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House of Assembly - Fifty-Second Parliament, First Session (52-1)
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WORK HEALTH AND SAFETY BILL

Second Reading

Adjourned debate on second reading.

(Continued from 28 September 2011.)

The Hon. I.F. EVANS (Davenport) (17:13): I am continuing my remarks as the lead speaker on the Work Health and Safety Bill, following its adjournment when the house was last sitting. Leading into the adjournment, as part of my contribution on the last day of sitting, I was talking about the Australian housing industry being largely made up of subcontractors, particularly the South Australian Housing Industry Association, and how this particular bill was an attack on the subcontracting system and how that would ultimately put up the cost of housing in South Australia as a result.

I talked about the 5,000 pages of codes and 600 pages of regulation, and the Housing Industry Association has done independent work to look at the extra cost on housing within South Australia. I refer to a document presented to the Housing Industry Association on 23 September, so only a month ago, from Rider Levett Bucknall.

Rider Levett Bucknall are the same people the government has used to cost the Adelaide Oval upgrade, so the government thinks they are a credible source, I think the Housing Industry Association believes they are a credible source, and I think the opposition believes they might be a credible source. They have done some work on the cost of compliance with the model Work Health and Safety Bill. They say that they have reviewed the document and they summarise the cost as follows.

The Housing Industry Association has done its own costings and believes that under its modelling the price of housing would go up; for a single-storey house the housing industry predicted $15,940. Rider Levett Bucknall estimate $15,476. For a double-storey home, the Housing Industry Association estimated $22,600 and Rider Levett Bucknall estimate an increased cost of $21,918.

The Rider Levett Bucknall estimate is based on the competitively tendered rates and conditions applicable to the residential construction market as of September 2011, and surprisingly the estimate does not include anything to do with the GST or indeed a builder's margin. Add the GST, add the profit margin and you will get a significant increase to the cost of housing as a result of this particular provision.

In fairness to the house, the increasing cost is not in the legislation itself; it is ultimately in the regulations and the codes that are attached to the legislation. As always, the devil is in the detail and the increased cost is in the regulations. The increased costs primarily come about through a whole range of new requirements or amended requirements of the Housing Industry Association in relation to what they now have to do under this bill which they would not necessarily have had to do under the previous legislation.

In regard to site preparation, they are talking about site fencing—all sites need to be fenced now—all-weather access, rubbish removal, induction audit and site management. They are talking about traffic management for residential buildings, different requirements for plumbers in relation to trenching, different scaffolding requirements in relation to ceiling fixers, and different requirements for truss erection, tile and sheet roofing construction and gable construction and painting.

They are talking about different requirements for brickwork, and for the rendering of cables. They are talking about different requirements for scaffolding for all trades, different design requirements as a result of these issues, and other costs such as a requirement to hire a cherry picker if you want to put on a solar hot water service, air conditioning or an evaporative cooler.

These are not my estimates, although I declared to the house previously that I was from the building industry. These are the estimates from the Housing Industry Association, and the reality is that they will push up the cost of housing as a result of this particular provision introduced by the government which is changes to the work and safety act or the occupational health and safety legislation, as some would know it.

The government claims and SafeWork SA claims that they have done their figures. I challenge the government to release the figures and show that they have been done by a licensed quantity surveyor, or by a quantity surveyor from the building industry, and not from a best-guess consultant. I challenge the government to release the figures, done by a quantity surveyor who is familiar with the housing industry, and let us see what they say about the increase in costs this is going to put on to the housing industry.

There is absolutely no doubt in my mind, having come from that industry, having worked in it for many years, that this legislation, through its codes and its regulations, is going to increase the cost of housing significantly, all on the basis of harmonisation, that there is this great love that all of Australia needs to be the same. All in the great name of harmonisation is this cost being imposed on South Australians.

We have had our occupational health and safety system in place for years, that has worked reasonably well, but for some reason the government wants to harmonise laws nationally. The reason tends to be that those businesses that trade across the states want to have the same regulation. The problem I have with this in terms of this debate is simply this: according to the government's own figures, of the 110,000 small businesses that exists in South Australia that are going to be under this particular provision, because it applies to all industries, not just the building industry, only 6,000 trade across the borders. Only 6,000, according to the government's own figures, trade across the border.

