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House of Assembly - Fifty-Third Parliament, Second Session (53-2)
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Work Health and Safety (Representative Assistance) Amendment Bill

Second Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Industrial Relations, Minister for Child Protection Reform, Minister for the Public Sector, Minister for Consumer and Business Services, Minister for the City of Adelaide) (17:14): I move:

That this bill be now read a second time.

Very briefly, this matter is slightly unusual; nevertheless, I rise to support this bill. This was a private member's bill introduced in the Legislative Council on 12 April by the Hon. Tammy Franks MLC, and the government has consented to permit the matter to proceed here in government time. The bill proposes to remove section 68(4) and related subsection (6) of the Work Health and Safety Act South Australia 2012. Section 68 of the act outlines the powers and functions of HSRs, which are to represent workers in the work group in matters relating to workers' health and safety, to monitor measures taken in relation to workers in the work group, to investigate complaints from members of the work group and to inquire into anything that appears to be a risk to the health or safety of workers in a group. Subsection (2) goes on to state:

In exercising a power or performing a function, the health and safety representative may—

(g) whenever necessary, request the assistance of any person.

The government supports the amendment on the basis that it will allow the representatives the ability to seek such assistance required when needed. The amendment also means that a person who is willing to provide assistance will be relieved of what, in hindsight, can rightly be viewed as a bureaucratic and time-consuming process. The amendments will also bring South Australia's WHS legislation back into harmonisation with other jurisdictions on this particular issue.

During the debate in the other place, the Hon. Rob Lucas discussed the original debate of these laws back in 2012. He noted that, in the Legislative Council at the time, the amendment proposed by the Liberal Party to include section 68(4) and (6) was not opposed by the government. That is true; however, the part of the Hansard record that the Hon. Rob Lucas omitted during debate in September is that it was accepted 'in the interest of progressing the legislation'.

Compromise was indeed the name of the game. In 2017, the Hon. Tammy Franks proposed an amendment to realign the provision with other jurisdictions, and the government is willing to support that attempt. The requirement for 'any person' to be specified as someone working at the workplace, involved in the management of the relevant business or undertaking or be approved as a consultant is not in place in any other jurisdiction and is not deemed as necessary. The concerns of submissions received have been noted; however, we are not convinced that the provision in its proposed form has created any extraordinary circumstances in other jurisdictions that cannot be adequately dealt with as they already are.

The Hon. Rob Lucas discussed at length the CFMEU and construction sites and how the amendment of this provision will cause further issues for this sector. Let us not forget that construction workers make up less than 10 per cent of the workforce and account for around 31 workplace fatalities each year, or about 15 to 20 per cent of all fatalities. Safety on these sites is critical, and safety representatives should have the ability to seek the assistance they require to increase the level of safety at their and their co-workers' workplaces. As the Hon. Tammy Franks points out, section 68 of the act does not deal solely with the CFMEU or the construction industry or, for that matter, any organisation or industry specifically. It is not a right of entry provision, which is the basis of a number of the court cases the Hon. Rob Lucas raised.

I do not propose to discuss the cases raised except to say that they relate to breaches of entry permits under the Commonwealth Fair Work Act, breaches which have been dealt with effectively by the courts, as the legislation enables. From a WHS perspective, the right of entry for these purposes is clearly provided for in the act, with rights, powers and penalties for the breach of these provisions for entry permit holders being clearly outlined. This bill in no way changes that. We seek the support of this house for the passage of the bill.

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (17:18): I rise to speak on the Work Health and Safety (Representative Assistance) Amendment Bill 2017 tabled here today and which originates with the Hon. Tammy Franks MLC in another place. As the Attorney has just pointed out, the bill attempts to remove a requirement for any qualifications or oversight of persons entering to provide safety assistance by way of the deletion of section 68(6) of the Work Health and Safety Act 2012; that is the South Australian legislation. The effect of this will also remove the SafeWork SA Advisory Committee's role. Further, the bill would create what is effectively a right of entry provision that avoids the important checks and balances of the applicable right of entry laws, particularly that the persons are fit and proper.

Essentially, the provision would operate to circumvent the checks and balances on union officials' conduct, which is set out in the commonwealth Fair Work Act 2009 in parts 3 and 4 and part 7, with the effect of diminution of the rule of law. Members would be only too well aware that the courts have found extreme lawlessness by union officials in South Australia, particularly in the construction industry, with the result that a number of union officials have lost their right of entry permits as a result of their conduct. Many of those matters arose under the pretence of safety grounds.

