHS Act, which deals with entry by authorised representatives of registered employee organisations. Taking into account the section that explains the objects of the provisions, historical iterations of the provisions and the words of the provisions themselves, the court found that the prohibition in section 494(1) of the Fair Work Act extended to and covered a union official exercising his or her right to enter and have access to the premises and/or the HSR's right to have him or her enter and access the premises pursuant to relevant sections of the OHS Act.

The court stressed that provisions about right of entry should be construed practically and conformably so that they can be implemented in a clear way on a day-to-day basis at worksites and determined that the plain purpose of part 3-4 of the Fair Work Act is to regulate by permit the lawful entry of officials of organisations onto worksites pursuant to rights of entry given by commonwealth, state and territory legislation.

The court pointed out the potential for practical confusion if a permit was required where an official had reasonable suspicion of a contravention of a state, territory or commonwealth law about OHS; for example, an HSR with an OHS issue. Further, the court said that applying the words of section 494 of the Fair Work Act to the operation of the relevant sections of the OHS Act did not undermine the statutory objects of part 3-4 but instead reinforced them.

The court concluded that the plain words of section 494 of the Fair Work Act and the construction of the relevant sections of the OHS Act meant that Mr Powell as a union official required a permit to enter the premises either because he was exercising his right to enter or the HSR's right to have him enter to provide assistance.

At this point, I think it is timely to seek to table a piece of correspondence. That correspondence is dated 1 August 2017. I will read it and then I will seek leave to table it. It is on letterhead from the Australian Building and Construction Commission. It is addressed to Mr Aaron Cartledge, the SA State Secretary of the CFMEU, Construction and General Division, SA Branch. In part, it states:

Dear Mr Cartledge

Exercising State or Territory OHS rights

It has been reported to me that you may have recently been visiting sites in South Australia purporting to exercise rights of entry under the Work Health and Safety Act 2012 (SA) (WHS Act).

Specifically, it has been raised with me that you may have sought to exercise the following rights to enter work premises:

(a) as an approved consultant to assist a Health and Safety Representative (HSR) under ss 68(2)(g) and 70(1)(g) of the WHS Act; and

(b) as a representative of a party to a work health and safety issue for the purpose of attending discussions with a view to resolving the issue under s 81(3) of the WHS Act.

The ABCC's view is that both of the above rights to enter work premises are State or Territory OHS rights for the purpose of s 494 of the Fair Work Act 2009 (Cth) (FW Act). Consequently, any official from your organisation seeking to exercise these rights is required to hold a Federal entry permit. This position is supported by the recent decision in Australian Building and Construction Commissioner v Powell [2017] FCAFC 89.

As you would be aware, you do not hold a Federal entry permit. Accordingly, you are not entitled to exercise a State or Territory OHS right (as defined by the FW Act). Seeking to exercise such a right may constitute a contravention of s. 494 of the FW Act, which carries a maximum civil penalty of $12,600 for an individual and $63,000 for an organisation.

Should the ABCC become aware of further instances in which you exercise these State or Territory OHS rights without having obtained a Federal entry permit, the ABCC may commence proceedings in relation to a contravention of s 494 of the FW Act. This letter may be submitted as evidence in any such proceedings that the issue was brought to your attention.

Mr Cartledge is invited to contact the author at his contact address should he wish to discuss this letter. The letter is signed Cliff Pettit, Deputy Commissioner, ABCC. I seek leave to table this letter.

Leave granted.

The Hon. T.A. FRANKS: So, the bogey that somehow this bill will allow one Aaron Cartledge of the CFMEU onto worksites unfettered I think should, with that letter and with that Powell legal decision, be put to rest. Certainly, the intent of this bill was also queried by the Hon. Rob Lucas as unnecessary. Indeed, some of the correspondence he referred to noted that it was unnecessary because we did not have exact harmonised laws.

One thing that South Australia has that is different to the other states is an increased training regime for occupational health and safety reps. That was an amendment that both myself and John Darley championed, and I am proud that we have better occupational health and safety training than the other states and territories. Another item that was raised was my several attempts now to introduce legislation that would have a charge of industrial manslaughter available to be used in this state where a person in a workplace had, through recklessness, negligence and so on, lost their life.