The Hon. J.J. Snelling interjecting:

The Hon. I.F. EVANS: The Treasurer interjects: how many workers do those people employ? They would employ a significant number because they tend to be the larger employers. I accept that they certainly have a significant number of employees or, indeed, they use a significant number of contractors. However, all the other 104,000 businesses in South Australia employ a lot of people too. My own family's retailing business run by my sister has six or seven shops and must employ 30 or 40 people, and there are thousands of those out there.

I do not have the figures in front of me, but the Treasurer happens to be the minister for employment, or has access to the details at least for the employment figures. I will invite the Treasurer to bring those figures back. However, regardless of the number of employees, the great tragedy is this—and I will challenge the Treasurer to produce the figures. We are going to be here very late tonight because I have a few documents to go through. We see that the federal government—

Mrs Geraghty interjecting:

The Hon. I.F. EVANS: Well, the member for Torrens need not interject; it will only hold me up. The federal government did a regulation impact statement for the new laws. I am not sure whether the other side of the house is aware of this, but what does the impact statement on the cost of business say? It states that for the single state business—so those 104,000 businesses that I am talking about—the outcome is not clear. I am quoting from page 3 of the executive summary of the regulatory impact statement.

The government has waltzed in, gone to the ministerial council meeting, and the new minister, very enthusiastic to impress his colleagues, has signed up for the harmonisation program, and the regulatory impact statement at the federal level states that the impact on the 104,000 businesses that do not trade across borders—so, your butcher, your baker, your candlestick maker, the little operator in South Australia—cannot be clear about what the impact is. Well, I can tell you what the impact is going to be on the housing industry, because they are your plumber, your electrician, your plasterer, your bricklayer, your ceiling fixer, your roofer. They are the small businesses that drive this economy, and the impact on those people is going to be a significant increase—over $15,000 for a single-storey house and over $21,000 for a double-storey house.

I challenge the government to release the figures that show the impact on those businesses that do not trade across borders—the 104,000, because, for the officers who push this harmonisation, I say go and look at what happened when we went to a national industrial system, and the cost to the retailing industry was significant. I know one business that, for exactly the same roster, hour by hour, person by person, the increase costs were over $30,000 a year, and for that the business got the joy of saying that their industrial relations law was the same as Bundaberg and Bunbury. The Blackwood business got to say, 'We're the same as Bundaberg and Bunbury.'

Well, they are pretty excited about that—$30,000 extra in costs. And exactly the same thing will happen under this provision, under this law, because the government cannot produce a regulatory impact statement that shows what is going to happen to those businesses that trade within the one state. The Regulatory Impact Statement says:

The object of harmonising the work health and safety regulations are as follows:

Reduce compliance costs for business;

For multistate businesses nationally, consistent acts should equate to lower compliance costs.

Well, we are yet to have that proven. It then goes on:

For single state businesses the outcome is not clear.

They are not my words, they are the words of the federal government. But all those small businesses out there that are struggling under the highest taxes, the worst WorkCover scheme in Australia and the carbon tax, all those things that are making business very difficult, you can relax because, once we harmonise all the laws and bring in this extra cost to you, what the system is going to say, what the legislation promises, is that they will do an analysis of the actual impacts in 2015, and that is on page 4.

They have had every level of government in Australia looking at this, every state government, every federal government in South Australia looking at this, and through all of the Public Service, through all of the energy of the ministers there is not one that can produce a set of figures that is going to say to the single state business what the increase cost is, but they have got the capacity to do it in 2015—'We have got the capacity to do it in 2015. Don't worry, put it in first, then we'll tell you how much it's going to cost.'

If they have got the capacity to do it in 2015, then why have they not got the capacity to do it in 2009, 2010 or 2011 when this has been discussed? Why have they not got the capacity? It absolutely staggers me as to why you get to this point in the debate and have that issue not resolved, because I suspect that there are many employees in the single state business—if not more than those businesses—who trade across borders, and there has been absolutely no analysis in relation to the cost on those businesses.

With all due respect to the industry associations, it is the one-man and two-man operations that sometimes struggle to be totally informed about the changes that are being made.

The theory behind this legislation is that Australia needs one set of occupational health and safety laws because that is going to somehow deliver benefits, and I think there will be some argument from those who do trade across borders about harmonisation and reduction in costs. But where are we up to, in actual fact, when we look at the debate around Australia? I refer to an update that I received today, but when it was issued I am not quite sure. This is a summary of the harmonised law around Australia dated October 2011, so it was issued this month. It says:

The Victorian government last week caused great surprise when it called on the commonwealth to delay the implementation of [this particular act in Victoria] scheduled to commence on 1 January 2012.

