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

Committee Stage

In committee.

(Continued from 19 October 2011.)

Clause 2.

The Hon. I.F. EVANS: I bring to the attention of the committee that I think that both an old set and a new set of amendments have been tabled. As far as the opposition is concerned, the amendments that we will be working off are 113 draft (3). They have actually tabled draft (2) and draft (3). Draft (2) can be thrown away. It is 113(3) that we will be working off, just so it is as clear as mud for everyone.

The CHAIR: What about draft (4), member for Davenport?

The Hon. I.F. EVANS: And (4), that is fine, but (2) is out.

The CHAIR: We are moving with (3) and (4)?

The Hon. I.F. EVANS: We are doing (3) and (4) when I get to them.

The CHAIR: So, (2) is withdrawn?

The Hon. I.F. EVANS: Which is nothing new to the government; we have not changed since we tabled them the last time.

The CHAIR: I understand.

The Hon. I.F. EVANS: Clause 2 deals with the commencement of the act, which is on a date to be fixed by proclamation. The government had previously been advocating the commencement of this act and the associated provisions in it to start from 1 January 2012; so, four or five weeks' time. My understanding is that the New South Wales' government in the last fortnight has announced that it is now putting on hold the commencement of its equivalent act, and Western Australia and Victoria have put on hold their equivalent acts. Can the minister please advise the government's intention as regards the commencement date of this act?

The Hon. J.J. SNELLING: My advice is that the only states that have not committed to the commencement of 1 January 2012 are Western Australian and Victoria. It is the government's intention for the commencement to be on 1 January 2012.

The Hon. I.F. EVANS: Has the government finished its consultation on all the draft codes? Are all the codes finalised ready to go in five weeks' time?

The Hon. J.J. SNELLING: All the priority codes have been signed off and there has been extensive consultation undertaken.

The Hon. I.F. EVANS: In between houses, can the minister provide us a list of what the priority codes are? I don't need it now but just so that we know which ones are priority codes and which ones are not priority codes and when will the non-priority codes be signed off.

The Hon. J.J. SNELLING: The codes that are to commence on 1 January 2012 are how to manage work health and safety risks; consulting workers; consulting and cooperating and coordinating with others on work health and safety matters; managing the work environment and facilities; managing noise and preventing hearing loss at work; hazardous manual tasks; confined spaces; how to manage and control asbestos in the workplace; how to safely remove asbestos; how to prevent falls in the workplace; labelling of workplace hazardous chemicals; and preparation of safety data sheets for hazardous chemicals.

Clause passed.

Clause 3.

The Hon. I.F. EVANS: Clause 3 sets out the objects of the act. In amongst the objects of the act there is a new word brought in. It is in clause 3(1)(c): 'assisting persons conducting businesses or undertakings'. I understand what a business is. 'Undertaking' is a new concept in legislation to South Australian occupational health and safety law. There is no case law on it as far as we are aware. I am wondering whether you can describe to me how an undertaking is different to what is done by way of a business.

The Hon. J.J. SNELLING: It is simply to reflect the change in the workplace over the last several years. Originally occupational health and safety was predicated on an employer/employee relationship but our workplaces have changed and you now not only have employer/employee relationships but you also have relationships such as labour hire, franchisor/franchisee relationships, partnerships, and the term 'undertaking' is meant to be all encompassing to take into account the various types of relationships which this bill proposes to cover.

The Hon. I.F. EVANS: I'm sorry, minister; you are going to have to walk me through this. Franchises are businesses, franchisors are involved in businesses, partnerships are involved with businesses, labour hire is involved with businesses, so all of those are covered by the business wording, which is 'persons conducting businesses'. All of those things you have just described are people conducting businesses. What I want to know is: what are people conducting undertakings that are outside businesses? That is what I cannot define or have clear in my mind—what we are actually talking about.

The Hon. J.J. SNELLING: An example of an undertaking that is not a business is a not-for-profit organisation.

The Hon. I.F. EVANS: I'm sorry, is the advice from the government that a not-for-profit organisation, because it is not making a profit, is not a business, it is an undertaking? I cannot believe that is the answer because, for instance, all the not-for-profits—Minda, Red Cross, Amnesty International—are running significant enterprises employing hundreds if not thousands of people. They are all registered with OCBA and the various government agencies as businesses.