I am proud that we bring such pieces of legislation to this place. Indeed, when we harmonised the law, other jurisdictions did have industrial manslaughter provisions. The idea of harmonising occupational health and safety as a race to the bottom is not something that the Greens will support. It may be the wish of some in this council that we have the least protections, but that is not what the Greens will champion and believe, and we will not give up on that.

However, I am heartened because, if we are going to accept that if another jurisdiction has industrial manslaughter laws, I point out to the Hon. Rob Lucas that the Queensland government has just acted to ensure that in that state they will soon have industrial manslaughter laws. So, I welcome a change of heart, perhaps, if not a change of mind from the Liberal government. What else has changed? Most importantly that Powell case and the negotiation with the government. I extend my thanks to Jim Watson in the office of minister Rau for their compromise again on work health and safety, but in this case not a race to the bottom but, indeed, a workable solution.

Another thing that has changed is that we have 13 sitting days in this parliament before we may well have a new government. Perhaps this Weatherill Labor government is ensuring that, while they were exhausted and worn down by that over a year long debate some years back on work health and safety, they are securing the best work health and safety protections for South Australians should an outcome be not favourable to the current government come March next year, those protections have been secured rather than forsaken in the art of compromise, which of course we all know is common in this place.

Another thing that has changed is that the Greens have put the issue back on the agenda. We do so proudly. We do not do so at the behest of any particular group. We do it for all South Australians, and I would hope that members of this council here will be voting tonight not on the idea of some class war—I saw very Cold War or indeed coal war allusions made earlier in a speech—but on a process, putting aside the spear carrying, the polemics and the party politics and putting the safety of those people who work in our state as our priority.

With those few words, I look forward to further debate. I am sure there will be many questions, not only at clause 1, but through the evening. I commend the bill and note the amendment to come, and thank again all members for their contribution.

The council divided on the second reading.

Ayes 9

Noes 8

Majority 1

Second reading thus carried.

Committee Stage

In committee.

Clause 1.

The Hon. R.I. LUCAS: The Hon. Mr Darley made a statement in a question in the second reading, and it is an important one that needs to be explored with the Hon. Ms Franks during the committee stage and clause 1, and that is that someone has advised the Hon. Mr Darley wrongly that, under this bill, the advice provided to a health and safety representative will have to be from an expert, which was the question that he put, and the Hon. Ms Franks did not answer that particular question. That answer needs to be provided during the committee stage of the debate.

It is quite clear that, whoever has told the Hon. Mr Darley that, is just factually incorrect. What this bill does not currently do, but will do with the amendment to be moved by the Hon. Tammy Franks to delete 68(4), is mean that 68(2)(g), which is the main part of the powers and functions of the safety representatives that we are talking about, will say that, whenever necessary, in essence, a health and safety representative can request the assistance of any person—any person. It does not say 'any person who is an expert in health and safety matters', it does not say 'any person who has any knowledge at all of health and safety matters'—it just says 'any person'.

The proviso on 'any person' is what was in 68(4) of the legislation, which is what is proposed to be deleted. Section 68(4) says that subsection (2)(g) does not extend beyond a person who works at the workplace, a person who is involved in the management of the relevant business or undertaking, or a consultant who has been approved by the consultative council or a health and safety committee that has responsibilities in relation to the work group that the health and safety representative represents, or the person conducting the business or undertaking at the workplace, or the person's representative.

Then it defines what is a consultant: 'a person who is, by reason of his or her experience or qualifications, suitably qualified to advise on issues relating to work health, safety or welfare'. That is an expert, supposedly—that is the best definition of an expert. What has been done is that the expert has been taken out of this; contrary to what the Hon. Mr Darley has been told. What he has been told that will be supported is that we will make sure that the person who helps is an expert. It is quite the reverse.

The current act, which we all supported, provides that a consultant or an expert, or someone who is involved in the operation of the business, like the boss or someone else who is operating in the business, is the one who the health and safety representative can request the assistance of if they need assistance. So, the current act provides for the expert; what is being proposed is to get rid of the expert. Quite clearly, that is the intention of this: to get rid of the expert, the consultant, or whatever it might happen to be, and so all that will be left will be that the health and safety expert, wherever necessary, can request the assistance of any person. It does not have to be an expert. It can be an expert, but it does not have to be an expert.