The reason for that is that the Victorian government is going out to do exactly what I have called for. It is going out to model the cost on single state businesses to see what the actual effect is. Well done, Victorian government! This note goes on:

In 2009, the federal government, in consultation with the states and territories, agreed to establish a new set of national work health and safety...laws.

I will repeat that, 2009. I will reinforce the point. From 2009 to 2011 is nearly three years. Not one bureaucracy has done the calculation of the cost on the single state business but they are going to do it within 24 months if the bill gets through. It states:

In 2009, the federal government, in consultation with the states and territories, agreed to establish a new set of national work health and safety...laws, to commence 1 January 2012.

It goes on to give a summary of each jurisdiction:

With only three governments (Australian Capital Territory, New South Wales and Queensland) having passed legislation to date—

Even the commonwealth has not passed this legislation. It wants to start on 1 January, which is eight or nine weeks away, and even the commonwealth has not yet passed it. New South Wales and Queensland have passed it and—

with...parliaments closed from mid December through to the beginning of February, the proposed national commencement date of 1 January 2012 is now unlikely to be achieved.

SafeWork Australia published the model act in June 2011 following a consultation process. It goes on:

The following table summarises the current position of each state and territory and actions to date:

It is a fascinating read. It says that the Australian Capital Territory passed it on 6 June, with the commencement date yet to be proclaimed. New South Wales passed it on 7 June, to commence on 1 January, but it made changes to the model law so the model law is not the same in New South Wales as is being proposed in South Australia or Victoria or Western Australia or Queensland. It is the same nowhere. They are harmonising the law except it is not in harmony in any of the states. The Northern Territory has no legislation. The Queensland act was passed on 29 September with a starting date yet to be proclaimed.

South Australia reads like a tale of woe. The bill was introduced into the lower house on 19 May 2011. The debate on the bill was adjourned at the last sitting of 28 September 2011. They are hoping that we will pass the bill in October. The upper house will then have to sit six sitting days in November to debate and pass the bill.

Tasmania has no legislation. Victoria has no legislation and will not commence on 1 January 2012. Western Australia has no legislation and will not commence on 1 January 2012. At present, none of the states or territories has released the regulations that are associated with this bill. There are 600 pages of regulations that attach to this bill and none of the states has yet released it. As I said earlier in my contribution about the increased cost to business, the devil is in the detail, it is in the regulations, and there are something like 5,000 or 6,000 pages of codes. A lot of the increased cost is in the codes.

Although South Australia was the first to introduce the bill on 7 April 2011, the passing of the model act has stalled, initially by the resignation of the relevant minister and more recently by debate over OH&S union right of entry and the removal of the right to silence which had not previously featured in South Australia's OH&S laws. South Australia is also divided over increased penalties and the use of the concept 'persons controlling a business or undertaking' which it is argued is unclear in comparison to the current South Australian concept.

Western Australia has made it clear that it will not be in a position to pass the legislation by 1 January 2012. While the vast majority of the proposed model laws are likely to be adopted, the government has indicated that it will not accept an increase in penalties, union entry rights and the reverse onus of proof in discrimination matters. The Western Australian government also has concerns over the power of health and safety reps to direct the cessation of work.

The Tasmanian and Northern Territory governments have confirmed that they will introduce the bills in late October 2011. These two proposals may, however, be delayed following Victoria's recent request for postponement. While the initial commencement date of 1 January 2012 may not be achieved, this briefing to business says that they hope to get the green light some time in the next year.

My point is twofold. One, we do not need to rush this legislation because no other state is going to be starting it on 1 January 2012 and that will give the government a chance to go away and do some sums on the cost to business. The second point is that the legislation will not be harmonised. Every state is going to characterise the legislation to suit its own purposes. If you are going to do that then the question is why not leave the key elements of the existing legislation in place? Why go through the process to increase costs to the business community?

You would assume that the reason you would be introducing occupational health and safety legislation would be because you wanted to reduce workplace injury, so I thought I had better check to see whether workplace injury is going up or down in South Australia. According to WorkCover's annual report—WorkCover dealing with the claims arising out of workplace injury—the number of claims has gone down.