There is nothing in the definition that says businesses have to be profit-making or for profit. Red Cross, Amnesty and all of those not-for-profits are covered under the existing occupational health and safety legislation because they employ 300, 100 or 200 people or whatever it is. Meals on Wheels is another one, with their employed staff. What I cannot get my head around—and we have been here 15 minutes on this very simple concept; it is one of the biggest changes in the bill—is that somehow—

The Hon. J.J. Snelling interjecting:

The Hon. I.F. EVANS: No, it is because it flows—

The Hon. J.J. Snelling interjecting:

The Hon. I.F. EVANS: The minister smiles, but the word 'undertaking' flows through to every duty, every liability, every responsibility in the act. Now, if the minister cannot explain to me what an undertaking is, and the shadow minister cannot explain what an undertaking is, then how is the business community, in the next five weeks, meant to understand what an undertaking is? A not-for-profit-entity is not defined as an undertaking; many of them are still businesses. So, what is an undertaking? I ask the minister the question again: give me an example an undertaking that is not a business—that is not already covered under 'the persons conducting a business'.

The Hon. J.J. SNELLING: One that immediately springs to mind is a trade union, which I do not think would consider itself a business but obviously would have the same obligations put under it with regard to the health and safety of its employees as a commercial business. With regard to—

The Hon. I.F. Evans interjecting:

The Hon. J.J. SNELLING: Obviously, because he does not really understand the bill, the member for Davenport is just trying to cause a bit of a distraction because he wants to argue for the rest of the afternoon basically about the number of angels that can dance on the head of a pin, with regard to what may be an undertaking and what may not. The simple concept is to broaden the range of entities that would be covered by this legislation. We simply introduce a new concept, that being 'an undertaking'.

With regard to the examples that the member for Davenport was talking about, sure, those organisations would have aspects of their operation which would be considered to be businesses, but the operation itself, I think, would not strictly have a definition of being a business. I do not think an organisation like a trade union would consider itself to be a business as such, but rather 'an undertaking' would be a better definition.

Another example would be a local government entity—a council—which would not strictly be called a business. The point is not that these other non-business entities have not been covered by the previous legislation, of course they have, but the whole purpose of the legislation is to try and establish a new concept about workplace relationships with the concept of PCBU, which is a person conducting a business or undertaking. It is meant to be more all encompassing. I am amazed that the member for Davenport could find it so controversial.

The Hon. I.F. EVANS: Well, Treasurer, chip away with your little remarks, that is fine, but, having run a business, I know how words can have different meanings in different circumstances. I am going to ask questions, and the fact that we have had to sit here for 15 minutes trying to work out what an 'undertaking' is, is damning in itself.

The reality is that local government is covered by the current act, unions are covered by the current act, and the word 'persons' according to the Act Interpretations Act includes companies and a whole range of things if you look it up. All of those things that you have just mentioned are covered. You are trying to broaden the net and we cannot get a clear example, and the simple point I make (and I will move on from this clause) is that it is not clear to anyone what a person—whether that is an entity or an actual person, it can be either—is doing when they are conducting an undertaking.


[Sitting extended beyond 17:00 on motion of Hon. J.J. Snelling]


The Hon. I.F. EVANS: The point is, that people out in the community are going to be going about their normal activity, whether that is in volunteer organisations, in unincorporated associations, or in informal groups and, if they are conducting an undertaking, they inherit certain responsibilities and obligations under the bill. If they do not know that they are conducting an undertaking for the purposes of the bill, then they are exposed to liabilities and duties to which they have no knowledge. That is where I am coming from. I think I have made my point. I have no need to hold the committee any longer. We can put this clause to the vote, Mr Chairman, and go on to clause 4.

The Hon. J.J. SNELLING: I cannot really add much more to what I have already said; that is, simply there are examples of entities, where the laws of occupational health and safety have to be observed, which I think strictly speaking would not normally be described as entities. I think of the Crown, local government organisations, and not-for-profit organisations such as trade unions, which I think would generally not be considered to be businesses. That is not to say that previously occ health and safety laws have not applied in those non-business entities, but this is just simply a refinement of the language to reflect new realities.