As I indicated, these provisions interstate have been used to invite journalists on to a work site, not an expert in work health and safety, because the particular person at the work site has wanted to get either media coverage or television coverage of the immediate aftermath of a workplace incident and has invited a journalist on to the site.

It is clear that what is being proposed here will allow the invitation on to a work site of a media representative, a non-expert—or it could be an expert, but it does not require that it has to be an expert, contrary to the indication that has been given to the Hon. Mr Darley. I am very interested—because obviously you could not interject, within the standing orders, during the second reading response—for the Hon. Ms Franks to respond to the question the Hon. Mr Darley put, and that is that he was seeking confirmation from the Hon. Ms Franks that this particular amendment, and the proposals if supported, would mean that only experts were going to be able to assist the health and safety representative.

The Hon. T.A. FRANKS: I certainly looked forward to the committee stage of this debate, and I knew I would have lots of opportunities to respond to all the questions that were to be put. So, let us address this one. I am glad we have knocked on the head the idea that this is somehow a Trojan horse for the CFMEU, and I am hoping that we have got over the idea that this is only to do with building and construction sites and that we broaden our minds now and realise that this applies to the entirety of the state's workplaces.

The bill, as amended, does broaden the scale of work health and safety representation by removing the restrictions currently found in section 68(4); however, this will not lead to open slather arrangements, as has been bandied about, that would somehow allow unrestricted access to the workplace; for example, this idea of allowing media on the site. I would like to address that point first.

The Hon. Rob Lucas has pointed to examples of where media have been brought onto a site after an accident. I think once the accident has happened you know there is a problem with safety on the worksite. That is not actually what we are talking about here, but I invite the Hon. Rob Lucas to give examples of where these provisions have allowed media access to worksites. I am certainly interested to hear them, and I look forward to that response.

I continue. The effect of the existing provision, section 68, is that while the current subsection (4) would be removed, the balance of section 68 remains, as well as other provisions in the act, of course, defining the power and functions of HSRs who may request assistance under section 68(2)(g). Such requests must still fit within the prescribed functions of the HSR, which is focused on a capacity to resolve a work health and safety issue. A person providing assistance would, therefore, need to have practical experience and skills with regard to resolving such issues, and therefore the bill does not change the circumstances under which the assistance can be sought but just broadens the definition of who can be called in for that assistance.

The main reason for this change is so that assistants have the right experience or expertise to actually help, while dispensing with the need to wait for that committee approval. For example, it is no good calling in a crane expert to deal with a scissor lift issue or vice versa, or, to get off the building sites, it is no good to call in an expert in commercial kitchens in the context of a problem or suspected problem with a science lab. The scope of an HSR calling for assistance remains constrained by section 68(1) as follows:

The powers and functions of a health and safety representative for a work group are—

(a) to represent the workers in the work group in matters relating to work health and safety; and

(b) to monitor the measures taken by the person conducting the relevant business or undertaking, or that person's representative, in compliance with this act in relation to workers in the work group; and

(c) to investigate complaints from members of the work group relating to work health and safety; and

(d) to inquire into anything that appears to be a risk to the health or safety of workers in the work group, arising from the conduct of the business or undertaking.

The example of calling in the media for assistance simply would not fit within this function of representing workers 'in matters relating to work health and safety'. I also note the effect of section 65; in fact, an HRS attempting to call in the media using the provisions of this bill would be subject to disqualification, falling foul of section 65(1)(a), exercising a power or performing a function as a health and safety representative for an improper purpose. Section 65—Disqualification of health and safety representatives, provides:

(1) An application may be made to SAET to disqualify a health and safety representative on the ground that the representative has—

(a) exercised a power or performed a function as a health and safety representative for an improper purpose; or

(b) used or disclosed any information he or she acquired as a health and safety representative for a purpose other than in connection with the role of health and safety representative.

I hope that answers the member's questions.