They have gone down 26,610 in the 2001 financial year; then 25,050 in the 2001-02 financial year; 24,030 in the 2002-03 financial year; 24,720 in the 2003-04 financial year; 24,070 in the 2004-05 financial year; 22,660 in the 2005-06 financial year; 21,930 in the 2006-07 financial year; 21,000 in the 2007-08 financial year; 19,710 in the 2008-09 financial year; and 19,740 in the 2009-10 financial year. There has been a slow decline in the number of claims and over that decade it has essentially gone from 26,000 down to 19,500, so workplace injuries in South Australia are going down.

Workplace injuries are going down so why should business be hit? Why should taxpayers be hit with an increase in costs when workplace injuries have actually gone down? They are not the opposition's figures, they are straight out of the WorkCover annual report.

You can imagine that a lot of submissions have been given to the opposition. The Treasurer will be pleased to know that I do not intend to read all of the submissions, but I can if he wants me to. I want to touch on some of the submissions because they will highlight a few points. The Australian Hotels Association has written to the opposition in very simple terms. In a letter of 26 September to Hon. Mr Lucas, lead speaker in the other place, and the shadow minister handling this bill on behalf of the opposition, they say:

We write to you in relation to the model Work Health and Safety Bill. We have well-founded concerns about this bill in its present form and ask that you vote against its adoption.

So, the hotels industry is opposed to the bill per se. Business SA wrote to the opposition on 12 September this year saying they are concerned with the bill in its current form and that it will not provide suitable legislation for South Australian workplaces, and they state:

But rather it removes some important rights of employers and, it has the potential to create confusion amongst employers.

Of the major issues of concern are:

1. Right of Representation for Employers—there is an express right of representation for workers but not for Employers (known as a Person Conducting a Business or Undertaking (PCBU).

2. The Control Test—currently an employer is responsible for safety where the employer has 'control' over the matter. Under the proposed Bill, the 'control test' is removed and the obligations on the employer are more onerous and somewhat ambiguous. This is likely to lead to litigation and new precedent case law. In addition, it contradicts the ILO Convention No.155, article 16 (which I have no doubt is one of the Treasurer's favourites).

3. Definition of 'any person'—in regards to Health Safety Representatives (HSRs), the Bill enables a HSR to 'enlist' the assistance of any person regarding a safety issue. In our view this could lead to a HSR having the media called in to assist by placing a public scrutiny on an employer/worksite. Last year at the Desalination Plant a safety delegate and the Union attempted to have the media go on site when there was a fatality, however, were precluded from doing so because of the current OHS legislation.

4. Penalties/Infringement Notices and Enforceable Undertakings—the quantum of Penalties and Infringement Notices is excessive, particularly in regards to small business.

5. Enactment date—the proposed date of enactment of the SA WHS legislation is 1 January 2012. However, given the significance and complexity of the new legislation, businesses and in particular small business, will not be ready by 1 January 2012. The enactment date should be delayed until 2013 (as will be the case in WA) or at least until 1 July 2012.

6. The right to silence and protection from self incrimination—the proposed Bill seeks to remove this right. This is a right at criminal law and the WHS prosecutions will be criminal matters.

7. Union Right of Entry—there is no right of entry under the current legislation and there has been no evidence to suggest why such a right of entry is necessary.

Business SA has clearly set out their concerns with the bill, and to my knowledge there is nothing that the government is proposing that goes any way to dealing with those matters.

The Housing Industry Association has called on the government to delay the flawed bill. They put out a press release on 12 September urging the state government not to push ahead with the proposed Work Health and Safety Bill in the current session of parliament; so they want it put off for some time. Their press release states that the bill is significantly flawed. It fails to improve safety requirements in South Australia but adds enormous complexity and cost, particularly in regard to residential construction.

The Victorian government today (12 September), questioned the cost benefit of the model act and the lack of timing for industry to prepare for changes. The Rann government has claimed the bill is in response to national harmonisation, however, not all states and territories have passed the act and those that have done so have made significant changes to the model act to the extent that rather than there being harmonisation there is indeed a discordant chorus.

There is no demonstrated need for the changes given that South Australia generally enjoys a good safety record, particularly in residential construction and particularly when compared to other states and territories. The cost to the home owner in South Australia will be considerable, and I have gone through those costs earlier in my debate.

These added costs will be imposed upon an industry which is already on its knees with the lowest number of approvals for many years. The industry has seen significant layoffs and unemployment, not only among builders but also subcontractors, manufacturers and suppliers. So, they call on the government, in line with the Victorian government, to re-think its position on the timing of this bill and not to add further costs to the construction industry at a time when many of its members are struggling to survive. So, the Housing Industry Association wants it deferred.