Clause passed.

Clause 4.

The Hon. I.F. EVANS: There is an amendment in my name, which is amendment No. 1 and as amendment No. 4 is consequential—it is to do with the volunteer issue—I will speak to the principle of both on the basis I will lose the amendment, because I think the government will be opposing them. That will knock out two amendments in one. I am speaking to amendment No. 1, which inserts the words 'volunteer association means a group of volunteers working together for one or more community purposes;'.

One of the issues raised with this bill is its treatment of volunteers. The definition of volunteers according to the government's bill is 'a volunteer association means a group of volunteers working together for one or more community purposes when none of the volunteers, whether alone or jointly with any other volunteer, employs any person to carry out work for the volunteer association.'

We seek to amend that by putting in a different interpretation. The different interpretation we seek to put in is 'volunteer association means a group of volunteers working together for one or more community purposes'. What is effectively deleted from the government's bill is 'where none of the volunteers, whether alone or jointly with any other volunteer, employs any person to carry out work for the volunteer association'.

To make it simpler for the committee I will leave my contribution there. I will let this go to a vote, which I understand I am losing, and then when we get to clause 5 I will quiz the minister about the government's definition. That will make it quicker and simpler for the committee. Can you clarify this for me, Mr Chairman: if I lose the amendment, can I then come back and ask questions on other portions of clause 4? Clause 4 at that point is unamended and not passed.

The CHAIR: You need to ask them now.

The Hon. I.F. EVANS: Do I ask them before or after I have moved the amendment?

The CHAIR: I think you need to ask them before, because I think it will be treated as one clause and you will be struck with the three question rule. However, we need to deal with the minister's amendment first. That comes first, so we need to do that one first. Sorry; I should have picked that up earlier.

The Hon. J.J. SNELLING: I move:

Page 15, after line 1 [clause 4]—Insert:

or

(j) a law of another Australian jurisdiction corresponding, or substantially corresponding, to this Act; or

(k) a law of another Australian jurisdiction brought within the ambit of this definition by the regulations;

The amendment alters the definition of the term 'corresponding WHS law' in clause 4. This amendment will ensure that model WHS legislation in other states, territories and the commonwealth is recognised for the purposes of the South Australian model act. This recognition is relevant, as it will allow inspectors appointed in other jurisdictions to be recognised in the South Australian jurisdiction where that is appropriate.

Originally the bill contemplated recognising other model WHS legislation by regulation. It has been agreed nationally that this recognition is better placed within the body of the act, which is consistent with the New South Wales Work Health and Safety Act passed on 1 June 2011 and the Queensland Work Health and Safety Act passed on 26 May. The intent and outcome of the provision remain the same.

Amendment carried.

The Hon. I.F. EVANS: I just want to make some comments in relation to clause 4. Clause 4 is the definition clause. Of course, by changing the definition slightly, all those definitions then flow through all the various meanings in the clauses in which they appear and change the act accordingly. I just bring to the attention of the house some of the more interesting or key changes.

One, in particular, is a new definition of what is going to be covered by the word 'health', which is now going to include psychological health, which will be another battle for employers who are now going to be more prescribed in their obligations in relation to psychological health and their duty about that.

The other issue is to engage in conduct. They have defined engaging in conduct to also mean not doing something or omitting to do something. So, for non-action—doing absolutely nothing—you can be seen to be actually, in fact, for the purpose of the act, engaged in a conduct.

I note with interest that they have defined an association of independent contractors as a union. I am sure that Ken Phillips will be very impressed that he is now heading up a union of independent contractors. I am not sure what a non-independent contractor would do. I am not sure why the word 'independent' is in there. It brings in a whole new legal meaning—for what purpose, I am not sure.

There are about 17 or 18 other changes. I will not go through them because of the lateness of the hour, but they are probably the two or three key ones that I think will have some impact on businesses down the track.