The Hon. R.I. LUCAS: The Hon. Tammy Franks has just freely conceded that the person does not have to be an expert, and that is the question the Hon. Mr Darley put. It is quite clear, it does not matter what other provisions the Hon. Tammy Franks wants to refer to in her attempted response to the Hon. Mr Darley's very perceptive question, 68(2)(g) quite clearly says, 'request the assistance of any person'. The only restriction on that 'any person' was what is being proposed to be deleted by the Hon. Tammy Franks' bill.

The current provisions of the act provide that when you look at 'any person'—and that is why the amendment was introduced: it was introduced to try to say that these people should be able to provide some expertise (and the word used was 'consultant' not 'expert'). However, the consultant, I remind members, is someone who, by reason of his or her experience or qualifications, is suitably qualified to advise on issues relating to work health safety. Why would you want to get rid of that provision—someone who is an expert, albeit the legislation calls it a consultant, at work health and safety? What the current legislation states is that if a health and safety rep, who could be a union member—I repeat the point: if the workers actually want a union member to be their health and safety rep they can elect a union member.

So, let's not go down this path where I think the Hon. Tammy Franks and others, the CFMEU, are seeking to portray this as the unions being locked out of work health and safety issues. Far from it, as I indicated in the second reading, they have and continue to have considerable access to worksites and powers and if the workers want a union member to be the health and safety rep they can do so. If they want to elect a consultant or an expert who is an appropriately qualified union officer or member they can do so as well.

However, the current act has in it the expert and states, if a health and safety rep says, 'Look this is all pretty difficult, I need some help. I want to get an expert in'—albeit called a consultant—that is what the current act does. The proposal is to get rid of the expert and the consultant as a requirement and say, 'You can go and get any person. You can get any Tom, Dick or Harry. It does not have to be just the media example. It could be the media, it could be any Tom, Dick or Harry.' It is 'any person'. There are no restrictions, as the current act has, in terms of the sort of person who might be involved to assist the health and safety rep in trying to resolve a health and safety issue.

No amount of sophistry from the Hon. Tammy Franks is going to get around the point that there is nothing in the proposal from the Hon. Tammy Franks that talks about experts anymore. In fact, it does the reverse; it gets rid of the experts from the legislation as a requirement. It opens it up and, as I said and I acknowledge, the health and safety rep could, of their own volition, choose to get an expert or a consultant if they wish, but there is no requirement to get someone suitably qualified in work health and safety if they do not wish to. That will be a choice for them.

Certainly, I think to any reasonable person listening to both the question from the Hon. Mr Darley and the answer from the Hon. Ms Franks will have to say that the only issue in relation to experts here is that this proposed bill is going to get rid of the experts as a requirement and will say the health and safety rep can get assistance from any person; it does not have to be an expert or a consultant with expertise in the area of work health and safety.

The Hon. T.A. FRANKS: I remind the Hon. Rob Lucas yet again of the protections of section 65, which guards against improper purposes and provides provisions to address any improper person, and again invite him to give these examples of media being invited onto sites in these situations.

The Hon. R.I. LUCAS: The Hon. Ms Franks knows full well that section 65 requires ex post—it says that an application may be made to the South Australian Employment Tribunal to disqualify someone—and then you are going to have to make a case that they have improperly exercised a function as a health and safety representative. So, someone, after the event, is going to have to go to the trouble of taking, in essence, legal advice and legal action in the Employment Tribunal to disqualify someone on the basis of an argument that they have done something which was for an improper purpose.

It is a very high legal bar to resolve for an improper purpose. I would invite the Hon. Tammy Franks to take legal advice on trying to meet that legal threshold of an improper purpose in relation to the work of a health and safety representative, not a genuine mistake, a well-intentioned mistake or whatever it might be. It is an improper purpose that they would have to be found guilty of. Good luck with trying to prove that in front of the Employment Tribunal. I think the Hon. Tammy Franks knows that, and that is just a furphy or a diversion.

It does not address the fundamental issue that it is her amendment that is getting rid of the experts. It is quite the contrary of whoever has told the Hon. Mr Darley that what he is supporting is a requirement for there to be experts. It is for the Hon. Mr Darley to indicate who has given him that information, but the Hon. Mr Darley made it quite clear that he was supporting this on the basis of an understanding he had been given that this was going to require experts. It is quite the contrary.