Something the minister might want to address in his response is the issue of the discussions that were had at a national level about whether these laws should not apply to the residential building sector. I understand that at a national SIG meeting there was a move to remove housing from the new national regime. Tasmania, the Northern Territory, the ACT and ACCI voted in favour, while Queensland, Victoria, New South Wales, TLC and South Australia voted against it. If the minister could confirm whether that occurred and the reasons why, then I would be interested to read that in his second reading response.

I mentioned earlier the level of workplace injuries falling. I make the point that if you look at the WorkCover SA statistical review part 1, 2008-09, total claims by years for registered employers, in the registered employers section, which are mainly the small businesses—it is the big businesses that are self-insured—the total claims in 1993-94 were 40,618. This particular chart goes up to the year 2008-09, there were 20,361 claims.

The level of claims has halved. It has halved in 15 years. That is a cooperative effort, with the parliament through legislation, governments of both colours through education programs, employers and employees working together, and the number of claims has halved.

It is hard to make an argument, and I have yet to hear the argument, that the South Australian occupational health and safety laws are not working. Show me another state that has reduced its injury rate by half over that period. I would be happy for the minister to bring back those particular stats in his response in due course.

If you want to look at the level of claims for the self-insureds, which is the bigger end of town and tend to be the bigger employers, which the Treasurer was interjecting about earlier, they would be part of the 6,000 businesses in South Australia that trade across borders. In 1995-96 there were 8,687 claims and in 2008-09 there were 7,000 claims. So, their claims have gone down by 1,600 over that period: 1,600 in 8,500, rough enough, 20 per cent.

So, you have the small end of town registered with WorkCover, and the evidence shows that the injury rate has halved; and, on the big end of town, which this legislation will help, the injury rate is reduced by 20 per cent. It is hard to mount the argument, in my view, that the health and safety laws are not working in South Australia, but we are going to change them for the sake of being the same.

I mentioned in my previous contribution to this debate a couple of weeks ago, before it was adjourned, that I worked in the building industry and I worked as a chippie for some time. For those who are not familiar, that would be a carpenter. Although in fairness, I think my brother would argue that I did not actually work as a carpenter.

Mr Williams: And when you did you were more like a firewood producer.

The Hon. I.F. EVANS: No, he reckons I was the gofer. I have here the comments from Ken Phillips of the contractors' association of Australia. This is an association that looks after the independent contractors throughout Australia. This is the group that will be very much impacted by this bill. He argues as follows:

Australia's OHS laws are specific to each state and territory. They generally comply, however, with international principles that state everyone is responsible for safety according to what people 'reasonably and practicably control'. Those three words, locked together, give each person a clear sense that they must be responsible for safety.

There is also a good thirty years of legal precedent supporting what reasonable, practicable control means when it comes to OHS prosecutions.

New South Wales was the standout exception. NSW laws held that employers were automatically guilty whether they had control or not, even if they had acted reasonably or practicably. It was this NSW disconnect from the rest of Australia that caused pressure to harmonise the laws across Australia.

It was the laws in New South Wales that were so out of kilter with the rest of Australia that they have signed off on harmonisation. So, the rest of Australia is going to suffer a penalty just because the union movement in New South Wales has been able to introduce a system through the governments of the day to make it so much tougher and more difficult to operate in New South Wales. Mr Phillips continues:

When all governments agreed to a harmonised model in 2009, it appeared that the NSW model had been dropped. This is where I declared victory for the white hats. The NSW laws pushed a focus away from prevention and systematically-caused injustices in prosecution.

On the surface, Australia's governments appeared to agree to embed the principles of 'reasonable and practicable control'. What's unfolded, however, in the detail of the new model laws is something different. The laws include 'reasonable and practicable' but have removed 'control'. That is, everyone is to be held responsible for safety according to what they consider reasonable and practicable. It doesn't make sense, as I detail here. Essentially, no one will be sure if they are responsible for safety or not.

Instead, you will be held responsible if you are a 'person conducting a business or undertaking', or PCBU, and if you 'influence' work. This also doesn't make sense. It's a new and untested concept both at law and in a practical sense. It's dangerous because it's confusing for work safety, particularly prevention. What will happen is that people will wonder if they are a PCBU—

that is, a person conducting a business or undertaking—

and wonder if they are responsible for safety or not. People will wonder if they have influence. This sort of confusion is the reverse of what's needed in good OH[&]S laws.

