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House of Assembly - Fifty-Second Parliament, Second Session (52-2)
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WORK HEALTH AND SAFETY BILL

Final Stages

The Legislative Council agreed to the bill with the amendments indicated by the following schedule, to which amendments the Legislative Council desires the concurrence of the House of Assembly:

No. 1. Clause 2, page 13, line 6—Delete 'a day to be fixed by proclamation' and substitute:

1 January 2013

No. 2. Clause 17, page 21, after line 29—Insert:

(2) A person must comply with subsection (1) to the extent to which the person has the capacity to influence and control the matter or would have that capacity but for an agreement or arrangement purporting to limit or remove that capacity.

No. 3. Clause 34, page 32, after line 32—Insert:

(a1) To avoid doubt, an officer of a prescribed strata/community titles corporation who is a volunteer does not commit an offence for a failure to comply with a duty under section 27 (but may be liable for a failure to comply with another duty under this Act).

No. 4. Clause 34, page 33, after line 2—Insert:

(4) In this section—

prescribed strata/community titles corporation means—

(a) a body corporate established under the Strata Titles Act 1988 or the Community Titles Act 1996; or

(b) a company that holds land for the purposes of a building unit scheme consisting of 2 or more properties designed for separate occupation where the buildings comprising the scheme were erected before 22 February 1968.

No. 5. Clause 68, page 46, after line 9—Insert:

(3a) Subsection (2)(g) does not extend beyond—

(a) a person who works at the workplace; or

(b) a person who is involved in the management of the relevant business or undertaking; or

(c) a consultant who has been approved by—

(i) the Advisory Council; or

(ii) a health and safety committee that has responsibilities in relation to the work group that the health and safety representative represents; or

(iii) the person conducting the business or undertaking at the workplace or the person's representative.

No. 6. Clause 68, page 46, after line 11—Insert:

(5) In this section—

consultant means 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.

No. 7. Clause 72, page 48, lines 27 to 29—

Delete 'The person conducting a business or undertaking must, if requested by a health and safety representative for a work group for that business or undertaking, allow the health and safety representative to attend' and substitute:

A health and safety representative is entitled to take at least the prescribed number of days per year off work for the purposes of attending

No. 8. Clause 72, page 48, line 35—After 'conducting the' insert 'relevant'

No. 9. Clause 72, page 48, after line 35—Insert:

(1a) The person conducting a business or undertaking must, at the request of health and safety representative for a work group for that business or undertaking, allow the health and safety representative to attend a course of training under subsection (1) (after undertaking the consultation referred to in subsection (1)(c)).

No. 10. Clause 72, page 49, after line 21—Insert:

(8) For the purposes of this section, the prescribed number of days, in relation to a health and safety representative, is—

(a) during the first year of the health and safety representative's term of office—5 days; and

(b) during the second year of the health and safety representative's term of office—3 days; and

(c) during the third year of the health and safety representative's term of office—2 days,

(and if the health and safety representative is re-elected at the end of a term of office then paragraphs (a), (b) and (c) will again apply during that new term of office).

No. 11. Clause 117, page 64, lines 18 and 19—Delete subclause (2) and substitute:

(2) 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.

(3) Furthermore, a WHS entry permit holder must—

(a) give consideration as to whether it is reasonably practicable to give notice to the Executive Director about the proposed entry before exercising a power under subsection (1) in order to provide an opportunity for an inspector to attend at the workplace at the time of entry; and

(b) if it is reasonably practicable to give notice to the Executive Director about the proposed entry, comply with any requirement prescribed by the regulations in relation to giving such a notice under this section.

(4) The Executive Director must establish and maintain a policy that relates to the circumstances when inspectors will attend at workplaces when notified of the proposed entry of WHS entry permit holders under this section.

(5) The Executive Director must ensure that the policy is published on a website that is maintained or used by the Department and the Minister must cause a copy of the policy to be laid before both Houses of Parliament.

(6) If a WHS entry permit holder exercises a power of entry under this section without being accompanied by an inspector who has attended at the workplace under subsection (5)—

(a) the WHS entry permit holder must furnish a report on the outcome of his or her inquiries at the workplace to the Executive Director in accordance with the regulations; and

(b) on the receipt of a report under paragraph (a), the Executive Director must give consideration to what action (if any) should be taken on account of any suspected contravention of this Act outlined in the report.