I can understand if there has been some sophistry in relation to the manoeuvring of what the intentions of the bill might be, but to tell somebody that this bill is going to require experts, when it actually takes the experts out of the legislation as a requirement, is completely the reverse of what is being done. It is an extraordinary set of circumstances in terms of the claim that has been given to the Hon. Mr Darley about the actual impact of the legislation if it eventually passes the parliament in the House of Assembly.

The Hon. T.A. FRANKS: I invite the Hon. Rob Lucas, for the third time, to give these examples, these mythical examples, of the media somehow coming onto worksites and how they would not, of course, come under a definition of improper purpose. I note that he has thought that somehow a mistake or a well-meaning error would not come under the definition of improper purpose, and I think that is probably for the best if somebody has not meant harm. Given that sophistry is the word of the night, I also invite the Hon. Rob Lucas and, indeed, all members of the council to fully read section 68(2)(g):

In exercising a power or performing a function, the health and safety representative may…whenever necessary, request the assistance of any person.

Therefore, it is not any person unfettered: it has to be done within the HSR exercising that power or performing that function as defined in subsection (1), so there are your further protections. It also helps not to cherrypick simple parts that the Hon. Rob Lucas likes to make fun of. Many of us who were here in this chamber for the work health and safety first harmonised legislation remember the well over a year we debated that legislation for, and I know who the real sophist is.

The Hon. R.I. LUCAS: That is just a nonsense argument. The only addition the honourable member has added to section 68(2)(g) was the introduction of the first words in subsection (2), which were quite clear:

In exercising a power or performing a function, the health and safety representative may…whenever necessary, request the assistance of any person.

Of course that is the case. What else would you expect a health and safety representative to do? The health and safety representative is there for health and safety reasons and to exercise a power or whatever it happens to be. That does not limit the argument in relation to 'any person'. The issue we are addressing here is: does the bill, as the Hon. Mr Darley has been told by somebody, require experts? That is the reason why he says he is supporting it. It does not: it is taking the experts out. The provision in the legislation has the experts, albeit they are called consultants. It does not matter how the Hon. Tammy Franks wants to dress it up—

The Hon. I.K. Hunter: Talk about sophistry.

The Hon. R.I. LUCAS: Or sophistry, for example. It does not matter how the Hon. Tammy Franks, if she prefers the phrase, dresses it up; the issue is that it is quite clear that it does not require the use of experts. It says 'any person'. The experts are in the legislation at the moment and it is proposed by this particular bill that they be taken out, if the bill passes the house.

Clause passed.

Clauses 2 to 3 passed.

Clause 4.

The Hon. T.A. FRANKS: I move:

Amendment No 1 [Franks–1]—

Page 2, line 15 to page 3, line 3 [clause (4)(1)]—Delete subclause (1) and substitute:

(1) Section 68(4)—delete subsection (4)

I note that I have done so in consultation with the minister's office and again thank his adviser Jim Watson for coming to this compromise. I commend the amendment to the chamber.

The Hon. R.I. LUCAS: I assume the Hon. Ms Franks's preferred position was the bill she introduced. The arguments that are in the second reading obviously address her bill rather than the amendment that is now being moved. How does she see her proposed amendment fitting with her argument in the second reading in relation to the model bill?

The Hon. T.A. FRANKS: I did actually address that topic in my second reading contribution. I noted that this was indeed a further compromise and that the Greens would go for a greater strengthening of our protections for worker safety. Indeed, the Hon. John Darley fought for extra training days for work health and safety representatives. I acknowledge this is the art not of sophistry but of compromise in politics and that the government has seen fit to support this form of words.

The Hon. R.I. LUCAS: Does the Hon. Ms Franks indicate that the government was not prepared to support the amendment originally proposed in the honourable member's bill?

The Hon. T.A. FRANKS: Yes.

Amendment carried; clause as amended passed.

Title passed.

Bill reported with amendment.

Third Reading

The Hon. T.A. FRANKS (21:17): I move:

That this bill be now read a third time.

The council divided on the third reading:

Ayes 9

Noes 8

Majority 1

Third reading thus carried; bill passed.