I also notice they have introduced a definition of substance which includes any natural substance. Employers are now going to be responsible for some results of injuries that occur through the result of natural substances. We will come to that question in due course when we get to that clause, but maybe, Mr Chair, we can go to a vote on my amendment and that will be enough for clause 4. Accordingly, I move:

Page 17, after line 26—Insert:

volunteer association means a group of volunteers working together for one or more community purposes;

The Hon. J.J. SNELLING: The government is opposed to the amendment standing in the name of the member for Davenport. The bill states that volunteer associations are not considered to be conducting a business or undertaking for the purposes of the bill—that is contained in clause 5 of the bill—except where they employ a person to carry on work for the association. Once they employ someone, the duties under the bill apply to both employees and to volunteers.

Under the proposed amendments, a volunteer association that employs a person would need to ensure, so far as is reasonably practicable, the health and safety of its employees but not its volunteers. This is an equally absurd result, and surely the health and safety of volunteers is equally as important as that of paid employees.

Further, the volunteer association would need to ensure, as far as reasonably practicable, that the health and safety of other persons is not put at risk by the work of the people it employs but not its volunteers. Surely an association should ensure that its volunteers do not put the health and safety of others at risk when they carry out work for the association. These amendments would result in the lowering of community safety.

Amendment negatived.

The Hon. I.F. EVANS: I move:

Page 17, lines 27 and 28—Delete the definitions of WHS entry permit and WHS entry permit holder

This is actually the first line in the bill where the government introduces union rights of entry to every workplace in the state, even those activity centres that are simply doing undertakings, whatever they are. The unions, under this bill, will be able to go in. We do not have union rights of entry in South Australia under OH&S legislation. This is simply an intrusion into every business by every union for membership recruiting and the like. We all know the game. We have always opposed it in South Australia. It will be nothing new to the government that we are proposing this amendment to abolish it from the bill.

So we are crystal clear, in the occupational health and safety legislation there are government-employed independent inspectors to look after the safety of workers. Hear, hear! The taxpayers pay for them as a service so there is the right balance of safety and activity on all sorts of worksites and I will call them 'undertaking centres'. The reality is there is no need for the unions to have rights of entry in relation to occupational health and safety. The taxpayers fund an independent service.

This particular provision is the first provision within the bill that brings in the union rights of entry. All that is going to happen if this occurs is that there will be conflict between employers and employees—and, indeed, the independent inspectors, because what is the role, ultimately, of the independent inspector versus the union representative? There is simply no need for it.

This comes from the Eastern States where the militant unions, on the back of Labor governments there in the last decade, have done over the system and won themselves entry rights into the workforces. This is one of the areas where Business SA, the motor traders, the Hotels Association, the Restaurant & Catering Association (because we talked to them) and a whole range of business associations are absolutely opposed to this—and so they should be. There is absolutely no reason why the unions should be getting special rights of entry into every workplace and, under the government's provision, indeed, every area where there is an undertaking being conducted.

If you read very carefully the definition of clauses, it very carefully tries to explain that unions cannot get access to your workplace if it is in an area that is being used solely for a residential purpose. The reality is that if you have got a home office, if you look at the definition of 'workplace', it is actually anywhere someone is working or is likely to work. Say you have an architect's business running from home and you have a home office, you are likely to work right through that premises. You will be taking phone calls in the kitchen, the printer will be in the other room and you will be all through the house doing your work from time to time and, because of that, the union will get access to that area.

It is very carefully worded. I commend the drafting of the explanation of clauses. It is very carefully worded, but it says, 'Don't worry; the unions won't get access to where it's solely used as a residence.' Well, as if that is some concession; neither they should. But, hello: you may be doing an undertaking, whatever that is. You may be a house cleaner. Is a house cleaner being paid? Is that an undertaking? Can the unions come in Friday and chat to my cleaner, my gardener or whatever is happening in my home? On the basis of this the answer is yes, because it is not solely being used for a residential purpose.

I know that I am being a bit picky. I am picking out all these words, but they layer like a cake. What happens is that they say, 'Well, the unions can access where there is business activity.' If you are running a home office or someone is working in your home, it is clearly going to be defined as a workplace. Certainly, it will be an undertaking, whatever that is.