No. 12. Clause 118, page 65, lines 1 to 4—Delete subclause (2) and substitute:

(2) However—

(a) the right of a WHS entry permit holder to require copies of a document under subsection (1)(d) is subject to any direction that may be given by an inspector (which may include a direction that copies of a document not be required to be made and provided to the WHS entry permit holder); and

(b) the relevant person conducting the business or undertaking is not required under subsection (1)(d) to allow the WHS entry permit holder to inspect or make copies of a document if to do so would contravene a law of the Commonwealth or a law of a State.

No. 13. Clause 120, page 65, after line 38—Insert:

(6) However, the right of a WHS entry permit holder to require copies of a document under this section is subject to any direction that may be given by an inspector (which may include a direction that copies of a document not be required to be made and provided to the WHS entry permit holder).

No. 14. Clause 123, page 66, line 22—Delete '$10,000' and substitute '$20,000'

No. 15. Clause 171, page 82, line 23—After 'inspector' insert:

, subject to the operation of section 172

No. 16. Clause 172—Delete this clause and substitute:

172—Protection against self-incrimination

A person is excused from answering a question or providing information or a document under this Part on the ground that the answer to the question, or the information or document, may tend to incriminate the person or expose the person to a penalty.

No. 17. Clause 173, page 83, line 24—Delete 'warn' and substitute 'advise'

No. 18. Clause 173, page 83, lines 26 to 29—Delete subclause (2)

No. 19. Clause 274, page 115, line 33—After 'if' insert:

the Minister is acting on the recommendation of the Advisory Council and

No. 20. Clause 274, page 115, after line 37—Insert:

(2a) In connection with the operation of subsections (1) and (2)—

(a) the Small Business Commissioner must be consulted before a code of practice is submitted to the Minister under this section so that the Commissioner may assess whether the code of practice would affect small business if implemented and, if so, provide any comments or advice that the Commissioner considers to be appropriate in the circumstances (including that the code be varied); and

(b) if the Small Business Commissioner recommends that a code of practice be varied, the Minister may make such a variation without the need to adopt the process envisaged by subsection (2) (but may undertake such consultation in relation to the matter as the Minister thinks fit).

No. 21. Clause 274, page 116, after line 17—Insert:

(7) An approved code of practice or the variation of a code of practice is subject to disallowance of Parliament.

(8) The Minister must ensure that each approved code of practice or variation is laid before both Houses of Parliament within 6 sitting days after it is published in the Gazette.

(9) If either House of Parliament passes a resolution disallowing an approved code of practice or the variation of a code of practice, then the code of practice or variation ceases to have effect.

(10) A resolution is not effective for the purposes of subsection (9) unless passed in pursuance of a notice of motion given within 14 sitting days (which need not all fall with the same session of Parliament) after the day on which the code of practice or variation was laid before the House.

No. 22. New Division, page 117, after line 31—Insert:

Division 4—Reviews

277—Reviews

(1) The Minister must cause a review of the operation of this Act to be conducted as soon as practicable after the expiry of 1 year from its commencement.

(2) The review under subsection (1) must include a specific report on the extent to which inspectors have attended at workplaces under section 117 and an assessment of the operation and effectiveness of the policy established by the Executive Director under that section.

(3) The Minister must then cause a second review of the operation of this Act to be conducted as soon as practicable after the expiry of 3 years from its commencement.

(4) The results of a review under this section must be embodied in a written report.

(5) The Minister must, within 6 sitting days after receiving a report under subsection (4), cause a copy of the report to be laid before both Houses of Parliament.

Consideration in committee.

The Hon. J.W. WEATHERILL: I move:

That the Legislative Council's amendments be agreed to.

Ms CHAPMAN: I simply indicated that what we have before us now is the agreement with Independents and the government in another place to put forward the passage of this bill. It is a piece of legislation that we suggest will not serve the people of South Australia well, and will particularly compromise those who seek to work outside of an employer/employee circumstance.

Certainly, from our side of politics, we have highlighted the intrusion both to the home and the right to be able to operate as a private subcontractor; all of that is on the record. We do not endorse this bill as amended, and look forward to achieving government so that we can remedy this for the people of South Australia.

The CHAIR: Premier, do you wish to respond?