This PCBU concept will also require extensive legal testing before [any] clarity is achieved. My bet is that it will take [some] 15 or so years...several High Court rulings before clarity is achieved. This is not a pathway to good work safety laws.

The harmonisation process requires each state to enact the model laws. [New South Wales] have done this. It's an improvement for them [New South Wales] because they've rid themselves of their prior bad laws.

But as the realisation of the flaws in the model...have now spread, implementation is being delayed in Victoria, South Australia and Western Australia at least, and could possibly not even occur. My analysis comparing Victoria's current laws to the model laws, and South Australia's laws to the model laws, shows [some] stark differences.

In the way the harmonisation process has been handled, there's a sense of...sleight-of-hand con in play. The federal government pushes harmonisation seemingly for harmonisation's sake, without a full debate over the fundamental new area of law being created. This is not the way work safety laws should be handled.

Further, sitting deep inside the model laws are disturbing aspects not at all discussed. [The] OH[&]S law is [a] criminal law. Yet the model harmonised law takes away basic rights of criminal justice—namely the right to silence and [the] protection from self-incrimination.

There's more: the harmonised laws allow a work safe authority to seize a business without court supervision. This is not something that exists in current laws.

The Victorian government has said they agree to harmonisation on the condition that the new laws do not damage work safety or [business]. My analysis says...this would be the outcome.

In South Australia, attempts to introduce the harmonised laws were defeated in the Upper House early this year.

I think, in actual fact, he is wrong there. I think they were withdrawn rather than defeated.

The government is trying again but the opposition and independents continue to see [the] major flaws.

There's a simple principle that must be in place. [Harmonisation] of...safety laws should only occur where an improvement in the work safety environment can be demonstrated. Anything [else], risks work safety. These new laws put safety at risk.

I think Mr Phillips makes a very good point and the point that the government has failed to illustrate is, given that workplace injuries have reduced over the last 15 to 20 years, both in the small business sector and the self-insured sector, where is the evidence that these laws will actually produce a reduction in the workplace injuries? Then, if it does produce a reduction in workplace injuries, where is the evidence from the government, or the research from the government, about the costs?

I mentioned earlier the regulatory impact statement put out by the federal government, and the minister can take this on notice. Industry groups are suggesting to me that the regulatory impact statement that came out with some savings at the national level was an internet survey of less than 100 companies. I would be interested to get the information. I do not know whether that is true. That has certainly been put to me.

I would be interested in the minister coming back in due course to let the parliament know how many businesses they surveyed, whether they were big or small businesses, as far as employees go, and the state make up. I wonder how many South Australian businesses were interviewed as part of the regulatory impact statement undertaken by the federal government.

Ken Phillips has put out a number of comments on this and here is another one where he was talking about the harmonisation process. In fact, I think I have just covered that territory, so I will not go back there.

A further aspect I want clarified from the minister, and I raise it now so he can come and give me a detailed response as part of the second reading contribution, is the issue of whether householders—


[Sitting suspended from 17:59 to 19:30]


The Hon. I.F. EVANS: Before the very enjoyable dinner break, which may add to the length of the contribution, I was about to raise the impact on households of the health and safety bill as proposed. I am quoting from the report of a Queensland consultant, which has given a written brief to its clients on the national OH&S harmonisation safety concepts question-and-answer. It raises the following issue: are at-home workers (for example, nannies, cleaners and, I dare say, gardeners) considered workers? The answer to that question, according to this consultant's report, is yes:

In this situation, where an individual ('the resident') chooses to employ a worker rather than engage a contractor for domestic reasons, the resident is entering into an employment relationship and exercises a higher degree of control over the work being carried out by the worker. While the resident is not employing the worker as part of a business, employing the worker to carry out certain duties at home would be regarded as an undertaking. Consequently the resident has a duty of care as a PCBU under the new laws and the person employed by the resident has the worker's duty of care.

The issue here becomes twofold. Firstly, is it possible for a contractor to be deemed an employee under any of the current acts? Is it possible for a contractor to be deemed an employee if you have an ongoing relationship with the contractor? For instance, I know that in my business, if I employ a casual on a regular basis over a two-year period, the casual becomes permanent. I just wonder whether a similar thing can happen with a contractor, whether if you contract the same contractor on the same basis over a period of many years an employee/employer relationship then develops.