The opposition is absolutely, totally opposed to this issue of the unions getting access to the workplace when we have an independent, taxpayer-funded, properly-trained inspectorate, and their sole job is not to recruit members but their sole job is to make sure that the workers and the employers have proper safety systems in place. We move the amendment and we totally oppose the unions getting access.

The Hon. J.J. SNELLING: The government opposes the amendment standing in the name of the member for Davenport. The model Work Health and Safety Act includes union right of entry for work health and safes purposes. Other states and territories also provide for a union right of entry for occupational health and safety purposes. Right of entry is an important feature of the nationally harmonised legislation because it extends the opportunity for effective representation on workplace safety.

It is not sufficient to rely on health and safety representative arrangements in existing legislation, because those powers and responsibilities are confined to the work group and do not extend to the broader workplace. HSR is not available in all workplaces, and the right of entry provisions ensure that workers have an additional source of advice on occupational health and safety issues.

The bill provides that a union official may enter to inquire into a suspected contravention, inspect employee records and consult and advise workers in relation to work health and safety. Prior notice is not required to inquire into a suspected contravention. Before exercising a right of entry, a union official must have undergone prescribed training and must have a permit issued by the authorising authority, which in this state will be the Industrial Relations Commission of South Australia.

There are protections in place for misuse of right of entry. Disputes about right of entry can be referred to an inspector or the authorising authority. Union right of entry provisions are consistent with current right of entry provisions for industrial relations purposes in the commonwealth Fair Work Act 2009. Union officials are already entitled to enter workplaces in South Australia under the commonwealth Fair Work Act 2009 and the state Fair Work Act 1994.

The bill simply provides that an appropriately-trained union official who is already entitled to enter workplaces for industrial relations purposes may also enter workplaces for work health and safety purposes. Opposition to the right of entry provisions in this bill appear to be predominantly ideological.

The committee divided on the amendment:

AYES (14)
Chapman, V.A. Evans, I.F. (teller) Gardner, J.A.W.
Goldsworthy, M.R. Griffiths, S.P. Hamilton-Smith, M.L.J.
Marshall, S.S. Pederick, A.S. Pisoni, D.G.
Sanderson, R. van Holst Pellekaan, D.C. Venning, I.H.
Whetstone, T.J. Williams, M.R.
NOES (20)
Atkinson, M.J. Bedford, F.E. Bignell, L.W.
Breuer, L.R. Caica, P. Conlon, P.F.
Foley, K.O. Fox, C.C. Geraghty, R.K.
Kenyon, T.R. Key, S.W. O'Brien, M.F.
Odenwalder, L.K. Portolesi, G. Sibbons, A.L.
Snelling, J.J. (teller) Thompson, M.G. Vlahos, L.A.
Weatherill, J.W. Wright, M.J.
PAIRS (8)
Pengilly, M. Rankine, J.M.
Redmond, I.M. Hill, J.D.
McFetridge, D. Rau, J.R.
Treloar, P.A. Koutsantonis, A.

Majority of 6 for the noes.

Amendment thus negatived; clause as amended passed.

Clause 5.

The Hon. I.F. EVANS: Clause 5 tries to explain the meaning of a person conducting a business or an undertaking. Within clause 5 is this provision:

A business or undertaking conducted by a person includes a business or undertaking conducted by a partnership or an unincorporated association.

Does the word 'association' mean that you actually have to have a constitution or a set of rules? I know what an incorporated association is: that is something that is incorporated under the Associations Incorporation Act and there is a constitution, but what is an unincorporated association for the purposes of the law? It is not defined anywhere.

'Unincorporated' is clear. It is something that has not been incorporated as per the Associations Incorporation Act, so one can only assume that it is an informal group of people. There is a concern in my view about what that is. The real concern for me—

An honourable member: He's not even listening.

The Hon. I.F. EVANS: He is getting advice. The real concern for me is indeed when we get down to subclauses (7) and (8) of this particular clause, that is, 5(7) and 5(8). Clause 5(1) provides:

(1) For the purposes of this Act, a person conducts a business or undertaking—

Subclauses (7) and (8) provide:

(7) A volunteer association does not conduct a business or undertaking for the purposes of this Act.