The Hon. J.W. WEATHERILL: Yes; I do not think I can agree to the latter proposition. Can I say, though, that this bill strikes at the heart of the purpose of the Labor Party, which is the protection of people in the course of their daily employment, so that they can return home whole and well after performing a day's work. These are much needed reforms. They are responsive to national reforms which have received the backing of the most significant employer groups in the nation. They are pursuant to a national system of harmonisation of—

Mr Marshall: There's nothing national about them.

The Hon. J.W. WEATHERILL: The Australian Industry Group, one of the largest employer groups in the nation, supports this and, indeed, most other states have now passed legislation pursuant to this national scheme.

Mr Marshall: That's not correct.

The Hon. J.W. WEATHERILL: Well, it happens to be correct.

Mr Marshall interjecting:

The CHAIR: Members on my left had an opportunity to speak uninterrupted. The Premier has actually closed the debate on this.

Ms Chapman interjecting:

The CHAIR: Thank you, member for Bragg, for endorsing my action.

Motion carried.

Ms CHAPMAN: I want to raise a point of order, Mr Deputy Speaker. We received amendments from another place. The Premier advised that the government accepted those amendments. We then spoke and then you, Mr Deputy Speaker, under leave of some kind, without asking the parliament, allowed the Premier to speak again. I just note for the record that I did not hear you give leave to allow the Premier to speak twice on the amendments, but you did.

The DEPUTY SPEAKER: My impression was that everybody was happy to have the matter go through. I am not sure what your point of order is. I am not clear on your point of order.

Ms CHAPMAN: That the Premier spoke twice.

The DEPUTY SPEAKER: The Premier spoke to the amendments that came from the Legislative Council. You had an opportunity to speak and the Premier just responded to the issues you raised.

Ms CHAPMAN: But the Premier had already spoken on the amendments.

The DEPUTY SPEAKER: You could have made another contribution if you wanted to, but you indicated that you had finished.

Ms CHAPMAN: I had not been invited to do so. Just so that we have it on the record, you invited the Premier to speak first and he said, 'We support the amendments,' or words to that effect, a brief contribution nonetheless. You then invited me, or anyone from the opposition obviously, to speak, and I did. You then allowed the Premier to speak again. I just ask on what basis you asked the Premier to speak again (twice) on the amendments without seeking the leave of the committee.

The DEPUTY SPEAKER: I am advised by the Clerk that he was entitled to do so.

Ms CHAPMAN: To speak twice?

The DEPUTY SPEAKER: Yes.

Ms CHAPMAN: I will take that, thank you, if that is your clarification.

The DEPUTY SPEAKER: I am advised by the Clerk that, even though we took all the amendments as one question, up to three contributions are allowed per question in committee. My understanding was that he spoke to the motion and you gave the opposition's view on the amendments. I gained the impression that you were the only speaker who wished to speak on this matter. You spoke unfettered and the Premier just closed the debate—finished.

Ms CHAPMAN: I just make the point, Mr Deputy Speaker, that we are not actually dealing with a proposed amendment of the government or any other party: we are actually dealing with the amendments as presented from the other place. The government succinctly indicated via the Premier that it consented to the amendments and we then spoke. That is the end of the matter in respect to that. I do not see any opportunity for anyone else to speak twice on the same information.

The DEPUTY SPEAKER: I am advised by the Clerk that members are entitled to three contributions per question in committee.

Ms CHAPMAN: No, three questions per amendment.

The DEPUTY SPEAKER: No, three contributions per amendment or per question, and we dealt with all those amendments as one question.

Ms CHAPMAN: Yes, we did.

The DEPUTY SPEAKER: You could have spoken again if you so desired. I inferred from your actions that you did not wish to speak any further.

Ms CHAPMAN: I did not; I just want to seek clarification. What you are saying is that you can speak three times—not even a question.

The DEPUTY SPEAKER: You can make three contributions per question before the Chair in committee.

Ms CHAPMAN: Excellent. Thank you.

The DEPUTY SPEAKER: Standing order 364.

Ms CHAPMAN: I will be making use of that in future.

The DEPUTY SPEAKER: You have, I can assure you. If you want me to restrict that to three, I am happy to do so in future.


At 17:55 the house adjourned until Tuesday 13 November 2012 at 11:00.


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