The second point I want to make is what happens with investment properties? With investment properties, I am not the resident. With the investment property, I am conducting a business. As a business person, asking a contractor to go in and fix plumbing, painting, electrical—whatever—is the relationship different? Is the relationship different between the home resident and the contractor and the investment property and the contractor? There is a very important provision in this bill and that is that the wording has been changed to include a nebulous word, 'undertaking'.

If you are involved in doing an undertaking, then the new laws kick in. There are certain obligations on the person doing the undertaking and there are certain obligations on the person in the facility or on the site where the undertaking is taking place. I would like the Treasurer to clarify for the house what the circumstances are for the home resident and what the circumstances are for an investment property. I think that will be of interest to the committee, when we get there.

The other issue that is of concern to the opposition is the issue of volunteering. This particular discussion paper, put out by Safety Concepts, raises the issue of how this bill deals with volunteers. It raises the question: do volunteer businesses have an obligation now? It answers it in this way:

In answering this question, a distinction needs to be made between a charitable or community service organisation that does volunteer work and a 'volunteer association' under the...act. A charitable or community service organisation such as an RSL or Blue Nurses, for example, because it is usually incorporated and conducts its operations with a degree of organisation and repetition, does conduct a business or undertaking and will have duties under the...act.

On the other hand, a 'volunteer association' means a group of volunteers working together for one or more community purposes where none of the volunteers, whether alone or jointly with any other volunteers, employs any person to carry out work for volunteer association. Such a group is not regarded as conducting a business or undertaking for the purposes of the...act, and therefore the volunteer association does not have a duty of a person conducting a business or undertaking [a famous] PCBU under the act. An example of a volunteer association not intended to be regarded as a PCBU would be a swimming club at the local primary school which is run by parents and no other person is employed by the club.

Let me walk through that, because this needs a lot of thought. There are lots of volunteer organisations out there, some incorporated, some not incorporated. A lot of community organisations have vastly different structures. Some are sole clubs, some are members of associations, and some are members of national organisations. I want to walk through each one of them, because I, as the house would recall, have a strong interest in the volunteer community, coming from that background. So, let's walk through it. It states:

A charitable or community service organisation such as an RSL or Blue Nurses, for example, because it is usually incorporated and conducts its operations with a degree of organisation and repetition, does conduct a business or undertaking and will have duties under the...act.

On the other hand, a 'volunteer association' means a group of volunteers working together for one or more community purposes where none of the volunteers, whether alone or jointly with any other volunteers, employs any person...

The local netball association has raised this with me. The local netball club pays a coaching fee—pays for a coach. Does that mean that the volunteers, alone or jointly, have then employed a coach and therefore the netball club comes under the coverage of the bill? What about the local cricket association that has paid umpires? Does that mean that the cricket association executive and, indeed, the clubs that make up the association through delegates to the association committee, then come under this particular provision? As the volunteers, through the club employing the coach, or the volunteers through the club as a delegate to the association, has employed the umpires and the coach—what then is it?

Look at local football. In amateur football and country football there are players who get paid $1,000 a game, $1,500 a game; so, over a season they would get $25,000 to $30,000. Does that mean that, under this provision, the local football club, if it is paying players and paying coaches, suddenly comes under this provision? The minister can clarify that for us.

The other option relates to the service organisations. This says that 'none of the volunteers whether acting alone or jointly with any other volunteers employs any person'. I was national president of Apex. Nationally Apex employed a chief executive officer. Through the membership fees of the 18,000 members, it employed the chief executive officer. The local club to which they were affiliated (in my case Stirling Apex or Blackwood Apex)—those clubs—did not directly employ, but the associations to which they were affiliated did employ. In fact, they employed a membership officer, a chief executive officer and an accounts officer. Is the Apex club suddenly at the local club level caught by the legislation, even though the club itself does not employ, but as a collective across the nation it does employ, or, indeed, a collective across the state it does employ?

These things need to be clarified because it is simply unclear. It is also unclear what happens to unincorporated associations. This particular discussion paper says, 'Is a volunteer a worker?' The answer to that question, according to this discussion paper, is:

Yes, the definition of a worker includes a volunteer. The act also defines a volunteer to mean a person who is acting on a voluntary basis irrespective of whether a person receives out-of-pocket expenses, therefore volunteer workers have the duty of workers under the new laws, for example:

to take reasonable care for their own health and safety; and

comply with reasonable health and safety instructions.

If you were receiving out-of-pocket expenses, that is one thing, but what happens if you were receiving a payment which is greater than your out-of-pocket expenses? We would like the Treasurer to explain in detail the issues about exactly how this particular provision is going to apply to volunteers. The Treasurer might like to address that issue.