(8) In this section—

volunteer association means a group of volunteers—

so it cannot be one; it must be a group—

working together for one or more community purposes where none of the volunteers, whether alone or jointly with any other volunteers, employs any person—

And 'person' under the Associations Incorporation Act means entities, companies and a whole range of things, as well as people—

to carry out work—

which is not defined—

for the volunteer association.

I raised a whole range of questions in my second reading contribution in relation to this issue, and the minister has not come back with any clarification, so we will do it in committee.

There are a whole range of issues with this, as I see it. One is that if you are part of a national association that employs a chief executive officer, and the chief executive officer is in Sydney but the national association has branches everywhere, do the volunteers in South Australia whose memberships contribute to the employing of that chief executive inherit then—are they covered? Do they then come into the act? This is not a new question. I put this on the record two or three weeks ago. That has not been clarified to me.

The other issue is the issue of—and I will specifically ask this question because one of my local netball clubs has asked me to—the employment of coaches. Does that mean all the netball volunteers come in? If they employ a netball coach, do all the netball volunteers come into it? To my mind, the real danger here is what happens, for instance, to your local community football. If the footballers are paid $5,000 or $10,000 for a season ($250, $500 a match), and some of the footballers declare it as hobby income (and therefore not employment), and other footballers declare it as income (and therefore employment income), how does the football club know?

If the football club or netball club are employing their players on a hobby income basis, and the player then declares it as employment income for their tax purposes, does that then mean that the netball or football club comes into the provisions of the act?

The other issue I raised in my second reading contribution was out-of-pocket expenses. In the explanation of clauses—not in the bill—there is a bit of an issue, and it is this: in relation to costs for a volunteer, you are allowed to pay a volunteer out-of-pocket expenses, so they must have expensed something, and you can reimburse them; that is the nature of out-of-pocket expenses. The clause note provides:

'out-of-pocket expenses' are not defined but should be read to cover expenses an individual incurs directly in carrying out volunteer work (e.g. reimbursement for direct outlays of cash for travel, meals and incidentals) but not any loss of remuneration—

This is the catch:

Any payment over and above this amount would mean that the person was not a volunteer...

I have served on plenty of committees where the honourable secretary has received an honorarium. It is not a reimbursement for expenses: it is simply a contribution because they recognise that there is a workload. For instance, it might be the hall secretary having to take the bookings and go down and unlock the hall, and go back at 1.00am on Saturday night after the 21st and relock the hall. So, it is an honorarium rather than an expense.

The bill is silent and unclear, and the way the explanation of clauses reads is that, if someone receives an honorarium, it is not an out-of-pocket expense and they are no longer a volunteer. The issue for me is that this clause is very confusing. We have done sporting clubs, we have done the honorarium and the issue of community groups who employ one employee, and I think I heard the Treasurer right in saying that if they employ any one employee, then the whole organisation and all of the volunteers come into OH&S provisions.

I just want to get this clear: the surf lifesaving clubs who employ a CEO and then conduct their activity on the beaches have to provide a safe environment as far as reasonably practicable on the beach because, according to this act, they have to provide it where others may go near the workplace. I just want to make sure I am getting this right: that they will actually inherit some liability and duty under this act.

I also want to clarify what happens to my local cricket association, which pays cricket umpires. Does that mean then, because they are paid umpires for cricket for 15 or 20 Saturdays, that they inherit an OH&S responsibility for those organisations? None of this would be new to the Treasurer, but I was hoping he might have brought back an answer at the start of this session, so I have re-asked the questions.

The Hon. J.J. SNELLING: Because we went straight into committee there was not an opportunity to provide an answer, but I do have answers, and I am happy to answer the member for Davenport's questions with regard to volunteers. A volunteer will retain volunteer status if the honorarium is not in the form of director's fees or other fees for services rendered. Clause 5 of the bill makes it plain that a volunteer association is not a PCBU unless they employ a person.