As the Law Society of South Australia has pointed out, there are a number of recent successful prosecutions in relation to right of entry breaches in the construction industry in South Australia. Some of the most recent cases include Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union No. 3, 2017 FCA 10; Director of the Fair Work Building Industry Inspectorate v Bolton No. 2, 2016 FCA 817; Director of the Fair Work Building Industry Inspectorate v O'Connor 2016 FCA 415; Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union 2016 FCA 414; and Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union 2016 FCA 413. That is a very telling list.

Importantly, if this amendment were to be passed, it would create a back door to the lawlessness on construction sites. So why is this being progressed? That is a good question. The Hon. Tammy Franks presents this as a bill that will have the effect of producing some harmony in the sense of the other states and the national work health and safety law. It is true that we had lengthy debates back in 2012 in which sections 68(4) and 68(6) of the act were amended and inserted, which had the direct effect of making South Australia different from the other jurisdictions.

It is sometimes presented as necessary to provide something that is streamlined for there to be efficient application of the law, that it be harmonised across the country, where we have a national scheme. It seems to be more in the breach than the observance. There are a number of tranches of legislation that we have signed up to in South Australia in an attempt to develop a national model with some consistency. The desirability of that is especially for national companies that operate in multiple state jurisdictions. Frequently, however, we do not allow the national standard to become the South Australian standard. We add in pieces and make amendments to strengthen the South Australian model relative to the national model.

The one I can remember that was the most hard fought and also recognised the significance of South Australia was the obligation under our health nationalisation—that is, the nationalisation of the health industries—when it came to opticians and people in the ophthalmology fields. There was an obligation under South Australian law for any person who purchased plano lenses, which are coloured lenses, cat's-eye lenses and all sorts of other playful adornments that come with optical lenses, to do so under prescription.

The reason for that is that obviously, if children buy them in the local show bag and apply them to their eyes and they get stuck, or there is some other injury as a result of that, then blindness is not something that is easily reversed. It was seen as serious enough that the South Australian standard should be maintained. Indeed, minister Hill, the minister for health at that time, said that that was going to remain in the South Australian legislation as we went into the national scheme, and we supported that. We were not going to go to the lowest common denominator of other jurisdictions.

There are occasions, whether it is nationalisation of transport laws or health laws or, in this case, safety and workplace laws, when we have a different standard or we have a different set of rules or we have experienced certain events that justify us having a different model to apply. That is exactly what happened here and that is something that I suggest has been supported by the history. We can see from this list of legislation, where there have been breaches, the importance of ensuring that we maintain standards in this state.

The bill, therefore, does not have the support of the opposition, and we will oppose it accordingly. Unsurprisingly, a number of stakeholders in this area have expressed disquiet about the bill, its motives and the effect that will occur in respect of continued behaviour which is seen as undesirable in entering the workplace via the back door, that is, without a permit.

It is important to note that in June this year the full Federal Court found that a CFMEU official who had called onto a Victorian construction site to assist a health and safety representative was not protected by the state's OHS laws and should have had a federal entry permit. That decision confirmed that union officials require a valid federal entry permit to enter a site under a state or territory occupational health and safety law, including where an HSR invites the official under the OHS law. Chief Justice James Allsop and Justices Richard White and David O'Callaghan found that the plain words of the legislation required union officials to have a valid entry permit regardless of occupational health and safety concerns.

I just want to make it clear that we have an agency in South Australia that is responsible for both the education standards and the enforcement and protection of persons on workplace sites, that is, SafeWork SA. This entity has had an interesting history, and today is not the time to go into the detail of that, but I make this point: they are the workplace police. They are the state agency that has responsibility to ensure, as best as possible, employers comply with the rules, that employees and other visitors to the sites of workplaces enter in a safe circumstance, that there is appropriate training and the like and that, where there is a breach of obligation, there are warnings, prosecutions or the like.

That is their job. So if a member of the workforce, either employer or employee, has any concern about the occupational health and safety, or in particular if there is some breach of standard or practice that is operating, then they have a specialised agency to which they are entitled to report, and in fact frequently are obliged to report, especially if it is to implicate themselves and their area of responsibility to ensure that they do all that can be done to ensure that their workplace remains safe.

The work sites obviously also have work health and safety representatives, who are instrumental and play a very important role in ensuring the general implementation of the rules and that standards are employed and that, for example, if new people come on site, or are inducted for the purposes of either delivering material to the site or working on the site, they follow the appropriate training and the like.

As the Attorney points out, we are not talking here about just construction sites. There are other areas of significant risk, whether it is in manufacturing or abattoirs. There are lots of areas where a person, who is either working on the site or indeed just entering the site could be putting themselves or others at risk if they are not properly trained, prepared, inducted and compliant. It may be something as simple as wearing suitable safety clothing or protective gear. It may be much more serious, of course, in respect of the operation of a heavy vehicle and equipment. So the opposition will oppose this bill with the reassurance that there are a number of laws and provisions by SafeWork SA to ensure that, as best we can, we have protection for people in the workplace.