I think that we might be coming back tomorrow to debate this bill, so, in fairness to the Treasurer, I will quickly put some other questions on notice so that his staff, who have absolutely nothing to do tonight, can have a look at these matters overnight and see whether they can provide answers in the minister's second reading response.

These questions come from a number of issues, particularly around the issues of control and volunteers—those sorts of things. As part of the harmonisation project, the commonwealth government commissioned two reports from a panel of occupational health and safety experts. The panels were asked to review the OH&S legislation in each state, territory and commonwealth and to make recommendations on the optimal structure and content of the model OH&S act as capable of being adopted in all jurisdictions.

The first report was provided to the Workplace Relations Ministerial Council in October 2008. The second report was provided in January 2009. The ministerial council provided the response to the recommendations to the panel in early April 2009. These three documents set out the basis of the introduction of the model OH&S laws and should be referred to for guidance to the reasoning behind drafting of the current bill. These are the questions that the industry groups have asked me to raise.

In the first report [on page 30]—

this goes to the issue of 'reasonably practicable' and 'control'—

the panel discussed the concept of 'reasonably practicable' and the issue of control. At paragraph 5.60 the panel stated 'reasonably practicable represents what can be reasonably done in the circumstances. An inability to control relevant matters must necessarily imply that it is either not possible for duty holders to do anything, or it is not reasonable to expect them to do so. It is in this way that control is at least implied as an element in determining what is reasonably practicable'.

Further at paragraph 5.63, the panel stated 'Control is an inherent element in determining what can reasonably be done in the circumstances. Making express reference to control in the definition in reasonably practicable may have led to a focus on that issue, ahead of other factors noted in the definition.'

At paragraph 5.62 the panel stated 'there has been inconsistency in the interpretation by the courts of control as an element of a duty of care. However, there does not appear to have been inconsistency in the approach of the courts to considering the issue of control in determining what was reasonably practicable'.

The panel recommended that 'control' should not be included in the definition of reasonably practicable.

The question is:

If 'control' is something that will be considered by courts to determine what is 'reasonably practicable' for any duty holder, would the government please explain why it so strongly advocates that 'control' should not be first principle when determining whether a duty of care exists?

The second question is:

If the courts have been consistent in the interpretation of control as an element of a duty of care (as suggested by the panel), would the government please provide examples of such cases by reference to case law and to legislation?

In regard to primary duty of care they state:

At paragraph 6.59 of the first report, the panel states that 'defining what is meant by "conduct of a business or undertaking" might be difficult and could cause unintended consequences. We consider excluding certain individuals from the class of persons owing the duty of care to be a preferred approach.'

The questions are:

If the panel members and the government are not able to define what is a [person conducting a business or undertaking], then how is the ordinary everyday person meant to understand what it means and know whether they are a PCBU or not?

While it is relatively easy for us to determine who will be a 'person conducting a business', would the government please explain who will be a 'person conducting an undertaking'?

Does the government concede that the WHS Bill in its current format results in the ordinary person carrying out their day-to-day activities, being a person conducting an undertaking? If not, why not?

The panel recommended at paragraph 6.74 that the primary duty of care should not include express reference to control. It stated 'Every person who is conducting a business or undertaking should owe a duty of care to any other person, worker or other whose health or safety may be put at risk from the conduct of that business or undertaking'.

The panel went on to state at paragraph 6.76 'If a duty holder does not have control over an activity or a matter...then it cannot be reasonably practicable for the duty holder to do anything in relation to it.' At paragraph 6.78 the panel stated 'In this way, the duty of care is limited by the issue of control and it need not be stated in the duty.'

The questions are:

Would the government please explain why it refuses to insert the concept of 'control' into the primary duty of care?

Can the government explain how the removal of control as the primary trigger for a duty of care will guarantee worker safety?

What evidence does the government have that placing the concept of control into the primary duty of care will result in a lesser return on safety for workers?

What guarantees can the government give that the removal of 'control' from the primary duty of care will not lead to confusion in workplaces as to who has work safety responsibilities?

Can the government explain how the term PCBU will ensure that everyone in the workplace understands they have a shared responsibility for safety?

Can the government explain how replacing the tried and tested concept of 'control' with the totally unknown and untested concept of a PCBU will not lead to increases in deaths and injuries in South Australia?

I seek leave to continue my remarks.

Leave granted; debate adjourned.

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