Simple payment of a genuine honorarium is not, in employment law, considered to be employment. So, the short answer to the member for Davenport's question is no. The other question is with regard to volunteers: whether, with employers or workers, the key legislative criterion in the bill for whether a volunteer association is a PCBU is whether a volunteer association employs a worker. The bill only places duty of care obligations on volunteer organisations to protect workers when they become employers.

Those duties will apply for the period of time that the association is an employer. Critical points are: every employee should have occupational health and safety protection whomever they are employed by; volunteer associations that employ staff have similar health and safety duties under the current occupational health and safety act; the bill reduces red tape by removing the confusing responsible officer provisions in the current act; and a volunteer officer of an association cannot be prosecuted for a breach of officer duties.

The CHAIR: Member for Davenport, does that clarify?

The Hon. I.F. EVANS: No; it clarified only one thing. Treasurer, can you explain to me the circumstances in the example I gave, where a national or state association employs one chief executive paid for by the memberships of members? What is the OH&S liability of the clubs? I will give you an example. Let's say that Lions South Australia employs one employee. Blackwood Lions Club, through its volunteers, runs a second-hand mart, and through their membership fees the chief executive is employed by the state Lions committee, but is the CEO of the whole organisation, and they are affiliated. Does that mean that the Lions mart then becomes, in essence, caught by all the provisions in this act?

The Hon. J.J. SNELLING: The short answer to the question is yes. If you had a national organisation which employed one chief executive, comprising various branches consisting of volunteers, then, yes. There is an employment relationship that would make the organisation a PCBU and therefore it will come under the ambit of the bill or the act. However, the responsibility for ensuring the compliance with the provisions of the act would be held by the national organisation.

The volunteer normally could not be prosecuted for a breach of the provisions of the act, certainly not prosecuted in the sense that an officer could be prosecuted. The responsibility for ensuring compliance though the whole organisation would rest with the national organisation, with the head office, so to speak, of the association.

The Hon. I.F. EVANS: Sorry, Treasurer. In relation to the examples of the various sporting clubs, they have asked me to clarify how this applies to your cricket umpires, your netball coaches. What are the implications for the volunteer groups?

The Hon. J.J. SNELLING: Are you asking about honorariums? Is that what you are trying to get at?

The Hon. I.F. EVANS: You have answered on honorariums. No, the issue is the Hills Cricket Association employs umpires. As the association employs the umpires, how does the act apply to the association president, who is a volunteer, and the committee that employs the umpires, and what obligations then does the umpire have in relation to the people around the umpire?

Then you can go to your football coach or your football player and the other issue I raise, and I will ask you this question and then get the advice on both: what happens when the players are paid $250 a game, the club understands they are declaring it as hobby revenue and therefore not income, but the player for some reason declares it as income for tax purposes? Does that then bring the liability back because they have suddenly become an employee because they have declared it as income for tax purposes? How do those two issues pan out under this legislation?

The Hon. J.J. SNELLING: I will start with the question about what happens if a footballer for some reason declares his income an honorarium. The fact that that footballer has declared it as part of his income tax does not change it from being an honorarium. It just means he has made a declaration of income that he did not need to declare. Under the case law it still remains an honorarium and therefore nothing is altered by the fact that he has made a declaration.

With regard to volunteer presidents and how they might be liable, volunteers generally cannot be prosecuted for a breach under the act of officer duties and so, if the president is a volunteer, then the provisions in there for volunteers would apply to them, and so under those circumstances the president could not be prosecuted.

With regard to the responsibility of the umpire or coaches—I think the member for Davenport talked about the Hills Cricket Association—if it is an employment relationship and the association is employing the umpires, the umpire has the same responsibilities as any other worker under the act which are, basically, to take appropriate care of themselves.

The Hon. I.F. EVANS: For the sake of the record, I do not need to speak to it, but I will move the amendment standing in my name:

Page 18, lines 19 to 24—Delete subclauses (7) and (8) and substitute:

(7) A volunteer association does not conduct a business or undertaking for the purposes of this Act except to the extent (if any) that it employs a person to carry out work for the volunteer association (and, in such a case, a volunteer will not be taken to be a worker carrying out work for the purposes of the business or undertaking).

Amendment negatived; clause passed.

Clause 6.

Progress reported; committee to sit again.

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