I want to mention one other thing in relation to work health and safety and the significance of what has been happening right here at our back door, namely, at the Royal Adelaide Hospital site, a new building erected over a 10-year period. To my knowledge, there have been two deaths on that site, which have been recognised by a plaque on the site. There may be others, but they are the two I am aware of and both involved the death of employees when using and/or operating a scissor lift, and the consequences have been tragic.

I am concerned, and other members should be concerned, that if we are really serious in this place about ensuring that appropriate standards are employed on work sites, especially when they are working under contract by the government, who are supposed to be model citizens when it comes to their operations, the highest standards should be employed.

To find that there had been a prosecution over two years in respect of the death of the construction worker Jorge Castillo-Riffo and that it was abandoned just before it commenced trial, and then followed an inquiry by the government and the release only of recommendations and the keeping of that report secret, I consider to be shameful. It is completely inadequate for the government to justify it by saying to the people of South Australia that they are doing everything they can to ensure that even in their own contracts workplaces are safe. Clearly, they are not.

I have had this discussion with Mr Aaron Cartledge, who is a member of the CFMEU—I think he is still their head—as to why on earth his own union had not complained, not just about the long delay in relation to the prosecution of this matter but then its abandonment, and what the practices were in operation by SafeWork SA post the death of these two workers. To be perfectly frank, he seemed to be quite dismissive of it: 'That is just a matter for SafeWork SA.' This is a man who is supposed to be in charge of the protection of his workers, his own union.

I find it extraordinary that we have a government that has the responsibility for and the opportunity to commission and contract major projects in this state, not just in construction but in the construction field, for the purpose of this exercise because it is a workplace that has significant risks. We know that, and yet we are unable to find out what has happened in that regard.

I can talk about all sorts of other safety in the workplace issues. The Salvemini case comes to mind. I am not going to be spending time on that tonight, but it is another case where the government I think have utterly failed to follow through and ensure that where there have been identified areas of failure—I am not saying 'blame' at this point but 'failure'—they have not followed every rabbit down a burrow. That is what they should be doing and spending their energy on, making sure that this does not happen again.

I am utterly appalled that since the Premier has thrown off SafeWork SA issues, the SafeWork deaths information is all put off into the Attorney-General's portfolio now. It is out of the Premier's area, and what do we find? We find that in 2016, 23 people died in South Australia in workplace deaths. I have been here for 15 years and each year I have a look at this statistic. It is usually around 10 or 12. It has now blown out to 23. This year, by the end of August, there were already 12. I do not know what is going on but there seems to be a much bigger issue that needs to be looked at here by the government in respect of workplace safety, particularly as some of the most alarming cases are in respect of worksites which are either a party to a contract or operating them.

That is deeply disturbing—to think that we would have South Australia now in a situation where we must be the state that has the mantle of the most dangerous place to work. I think that is shameful and I think that the government ought to be spending their attention on that, rather than progressing legislation of this nature. I oppose the bill.

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Industrial Relations, Minister for Child Protection Reform, Minister for the Public Sector, Minister for Consumer and Business Services, Minister for the City of Adelaide) (17:38): I thank the deputy leader for her contribution.

The house divided on the second reading:

Ayes 24

Noes 16

Majority 8

AYES
Bedford, F.E. Bettison, Z.L. Bignell, L.W.K.
Brock, G.G. Close, S.E. Cook, N.F.
Digance, A.F.C. Gee, J.P. Hamilton-Smith, M.L.J.
Hildyard, K.A. Hughes, E.J. Kenyon, T.R. (teller)
Key, S.W. Koutsantonis, A. Mullighan, S.C.
Odenwalder, L.K. Piccolo, A. Picton, C.J.
Rankine, J.M. Rau, J.R. Snelling, J.J.
Vlahos, L.A. Weatherill, J.W. Wortley, D.
NOES
Chapman, V.A. (teller) Duluk, S. Gardner, J.A.W.
Goldsworthy, R.M. Griffiths, S.P. Knoll, S.K.
Pederick, A.S. Pengilly, M.R. Pisoni, D.G.
Sanderson, R. Speirs, D. Treloar, P.A.
van Holst Pellekaan, D.C. Whetstone, T.J. Williams, M.R.
Wingard, C.
PAIRS
Caica, P. Redmond, I.M.

Second reading thus carried.

Third Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Industrial Relations, Minister for Child Protection Reform, Minister for the Public Sector, Minister for Consumer and Business Services, Minister for the City of Adelaide) (17:47): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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